Art. 2. Definitions.

for having induced the purchase by fraud. He says there is a broken contract, which would afford a remedy for the purchaser, but there is also deception, to the injury of the purchaser in procuring the contract to be made. The suit may be brought on contract ignoring fraud, or it may be brought for the fraud not counting upon the contract, though the contract will necessarily be shown in order to make appear how the deception was injurious. "The tort in such a case is connected with the contract only as it enabled the tort feasor to bring the party wronged into it."

In such cases the tort is dependent upon, while at the same time independent of, the contract; for if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon a contract. 1 Addison on Torts, 17.

Judge Finch, in Rich v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 382 (390), says: "We have been unable to find any accurate and perfect definition of a tort. Between actions plainly ex contractu and those as clearly ex delicto there exists what has been termed a border land, where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other, and become so nearly coincident as to make their practical separation somewhat difficult. (Moak's Underhill on Torts, 23.) The textwriters either avoid a definition entirely (Addison on Torts), or frame one plainly imperfect (2 Bouvier's Law Dict. 600), or depend upon one which they concede to be inaccurate, but hold sufficient for judicial purposes. (Cooley on Torts, 3, note 1; Moak's Underhill; 1 Hilliard on Torts, 1.) By these last authors a tort is described in general as "a wrong independent of contract."

Such actions were primarily divided into two classes, distinguished as actions ex contractu and ex delicto. The actions known as detinue, trespass, trespass on the case, and replevin were those used in causes of action arising from torts, and were described as actions ex delicto. Trespass on the case was the appropriate form of remedy for all injuries to persons or property which did not fall within the compass of the other forms of action. Hegerich v. Keddie, 99 N. Y. 258.

Every one is under obligation: (1) To abstain from willful injury; (2) To respect property rights; (3) To act with reasonable and proper care. Erwin Summary of Torts, 19.

Art. 2. Definitions.

Bishop says (8 19): "The foundation of common-law principles are, in substance, that every man is free to be active, pursuing his own interests and happiness, and using his own property as he will, without being answerable for casual and unmeant injuries resulting to others; provided, that he does not, even unintentionally, deal with another's property as his own, that neither purposely nor carelessly does he so use his own as unnecessarily to prejudice another, and that neither negligently nor especially from an evil motive does he harm another in person or reputation, in a manner and degree within the law's cognizance. Thus qualified, for all wrongs done to others with injurious intent, even for all which proceed from indifference whether harm is done or not, and for all evil consequences to others which result from the doer's want of care in conducting his own affairs, he is answerable to the sufferer. In the nature of things, these general principles are not alone adequate guides for all possible cases; but they enable us the more intelligently to trace the minuter lines which judicial decision has drawn, and to determine the true law where the adjudications differ or otherwise there is doubt."

The business of the law of torts is to fix the dividing lines between those cases in which a man is liable for harm which he has done, and those in which he is not. But it cannot enable him to predict with certainty whether a given act under given circumstances will make him liable, because an act will rarely have that effect unless followed by damage, and for the most part, if not always, the consequences of an act are not known, but only guessed at as more or less probable. All the rules that the law can lay down beforehand are rules for determining the conduct which will be followed by liability if it is followed by harm,— that is, the conduct which a man pursues at his peril. The only guide for the future to be drawn from a decision against a defendant in an action of tort is that similar acts under circumstances which cannot be distinguished except by the result from those of the defendant, are done at the peril of the actor; that if he escapes liability, it is simply because by good fortune no harm comes of his conduct in the particular event. Holmes, 79.

It may be granted that an omission to perform a contract obligation is never a tort unless that omission is also an omission of a legal duty. But such legal duty may arise not merely out of

Art. 2. Definitions.

certain relations of trust and confidence, inherent in the nature of the contract itself, but may spring from extraneous circumstances, not constituting elements of the contract as such, although connected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud. It has been well said that the liability to make reparation for an injury rests, not upon the consideration of any reciprocal obligation, but upon an original moral duty enjoined upon every person so to conduct himself, or exercise his own rights as not to injure another.

*

Whatever its origin, such legal duty is uniformly recognized, and has been constantly applied as the foundation of actions for wrongs; and it rests upon and grows out of the relations which men bear to each other in the framework of organized society. * * The whole doctrine is accurately and concisely stated in 1 Chit. Pl. 135, that "if a common-law duty results from the facts, the party may be sued in tort for any negligence or misfeasance in the execution of the contract." Rich v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 382, at 398-399.

Underhill regards the tortious element as consisting in the doing of an act not authorized by law, or the doing of something which one ought not to do under the law; where such act or omission infringes a right, or interferes with the enjoyment to which another is entitled, or causes such other some substantial loss of money, health, or material comfort beyond that suffered by the rest of the public.

Moak's Underhill (p. 10) lays down as a rule that a man is guilty of a tort who, without authority or excuse, either:

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(a) Wittingly or unwittingly does any act, or makes any written or verbal statement, which infringes upon any absolute right of another person.

"(b) Wittingly or unwittingly does any act which is forbidden by law.

"(c) Omits to do something which a reasonable man would do, or does something which a reasonable man would not do. (d) Makes any false statement, either written or verbal, to another, with intent to deceive.

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(e) Omits to make any statement with intent to deceive in cases in which there is a legal duty upon him to make such statement."

Art. 2. Definitions.

At page 20, Pollock states his views as to what constitutes a tort. He says: "Tort is an act or omission (not merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related to harm suffered by a determinate person in one of the following ways:

"(a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.

"(b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting.

"(c) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should, with due diligence, have foreseen and prevented.

"(d) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound, absolutely or within limits, to avoid or prevent."

Bigelow says (§§ 25, 28, 52, 7th ed.), the various kinds of duty involved in the different torts are capable of being grouped into three classes upon a helpful basis. The three classes may be put thus:

1. Lawful acts done by wrongful means. 3. Events caused by negligence.

2. Unlawful acts.

As to the first class, it matters not what means may be employed so long as they are wrongful; as to the second class, it is unimportant as to the means employed so far as the right of action is concerned; as to the third class, it consists in a breach of duty through negligence.

An act or omission may be wrong in morals, or it may be wrong in law. It is scarcely necessary to say that the two things are not interchangeable. No government has undertaken to give redress whenever an act was found to be wrong, judged by the standard of strict morality; nor is it likely that any government ever will. Cooley, 3.

The ways in which one may become liable to an action as for tort are the following:

1. By actually doing to the prejudice of another something he ought not to do.

2. By doing something he may rightfully do, but wrongfully or negligently doing it by such means or at such time or in such manner that another is injured.

Art. 3. Classification.

3. By neglecting to do something which he ought to do, whereby another suffers an injury. Cooley, 64.

Actions for torts will lie in several different classes of cases, such, for instance, as for an injury to the person or to personal rights; for the wrongful taking or conversion of personal property; for an injury to personal or real property, and the like cases. The right of action for a tort is generally founded, either upon an invasion of some legal right of person or property, or on the violation of some duty toward the public which has resulted in some damage to the plaintiff, or on the infraction of some private duty or obligation which has been productive of damage to the complaining party. 1 Wait's Actions and Defenses, 132.

Chief Judge Parker in City Trust Co. v. American Brewing Co., 174 N. Y. 486 (488), quotes the maxim of Justinian that "The maxims of law are these: to live honestly, to hurt no man, and to give every one his due," saying that ever since that time it has been a leading object of jurisprudence to compel wrongdoers to make reparation, and that it is a general rule of law that a person commits a tort and renders himself liable for damages who does some act forbidden by law, if that act causes another substantial loss beyond that suffered by the rest of the public.

ARTICLE III.

CLASSIFICATION.

Sir Frederick Pollock has attempted to reduce the Law of Torts to certain general principles, and prescribes a threefold division. He says: "There are wrongs affecting a man in the safety and freedom of his own person, in honor and reputation, or in his estate, condition, and convenience of life generally; the word estate being here understood in its widest sense, as when we speak of those who are afflicted or distressed in mind, body, or estate.' There are other wrongs which affect specific property, or specific rights in the nature of property; property, again, being taken in so large a sense as to cover possessory rights of every kind. There are yet others which may affect, as the case happens, person or property, either or both." And proceeds to group these wrongs under the heads respectively of "personal wrongs," wrongs to property," "wrongs to personal estate and property generally," and comments that, generally speaking, the wrong in