CHAPTER XIII
Torts and Crimes
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 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. 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, 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 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 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 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 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.