Chapter III.: Persons Affected by Torts, 1.—: Limitations of Personal Capacity.

Personal status, as a rule, immaterial in law of tort: but capacity in fact may be material. In the law of contract various grounds of personal disability have to be considered with some care. Infants, married women, lunatics, are in different degrees and for different reasons incapable of the duties and rights arising out of contracts. In the law of tort it is otherwise. Generally speaking, there is no limit to personal capacity either in becoming liable for civil injuries, or in the power of obtaining redress for them. It seems on principle that where a particular intention, knowledge, or state of mind in the person charged as a wrong-doer is an element, as it sometimes is, in constituting the alleged wrong, the age and mental capacity of the person may and should be taken into account (along with other relevant circumstances) in order to ascertain as a fact whether that intention, knowledge, or state of mind was present. But in every case it would be a question of fact, and no exception to the general rule would be established or propounded. An idiot would scarcely be held answerable for incoherent words of vituperation, though, if uttered by a sane man, they might be slander. But this would not help a monomaniac who should write libellous post-cards to all the people who had refused or neglected, say to supply him with funds to recover the Crown of England. The amount of damages recovered might be reduced by reason of the evident insignificance of such libels; but that would be all. Again, a mere child could not be held accountable for not using the discretion of a man; but an infant is certainly liable for all wrongs of omission as well as of commission in matters where he was, in the common phrase, old enough to know better. It is a matter of common sense, just as we do not expect of a blind man the same actions or readiness to act as of a seeing man.

Partial or apparent exceptions: There exist partial exceptions, however, in the case of convicts and alien enemies, and apparent exceptions as to infants and married women.

Convicts and alien enemies. A convicted felon whose sentence is in force and unexpired, and who is not “lawfully at large under any licence,” cannot sue “for the recovery of any property, debt, or damage whatsoever”. An alien enemy cannot sue in his own right in any English court. Nor is the operation of the Statute of Limitations suspended, it seems, by the personal disability.

Infants: contract not to be indirectly enforced by suing in tort. With regard to infants, there were certain cases under the old system of pleading in which there was an option to sue for breach of contract or for a tort. In such a case an infant could not be made liable for what was in truth a breach of contract by framing the action ex delicto. “You cannot convert a contract into a tort to enable you to sue an infant: Jennings v. Rundall”. And the principle goes to this extent, that no action lies against an infant for a fraud whereby he has induced a person to contract with him, such as a false statement that he is of full age.

Limits of the rule: independent wrongs. But where an infant commits a wrong of which a contract, or the obtaining of something under a contract, is the occasion, but only the occasion, he is liable. In Burnard v. Haggis, the defendant in the County Court, an infant undergraduate, hired a horse for riding on the express condition that it was not to be used for jumping; he went out with a friend who rode this horse by his desire, and, making a cut across country, they jumped divers hedges and ditches, and the horse staked itself on a fence and was fatally injured. Having thus caused the horse to be used in a manner wholly unauthorized by its owner, the defendant was held to have committed a mere trespass or “independent tort”, for which he was liable to the owner apart from any question of contract, just as if he had mounted and ridden the horse without hiring or leave.

Infant shall not take advantage of his own fraud. Also it has been established by various decisions in the Court of Chancery that “an infant cannot take advantage of his own fraud:” that is, he may be compelled to specific restitution, where that is possible, of anything he has obtained by deceit, nor can he hold other persons liable for acts done on the faith of his false statement, which would have been duly done if the statement had been true. Thus, where an infant had obtained a lease of a furnished house by representing himself as a responsible person and of full age, the lease was declared void, and the lessor to be entitled to delivery of possession, and to an injunction to restrain the lessee from dealing with the furniture and effects, but not to damages for use and occupation .

Married women: the common law. As to married women, a married woman was by the common law incapable of binding herself by contract, and therefore, like an infant, she could not be made liable as for a wrong in an action for deceit or the like, when this would have in substance amounted to making her liable on a contract. In other cases of wrong she was not under any disability, nor had she any immunity; but she had to sue and be sued jointly with her husband, inasmuch as her property was the husband’s; and the husband got the benefit of a favourable judgment and was liable to the consequences of an adverse one.

Married Women’s Property Act, 1882. Since the Married Women’s Property Act, 1882, a married woman can acquire and hold separate property in her own name, and sue and be sued without joining her husband. If she is sued alone, damages and costs recovered against her are payable out of her separate property. If a husband and wife sue jointly for personal injuries to the wife, the damages recovered are the wife’s separate property. She may sue her own husband, if necessary, “for the protection and security of her own separate property”; but otherwise actions for a tort between husband and wife cannot be entertained. That is, a wife may sue her husband in an action which under the old forms of pleading would have been trover for the recovery of her goods, or for a trespass or nuisance to land held by her as her separate property; but she may not sue him in a civil action for a personal wrong, such as assault, libel, or injury by negligence. Divorce does not enable the divorced wife to sue her husband for a personal tort committed during the coverture. There is not anything in the Act to prevent a husband and wife from suing or being sued jointly according to the old practice; the husband is not relieved from liability for wrongs committed by the wife during coverture, and may still be joined as a defendant at need. If it were not so, a married woman having no separate property might commit wrongs with impunity If husband and wife are now jointly sued for the wife’s wrong, and execution issues against the husband’s property, a question may possibly be raised whether the husband is entitled to indemnity from the wife’s separate property, if in fact she has any.

Common law liability of infants and married women limited, according to some, to wrongs contra pacem. There is some authority for the doctrine that by the common law both infants and married women are liable only for “actual torts” such as trespass, which were formerly laid in pleading as contra pacem, and are not in any case liable for torts in the nature of deceit, or, in the old phrase, in actions which “sound in deceit.” But this does not seem acceptable on principle.

Corporations. As to corporations, it is evident that personal injuries, in the sense of bodily harm or offence, cannot be inflicted upon them. Neither can a corporation be injured in respect of merely personal reputation. It can sue for a libel affecting property, but not for a libel purporting to charge the corporation as a whole with corruption, for example. The individual officers or members of the corporation whose action is reflected on are the only proper plaintiffs in such a case. It would seem at first sight, and it was long supposed, that a corporation also cannot be liable for personal wrongs. But this is really part of the larger question of the liability of principals and employers for the conduct of persons employed by them; for a corporation can act and become liable only through its agents or servants. In that connexion we recur to the matter further on.

The greatest difficulty has been (and by some good authorities still is) felt in those kinds of cases where “malice in fact”—actual ill-will or evil motive—has to be proved.

Responsibility of public bodies for management of works, &c. under their control. Where bodies of persons, incorporated or not, are intrusted with the management and maintenance of works, or the performance of other duties of a public nature, they are in their corporate or quasi-corporate capacity responsible for the proper conduct of their undertakings no less than if they were private owners: and this whether they derive any profit from the undertaking or not.

The same principle has been applied to the management of a public harbour by the executive government of a British colony. The rule is subject, of course, to the special statutory provisions as to liability and remedies that may exist in any particular case.