« AnteriorContinuar »
tional consequences of the act. For instance, a battery may be committed by a hundred different acts; the definitional consequence, which the law forbids, is the contact between the body of the injured person and the instrument with which the battery is committed. If I strike in the air with a stick or throw a stone when no one is near, I do precisely the same act as though some person stood where he would be hit; but since the act does not produce any injurious consequences, it is not a breach of duty. A duty, therefore, is not merely to do or abstain from an act, but to act or not to act so as to produce some definitional consequence specified by the law. The definitional consequences of acts are, therefore, also definitional consequences of duties.
Those consequences may be actual, probable, or intended. Therefore there are three classes of duties. (1) Duties of actuality, which are defined by reference to the actual consequences of the act. A person must or must not act so as actually to produce certain consequences. The duty is not broken unless the consequence is actually produced. Duties not to commit trespasses are of this sort. So is the duty of the possessor of a dangerous animal to prevent it from doing harm. He must do such acts as will actually prevent the harm; it is not enough that he uses due care to prevent it. (2) Duties of probability, defined by reference to the probable consequences of the act. The duty is to act or not to act in a way that will probably produce a certain consequence. The duty may be broken though the consequence never in fact happens, though in that case there will be no wrong because no right has been violated. This is the most numerous class of duties. Duties to use due care are of this kind. Negligence is conduct which will probably produce damage. Therefore, these duties may also be called duties of care or of due care. (3) Duties of intention, defined by reference to the intended consequences of the act. The duty is not to act with an intention to produce a certain consequence. Fraud and malice include such an intention; so that duties of intention may be subdivided into duties of mere intention, of fraud, and of malice. Here, too, there may be a breach of duty, though the intended consequence is not produced. It is a breach of duty to make a fraudulent misrepresentation, even though it is not believed or acted on, so that no harm results; though in that case there is no tort. A duty of actuality may also belong to one of the other classes. There may be a duty not actually to produce a consequence intentionally or negligently. Duties not to commit trespasses are duties of actuality, but there is much conflict of opinion as to whether intention or negligence is necessary to a trespass. A duty of actuality, where intention or negligence is not necessary, a pure duty of actuality, may be distinguished as a peremptory duty. It must be carefully borne in mind that a breach of duty by itself is not a tort; it is only one element in a tort. There may be an undoubted breach of duty, and yet no tort.
The second element in a tort is a violation of right. The word "right" has various different meanings: there are various different kinds of rights; some of which kinds are incapable of being violated. The kind of rights here under consideration have for their contents not acts, as is the case with some of the other kinds of rights, but certain conditions of fact, whose existence and integrity the law seeks to protect for their holders. Any impairment of the protected state of fact is a violation of the right. The word violation, it should be noticed, is here used in a sense a little different perhaps from its ordinary one. It covers impairments of the protected state of fact which are not due to any one's wrongdoing. Therefore a violation of right, like a breach of duty, is not of itself a tort, but is only one element in a tort. If a person injures my body by mere accident, my right of bodily security is violated, in the sense in which I am here using that word, just as much as if he had done so on purpose; but there
no tort. So far as the law of torts is concerned (the law of contracts and obligations is wider), the states of fact which the law protects for a person and the rights related thereto are usually the following, though there are a few kinds of wrongs generally, though perhaps improperly, classed as torts where the impairment of other states of fact constitutes the violation of right. (1) The person's own condition, which is covered by the right of personal security, which may be divided into the sub-rights of life, bodily security, liberty, reputation, mental security (to a limited extent), and perhaps privacy. (2) The condition of certain other persons connected with him, e. g., his wife, child or servant, and services due him from them. Rights in those may for convenience be called potestative rights. (3) The possession and physical condition of corporeal things, which are the contents of normal property rights. (4) Certain conditions of fact which are usually described as relating to incorporeal things, which form the contents of what may be called abnormal property rights, e. g., franchises, patent rights, rights in trademarks. (5) A person's pecuniary condition, the total value of his belongings. For these last I posit a separate right, which may be called the right of pecuniary condition. It is violated by depriving the person of any value which he already has (damnum emergens), and in some cases by preventing him from acquiring a gain which he would have acquired (lucrum cessans). The violation of any other right, and also the depriving a person of a right, which is a different thing from the violation of a right, or imposing a duty or liability upon a person, imports pecuniary loss and therefore a violation of this right. This right of pecuniary condition has not generally been recognized in our law as a separate right. It is usually considered as embraced in the right of property. Sometimes the expression “property which a person has a special right to acquire” is used. It is, however, important to distinguish between the two rights, especially because the duties which correspond to them are very different. The right of property relates to the possession and physical condition of specific things; the right of pecuniary condition to value. If a thing is injured and its value is thereby depreciated, both rights are violated. But the physical condition of a thing may be changed, and thereby the right of property in it violated, without any depreciation of its value, even with an increase in its value, as where a person embroiders upon another's piece of silk or builds a house on another's land, both of which may be torts.
Thirdly, it is not enough to make a wrong that there should be a breach of duty and a violation of right, though both of those elements are essential. The duty and the right must correspond to each other. There is no general rule as to what duties correspond to what rights. Some duties correspond to many rights, some to but few; some rights have many duties corresponding to them, some few. Speaking generally, duties of actuality and probability usually correspond only to rights of personal security (with some exceptions), potestative rights (with some exceptions), and normal property rights; duties of mere intention, to rights of personal security, potestative rights, and both normal and abnormal property rights; while duties of malice and fraud correspond to those rights and also to the right of pecuniary condition. But that statement is only approximately correct. For example, a life insurance company cannot have an action against a person who negligently kills one of its policy-holders; but it can, if the killing is done with a malicious intent to cause a loss to the company. The company has no potestative right in the life of the insured; the only right of its which is violated is the right of pecuniary condition. In case of a negligent killing, the only duty broken is a duty of due care, of probability, which does not correspond to the right of pecuniary condition; but if the killing is malicious, a duty of malice is broken, which does correspond to that right.
right. So in a state where a mortgage is considered to be a mere hypothecation, not giving the mortgagee any property right in the land, it has been held that the mortgagee cannot have an action against a third person for a merely negligent, or even an intentional, injury to the land, even though his security is thereby impaired; but he can for an injury done with a malicious intent to injure his security.
Fourthly, to make a wrong the breach of duty must be the actual cause and, fifthly, the proximate cause of the violation of right. It can be the actual cause without being the proximate cause.
All the above mentioned five elements are absolutely essential to a wrong; if any one of them is wanting, there is no wrong. Any damage that may have followed the act is damnum absque injuria. There is a complete actionable wrong as soon as all those five elements are present, though there may be no actual damage. But after the wrong is complete as a wrong, it may give rise to further injurious consequences for which a recovery can be had in an action for the wrong. Those consequences will be called in this article consequential damage. In its ordinary legal use the expression consequential damage may include the very violation of rights that is an element in the wrong, if that is only an indirect consequence of the act. But as here used it denotes damage that is not included in the wrong itself, but is additional to and consequent upon it. Consequential damage need not be a violation of any right to which the duty broken corresponded, e. g., in an action for a merely negligent injury to a person or to property a resulting pecuniary loss may sometimes be recovered for as consequential damage.
1 Van Pelt v. McGraw, 4 N. Y. 110 (1850). But some courts allow the mortgagee an action, considering that he has a protected right in the land.
The question of the proximateness of consequences must be distinguished from several other questions that have often been confounded with it. The reason why contributory negligence will defeat an action has often been said to be that the plaintiff's negligence makes the injury only a remote consequence of the defendant's negligence. If that is the correct view of the matter, then that particular case of remoteness is sui generis depending upon its own principles, and has no bearing on the general nature of proximateness.
The question of the proximateness of a given consequence cannot arise, or at least can have no practical importance, until it has first been made to appear that all the other elements of a tort are present. Courts have sometimes decided against a plaintiff on the ground that the damage to him was not the proximate consequence of the defendant's act, when the actual case was that some other element of a tort was lacking. Such decisions cannot be relied on as authorities on the question of proximateness. Sometimes the defendant's act was not a breach of duty at all. This kind of confusion is especially likely to arise when the defendant's duty was a duty to use care. Such a duty, as has been explained, is a duty to act with reference to the consequences that may probably follow the act; and, as will presently be explained, probability means a reasonable probability, consequences which are not reasonably probable may be disregarded by the actor, even though they can be foreseen as possible. If a duty of this sort exists not to expose another to damage, the danger must be an unreasonably great one. Now, as will hereafter appear, proximateness also sometimes depends upon probability. Therefore it is possible to confound the two probabilities, and in a case where the probability of harm was not sufficient to create any duty in respect to it, to say that the harm, if it has actually happened, was not a proximate consequence of the act. For example, a passenger was rightfully put off from a railroad train for misbehavior. He was drunk, but not so drunk as to be helpless. Shortly afterwards he was run over by another train. The railroad company was held not liable. The court said that even if after being put off he was in some danger, there was no unusual danger, no more than to any one who might be in the vicinity of the track, and that the injury to him was not the proximate consequence of the conductor's act in ex