several persons, each is responsible for the wrong done to the
plaintiff. If A writes a libel, and B prints it and C publishes it,
the person wronged may sue all jointly, or either one of them
separately. The publication of the same slander by different persons
is not a joint tort, it is a distinct wrong done by each slanderer.
There are distinctions between libel and slander that must be now
stated. Slander is applied to oral speech or its equivalent, libel to
matters expressed in writing or print, pictures, effigies or other
visible and permanent forms. Libel is a criminal offense as well as a
tort, while the slander of private persons is not a common law crime;
but some forms of slander are crimes by statute. Falsely and
maliciously to charge one with committing a felony or other indictable
offense involving moral turpitude is in some states a crime.
Scandalous matter is not necessary to make a libel. "It is enough if
the defendant induces an ill opinion to be held of the plaintiff, or
to make him contemptible or ridiculous." Says Burdick: "Any censorious
or ridiculing writing, picture or sign made intentionally and without
just cause and excuse is a libel upon its victim. The degree of
censure or ridicule is not material. If the language is such that
others, knowing the circumstances, would reasonably think it
defamatory of the person complaining of and injured by it, then it is
actionable."
In many cases of libels which affect the victim chiefly or solely in
his office or vocation their tendency to cause injury is so clear that
proof may be unnecessary. Thus, to import insanity or incompetency to
a professional man, or that a public official is dishonest and corrupt
is actionable. And when a libelous publication is directed against a
class or body of persons, for example, the medical staff of a public
hospital, any member of the body may maintain an action for the wrong.
A corporation has no character like a natural person to defend, but a
defamatory charge which directly affects its credit and injures its
business reputation is an actionable one. On the other hand as a
corporation must transact its business and perform its duties through
natural persons it is now well settled that a corporation is liable in
damages for slander, as it is for other torts.
Slanderous words that are actionable have been thus classified by the
United States Supreme Court: "(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 be true,
may be indicted and punished; (2) words falsely spoken of a person
which impute that the party is infected with some infectious disease,
where, if the charge is true, it would exclude him from society; (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 his duties of such office
or employment; (4) defamatory words falsely spoken of a party which
prejudice such party in his or her profession or trade."
The damages may be either nominal, one dollar is often given in such
cases, or compensatory, larger damages, as a punishment. The amount
rendered is within the province of the jury, but courts do not
hesitate to modify or set aside verdicts which are deemed excessive or
too meager.
The defenses in such actions may be briefly described. The truth of
the charge is a complete defense to a civil action for slander or
libel, because "the law will not permit a man to recover damages in
respect to an injury to a character which he either does not or ought
not to possess." A privileged communication is another defense. The
heads of the executive departments of government are absolutely
privileged for defamatory statements made by them while acting within
the limits of their authority. Their motives do not become the subject
of inquiry in a civil suit for damages. Judicial officers are shielded
by this rule while discharging their duties. The publication of
judicial proceedings is conditionally privileged. The condition is
that the proceedings are public, are decent and fit for publication,
that the reports are full and fair, and that their publication is not
inspired by malice. Says Burdick: "The reports of such proceedings are
usually made without reference to the individuals concerned, and for
the information and benefit of the public. The law, therefore,
presumes that they are made in good faith." The full and fair reports
of parliamentary and legislative proceedings are also conditionally
privileged as well as the reports of judicial proceedings, and for the
same reasons. The publication of the proceedings of quasi public
bodies, like state, medical, and ecclesiastical societies has been
deemed conditionally privileged. But "professional publishers of news
are not exempt, or a privileged class, from the consequences of damage
done by false news. Their communications are not privileged merely
because made in public journals." Statements rendered by mercantile or
collection agencies to inquirers for business purposes are clearly
privileged. But whether the circulation among all their subscribers of
a sheet containing such statements is privileged is a disputed
question among the courts. Again, every statement made with the
object of protecting some interest of the writer or speaker and which
is reasonably necessary for such purpose is conditionally privileged.
Fair comment is another defense. The most frequent subjects of fair
comment from which spring actions for defamations are the character
and conduct of public men or candidates for office; and literary,
artistic, or commercial productions offered to the public. Whether a
particular statement is an unfair aspersion of one's personal
character, or a fair comment on his public conduct, is a question
usually for the jury.
At common law a defamer could not insist on an opportunity to retract
or apologize, but he could give in evidence any apology or retraction
to lessen the damages. This rule has formed the basis of a statute in
some of the states. Though attacked on constitutional grounds, it has
been sustained in Minnesota, North Carolina and perhaps in other
commonwealths. Where it can be made, the apology and retraction must
be full, fair, prompt.
Passing to private nuisances, a wrong or tort consists in wrongfully
disturbing one in the reasonably comfortable use and enjoyment of his
property. Ordinarily the motive of the wrongdoer is not material in
determining his maintenance of a nuisance. Some things and trades are
considered as nuisances of themselves, for example, a slaughter house
in a large town, a pigsty near a dwelling house, a house of ill fame,
the fouling of a spring, well or stream; keeping a large quantity of
explosives near a public dwelling, or animals or other property
dangerous to human life. Likewise, a hospital that operates to destroy
the peace, quiet and comfort of those in adjoining residences, affects
their health and value of their property is a private nuisance,
against which action may be taken for its removal or abatement. Public
cemeteries come under the same ban. They will not be adjudged a
nuisance simply because they offend the fancy, delicacy, or
fastidiousness of neighbors, or even depreciate the value of adjoining
property.
When a business is carried on, structures are erected, or excavations
are made which are nuisances, the actor is liable in damages for them
whether he exercised due care in constructing and maintaining them or
not. The same rule applies to the owner or keeper of a savage and
dangerous animal.
Acts of discomfort that amount to a nuisance are such as produce this
effect to persons of ordinary sensibility who live in the locality
where the nuisance exists. Noises, odors, smoke, or dust may
constitute an actionable nuisance in one locality and not in another.
If the nuisances are from ordinary musical instruments in the dwelling
of a neighbor, or from his children, yet are only of a kind that may
be expected in such a neighborhood, they must be borne, unless
prohibited by law. On the other hand, the same amount of noise caused
by horses in the basement of an adjoining house is an actionable
nuisance.
A temporary annoyance is quite another thing. The erection of an iron
building near a dwelling might, during the period of construction,
cause great noise and discomfort, yet the occupier of the dwelling
would have no remedy. But there is a limit to the conduct of the
annoyer. He must act reasonably. He cannot blast rock, or hammer
metal, or operate noisy steam drills at all hours of the day and
night. He must conform to the habits of the community, and not
unreasonably disturb his neighbors, during ordinary working hours.
There is a distinction also between acts that annoy and those that
injure adjoining property. Generally acts of the latter kind are
actionable. If one fixes his residence near a nuisance, formerly he
had no remedy. This is no longer the law. When, however, a court is
asked to enjoin or stop a useful and lawful business in a place, the
court will inquire whether the business has long existed and the place
has grown up by reason of its existence. If this prove to be the case
a court will reluctantly interfere. Yet, if the business is actually
harmful to health or injurious to property, it will be enjoined
however great the loss may be to the owner.
While a land owner is not liable for a nuisance created on his land by
a stranger, whose acts cannot in any way be attributed to him, he is
liable for a nuisance resulting from a licensee's use of his property.
Thus, if a licensee by attaching a wire to a chimney converts it into
a nuisance to passers-by, the land owner who knowingly permits the
nuisance to continue will be liable for the damages that result. Nor
can one who has fouled a stream or the air, or who indulges in
disturbing noises, defend himself for doing these things by showing
that others did them before he began.
As a person acts at his peril in maintaining a nuisance, so is the
owner of trespassing cattle liable for all the harm done by them,
whether he knows of their disposition to do harm or not. But he is not
liable for harm done by them while they are driven along the highway
without negligence on the driver's part; nor is he liable for mischief
done by them to the person or personal property of one at other times
without knowledge of their viciousness or other proof of negligence.
Nor is he liable by the common law as an insurer against all damage
done by them when they escape from his land.
When vicious animals are kept for any purpose and are a menace to
human beings they are a nuisance. Hence, they may be killed without
incurring liability, and should they do damage their owner or
responsible keeper must answer for it. If the animal be a vicious dog,
the owner must exercise a degree of care commensurate with the danger
to others following his escape from custody, and must secure it from
injuring anyone who does not unlawfully provoke or intermeddle with
the animal.
By the early common law a person who started a fire, even for a
needful and lawful purpose, was responsible for the consequences. This
rule has been modified with time. "A person," says Burdick, "does not
start a fire on his land at his peril. If it spreads beyond his
premises and harms others his liability for the harm must be grounded
on his negligence. The same is true of his liability for electricity
escaping from his control. In both cases the care he must exercise in
guarding the dangerous element varies with the hazard to which it
exposes others."
The liability of a person who keeps explosives is not absolute, unless
he is maintaining a nuisance. Otherwise he is liable only when
negligent. If he is ignorant of the character of the explosive, and
without fault in not knowing, his duty of care is fixed by the
apparent character of the article. Suppose a carrier was carrying a
trunk containing an explosive of which he had no knowledge or reason
for supposing was there, surely he would not be held liable if it
exploded and caused injury.
The liability of a manufacturer, seller, lender, or user of things is
not that of an insurer in making, selling, lending or using them. But
he does incur liability whenever he fails to exercise such care as is
fairly needful to protect others against the hazard in buying and
using them. A druggist, therefore, who affixes a wrong label to a
bottle of medicine and thereby injures a person who uses it is
responsible. And the rule would apply whether the taker was the
purchaser or some other person.
When persons are invited on one's premises for mutual advantage, the
inviter owes the duty of ordinary care. He is not an insurer of their
safety, nor need he exercise extraordinary care in guarding them from
harm, unless there was unusual danger. Suppose a man had a way which
persons used in going to and from his business, and he began to dig a
well near the way and left the place unprotected during its
construction, undoubtedly the owner would be liable. Suppose the well
was a considerable distance from the way where persons did not usually
go and had no occasion for going. Then he would not be liable. How far
away from the road could he dig without thought of the public? The
answer would depend on the facts in the case.
A somewhat different rule has been applied to children. Although a
child of tender years who meets with an injury on the premises of a
private owner may be a technical trespasser, yet the owner may be
liable, if the things causing the injury have been left exposed and
unguarded, and are of such a nature as to be attractive to children,
appealing to their childish curiosity and instincts. Unguarded
premises, which are thus supplied with dangerous attractions, are
regarded as holding out implied invitations to children. There has
been a great deal of controversy over this important rule. Those
opposed say, if everywhere applied, it would render the owner of a
fruit tree, for example, liable for damages to a trespassing boy who,
in attempting to get the fruit, should fall from the tree and be
injured. Professor Burdick, after a full review of the cases, says
that the tide of judicial opinion is setting the other way. Children,
therefore, who invade the premises of a person without any right are
trespassers like older people. The duty of caring for children remains
with their parents and guardians; and if they are injured while
unlawfully going on the land of others their parents cannot visit the
consequences of their neglect on the owners of the land where the
injuries happened.
=Warranty.=--The law, assuming that the purchaser knows or can find
out the quality and worth of things, does not make an implied warranty
of them generally. The legal maxim is, "Let the purchaser beware." He
must take care of himself. In many cases, though, he does obtain a
warranty. He must, however, distinguish between this and a mere
representation. It may be difficult to draw the line always, but it
exists. A statement that is not intended as a warranty, made simply to
awaken the buyer's interest in the thing for sale, is not a warranty.
Nor does the law imply a warranty from the payment of a full price.
Formerly, when a commodity was adulterated, it could be returned, and
the courts became sorely troubled to defend an adulteration. More
recently, statutes have cleared away the difficulty, and are a great
protection to buyers. In many cases, doubtless, they know more about
the quality and condition of the things they buy than the
inexperienced salesmen who are behind the counters, so they need no
protection from the law; when they do need it a warranty may serve a
good purpose. In articles concerning which the seller does possess a
superior knowledge, precious stones, drugs, medicines, and the like,
the modern law has raised an implied warranty for the buyer's
protection. In this class of cases the buyer and seller do not deal on
equal terms. The vendor is professedly an expert.
In a sale of food there is no longer an implied warranty of fitness,
unless the buyer expressly or by inspection acquaints the seller with
the purpose of the purchase and unless it appears that the buyer
relies on the seller's skill and judgment. Even then, if the buyer has
examined the goods and has discovered a defect, there is no warranty.
The burden of showing that he has made known his purpose and that he
has relied on the seller is on the purchaser who claims the existence
of an implied warranty.
There is another implied warranty, that of the seller's title, when he
is in possession of the goods. This is limited to persons who are
acting for themselves, and not agents, trustees, officers of the law,
who are acting for others. An innocent purchaser of goods, therefore,
for a good consideration obtains a good title, even from a vendee who
has obtained them by fraud, as against the original vendor. This rule,
though very broad, does not prevent a lawful owner from recovering his
property. Thus, if a farmer's oxen were stolen and the thief should
sell them as his own, and the purchaser should pay for them,
nevertheless the farmer could recover them. The only exception to this
rule is negotiable paper. This is made in order to surround it with
greater protection.
Where goods are sold by sample there is a warranty that the goods will
be like the sample, but there is no warranty of the sample itself. In
one of the well-known cases hops were sold by sample, and after the
hops had been delivered the discovery was made that they had been
injured by heating. The buyer sued though failed to recover anything,
for it was proved that they were like the sample, which had been shown
several months before, and at that time the heating had not begun. As
they were sold at the earlier period, their condition at the time of
the delivery did not affect the sale. See _Deceit_; _Sale_.
=Will.=--A will is a disposition of one's property to take effect
after his death. He is called a testator, and must possess a sound
mind to make an effective will. He must be able to comprehend what he
is doing. Wills are often contested on the ground that the testator's
mind was feeble and that undue influence was exercised over him in
disposing of his property. Married women can make wills like their
husbands and so can a minor in many states.
All of the states have enacted statutes on the subject which require
various things; one of the most important is the witnessing of wills.
Generally, three witnesses are required. An eminent judge, not long
since, made a will to please his wife leaving a large sum to found an
institution. He was opposed to the thing. The astute judge had no
witnesses, so he both fooled his wife and pleased himself, for his
will was worthless. The statutes require the witnesses to sign in the
testator's presence, who often give important testimony of his
competency whenever his will is contested. As they may be called for
this purpose, intelligence should be used in selecting persons to
become witnesses. A witness who is competent at the time of signing
does not become incompetent by reason of anything that may happen to
him afterward. A witness should not be given anything in the will,
for, if this is done, his act of witnessing in perhaps all the states
violates the gift. Though this may be the consequence the rest of the
will is not thereby impaired. The property given is either real or
personal. Real property consists of land extending indefinitely upward
and downward, every building thereon, every growing thing, likewise
all minerals and in some cases even ice. Personal property includes
everything of a movable nature. A transformation is often effected. A
tree while standing on the land is a part thereof; cut down it becomes
personal property.
A will should be in writing; and this in most states is a statutory
requirement, to guard against the wrongs and frauds that might
otherwise arise. A testator may write his own will, indeed to do so
would be a good test of will-making capacity. If he is unable to write
his name, he may make his mark. When this is done, there should be
ample proof that he did so, for a mark can be so easily made by any
one.
A person to whom real estate is given is called a devisee; the
receiver of personal property a legatee. When the testator gives real
estate he must have regard to the laws of the state where it is
situated; in giving personal property he is governed by the law of the
state where he resides, his domicil. Many a devise has been declared
invalid, because the testator in devising it did not comply with the
law of the state where the land was located.
The principal ground on which wills are attacked is feebleness of
mind, lack of mental capacity. The question assumes this form: did the
testator at the time he executed his will have sufficient mental
capacity to do it. An eminent jurist, Chief Justice Redfield, has said
that he must have undoubtedly sufficient active memory to perceive the
more obvious relations of things to each other. Even if unable to
manage his business, he can nevertheless make a will if he knows what
he is doing.
Again an insane person may make a will provided this is done during a
lucid interval. Many a person is insane only at times or on particular
subjects and therefore may be competent to make a rational disposition
of his property. Some persons have curious religious beliefs,
prejudices against persons, governments and institutions, and yet
these vagaries may not impair their capacity to dispose of their
property in a legal and rational manner.
Another requirement of a testator is that he must declare in the
presence of the witnesses that it is his last will and testament. This
is called a publication of the will. Of course, his will must be
completed when this is done. Suppose a person makes several wills,
which one of them is effective? The last one. A will should be dated,
suppose this has been forgotten, what then? The last will must be
established, if possible, by other evidence. Suppose it is believed
that the last will has been destroyed, and a prior will is found, can
this be set up as establishing the testator's disposition of his
property? It is not his last will, for he has made another.
Any person may be a devisee or legatee including married women, minors
and corporations. If a bequest is made to a corporation not in
existence, is it valid? By some courts this can be done, by others
this power is denied to a testator. Many a well-meant bequest to a
noble charity has been smitten down because there was no legal donee
then existing to receive the gift. A testator may bequeath property
to a trustee who shall select the objects of the testator's bounty.
The thing bequeathed must be described with sufficient clearness to
identify it, nothing more is required. In some cases proper evidence
may be used to identify things where the description in the will is
ambiguous.
A devise of lands may consist of the entire estate or interest of the
testator, or he may give the devisee a lesser interest in them. It is
a common thing for a testator to devise the use of land to a person
during his lifetime, and after his death the entire interest or fee to
another. He usually adds a final or residuary clause to his will to
the effect, that all he may have which has not been bequeathed to any
one specifically shall be given to one or more persons or objects
named in his will. Or, if a legacy shall lapse, that is, the person to
whom it has been given shall die, or for any other reason cannot, or
will not take it, it falls into the residuary portion and goes to the
residuary legatee.
If a will does not contain such a clause, and there is no statute in
the way, then a lapsed legacy or other property, not covered by the
will, goes to such persons as the law has prescribed whenever persons
die leaving no will, or, in legal language, die intestate.