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treatment of the general principles underlying the subject, as enunciated by the older leading and modern cases. An experience in dealing with the subject for some years in class work brings us in thorough accord with the thought expressed by Mr. Pollock in his Introduction to his Torts: "The purpose of this book is to show that there really is a Law of Torts, not merely a number of rules about various kinds of torts -that this is a true living branch of the common law, not a collection of heterogeneous instances."

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§ 3. General Scope of the Subject. -Torts, embracing, as the subject does, all breaches of duty and obligation other than contractual, covers a large field; in name it is one-half of the law; in reality, it is perhaps much more from a practical standpoint. Considerable attention has been given a definition of the word by courts and writers. The reason why there has been so much said about this is perhaps due to the comprehensive character of the subject. It has seemed to be difficult to frame a definition sufficiently broad to embrace every wrong within its domain; or, rather, there are so many ways of committing torts that it seems difficult to frame a general definition applicable to all cases. Wrongs other than violations of contractual duty are so varied in character; some are characterized by one kind of an act, and some by another. It is either of misfeasance, wrongfully doing something which one has a right to do, or nonfeasance, failing to do something which ought to be done. Wrongs are either (1) intentional or (2) not intentional. Sir Frederick Pollock says that: "Our first difficulty in dealing with the law of torts is to fix the contents and boundaries of the subject. If we are asked, What are torts? nothing seems easier than to answer by giving examples. .. But we shall have no

easy task if we are required to answer the question, What is a tort? In other words, what principle or element is common to all classes of cases, . . and also distinguishes them as a whole from other classes of facts giving rise to legal duties and liabilities?"

It certainly is not difficult to describe all rights and duties other than contractual, and those comprehend torts. These rights relate to either person, personal or real property and reputation. "Rights of person" is perhaps not expressive of personal rights, which, added to the above, describes the domain of torts so far as concerns what may be injured.

§ 4. Tort Defined.-Courts and writers have indulged in what seems a useless discussion of what constitutes an accurate definition of a tort. It does not seem difficult to give a definition sufficiently comprehensive to embrace all kinds of torts. To say that it is a wrong independent of contract does not express anything. A tort may be caused by an act of omission or of commission. The former includes all wrongs arising from want of care, while the latter covers all intentional acts. The injury is either direct or indirect, and is to person, property or reputation. Therefore, the following would seem to be a correct definition:

The omission or the commission of an act by one without right, in no wise connected with contract, whereby another receives some injury directly or indirectly, in person, family, or contractual relation, property or reputation.1

Says an English author: "No one has yet succeeded in formulating a perfectly satisfactory definition of a tort; indeed, it may be doubted whether a scientific

1 See upon question of definition, Cooley on Torts, 66; 1 Hilliard on Torts, sec. 1; Rich v. New York Cent. R. R. Co., 87 N. Y. 382; Bishop's Noncontract Law, sec. 4.

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definition, which would at the same time convey any notion to the mind. . . . is possible."2 Mr. Bigelow defines tort as a breach of duty fixed by law, and redressible by a suit for damages; but adopting the language of another writer, "this definition does not seem to convey much information to the reader, and confessedly requires an elaborate explanatory dissertation. Of course all torts are private or civil wrongs, but one may be committed by an act of commission, and another by an act of omission. There must be some act of commission or omission, unauthorized by law, not being a breach of some duty undertaken by contract, and must cause injury, special, private, and peculiar to the plaintiff, as distinguished from an injury to the public at large. Again, an act of commission may be willful or intentional, or it may be carelessly and negligently or fraudulently committed. An act which has been willfully committed may amount to negligence, and the act which has been intentionally committed may be either negligence or fraud. The acts without right or unauthorized by law which constitute torts can hardly be further characterized in a definition.

“Torts are infinitely various, for there is not anything in nature that may not be converted into an instrument of mischief."

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§ 5. Same Continued-Relation to Contract.—There are possibly cases where it is difficult to distinguish between contract and tort; this will occur, particularly in determining the responsibility of infants for torts, and in some other cases. Upon this the following apt quotation is made: "We have been unable to

2 Underhill on Torts, 5.

3 Bigelow's Elements of Torts, § 62.

4 Underhill on Torts, 6.

5 Chapman v. Pickersgill, 2 Wils. 146.

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find any accurate and perfect definition of a tort. Between actions plainly ex contractu and those 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 text-writers either avoid a definition entirely (Addison on Torts), or frame one plainly imperfect (2 Bouvier's Law Dictionary, 600), or depend upon one which they concede to be inaccurate, but hold insufficient for judicial purposes: Cooley on Torts, 3, note 1; Moak's Underhill on Torts, 4; 1 Hilliard on Torts, 1. By these last authors a tort is described as 'a wrong independent of contract.' And yet, it is conceded that a tort may grow out of, or make part of, or be coincident with, a contract, and that precisely the same state of facts between the same parties may admit of an action either ex contractu or ex delicto: Cooley on Torts, 90. 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 contract."

The relation which tort and contract sustain to each other, especially under the reformed procedure, is often quite an interesting field of discussion. In many instances, a transaction may arise between parties primarily through contract, but it may give rise to a right of action in tort or in contract. It is not difficult to separate the tort from the contract, the wrongful acts being so clearly distinguishable, being of a wholly different character. The tortious act, as a misrepresentation or concealment in sales of prop

6 Rich v. New York Cent. R. R. Co., 87 N. Y. 382.

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erty, may precede the contract, and hence may in a measure enter into, or be an inducement therefor, and yet the tort stands out as a distinct, independent act, giving rise to a right of action ex delicto. And when parties are brought into a relation of privity by means of contract, and while sustaining that relation one commits a tort, he surely departs from the contract. In contract there is a relation of privity, while in tort there is none, a right of action for the tort being allowed in some cases where there can be said to be no relation of privity. As, for instance, the sale of poison by a druggist negligently for a harmless medicine, to one person to be administered to another, the latter in person or by representative having the right of action. The transactions giving rise to this double liability are sales of property accompanied by fraud, loss of property by common carriers, bailments, and the like.

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The advantages to be derived in pursuing the one remedy or the other are in the responsibility of the parties where there are several concerned in the wrongful act. Of the wrongdoers in the transaction, the one who commits the breach of contract may be solvent, while the one who commits the tort may not be, or vice versa, and hence the injured party may bring suit against either party. And again, the stat

ute of limitation may have run against the tort, but not against the right of action in contract.

The same facts substantially will show the violation of the contractual obligation or the duty giving rise to the action in tort. As between the immediate parties where no question of the statute of limitation is involved, the relative importance of the

7 Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298.

8 Brundred v. Rice, 49 Ohio St. 640, 34 Am. St. Rep. 589, 32 N. E. 169.

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