THE NATURE OF TORTS.

An entirely satisfactory definition of a tort has never been achieved. The term is used to designate a body of wrongful acts and omissions—such as assault and battery, slander and libel, trespass, the maintenance of nuisances, negligence which are, as a whole, wrongful for some other reason than that they violate contractual obligations. Because the most general and most distinctive characteristic of this class of acts is that they are unlawful and injurious without regard to the existence of contractual relations, a tort is sometimes, rather roughly, defined as a wrong which is independent of contract. To say, however, either that everything is a tort which does not violate a contract, or that nothing is a tort which involves a breach of contract, would be widely incorrect and very misleading. The most useful method of apprehending the nature of torts is to consider the various wrongs classified under that name, and, by a comparison of their general features, to form a more or less complete and accurate conception of a tort. This conception, whether or not we shall be able to reduce it to a precise definition, will at the worst serve in the stead of a definition.

Etymology. The word tort is derived, (through the French, where it means wrong), from the Latin verb torquere, to twist or wring, of which the supine form is tortum; whence we have such words as distort, contort, torsion and torture (which was usually performed by twisting the limbs). The mental process from the original to the derivative sense of the word is identical with that by which in English the word wrong is derived from wring; thus in Wycliffe's translation of the Bible (circa 1380) a wry or twisted nose is a "wrong nose." The essential idea embodied in the word tort is, therefore, that of wrong, something which is wrung or twisted from what is right or straight; as from the Latin rectus we have rectitude or straightness, and in current colloquial usage a person or an act is stigmatized as crooked when he or it is not straight, that is, what he or it

ought to be. And so late as the reign of Queen Elizabeth the word tort signified, in Spenser's poetry at any rate, any wrong or injury.

In modern usage, however, this word has become altogether a technical term of the law; and, while it still conveys the import of wrong, departure from rectitude, violation of right and breach of duty, it is by no means applicable to all the forms of misconduct and delinquency which are covered by such phrases, but is limited to wrongs of a certain character which are technically classed as torts.

Difficulty of Definition. The difficulty in defining the term is due to the fact that the class of wrongs to which it is applied seems, on the surface at least, to have no certain character or recognizable uniformity of quality, those wrongs being of so diverse nature and variant incidents, and in many instances so closely coinciding with wrongs which are other than tortious, that it is hard to discern any characteristic as common to the whole class and by which a tort may be distinguished from every other species of wrongful conduct. Thus, some torts involve positive or even forcible action, as battery and false imprisonment; others are the mere omissions to act, as negligence. In some instances a tort is in its very nature morally wrong, as deceit and seduction; in others the tort may be, and often is committed, without any intentional or conscious wrongdoing, as in trespass, slander, and conversion. Many torts are also crimes, as assault and libel, and negligence which is sometimes the equivalent of manslaughter; while other torts, such as slander and deceit, are not criminal unless by reason of adventitious circumstances or exceptional legislation, and negligence, in some circumstances, involves no criminality. Again, in some cases, the tort is closely associated with a breach of contract and seems to be precisely identical with such breach; thus, the failure of a common carrier to carry safely goods entrusted to him is a breach of his contract, and yet the delinquency is also a tort. So of divers derelictions of professional duty on the part of attorneys, surgeons and certain other classes of persons, whose neglect of business assumed by them is tor

tious, though it may also involve the failure to observe contractual obligations. This heterogeneous body of wrongs cannot be defined in terms which shall either include or exclude acts, or failures to act, crimes or behavior not criminal, moral delinquencies or conduct not morally culpable, breaches of contract or derelictions of duty wholly unrelated to contracts. Again, as we shall see in the more detailed study of the subject, there are some wrongful acts which render the wrongdoer liable in damages although his misconduct causes no actual loss to the injured party; while in other cases tortious behavior affords no cause of action unless the person affected thereby has sustained some measurable material damage.

Common Characteristics. Two features, however, will be observed as common to all the wrongs which have been mentioned, and will be found in all other torts.

First: In every case the wrong done constitutes a grievance for which the injured party may have redress by means of a civil action, brought by himself and for his own benefit, and brought in a court of common law. The tort may be also a crime, as assault and battery, that is to say, an offence which is deemed injurious to the right of the public, and which is therefore punishable in a criminal proceeding instituted by the state to redress the wrong done to the public. But, at the same time, the delinquency, if it be a tort, is such an infringement of some individual's private right that it is a civil wrong, and the sufferer may obtain damages for the injury to himself by a private action brought in his own name and in a common law court having cognizance of civil matters. So too, in some instances, the person injured by a tort may have some kind of redress or relief in another court than one of common law; thus an equity court may grant an injunction against the maintenance of a nuisance, or a decree of divorce against an unfaithful spouse. But that is not exclusive of a common law action to recover damages for the injurious results of the nuisance or against the adulterer for the seduction of the wife; and, viewed in this aspect, the maintenance of a nuisance and the commis

sion of criminal conversation are torts, though for them some form of remedy is afforded otherwise than by the common law.

Second: In every case of tort the wrongdoer's conduct is wrongful because it is the breach of some duty which is imposed by the law, as distinguished from the breach of a duty which is affirmatively assumed by him. Thus, where a man commits an assault, or publishes a libel, or trespasses upon the land or goods of another, his act is wrong, not because he has agreed that he would not do what he does, but because the law prohibits him to do that thing. The obligation to refrain from the tortious conduct is independent of any assent, assumption or other voluntary act on his part. It will be observed, however, that this obligation which is created by the law, though independent of the tortfeasor's agreement on the subject, is not necessarily exclusive of some contract and some contractual obligations in the transaction. It may be that the duty which the law prescribes is imposed because a contract exists. Thus, where a common carrier accepts goods for transportation, there is a contract, express or implied, to carry them safely and deliver them according to direction; and for a failure in either of these respects, the carrier is liable as for a breach of contract. At the same time, once the goods are accepted, the law imposes upon the carrier a duty which, though substantially identical with that assumed by his contract, is independent of his contractual obligation and has relation chiefly to the public character of the function which he undertakes to perform. It results then, that, besides the obligation which the contract imposes on the carrier and which may afford cause for an action on the contract, there is another obligation created by the law, for a breach of which the carrier may be liable as for a tort. So, in some cases, a contract may be the means by which a tort is committed, as where one sells goods with a false warranty as to title or quality. Here, the goods proving to be other than as warranted, the vendor is liable as for a breach of contract; but, if the other necessary elements are present in the transaction, he may be liable also for an injurious deceit practised upon the purchaser and made feasible by means of the deception effected by the false warranty.