The Classical Law of Tort
Coke's Institutes of the Law, No. 1, Series Editors: Amanda J. Owens & Charles K. Rowley
Introduction
What are torts? The late English law professor Sir Percy Winfield (1933) defined a tort as 'the breach of a duty primarily fixed by the law, where the duty is one towards persons generally and its breach is redressible by an action for damages.' This definition is an extremely recent one. In the first half of the nineteenth century, 'Torts' was not an autonomous branch of law but merely a collection of unrelated writs that were not classified even into a separate legal topic. Some of the earliest torts, or writs, such as trespass vi et armis, assumpsit and devenit ad manus had been in existence since the fourteenth century. The only common law writs available during these medieval times were those that alleged wrongs against the king. There were local courts with separate jurisdiction, which protected all the ordinary interests in an ordinary person's life.
Given the restrictions on bringing cases before a common law court, parties indulged in creative pleading. For example, deceit cases were successfully brought before these courts when one party alleged deceit of the court, contra pacem regis, which gave the king an interest in the case.
'Negligence' torts were complex under the writ system. The complications arose from the differing treatment of accidents. Accidents between strangers and parties with a pre-existing relationship were treated differently. Actions between strangers were based on battery charges, using a writ of vi et armis. These writs, based on 'case', described an element of fault, alleging that the defendant had failed to perform a specific duty, or that he had acted negligenter, incaute, or improvide. This element was part of the plaintiff's case, and the burden of proof lay with the plaintiff. Meanwhile, parties with pre-existing knowledge of each other used a contra pacem formula, based on 'trespass'. The writ alleged deliberate wickedness, but the planitiff did not have to prove his formal allegations or to make a genuine case of fault. The defendant's responsory pleading of 'not guilty' was accompanied by the obligation to allege and the burden of proof that the accident was inevitable and without the defendant's fault. A plaintiff often used a trespass case because then he could ensure the defendant's presence at trial with a writ of capias, which gave the right to seize either the property or the person of the defendant to answer a charge in court.
The English case of Weaver v. Ward (1616) was an action of assault and battery. Both parties were performing military musket practice when the defendant's gun went off, wounding the plaintiff. The plaintiff brought a trespass action. The judge commented, 'no man shall be excused from injuring another when the hurt is a trespass.' This pronouncement shows the formalism of writ pleading and the importance of selecting the correct writ as the judge emphasizes that the hurt is a trespass.
The system resulted in anomalous decisions. In the English case of Gibbons v. Pepper, (1695) a horse bolted and ran over the plaintiff. The plaintiff sued alleging battery, a 'trespass' case. The defendant pleaded not guilty and the jury, satisfied that the defendant was not at directly at fault, rendered a verdict against the plaintiff. In comparison, in the English case of Mitchil v. Alestree, (1676) the defendant's horse ran over the plaintiff. The plaintiff successfully brought his suit by bringing a 'case' pleading, setting out the circumstances and establishing fault. These cases demonstrate how in these times, in order for a plaintiff to succeed, the plaintiff's lawyer had to predict how the court would treat the facts, and predetermine what facts were going to emerge during the trial.
As the centuries passed, the legal system continued to develop and the formalism of the writ system gradually began to erode. The English case of Scott v. Shepherd (1773) introduced a substantive element, a directness test, to the procedural requirements. In this case the defendant threw a lighted gunpowder squib into a covered market. The squib was tossed from table to table and exploded in Shepherd's face, blinding him in one eye. The defendant argued that he had not caused the injury, since he did not throw the squib into the plaintiff's face. The justices overruled this argument on the basis that the squib was unlawfully thrown and intended to frighten. All of the actions subsequent to the first toss of the squib were a mere continuation of the initial throw. This 'directness' test was adopted into common law and used to expand what would become the law of torts.
The English case of Scott v. Shepherd (1773), was extremely influential upon American legal doctrine. In many cases defendants became liable to plaintiffs despite convoluted chains of events. For example, in New Jersey, Brauer v. New York Cent. & H.R.R. Co. (1918), a train collided with a horse-drawn wagon on a grade crossing. The horse was killed, the wagon was destroyed, its contents were scattered and the driver sent into a fit. Many of the wagon's contents were stolen as the railroad's detectives stood by. The railway was liable for the wagon driver's losses because the railroad's negligence caused the collision and rendered the driver incapable of protecting his employer's property. The natural and probable consequence of the driver's incapacity was the theft of goods. A Wisconsin civil action case for assault and battery was brought in Vosburg v. Putney, (1891) when the plaintiff, a child aged fourteen, was kicked on the lower leg by the defendant, aged twelve. The plaintiff became lame. The court applied a rule of damages derived from the Wisconsin case of Brown v. Railway Co., (1882) that a wrongdoer is liable for all injuries resulting directly from a wrongful act, whether or not it could be forseen by the defendant.
The courts developed Scott's reasoning concerning a continuous flow of actions to its logical conclusion. If a new act intervened, in and of itself sufficient to be the cause of the injury, then the defendant escaped liability. At the turn of the century one of an Arkansas bauxite mining company's employees threw some live dynamite caps onto a path frequented by school children. (Pittsburgh Reduction Co. v. Horton, (1908) A young boy picked up the caps, and played with them in plain view of his mother and father for a week before taking them to school and exchanging them for some writing paper. The recipient tried to clean the caps with a match and the explosion resulted in the child's loss of a hand. The mother's clearing away of the caps at night broke the causal connection between the mining company and the explosion. The mother's liability was not discussed in the case. Similarly, in the Georgia case of Central of Georgia Ry. Co. v. Price, (1898) a train conductor failed to put off a passenger at her station. The conductor advised the passenger to stay at a specific hotel and promised that he would take her back to the correct station the next day. During the night the passenger's kerosene lamp exploded, starting a fire and burning her hands. The railway was not responsible for her injuries because the injuries were not the natural and probable consequence of carrying a person beyond their stop. The burns were not foreseeable and could not have been provided against.
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