An action brought by a passenger against a railroad company for personal injuries caus ed by the negligence of the servants of the company while he was traveling on their line action founded on tort; [1895] 1 Q. B. 944, where it is said: "If the cause of complaint be for an act of omission or non feasance which, without proof4of a contract to do what has been left undone, would not give rise to a cause of action (because no duty apart from the contract to do what is complained of exists), then the action com plained of is founded upon contract and not upon tort. If, on the other hand, the relation of the plaintiff and the defendants be such that a duty arises from that relationship, irrespective of contract, to take due care, and the defendants are negligent, then the action is one of tort." Quoted and followed in At lantic & P. R. Co. v. Laird, 164 U. S. 393, 17 Sup. Ct. 120, 41 L. Ed. 485.
As the doctrine of the merger of a tort in a crime, see MERGER.
The infringement of a right or the violation of a duty are necessary ingredients of a tort. If neither of these is present the act is not a tort, although damage may have resulted.
Hence the maxim: Ex damn sine vnjuria non oritur actio.
The fact alone that an act of defendant was in violation of a penal statute does not afford ground Mr the recovery of damages by a third person, unless' such act was also the prOximate cause of tile, injury complained of; The Santa Rita, 173 Fed. 413.
The existence of contractual relations tween two parties is no bar to a right of ac tion for a tort committed, pending the con tract and connected with it; Sehoppel v. Daly, 112 La. 201, 36 South. 322.
One not a party to a contract cannot main tain an action of tort respect to a breach of duty arising out of the contract ; Conklin v. Staats, 70 N. J. L. 771, 59 Atl. 144.
A wrongful or malicious intent is an essen tial element in some torts. As, for example, deceit, slander, and libel, malicious prosecu tion, and conspiracy. In general, however, it may be stated as a prominent distinction be tween torts and crimes, that in the former the party's intent is immaterial, while in pros ecutions for the latter a criminal purpose must always be alleged and proved; Cooley, Torts 688. Thus one may be made liable in damages for what usually called a mere accident. So insane persons and minors, un- . der the age of discernment, are in general liable for torts. See MAmou.
A tort sounding in exemplary damages is one when there is an evasion of some right of person or property, maliciously, violently, wantonly, or with reckless disregard of social or civil obligations; Samuels v. R. Co., 35 S. C. 493, 14 S. E. 943, 28 Am. St. Rep. 883.
In general, it may be said that whenever the law creates a right, the violation of such right will be a tort, and wherever the law creates a duty, the breach of such duty cou pled with consequent damage will be a tort also. This applies not only to the common law, but also to such rights and duties as may be created by statute ; Cooley, Torts 650.
An actionable wrong is committed by one who maliciously interferes' with a contract between two parties and induces one of to break the contract to the injury of the other. In the absence of an adequate remedy at law, equitable relief will be granted ; Dr. Miles Med. Co. v. J. D. Park & Sons Co., 220 U. S. 373, 31 Sup. Ct. 376, 55 L. Ed. 502.
Where a defendant corporatiot induced an-• other to break a contract to furnish certain machines, plaintiff was entitled to recover from defendant damages sustained thereby without proof that defendant 'Was actuated by actual malice or ill will; tubular R. & S. Co. v. Shoe Co., 159 Fed. 824, C. C. C. A. 648.
Torts may also arise i the performance of the duties of a mini 'erial officer, when such duties are due to ndividuals and 'not to the state; Cooley, Torts 376; but the of a British officer in excess of his author Jty '(burning certain barracoons in Africa k and releasing slaves therefrom), when ap proved by the government, becomes an "act of state" and is not a ground of action against him; 2 Ex. 167.
As to torts committed against property or in the relations of master and servant, hus band and wife, parent and child, bailor and bailee, landlord and tenant, mortgagor and mortgagee, see these several titles.
/ In order to maintain an action of tort the relation of cause and effect between the act and the injury must he clearly shown. The damage must not be rfmote or indirect. See CAUSA PROXIMA, etc.
All who aid, advise, command, or coun tenance the commission of a tort, or approve of it after it is done, are liable, if done for their benefit, in the same manner as if done with their hands; Mack v. Kelsey, 61 Vt. 399, 17 Atl. 780; Brown v. Webster City, 115 Ia. 511, 88 N. W. 1070; and joint tortfea sors are liable jointly and severally; Weath ers v. R. Co., 111 Mo. App. 315, 86 S. W. 908 ; but where two or more are acting lawfully together to make an arrest, one is not liable for the unlawful act of another done in fur therance of the common purpose, without his concurrence; Wert v. Potts, 76 Ia. 612, 41 N. W. 374, 14 Am. St. Rep. 252. Where there are several wrongdoers, each is liable for the entire damage; all are equal. But where the injured party has elected to sue one or more and obtains judgment, he cannot sue the oth ers, even though his judgment remains un satisfied; L. R. 7 C. P. 547; but it is held generally in this country that a judgment without satisfaction is not a bar; Cooley, Torts 138; 11 Harv. L. Rev. A recovery by a husband for injuries sustained to himself is not a bar to a subsequent action for in juries to his wife sustained at the same time as a result of the same negligence; Texas & P. Ry. Co. v. Nelson, 9 Tex. Civ. App. 156, 29 S. W. 78; but judgment is held to be a bar if satisfaction has been tendered: Berkley v. Wilson, 87 Md. 219, 39 At]. 502: contra, Lincoln Say. Bk. v. Ewing, 12 Lea (Tenn.) 598; People v. Beebe, 1 Barb. (N. Y.) 379.