80 all. For instance, I shall be held accountable for the acts of my servant or agent, if done within the course of his employment, though I not only never sanctioned them, but expressly forbade their commission.27 My horse may break his halter and wander upon my neighbor's land.28 I may set off a blast and hurl a mass of rock upon his property.29 A ferocious animal belonging to me may escape from his cage and bite a passerby. In all these cases I must respond in damages, though I have exercised all the care imaginable to prevent the harm. So, too, if one agree to sell me a certain ox, he having one animal in mind and I another, and after paying the price I take possession of the ox which I believe I have bought, I have infringed his right of property, though I did so honestly.31 Again, if I purchase premises where there are some hot house plants which, contrary to my belief, do not belong to the seller, I will be liable if I refuse to deliver the plants, though the day after, learning that they are not my property, I offer to return them to the owner.32 Unlawfulness of Violation Although the statement may appear tautological, it is well to emphasize that the violation of the legal right must be unlawful. To strike another is an invasion of his right of personal security; but if in defense of self, or of one's property, it is excusable.33 To destroy the house of another will ordinarily give rise to a cause of action; but houses may be torn down for the purpose of preventing the spread of a conflagration. Entry upon another's land will usually constitute trespass; but entry is allowed when a highway becomes obstructed from temporary causes,35 or where the party entering does so for the purpose of saving property in danger of loss by the elements.30 In these and other cases the law, from motives of public policy and for the common good, will permit private rights to be overridden. The subject will 27 See infra, p. 212. 28 See infra, p. 347. 29 See infra, p. 346. 31 Hobart v. Hagget, 12 Me. 67, 28 Am. Dec. 159. 32 CARPENTER v. MANHATTAN LIFE INS. CO., 22 Hun (N. Y.) 47, Chapin Cas. Torts, 200. 33 See infra, pp. 258, 262. 84 See infra, p. 106. 85 See infra, p. 107. 1 be discussed later, when we come to the defenses which may be interposed to the various tort actions. ASSUMPTION OF MORAL DUTIES 6. Though a right be not primarily enforceable, yet if the corresponding duty be voluntarily assumed, the law may impose an obligation as to the method of performance. Scope of Principle At first blush this principle may seem self-contradictory, or at best to cover only cases of contract, but this is not so. Take the case of a physician. No law, as we have seen, would compel him to give relief to the suffering. But if he undertake to treat a patient, and fail to exercise the proper degree of care and skill, he will be held accountable.37 So, too, while a merchant may not be compelled to sell even to a starving man, yet if he does so, and the article contains a concealed defect, known to him, which renders its use imminently dangerous, his responsibility to the purchaser injured thereby is well established.3 38 Suppose a trespasser on the tracks of a railroad company is injured without the fault of the company's employés, who leave him lying where he fell. There is here no liability resting upon the railroad. But assume, in addition, that the conductor and brakeman attempt to bind up his wounds, and do so in a brutal and bungling manner. Now, no duty required them to render any aid at all; but, having undertaken to do so, it is but fair that they should be held to the exercise of reasonable care.3 39 So where plaintiff, an intoxicated passenger, is assisted by the conductor and trainman, on leaving the car, up a flight of 87 Randolph's Adm'r v. Snyder, 139 Ky. 159, 129 S W. 562. Also an attorney. Lawall v. Groman, 180 Pa. 532, 37 Atl. 98, 57 Am. St. Rep. 662. 88 See infra, p. 517 et seq. 39 Union Pacific Ry. Co. v. Cappier, 66 Kan. 619, 72 Pac. 281, 69 L. R. A. 513. steps from the platform to the sidewalk. At about the fifth or sixth step they leave him, and he falls and is injured. Here, again, conductor and trainman were under no legal obligation to remove the plaintiff from the car or to provide for his safety; but they have undertaken to do so, and a duty assumed is not less than one imposed. Indeed, the duty which is assumed need not, as will be seen when negligence is discussed, be a moral one. The circumstances are exceptional under which I would be required by any principle of ethics to invite a friend for a ride. But, having invited him, I become bound to take proper care in the management of the horse and vehicle. 40 VIOLATION OF CONTRACT DUTIES 7. As the duties whose violation constitute a tort are imposed by law irrespective of the volition of the parties, they must be distinguished from obligations which are assumed by agreement. Tort and Contract As has been intimated, the right violated must have been created and the corresponding duty imposed by law; for, if right or duty trace its origin to an agreement of the parties, the violation will not be viewed as a tort, but as a breach of contract. In the first case the consent of the parties does not enter into the question at all. If A. strike B., a cause of action is given, not because of any agreement upon A.'s part to refrain from the commission of this act, but because the right of personal security given by the law to B. has been violated. Indeed, B.'s permission that A. might strike him, as in cases of duels, would constitute no defense to a suit by B. against A., since there can be no valid consent to a breach of the peace. Hence, we repeat, to determine the form in which redress must be sought, whether in an action in tort or on contract, it is necessary to ascertain source or ori 40 Black v. New York, N. H. & H. R. Co., 193 Mass. 448, 79 N. E. 797, 7 L. R. A. (N. S.) 148, 9 Ann. Cas. 485. 41 See infra, p. 116. 42 gin. If it be found that right or duty was created independent of the consent of the parties concerned, the action is in tort; if because of such consent, it is on contract.13 Thus, where defendant had induced plaintiff to bid on the construction of a railway by promising to sell rails at a fixed figure, falsely representing that he had already procured the rails, it was held that any cause of action was on contract. Had defendant supplied the rails, there would have been no injury, and hence the promise could not be separated from the statement of fact. The damage was here caused by nonperformance, which was the gist of the action, not by the false representation. So, where it was alleged that defendants had agreed with plaintiff to prepare the remains of the latter's husband for burial and shipment by a certain train, but failed to do so, the action was held one on contract; defendants being under no duty independent of the agreement to perform the obligation. Applying the same test, we arrive at an identical result where a physician has contracted to treat a person's family for a year and refuses to attend when sent for. The cause of action is for breach of contract, and not for tort; and the same is true where a tenant receives an 46 45 42 "In cases of tort the duty that has been violated is general. It is owed either to all our fellow subjects, or to some considerable class of them, and it is fixed by the law and the law alone. Here lies the difference between civil wrongs, properly so called, and breaches of contract. * But breach of contract, willful or not, is the breach of duties which the parties have fixed for themselves. Duties under a contract may have to be interpreted or supplemented by artificial rules of law; but they cannot be superseded while there is any contract in being. The duties broken by the commission of civil wrongs are fixed by law and independent of the will of the parties; and this is so, even where they arise out of circumstances in which the responsible party's own act has placed him." Pollock on Torts (7th Ed.) 2. 43 38 Cyc. 426. 44 Dawe v. Morris, 149 Mass. 188, 21 N. E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404. 45 Newton v. Brook, 134 Ala. 269, 32 South. 722. 46 Randolph's Adm'r v. Snyder (1910) 139 Ky. 159, 129 S. W. 562; Galveston, H. & S. A. R. Co. v. Hennegan, 33 Tex. Civ. App. 314, 76 S. W. 452. injury due to the landlord's failure to make repairs as he had contracted to do.47 Tort Growing Out of and Coincident with Contract Nevertheless suit may lie in tort, although the relationship existing between the parties is the result of contract; for it is well settled that tort may grow out of and be coincident with contract. Take the case where plaintiff delivered a picture to defendant, who was to ascertain whether it was genuine. Defendant gave a receipt therefor, but, finding the picture to be spurious, refused to restore it, except on condition that plaintiff would acknowledge it to be a forgery, which plaintiff declined to do. Now, here the relationship of the parties primarily arose out of their agreement; but was the plaintiff obliged to resort to the agreement in order to establish any right for the violation of which he might recover? The fact remains that defendant was holding a picture which belonged to plaintiff, and how he obtained it is immaterial. His detention violates the plaintiff's right of property." Again, where a treasurer receives moneys of a township, his relation with the township is certainly contractual, being that of debtor and creditor. But it is likewise true that the moneys belong to the township, and the treasurer has no more right to convert them to his own use than he has to take the town clock.** Suppose an employé does an illegal act within the scope of his duties, which causes injury to a third party. The employer may be held responsible, and, although there has been. a violation of the contract of emplovment, he may in turn sue 47 Thompson v. Clemens, 96 Md. 196, 53 Atl. 919, 60 L. R. A. 580; Tuttle v. Gilbert Mfg. Co., 145 Mass. 169, 13 N. E. 465; Dustin v. Curtis, 74 N. H. 266, 67 Atl. 220, 11 L. R. A. (N. S.) 504, 13 Ann. Cas. 169; Schick v. Fleischauer, 26 App. Div. 210, 49 N. Y. Supp. 962. If, however, the landlord had undertaken the duty of making repairs, and had done so in an improper manner, he would, of course, have been responsible. 48 Bryant v. Herbert, [1878] L. R. 3 C. P. D. 389, 47 L. J. C. P. 670, 39 L. T. Rep. (N. S.) 17. 49 Monroe v. Whipple, 56 Mich. 516, 23 N. W. 202. |