however, upon an action in tort, the matter is now largely statutory.22 The more important question arises in connection with the definition of the right; that is to say, what is plaintiff's cause of action. If the injury is a direct invasion of a right, then the cause of action is complete upon defendant's wrongful conduct. Damages follow thereupon immediately as a necessary consequence.123 Where, however, the law will not presume damage, and plaintiff's cause of action is complete only when damages conforming to legal requirements have been actually suffered, then the cause of action is complete upon the happening of such damage. There is no inconsistency between this proposition and the further one that in the same proceeding a plaintiff can recover for both damages which arose prior to the commencement of his action and subsequent thereto.425 New damage may create new causes of action,428 but damages for one cause of action are indivisible.427 424 there the trespass is joint or several at the pleasure of plaintiff." Id. Generally, as to effect of release by death of one of several entitled to entire damages. 422 "Death by Wrongful Act," post, p. 330. 423 Mitchell v. Colliery Co., 10 Q. B. Div. 457, 52 Law J. Q. B. 394. But see City of Dallas v. Young (Tex. Civ. App.) 28 S. W. 1036. Post, p. 335, "Statute of Limitations." 424 Bonomi v. Backhouse, 36 E. C. L. 653. Mr. Justice Brewer has stated the principle with great clearness. "Where the original act itself is no invasion of the plaintiff's rights, then there is no cause of action unless such act has caused damages; and the right of action dates from that time. On the other hand, * where the original act is unlawful, and an invasion of the plaintiff's right, the cause of action dates from that act, and a new cause does not arise from new damages resulting therefrom." Kansas Pac. Ry. Co. v. Mihlman, 17 Kan. 221. 425 It is not so easy to reconcile the general proposition with the right of plaintiff in conversion to recover as damages the value of the thing converted into a more valuable form. Post, p. 737, "Conversion," "Remedies," "Compensatory Damages." This rule, however, goes rather to the extent to which plaintiff may recover, than to his right to recover. 126 "Damages," post, p. 405. 427 "Damages," post, p. 404. Tort Defined. GENERAL SUMMARY. Mr. Pollock has summarized much of the substance of the foregoing discussion in the following remarkable (and elaborate) definition of a tort: "A tort is an act or omission (not being 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 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 with limits, to avoid or prevent. "A special duty of this kind may be (1) absolute; (2) limited to answering for harm which is assignable to negligence."428 Elements Essential to Recovery in Tort. Recovery can be had in tort, it would seem, only when the following elements of a cause of action are shown: (a) Parties. (1) Plaintiff not disentitled by his own wrong or consent. (2) Defendant not personally irresponsible when personal responsibility is essential, and not within admitted exceptions or exemptions. (b) A legal duty recognized by trial court as owed by defendant to plaintiff. (c) A violation of that duty in fact by defendant. 428 Pol. Torts, p. 19. (d) Damage to plaintiff conforming to the standard of the law as the proximate result, except when, on proof of mere violation of duty, the law infers damages. Classification of Torts. Since the law of torts has reached a stage of development in which the general principles have been separated from specific torts, a number of bases of classification have been suggested.429 The classification which will be substantially-not literally-followed in this book is that of Mr. Pollock, viz.: 430 429 This arrangement of Mr. Pollock conforms to his analysis of duties owed. Ante, p. 91, note 352. It has the great practical advantage of conforming also to current deeply-imbedded conceptions of rights and wrongs, and of using the terms which are familiar to the profession, constantly written by judges, and almost invariably employed by digesters and text writers. The objections to Mr. Bishop's original division of "noncontract law" is that it does not conform to this standard, and fails to cover quasi torts. And there is enough new and old law to master, without requiring the feat of acquiring an eccentric order. This criticism applies equally to the arrangement of Mr. Piggott. Mr. Innes' remarkable outline is subject to the same comment in perhaps even a greater degree, but it contains most material contributions to the advancement of the subject. All these systems pay tribute in greater or less degree to the fertile suggestions of Dr. O. W. Holmes, Jr. His arrangement in 7 Har. L. R. 48663 (amplified in the "Common Law"), was specifically the basis of Mr. Bigelow's book on Leading Cases (see preface), and therefore of Ball's Leading Cases on Tort. 430 The principal departures from this order are: (1) The omission of subdivision 2, in group B,-i. e. interference with patents, copyrights, et sim; (2) in the discussion of wrongs in group B, under (a) trespass and (b) conversion; (3) in the consideration of disturbance of easements under group C, as part of nuisance; and (4) in treating subdivisions 2 and 3 of group C-that is, negligence and breach of duty to insure safety-as one topic. The first change is necessitated by prescribed limits of this book. The second and third changes, whatever their theoretical defects may be, have been found by actual experience to conduce to clearness in the understanding of the average class. The change as to wrongs to easements avoids the "tendency of a book on torts to become a treatise on easements." Moreover, such wrongs partake of the nature of both trespass and nuisance, and can consequently be fully understood only when considered in connection with both of these subjects. The third change is made because of the degree to which American courts have denied the doctrine of Rylands v. Fletcher, L. R. 1 Exch, 265, and legislatures have modified it. GROUP A. Personal Wrongs. 1. Wrongs affecting safety and freedom of the person: Assault, battery, false imprisonment. 2. Wrongs affecting personal relations in the family: Seduction, enticing away of servants. 3. Wrongs affecting reputation: Slander and libel. 4. Wrongs affecting estate generally: Deceit, slander of title. Malicious prosecution, conspiracy. GROUP B. Wrongs to Property. 1. Trespass: (a) to land. (b) to goods. Conversion and unnamed wrongs ejusdem generis. GROUP C. Wrongs to Persons, Estate, and Property Generally. 1. Nuisance. 3. Breach of absolute duties specially attached to the occupation of fixed property, to the ownership and custody of dangerous things, and to the exercise of certain public callings. This kind of liability results, as will be seen hereafter, partly from ancient rules of the common law of which the origin is still doubtful, partly from the modern development of the law of negligence. 36. 37-38. 39-41. 42-43. CHAPTER II. VARIATIONS IN THE NORMAL RIGHT TO SUE. 35. Variations Based on Privilege of Actor, or General Exemption. Public Acts-Acts of State. Conduct of Legislators. Conduct of Judicial Officers. Conduct of Executive Officers. 59-60. 61. 62. 63-64. Municipal and Quasi Municipal Corporations. Corporations, not Municipal, Engaged in Public Works. Variations Based on Conduct of Plaintiff. Wrongdoing by Plaintiff. 65. Consent. VARIATIONS BASED ON PRIVILEGE OF ACTOR, OR GEN ERAL EXEMPTION. 35. Under this head will be considered: (a) Public acts, including (1) Acts of state; (2) Conduct of legislators; (3) Conduct of judicial and quasi judicial officers; (4) Conduct of executive officers. (b) Private acts, authorized (1) By statute; (2) By common law. |