The Theory and Principles of Tort Law

A fascinating look at the emergence of the modern law of torts, as well as a detailed presentation of some of the causes of action for certain torts as they existed at the turn of the twentieth century.

Attorneys and legal historians will find this early exposition of the formation of the so-called modern law of torts fascinating reading. The history in this field had gone through the successive processes of integration and disintegration, and at this point it was going through a process of reintegration along new lines. This book also took a bold stance in professing that no logical and precise definition of tort can be given, and pointing out that the theory of negligence in which the negligent act is viewed exclusively as the breach of a positive implied legal duty is inadequate. A number of the delicts comprising the law of torts are examined at length, such as trespass, negligence, deceit, nuisance, defamation, malicious prosecution, and unfair competition.

INTRODUCTION	xxi
CHAPTER I. TRESPASS UPON THE PERSON.
Elements of Violence	1
The Battery	4
The Assault	10
False Imprisonment	12
CHAPTER II. FORCEFUL DAMAGE TO PROPERTY
Damage to Chattels	15
Trespass upon Realty	19
CHAPTER III. FORCEFUL DAMAGE TO PROPERTY -- Continued.
Positive Waste	26
Permissive Waste	29
CHAPTER IV. QUALIFICATIONS AND EXCEPTIONS
Privilege of Sovereign	35
Privilege of Persons Acting in Judicial Capacity	37
Privilege of Parents and Person in Loco Parentis	38
Privilege Incident to Legal Authorization	41
Doctrine of Trespass ab initio	45
CHAPTER V. SECONDARY TRESPASS FORMATION
Responsibility for Agents of Harm	49
Domestic Animals	51
Wild Animals	55
Fire	56
Firearms	57
Explosives	59
Poisonous Drugs	60
Dangerous Accumulations of Water	62
Exception Incident to Act of God	63
Responsibility for Inanimate Agents not Dangerous per Se	65
Principle Underlying Secondary Trespass	67
Responsibility for Intended Harms Done by Dangerous Things	68
CHAPTER VI. NEGLIGENCE
The Conception of Negligence	71
Negligence in the Field of Trespass	73
Negligence in Secondary Trespass	84
CHAPTER VII. NEGLIGENCE -- Continued.
Twofold Aspect of Conception of Negligence	86
Confluence of Two Conceptions of Liability	89
Negligence as Breach of Implied Legal Duty	91
Dispute as to Nature of Negligence	95
Standard of Care	96
Degrees of Negligence	98
CHAPTER VIII. NEGLIGENCE -- Continued.
Foresight of Harm as Test of the Existence of Negligence	101
Rex Loquitur Ipsa	107
Proximate Cause	109
Intervening Cause	120
Concurring Negligence of Third Person	122
CHAPTER IX. NEGLIGENCE -- Continued.
Duty to Care for Self	124
Contributory Negligence	125
Successive Negligent Acts	127
Injury Caused by Plaintiff's Negligence	127
Injury Caused by Defendant's Negligence	134
Concurring Contributory Negligence	136
Representation in Contributory Negligence	140
Imputed Negligence	142
Rusticum Judicium	144
Comparative Negligence	147
CHAPTER X. NEGLIGENCE -- Continued.
Dangerous Premises	149
Assumption of Risk by Trespasser	155
Trespassing Animals	156
Assumption of Risk by Licensees, Servants, and Guests	157
Turntable Cases	159
CHAPTER XI. NEGLIGENCE -- Continued.
Assumption of Risk by Person Injured	162
Assumption of Risk by Servant	164
Fellow-servant Doctrine	170
CHAPTER XII. NEGLIGENCE -- Continued.
Breach of Statutory Duties	172
Violation of Law by Defendant	172
Violation of Law by Person Injured	175
Violation of Sunday Ordinance	178
CHAPTER XIII. NEGLIGENCE -- Continued.
History of Development of Conception of Negligence:
Neglect in Performance of Positive Provable Duty	182
Neglect of Duty Incident to Public Office	184
Neglect of Implied Duty Incident to Public Calling	184
The General Duty to Take Care	186
CHAPTER XIV. COGNATE NUISANCE
Interference with Subjacent Support	191
Interference with Laternal Support	193
Obstruction and Diversion of Waters	198
Pollution of Waters	202
Interference with Air	204
Interference with Light	206
CHAPTER XV. NUISANCE
Nuisance an Interference with Real Rights	211
History of Nuisance	212
Remedy for Nuisance	214
Nuisance in Conduct of Business	216
Public Nuisance	223
CHAPTER XVI. DISSEISIN OF CHATTELS
Gist of Conversion	231
Intent to Convert	234
Positive Acts Which Work Conversion	238
Liability of Servants and Agents	242
Demand and Refusal	246
CHAPTER XVII. DISSEISIN OF CHATTELS -- Continued.
Conversion Violates Possession or Right of Possession	250
Measure of Damages	255
Miscellaneous Doctrines	257
Disseisin of Real Property	261
CHAPTER XVIII. INTERFERENCE WITH DOMESTIC RELATIONS
Husband and Wife	263
Master and Servant	265
Guardian and Ward	267
Parent and Child	267
CHAPTER XIX. DEFAMATION
History and General State of Law of Slander and Libel	273
Slander	281
Libel	291
CHAPTER XX. DEFAMATION -- Continued
Publication	296
Interpretation of Defamatory Words	299
Justification	300
Fair Comment and Criticism	302
CHAPTER XXI. DEFAMATION -- Continued
Privilege	307
Malice	313
Malice in Law	316
Right of Privacy	318
CHAPTER XXII. SLANDER OF TITLE AND DEFAMATION OF GOODS
Slander of Title	322
Defamation of Goods	323
CHAPTER XXIII. MALICIOUS PROSECUTION
Malicious Prosecution for Crime	326
Malicious Abuse of Process	334
Function of Malice	335
CHAPTER XXIV. MAINTENANCE
Maintenance	337
CHAPTER XXV. INTERFERENCE WITH CONTRACT RELATIONS
Interference with Contract Relations	342
CHAPTER XXVI. INTERFERENCE WITH TRADE OR CALLING
Allen v. Flood	347
Quinn v. Leathem	367
American Doctrine	368
Conspiracy	372
CHAPTER XXVII. DECEIT
Nature and Early History of Action of Deceit	374
Fraud and False Warranty in Chattel Sales	377
Implied Warranty of Title	382
Warranty of Quality	385
Transition from Tort to Contact Conception of Liability	389
CHAPTER XXVIII. DECEIT -- Continued.
Misrepresentation	392
The Representation	393
Falsity of Representation	398
Knowledge of Falsity of Representation	399
Deception	413
The Damage	415
CHAPTER XXIX UNFAIR COMPETITION
The Earlier Decisions	418
Trade-marks	425
Unfair Competition	425
Trade Names	432
CHAPTER XXX. NEGLIGENT TRANSMISSION OF TELEGRAMS
Place of This Tort in Legal Theory	435
Action of Sendee and Addressee	437
Fusion of Tort and Contract Conception of Liability	441
The Damages	443
CHAPTER XXXI. ELEMENTS OF RECOVERABLE DAMAGE
Nervous Shock	457
Mental Distress	460
Right of Action Arising Ex Contractus	471
Right of Action Conceived as Arising Ex Delicto	472
CHAPTER XXXII. MEASURE OF DAMAGES
Compensation and Punishment	477
Exemplary Damages	479
CHAPTER XXXIII. DAMAGE AND INJURY
Damage and Injury	491
CHAPTER XXXIV.
Process of Legal Evolution	496
Function of the Courts	498
Doctrine of Judicial Precedent	499