1. A tort is an unlawful violation of a private legal right, Derivation The word "tort" (taken directly from the French) is de- duct is conduct which is crooked,1 not straight? As a synonym for "wrong" the word was at one time in common use.3 Other Definitions A satisfactory definition of a tort has yet to be found. The difficulty, it has been well said, is due to the fact that "there is no such thing as a typical tort, an actual tort; that is to say, which contains all the elements entering into the rest. One tort is as perfect as another, and each tort differs from the others in its legal constituents." The elements necessary to constitute a cause of action for such wrongs as assault, defamation, deceit, and negligence are so radically different that it is difficult at first to perceive what they can possibly have in common, and although there are underlying principles common to all, yet a study of this subject must, to a large extent, require an examination into the specific rules applicable to each particular tort. A favorite definition is "a wrong independent of contract.” Others are "an act or omission, not a mere breach 1 Cf. the colloquial "crook.” 2 Speaking of the law of Continental Europe, Professor Holland has observed that, "since conduct which is straightforward came to be spoken of eulogistically as being 'rectum,' 'directum' (whence 'droit'), 'recht,' and 'right,' conduct of the opposite character naturally came to be expressed by the terms 'delictum,' 'délit,' as deviat ing from the right path, and 'wrong' or 'tort,' as twisted out of the straight line." Holland on Jurisprudence (10th Ed.) 318. 3 Thus we find it employed by Spenser in the "Faërie Queene" in the following passage in the fourth book: "The lyon there did with the lamb consort, And eke the dove sate by the faulcons side; Ne each of other feared fraud or tort But did in safe security abide." * 4 Bigelow on Torts, 64. In 1882 Judge Finch, of the New York Court of Appeals, in RICH v. NEW YORK CENT. & II. R. R. CO., 87 N. Y. 382, 390, Chapin Cas. Torts, 1, observed: "We have been unable to find any accurate and perfect definition of a tort. The text-writers either avoid a definition entirely, or frame one plainly imperfect, or depend upon one which they concede to be inaccurate, but hold sufficient for judicial purposes." 5 Bouvier, L. Dict.; and see Mobile Life Ins. Co. v. Randall, 74 Ala. 170, 176; Denning v. State, 123 Cal. 316, 323, 55 Pac. 1000; Louisville & N. R. Co. v. Spinks, 104 Ga. 692, 694, 30 S. E. 968; Barkley v. Williams, 30 Misc. Rep. 687, 688, 64 N. Y. Supp. 318. of contract, and producing injury to another, in the absence of any existing lawful relation of which the said act or omission is a natural outgrowth or incident." • "An act or omission giving rise, by virtue of the common-law jurisdiction of the court, to a civil remedy which is not an action on a contract." "An act or omission which unlawfully violates a person's right created by the law, and for which the appropriate remedy is a common-law action for damages by the injured person.' Now it is evident that each of the foregoing, as well as the definition which we have given, invites rather than answers inquiry; but it will likewise be observed that all of them lay stress upon one or two important facts, which will now be considered. The remainder of this chapter will amount to but little else than an analysis and explanation of the definition which has been selected. ANALYSIS OF THE TORT CONCEPT 2. This definition, when analyzed, will be found to require a cor.sideration of the following: (a) The nature and source of the right violated. (b) The method of its violation. (c) The method of redress. NATURE AND SOURCE OF THE VIOLATED RIGHT 3. For a tort to exist it is essential that the wrongdoer should have failed to observe a duty which— (a) He owed to the injured party, and (b) Which was imposed by law. "A proposed new definition of a tort," by F. H. Cooke, 12 Harvard L. Rev. 335, 336. 7 Jaggard on Torts, 2. 8 Burdick on Torts (3d Ed.) 12. VIOLATION OF PUBLIC RIGHTS-TORT AND CRIME 4. The fact that a duty must have been owing to the injured individual shows the distinction between tort and crime. The former involves the idea of a private right violated, the latter of a public right; the tort is a wrong to the individual, the crime to the community. From this results further differ ences (a) As to the mental attitude of the wrongdoer; (b) As to the methods of redress. The Character of the Party Injured It is evident that, if A. should strike B., the act may be regarded from a double standpoint. On the one hand, there is an injury to B. B. should be compensated for his pain and suffering, and, if he has been incapacitated from attending to his business, an amount equivalent to his earnings should be paid to him. So, if A. should steal B.'s chattel, the wrongdoer should be compelled to pay its value, or to restore the specific article and pay damages for its detention. This is all that B. can expect. But, over and beyond this, the community as such has an interest in preventing the cominission of acts which militate against the security of all. Selfpreservation demands that organized society insist upon the observance of the principles which bind its members together and render life in common possible. Hence the duty which A. owes to the community to abstain from a breach of these rules having been violated, the imagination is not strained in considering that the state, as typifying the community, has been wronged as deeply as B. "It is sometimes alleged by books of authority that the difference between a tort and a crime is a matter of procedure; the former being redressed by the civil, while the latter is punished by the criminal, courts. But the distinction lies deeper, and it is well expressed by Blackstone, who says that torts are an 'infringement or privation of the private, or civil, rights belonging to individuals considered as individuals; crimes are a breach of public rights and duties which affect the whole community considered as a community.' The right |