tort, contract, and crime distinguished.—we have already discussed contracts in detail. the fundamental idea of contracts is that the obligation of a contract is voluntarily assumed. although it might be difficult, at least theoretically, i may take the position that i will not enter into any contractual relationship with anyone for a month. i could do this legally, if i were willing to put up with the annoyance which i would probably suffer. but suppose i take the position that i will assault jones and i will not pay him any damages for the injuries occasioned by my assault. my position would be wholly untenable. the contract obligation is voluntarily assumed. the law imposes the obligations or duties which exist in torts, and i must observe those duties whether i wish to or not. similarly, one must observe all of the criminal law of the jurisdiction where he is, whether he will or not. in fact, ignorance of the law is no excuse. a man may even commit a crime, although he did not know there was a law prohibiting the act. again, in the definition of a tort, we shall find the expression, "breach of duty imposed by law." a man arrives home late at night. he finds a person suffering from exposure at his front door. the person asks to be taken in and lodged for the night, but the householder refuses to take him in, and the man contracts pneumonia from exposure. in[pg 406] this case the householder is not liable. there is no duty imposed by law to be your brother's keeper. there may be a moral obligation in the case just cited, but not a legal one.
jurisdiction.—there is another way in which a criminal action is sometimes different from an action in contract or an action in tort. a suit on a contract may be brought in any court where jurisdiction over the parties may be secured. for example, a and b make a contract in new york. the contract is broken, and six months later, a and b are both in galveston, texas. either party could sue the other in the texas court on the broken contract. the same is true in regard to most tort actions. a slanders b in new york. a little later both are in san francisco, california. b could sue a in a california court for slander. a criminal prosecution, however, must always be brought in the state where the crime is committed, and generally in that very county of the state. hence, if a murders b in kings county, new york, the trial could not, under any circumstances, be held in essex county, new jersey, for no new jersey court would have jurisdiction over an offense committed in new york, because the wrong is done to the people of the state of new york, and not to the people of the state of new jersey.
tort defined.—it has been stated by the court of appeals of new york that no satisfactory definition of a tort can be found. it is easier, perhaps, to explain to the layman the meaning of the term "tort" by simply enumerating such things as are torts.[pg 407] for example, assault and battery is a tort, and so are libel, slander, false imprisonment, malicious prosecution, fraud, deceit, and negligence. bigelow's definition is perhaps least objectionable of all of the definitions. he defines a tort as a breach of duty imposed by municipal law, for which a suit of damages will lie. every tort involves the violation of a duty owed to the individual. for example, a owes to b the duty not to attempt with force to harm his person, or to hit him, or to touch him intentionally, or recklessly. the violation of this duty to b, by a, constitutes the tort of assault and battery. again, a owes to b the duty not to injure b's reputation, either by spoken word or by written word, so long as b has done nothing to forfeit this right to a good reputation. the violation of this duty, on the part of a, constitutes the tort of libel or slander. so, then, it is easy to see why libel, for example, is a tort. it is a breach of duty which the law imposes upon a for which b may sue and recover damages if he is injured. the same with assault and battery, and the various other torts.
crime defined.—a tort, as we have indicated, is a breach of duty owed by a to b. a crime is also a breach of duty, but in this case, a is an individual citizen, and b is a sovereign state. c murders d. when c is prosecuted, the action will read, "the people of the state of new york against c." in other words, the crime is a wrong to the state, and so a crime has been defined as an act or omission which is forbidden by law, to which a punishment is annexed, and which a state prosecutes in its own name. murder,[pg 408] manslaughter, arson and forgery are all crimes. we may correctly also add assault and battery, thus suggesting the fact that the same act may be both a crime and a tort, because the assault is a wrong against the individual and against the state. the individual will sue in a civil court, to recover pecuniary damages, in an ordinary suit of tort, while the state, for the same offense, through the district attorney's or prosecutor's office, will criminally proceed against the guilty party. we shall now consider briefly some of the more important torts and crimes.
assault and battery.—assault is an attempt, real or apparent, to do injury to the person of another. battery is a completed assault. it is not necessary that a person have the actual ability to carry out the threat to constitute an assault. for example, to point an unloaded revolver at a person is an assault. while the definition might convey the impression that force was necessary, this is not strictly true, because deception sometimes may be the equivalent of force. for example: assault and battery is committed where a person administers a drug to someone under the belief that he is taking an entirely different kind of drug. certain assaults, although technically such, are excusable or justifiable. formerly a school teacher had the right of corporal punishment without being liable for assault and battery. by statute this right is generally taken away now. a parent, however, may inflict corporal punishment on his child without any civil liability. courts generally assign as the reason for this, the fact that it would not[pg 409] be conducive to the welfare of the family to have children sue their parents, and the further fact that the child's rights are protected by giving him the right to have his parent arrested and punished criminally for an assault. while it was held formerly that a husband had the right to beat his wife, no modern court has upheld this view.
self-defense.—another case where assault is justified is in the case of self-defense. it is common saying that a man's house is his castle, and the right of self-defense is founded on the right of self-preservation. so that it follows that a man may use force in protecting both himself and his property. a greater amount of force is ordinarily permitted in the protection of the person than of property. in using force, however, such force only as is reasonably necessary may be used. for example, a man attempts to take my watch from my pocket. i strike his arm to prevent it, and do so successfully. thereafter, as soon as the man's back is turned, i jump on him and assault him, injuring him severely. i would be liable in this case because more force than is necessary for the protection of my property was used.
libel and slander.—these two terms are frequently combined under the one term of defamation which is defined as a false imputation upon one's character or reputation. slander is oral defamation, and libel is written defamation. the action of slander is very technical. perhaps there is no better summary than that given by the united states supreme court in the case of pollard v. lyon, 91 u. s. 225, as to[pg 410] what statements are slanderous per se. "slander," the court says, "may be divided into five classes, as follows: (1) words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished. (2) words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society; or (3) defamatory words falsely spoken of a person, which impute to the party unfitness to perform the duties of an office or employment of profit, or the want of integrity in the discharge of the duties of such an office or employment. (4) defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade. (5) defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party special damage." a libel is any writing, picture, print or effigy which tends to hold one up to the contempt, scorn, ridicule, or disgrace of his fellow men. we see then, that many statements which would not be slanderous would be libelous.
principles common to both libel and slander.—certain principles are common to both libel and slander. there must be a publication in either case. to say to a school teacher, in a room where he and the speaker are the only persons present, that he is a fool, would not be slanderous. there is no publication. to write a letter to a minister calling him a thief and a crook would not be libelous[pg 411] because there would be no publication. after he had opened the letter and read it, should he show it to any of his friends, he would have made the publication, and impliedly have consented to its publication. whether to send statements like this on a postal card constitutes a publication or a libel is an open question, as also is the question whether the dictation of false statements to a person's stenographer constitutes publication to some third person.
privilege.—certain clearly slanderous or libelous statements may, nevertheless, not be actionable, because they are absolutely or qualifiedly privileged. such is the case of any speech made by a member of congress, or a member of the state legislature on the floor of the legislative hall. such statement, however, made from the stump during a political campaign, would not be privileged. the first is what we call an absolute privilege. there is a certain class of privilege which we speak of as qualified privilege. newspapers, for example, are permitted to comment by way of criticism on any matters of current interest, provided a reasonable limit is not exceeded. it would not be permissible for a newspaper to pick out john jones, a wholly retiring and inconspicuous citizen of a town, and make statements about him which hold him up to ridicule, because the public welfare does not call for such action. however, were john jones running for public office, it would be proper for a newspaper to make comment upon his record, and such statements would have a qualified privilege, although subjecting him to ridicule. a member of the legislature on the[pg 412] floor of the legislature could make statements concerning the same john jones and never be liable because of his absolute privilege. we must assume, that, with each case mentioned, the statement made is false, in order to have it constitute libel or slander. in other words, truth is a defense to an action for defamation. a person has no right to a false character, and to speak the truth about him does not, therefore, constitute a tort.
fraud or deceit.—in order to establish the tort of fraud, it is necessary to prove the following five allegations: (1) that a makes a false statement of a material fact; (2) with knowledge of its falsity; (3) with the intent that it should be acted upon; (4) that the other party believed it to be true; and, (5) acted upon it to his damage. the absence of any one of these five elements will prevent the action of fraud from existing. the action of fraud is most important not only in torts, but also it plays a large part in the law of contracts, and the law of sales, as to both real property and personal property. a stock broker says to mr. jones: "my house is offering the best bargain in oil stocks which has been on the market for five years. aetna oil mining stock at $5 a share is the best buy on the curb to-day. there is no doubt the company will pay 10% in dividends in the first year." green, relying on this representation, purchases 100 shares of the stock. the stock, thereafter, steadily declines, and never pays a dividend. has he cause of action for fraud? clearly not, because there has been no false statement of material fact. these statements[pg 413] about the future earning capacity are seller's talk, or the salesman is merely puffing his wares. both these expressions are common in the reports and for a mere statement of opinion, no action of fraud lies. it must be a statement of fact. supposing the same broker had said to his customer, "aetna oil company has paid 10% dividends for the last ten years," and such statement afterwards was found by the purchaser to have been false. an action of fraud would lie, because the dividend record of a company is in the past, and it is not opinion, but fact. again, suppose the statements to have been the same as in the second illustration, and that they were altogether false, but within three months, through a sudden change in conditions, the affairs of the company were greatly improved, the stock went up in value, and began to pay large dividends. again, there would be no cause of action, because the fifth element, that of damage, would be lacking. again, suppose the purchaser, after learning from the broker about the past dividend record, should say, "i will give you my answer to-morrow." meanwhile, he looks up in a financial paper the dividend record and discovers the statements to be false. he then purchases the stock. here he would have no cause of action, although he might be damaged, for the reason that by making his own investigation, he has clearly shown that he has not relied on the statement made by the broker, and the fourth element of the action of fraud is missing. in all of these situations, the court assumes that it is dealing with a person of ordinary intelligence, and it does not require[pg 414] the very highest degree of caution on the part of the person claiming to be defrauded, nor will it aid the defrauded person if he does not exercise an ordinary degree of care in safeguarding his rights and forming his judgment in the particular transaction. in laying down this rule, the court does not require that a person must make his own private investigation ordinarily, but he may rely upon the statement made to him. for example, in a massachusetts case, a real estate broker, in selling a piece of property to a purchaser in a suburban town adjoining boston, told him that forty trains per day stopped there. the statement was false, the purchaser could have easily inquired at the railroad ticket office, which was only a short distance from the real estate agent's office, but he did not do so. it was held that he could recover in an action of fraud. were it not so, the courts would, in practice, be laying down the rule that one must assume everyone a liar. on the other hand, had this same purchaser been defrauded by the same real estate dealer a half-dozen times before, then he would not be acting as a reasonably careful man in relying on a statement of this kind. under these circumstances, the ordinary prudent man would make his own investigation.
false imprisonment.—a person under ordinary conditions, enjoys the full right of freedom of locomotion. the invasion of that right we call false imprisonment. it is immaterial how trivial the imprisonment may be, for merely locking a person in a room for five minutes as a joke would be enough to give rise to cause for action. the amount of damages[pg 415] which the jury might allow under the circumstances would, of course, be another matter. many of the principles mentioned in assault and battery are applicable in this tort. certain persons have a right to imprison other people, and it is not false imprisonment. the sheriff of the county, with a warrant for my arrest, may imprison me, and, of course, i have no action for false imprisonment. he is acting under regular process from the court. a man commits a serious crime in my presence. i lock him in a room until i can call an officer. this is not false imprisonment. the right of a private citizen to make an arrest and not be liable for false imprisonment is stated as follows in section 183, of the new york code of criminal procedure:
a private person may arrest another: (1) for a crime, committed or attempted in his presence; (2) when the person arrested has committed a felony, although not in his presence.
this is typical of the rule as it exists, with slight modifications, in most of the states. while mere words alone will not constitute an assault, it has been held that mere words will constitute false imprisonment. while a person may be justified in arresting someone else, yet, for the abuse of that privilege, the same as using greater force in self-defense than is necessary, the action of false imprisonment will lie. the man whom i arrest for committing a very serious crime in my presence, i lock in my house and keep there a month, feeding him on bread and water. i am guilty of false imprisonment because while i had a[pg 416] right to arrest him, it was my duty to turn him over to the proper authorities just as soon as possible. in a case, such as this, a month is, of course, an unreasonable time.
negligence.—to say that negligence is failure to use due care is a poor attempt at definition, but it is practically all that can be said. the common law maxim, "sic utere tuo ut alium non laedas" (so use your own as not to injure another), is at this basis of the law of negligence. at the outset, we must be careful to distinguish between "accident" and "negligence." i am walking on a street and slip on a banana skin, and in falling, knock down a passing pedestrian. this is an accident. with my office window overlooking the street, in a banana-eating contest, i eat fifteen bananas, and throw the skins out of the window on the sidewalk. the street is not well lighted. a passerby falls and is injured. this is negligence, and i would be liable.
contributory negligence.—negligence must be proved in order to entitle the injured party to recover. the court will not presume negligence merely because an injury takes place. again, i repeatedly warn a motorman and conductor on a trolley car that i wish to get off at a certain station. both parties forget the request, and the car goes by the station at the rate of fifteen miles an hour. i think i can get off safely, and attempt to do so. in doing so, i slip and break a leg. although the two employees of the trolley company were negligent, for not attending to their business, i am guilty of contributory[pg 417] negligence in trying to get off a rapidly moving car, and cannot recover. contributory negligence is a bar to recovery.
standard of care.—the standards of care to be applied in negligence vary from time to time. what would have been due care on the part of a railroad company fifty years ago, would probably, in few cases, be held to be due care to-day. this is so, because of the improvements which have been made in mechanical devices in the past fifty years. again, in order to make a cause of action for negligence, there must be some causal relation between the negligent act and the injury. granting that the man who slipped on the banana skin, which i threw from my office window, had sued me for damages because of his broken leg, it would not follow that i would be liable to the same man five years later, for the reason that an insurance company denied him a policy because of stiffness in the same broken leg, caused by the fall on the banana skin. the law looks not at the remote, but at the proximate, cause of the injury.
illustration.—the owner of lands owes a duty to persons coming upon that land, and the failure to perform that duty is negligence. here, again, we have to consider who the person is. i enter wanamaker's store to make a purchase. in going from the second to the third floor, i trip on a defective nosing on the stairway. this has been out of order for some time, and the floor walker was aware of that fact. i have a cause of action against wanamaker's store for failure, on their part, to exercise[pg 418] due care in having the premises reasonably safe for the use of customers. suppose, in making a purchase in that same store, in the basement, i see an open door leading into the engine room where the heat generator is located. being interested in heating appliances, i go into the room, although there is a sign above the door "no admittance." i fall in an unguarded hole in the floor, which has been open for a long while, and the existence of this hole is known to the management. i cannot recover because i am a trespasser. i am in a place where i had no right to be, and, as to trespassers, the owner of property owes no duty, except to refrain from wilful attempts to injure such a person. i may not set a trap in my back yard to catch a trespasser, although i owe no duty to him to have the back yard safe for his use. a peculiar variation in this rule has been made by some states, in the so-called turn-tables cases. railroads maintain turn-tables in their yards for the purpose of reversing locomotives and other cars. while children, coming upon the premises, are trespassers, nevertheless, many courts have held that such things are what might be called "attractive nuisances," and in such cases the owner of property is under special duty to use care even as to trespassers, to see that they are not injured. these are merely a few of the general principles of the law of negligence as applied by the courts.
capacity of parties in tort actions.—we discussed the question of the capacity of parties in making a contract. there is not as much[pg 419] qualification upon a party's liability for tort as for contract. to-day, generally, a married woman is liable for her torts, the same as any one else. a corporation is liable for its torts committed by its agents or servants in the scope of their employment. an infant is held responsible for his torts. it is sometimes said that a person is liable for his torts from the cradle to the grave. this is not strictly true. if a baby two years old puts his finger in my eye, injuring it, he would clearly not be liable. but a person of tender years is liable for his torts, whenever he has sufficient intelligence to know what he is doing. some courts place the age at seven years, while others consider each individual case and the degree of intelligence possessed by the infant.
the criminal law.—a crime is a wrong which the state recognizes as injurious to the public welfare, and punishes in a criminal action in its own name. there are certain leading principles of the american system of criminal law which must be kept in mind.
(1) a man is presumed to be innocent until the contrary is shown, and a jury, to be justified in bringing in a verdict of guilty, must be satisfied beyond a reasonable doubt, of the guilt of the accused. the rule in civil cases is that the jury must find for the plaintiff or defendant by a preponderance of evidence. thus, it is possible for a person to secure a verdict in a civil action for damages for assault and battery, while with the same evidence, a jury would not be justified, in a criminal action in convicting the defendant.[pg 420]
(2) in general, no person may be tried for a criminal offense, of any magnitude, until he has been indicted by a grand jury. the grand jury is generally twenty-four men, and hears the case against the prisoner only as presented by the prosecutor or district attorney. if the grand jury believes the evidence to be sufficient to warrant a trial before the petit jury, they bring in a true bill, and then the trial takes place before the petit jury of twelve men, in open court. the prisoner is entitled to counsel, at the state's expense, if he is not able to furnish his own.
(3) the prisoner may not twice be put in jeopardy for the same offense.
(4) a person may not be tried under an "ex post facto" law.
an "ex post facto" law is one which makes an act, which was innocent when committed, a crime. such laws are unconstitutional. this term is never used in civil law, but the term "retroactive statute" expresses the same idea. thus, a statute passed january 15, 1920, providing that all contracts made since january 1, 1919, must be witnessed by three witnesses, would be a "retroactive statute" and not valid.
criminal responsibility.—as a general rule, if a person, when a crime is committed, has sufficient mental capacity to understand the nature of the particular act constituting the crime, and the mental capacity to know whether it is right or wrong, he is liable criminally, whatever may be his capacity in other respects. as in contracts, or torts, there is a special rule in regard to infants. the english common[pg 421] law, which is pretty generally followed in this country, is that a child under the age of seven is conclusively presumed incapable of committing a crime. this is because of the fact that at common law, a criminal intent was necessary in all crimes, and an infant under seven was presumed not sufficiently advanced to be able to form a criminal intent. between the ages of seven and fourteen, there is a presumption of incapacity to commit a crime, the presumption being very strong near seven, and rather weak near fourteen. between the ages of fourteen and twenty-one, the presumption is that the infant is capable of committing a crime. as a general rule, one person is not liable for the crimes of another, unless he participated in them, directly or indirectly. a partner, therefore, is not liable, criminally, for the acts of his partners, merely because they are his partners. neither is a principal or master liable for the criminal acts of his agent or servant, merely because the relationship is that of principal and agent or master and servant. we will consider briefly a few of the more important crimes.
homicide.—homicide is the killing of a human being, and is divided into excusable, felonious, and justifiable homicide. the distinction between excusable and justifiable homicide is very slight and perhaps of little utility. where either exists, a homicide takes place under such circumstances that the party cannot strictly be said to have committed the act wilfully and intentionally, or if he does commit it with full intention, under such circumstances of duty[pg 422] as to render the act performed not a felonious homicide. a felonious homicide is committed wilfully and under such circumstances as to render it punishable. murder is the wilful killing of any person with malice aforethought. in some states, by legislative enactments, murder is divided into degrees, as murder in the first degree and murder in the second degree. the penalty for murder in the first degree is death, or in a state where capital punishment is abolished, life imprisonment. there are various other distinctions between these two forms of murder which must be ascertained from the statutes themselves.
manslaughter.—manslaughter is the unlawful killing of another without malice, either express or implied. manslaughter is also frequently divided into different degrees, and the punishment varies accordingly. a reference to the state statutes is necessary, as in murder, to know what the local law is.
burglary.—burglary, as a common law offense, is the breaking and entering of a dwelling house of another, in the night time, with the intent to commit a felony therein, whether the felony be actually committed or not. but in most jurisdictions the offense has been extended by statute so as to include breaking and entries which were not burglary at common law. unless changed by statute, it must be committed in the night time, and there must be both a breaking and an entering. breaking a window, taking a pane of glass out, or bending the nails, is a breaking. cutting a wire netting on a screen door is[pg 423] also a breaking. in such cases a screen door is not to be considered as a mere protection against flies and mosquitoes, but as a part of the building. as to whether opening a door or a window, already partly open, constitutes a breaking, the cases are in conflict. without the intent to commit a felony, breaking and entering is a bare trespass, which would not be a crime. the felonious intent must exist at the time of the breaking and entering. hence, if it can be proved satisfactorily to a jury, that a man broke into a house for a night's lodging only, he would not be guilty of burglary. as in homicide, reference must be made to the local statutes for the actual definition of burglary and its punishment in that jurisdiction.
forgery.—forgery is the false making of an alteration of a writing to the prejudice of another man's right. forgery may be committed of any writing, which, if changed, would operate as the foundation of another man's liability. hence a check may be forged, an assignment of a legal claim, an indorsement on any negotiable document, an acceptance of a bill of exchange, a letter of recommendation, a railroad pass or railroad ticket. the penalty for forgery and various other acts of which it may consist, are so purely statutory as to make any further comment useless.
larceny.—larceny is the felonious taking of the property of another, without his consent and against his will, with the intent to convert it to the use of the taker. the taking must be with criminal intent, but not necessarily for the sake of gain, although[pg 424] the property must be of some value, however slight. the taking must be against the consent of the owner, and if the consent is given, although obtained by fraud, the crime is not larceny. larceny relates only to personal property. hence the statement made falsely concerning a: "you are a thief. you stole my marle" (marle being a kind of earth), is not slander, because it is not a charge of a crime involving moral turpitude, as real property is not the subject of larceny. larceny is generally divided into petty larceny and grand larceny, the difference between the two being generally the amount involved, which varies with the local legislation.
robbery.—robbery, at common law, is the taking, with intent to steal, of personal property in possession of another, from his person or in his presence, by violence or by putting him in fear. in a majority of jurisdictions, statutes have been enacted defining robbery substantially in accord with the common law. it is not necessary that the property taken should be the property of the person from whom it is taken. as in other crimes, there must be a criminal intent, and so where, in an indictment, the offense was charged as robbery, but as proved was, at most, an improper and rude act, and intended only as a joke, it was held that no robbery had been committed.
