Art. 3. Classification.

the first group is willful or wanton; in the second, that the element of willfulness or wantonness is at first sight absent, or at any rate indifferent; while in the third, the acts or omissions constituting the wrong have a kind of intermediate character.

Hale (p. 54 et seq.) classifies liability as follows: (1) Where conduct was willful or malicious. (2) Where the conduct was negligent. (3) Where it was done at peril.

It has been said that every action for a pure tort involves the questions, first, whether the plaintiff has the legal right claimed and whether the same has been invaded. Second, whether the act of the defendant was within his own legal rights. Third, whether the act was such as to be privileged, then whether the case in hand marks an instance falling within such privilege. Krauthoff on Malice in Civil Actions, American Bar Association, report 1898, p. 335, reviewing Allen v. Flood, App. Cas. 1, 1898.

Bigelow classifies the Law of Torts under (I) General theory and doctrine. (II) Lawful acts done by wrongful means or of malice. (III) Unlawful acts, breach of absolute duty. (IV) Events caused by negligence.

Cooley, p. 23, says, that the rights which every government is expected to recognize and protect may be classified under the following heads: (1) Security in person. (2) Security in the acquisition and enjoyment of property. (3) Security in the family relations.

This appears to be only another method of classifying the wrongs to person and property.

In 26 Am. & Eng. Encyc. of Law, 76, Torts are classified, not as to the theory of wrongs, but with reference to the manner of treatment and from a practical standpoint:

I. Wrongs affecting personal safety and security, which are subdivided into (1) assault and battery; (2) false imprisonment; (3) malicious prosecution.

II. Libel and slander.

III. Deceit, including fraud, fraudulent sales, misrepresentation, and the like.

IV. Wrongs affecting domestic relations, subdivided into (1) of husband and wife; (2) of parent and child; (3) of guardian and ward; (4) of master and servant.

V. Injuries to real property, and including thereunder trespass, party walls, waste, etc.

Art. 3. Classification.

VI. Injuries to personal property, including conversion, replevin, trover, trespass, bailment, and the like.

VII. Wrongs affecting easement, such as obstructions to private ways, highways, navigable waters, etc.

VIII. Infringement of copyrights, patents, and trademarks. IX. Violation of water rights, including the treatment of waters and water-courses, underground waters, navigable waters. X. Damage by animals.

XI. Escape of dangerous substances.

XII. Nuisances, both private and public.

XIII. Negligence.

It will be noted that this enumeration does not include all actionable wrongs. The most notable omissions from the list is the unlawful interference with personal and property rights, growing out of the relation of employer and employee, and questions arising from unlawful combinations of capital, which have come to form a very important part of the modern law of torts.

The abolition of forms of action by the Code has not in any wise affected the names of specific actions which are necessarily retained to indicate the character of the right of action, but no longer to indicate that such an action must be prosecuted in a particular form. Judge Holmes says (p. 82), "The abolition of the common-law forms of pleading has not changed the rules of the substantive law. Hence, although pleaders now generally allege intent or negligence, anything which would fairly have been sufficient to charge the defendant, is still sufficient notwithstanding that the ancient form of action has passed away."

A single action has, under the Reformed Procedure, been substituted for the numerous actions at common law, but the right to recover exists as before. We recover now for a wrongful taking, and say we recover for a conversion, not in an action for conversion, and in some instances specific provisions still give a name to the action as in replevin, but as a rule we now speak of the cause of action as for trespass or negligence, without reference to its form, which is, except in the case of the so-called special actions, the same in all cases; and in these the action is brought and conducted in the same manner except as necessarily modified in its details to meet special conditions.

This statement is made so that it may be understood at the outset that the divisions of this work are based not upon any differ

Art. 3. Classification.

ence in forms of remedy, as would have been indicated under the old practice, but are based upon convenience in reference to the subject-matter of the action, which is still necessarily designated so largely by the common-law terms which before the Code described both the subject-matter and the form of action.

A practical classification of Torts may be made with a view to bringing together related topics, rather than for the purpose of scientific classification, but it is believed that to a very large extent both the practical and theoretical view of the Law of Torts may be satisfied in a classification which is in a measure based upon that of Sir Frederick Pollock, although intended to meet the wants of the practitioner rather than the student and therefore intended to be severely practical rather than strictly scientific.

I. The general principles of Torts are necessarily treated apart from specific wrongs. II. Purely personal wrongs seem to follow naturally as next in importance. III. Wrongs to property only, as distinguished from those which are injurious to the person. IV. A very important class of wrongs, viz.: Negligence and Nuisance may be injuries to either person or property, or to both. V. There still remain certain wrongs, some of them being in the class of "unnamed wrongs" not readily classified, although necessarily injurious to person or estate or both, and they may be considered as miscellaneous wrongs. Only the first two of these divisions of the subject will be considered in this volume.

Classification of Torts as injuries to the person " and injury to property "seems justified by the definitions of these phrases, section 3343, subds. 9 and 10, as follows: "Subd. 9. A personal injury includes libel, slander, criminal conversion, seduction, and malicious prosecution; also, assault and battery, false imprisonment, or other actionable injury to the person, either of the plaintiff or of another."

“Subd. 10. Injury to the property is an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract."

A brief consideration of the question as to what constitutes personal and property rights is desirable in view of the fact that a tort is committed only when a legal, as distinguished from a moral right, is violated; and a legal right is said to be violated only when one is damaged in respect to his person, his property, or his reputation. Hale, 50.

The abstract question of "rights" both as to safety of persons and protection of property is very fully considered in Holland's Elements of Jurisprudence, treating of law and rights. The nature and character of a legal right is also considered, Holmes' Common Law, 214, 219, 239; and the domain of tort in connection with legal rights is very fully discussed, Bigelow on Torts, 1-8.

A right is a measure of control delegated by the supreme political authority of a State to persons said to be thereby invested with the right over the acts of other persons said to be thereby made liable to the performance of a duty. Sheldon Amos' Science of Law, 97.

Cooley, in his Treatise on Torts, pp. 23-46, treats this subject very fully under the title “General Classification of Legal Rights," defining a right as implying something with which the law invests one person, and in respect to which for his benefit another or perhaps all others are required by the law to do or to perform acts or to forbear or abstain from acts. Citing Austin's Jurisprudence, Lectures VI and XVI.

"the

Judge Cooley then defines personal rights as including right to live, the right to immunity from attacks and injuries, and

Art. 1. Civil Rights.

the right equally with others similarly circumstanced to control one's own action."

Civil rights he sums up as "the right to exemption from any restraint that has in view no beneficial purpose, and the right to participate in all the advantages of organized society."

Civil rights are defined to be those rights which appertain to a person by virtue of his citizenship in a State or community. Among those rights, as enumerated (6 Am. & Eng. Encyc. of Law, 72 et seq.) are that the citizens of each State, when in another State, are entitled to all the privileges and immunities of the citizens of the latter, as such. The right to acquire State citizenship in any State by residence therein. The right to any person within the jurisdiction of the State of equal protection of its laws. On the other hand, it is said the right to vote is not a civil but a political right.

Political rights are defined to consist in the power to participate directly or indirectly in the establishment or management of the government. 22 Am. & Eng. Encyc. of Law, 942.

Abbott's Encyclopedic Digest, under title Civil Rights, includes the consideration of protection of rights of persons from class or racial discrimination. Citing People v. King, 42 Hun, 186; affd., 110 N. Y. 418, to the point that a conviction for refusing to sell colored persons tickets for admission to a skating-rink should be sustained. Miller v. N. J. Steamboat Co., 58 Hun, 424, 12 N. Y. Supp. 301; affd., 135 N. Y. 612, where plaintiff, a colored man, was refused a state room in exchange for berths which he had bought for himself and family on the steamboat. People ex rel. King v. Gallagher, 11 Abb. N. C. 187; affd., 93 N. Y. 438, that the Civil Rights Bill (Laws 1873, chap. 186), does not take away the right, when otherwise conferred by statute, to maintain separate common schools for colored children, nor entitle a colored child to admission to a school for white children, where it does not appear that those provided for colored children are not as good in every respect.

Pollock (p. 174) states the doctrine to be that the exercise of ordinary rights for a lawful purpose and in a lawful manner is no wrong even if it causes damage. The rule is recognized and commented upon in Losee v. Buchanan, 51 N. Y. 484.

The right not to be harmed takes at common law the form of a command not to injure another in respect to his person, property, or reputation. Hale, 51, citing Piggard on Torts, 10.