Tort feasors. Married women. CHAPTER II. TORT FEASORS. The general principles of the law with regard to persons who commit torts," tort feasors," as they are usually styled, may be considered under three heads, viz. :— (1) The liability attaching to certain persons for their own acts. (2) The liability attaching to certain persons for the acts of others. (3) The liability attaching to the ownership of mischiefcausing property (1). In general there is no limit to personal capacity, either in becoming liable for civil injuries or in obtaining redress for such. The law does not shield infants, lunatics, and drunkards in respect of their torts as it does in respect of their contracts. A few words must, however, be said with regard to certain classes of persons who are in an exceptional position in this respect. In the case of convicts and alien enemies, there are partial exceptions to the general rule as to capacity to obtain redress for a tort. 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, i.e. a subject of a foreign state with whom this country is at war at the time, cannot sue in his own right in any English Court. The position of married women in respect of torts at the present day requires to be considered with special reference to the provisions of the Married Women's Property Act, 1882 (2). By the common law a husband was liable for his wife's torts, whether ante-nuptial or committed during coverture, but it was necessary that the action should be brought against them both, in order that the husband might have an opportunity of defending himself (3). That Act provides that a married woman shall be capable of (1) Piggott on Torts, p. 41. (3) Bacon's Abridgement, Tit. L. Baron and Feme. entering into and rendering herself liable in respect of and to Married the extent of her separate property on any contract, and of women. suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her; and any damages or costs recovered by her in any such action or proceeding shall be her separate property; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not otherwise (1). The provisions of this section were considered in a case which came before the Court in 1886, where an action for a tort was brought against a married woman. In that case the judges said: "The words of the section are 'need not be joined,' but they do not discharge the husband from his old liability; they, are intended to give to a plaintiff the option of suing husband and wife together or suing the wife alone. The Act contains two very remarkable sections, the 14th and 15th, in relief of the husband, but it has no section relieving him from liability for wrongs done by his wife after her marriage. This clearly shows that it is an Act in favour of the wife, and does not affect the liability of the husband, except in those instances where there is a specific limitation in his favour. Judgment may be entered against the wife, and execution issued against her separate property, if she has any; but, where she has none, the plaintiff is entitled to add the husband as a co-defendant” (2). A married woman may also, for the protection and security of her separate property, bring an action against her husband (3). INFANTS. Infancy, as was stated above, constitutes no defence to an Infants. action of tort. "If an infant commit an assault or utter slander, God forbid," said Lord Kenyon, C.J. (4), “that he should not be answerable for it in a Court of justice." Difficulty, however, not unfrequently arises in determining whether the cause of action is really in tort (ex delicto), or only in contract (ex contractu), for the Courts will not allow a plaintiff by suing in tort to evade the plea of infancy which would be a good defence had he sued in contract. (1) 45 & 46 Vict. c. 75, s. 1, subs. 2, and see as to ante-nuptial torts, ss. 13, 14, and 15, also ante, p. 216, et seq. (2) Seroka V. Kattenburg, 17 Q. B. D. p. 177. (3) 45 & 46 Vict. c. 75, s. 12. Infants. Master and servant. 444 TORTS. [BOOK IV. C Where, accordingly, an infant has induced a person to enter into a contract with him by representing himself as of full age, an action for deceit or fraudulent representation will not lie (1). It is otherwise where an infant commits a wrong of which a contract, or the obtaining of something under a contract, is merely the occasion where the tort in fact is "outside the object and purpose of the contract," and is treated by the law as independent of it. In the celebrated case of Burnard v. Haggis (2), the defendant, 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 to whom he lent this horse, and making across country they jumped various 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 way wholly unauthorised 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 from contract, just as if he had mounted and ridden the horse without hiring or lease. MASTER AND SERVANT.-PRINCIPAL AND AGent. The maxim, "qui facit per alium facit per se," expresses the principle which regulates the liability of any one other than the party actually guilty of any wrongful act. In explanation of this maxim it has been judicially observed that "the party employing has the selection of the party employed, and it is reasonable that he who has made choice of an unskilful or careless person to execute his orders should be responsible for any injury resulting from the want of skill or want of care of the person employed." of Although the master is responsible for the acts of his servant when they are within the scope of the servant's employment, and done in the execution of the service for which he was engaged, he is not liable if the act is done to effect a purpose the servant's own, and not to further his master's interest (3). In Edwards v. London and North-Western Railway Co. (4) a foreman porter in charge of a station gave a person into custody on suspicion of stealing the company's goods. It was held that (1) Bartlett v. Wells, 1 B. & S. 836; 1 Sid. 258; and 8 Ex. 146. (2) 14 C. B. (N.S.) 45; see as to misrepresentation by infant: Lemprière v. Lange, 12 Ch. D. 675. (3) See Limpus v. London General Omnibus Co., 32 L. J. Ex. 34; Moore v. Metropolitan Railway Co., L. R. 8 Q. B. 36; Walker v. South- (4) 5 C. P. 445; and see Barry v. i S in so doing he acted outside his ordinary business, on his own sense of what was his duty, and not for the benefit of the company, and that, therefore, the company could not be made liable for his wrongful act. The important principle must be borne in mind that though Principal a principal is responsible for the tortious act of his agent when and agent, acting within the scope of his employment, yet where the person who does the injury is exercising an independent employment the employer is not answerable. The illustrations usually cited of this rule of law are the well-known cases of Milligan v. Wedge (1), Rapson v. Cubitt (2). In the former of Indepenthese cases, a butcher had employed a licensed drover, who, in turn, employed a boy to drive a bullock; the Court decided that the butcher was not liable for damage done by the bullock owing to the negligence of the boy. dent em ployment, contractor. In the second case, a builder, who had entered into a contract Indepento make alterations in a club-house, employed a gasfitter to do a portion of the work. It was held that the builder was not liable for the consequences of an explosion caused by the negligence of the gasfitter or his servants. To this principle, however, several exceptions have been established by the cases, the principal of which are as follows:— (1) Where the act for which the contractor was employed is illegal. (2) Where the work was done in an imperfect or improper manner. (3) Where a duty is cast upon the employed from the nature of the thing done, because it would be reasonable under the circumstances to expect some injury to follow. (4) When the original employer has interfered with or controlled the particular work which caused the damage (3). As regards the effect of ratification with respect to the relative rights of the agent on the one hand, and the principal on the other, a most important distinction must be drawn between the law as to contracts and that as to torts. The law is summed up by Mr. Evans as follows (4) :— When the contract of an agent is duly ratified, credit having Ratificabeen given to the principal, his rights and liabilities arising from that contract are wholly transferred to the party ratifying, (1) 12 A. & E. 735. (2) 9 M. & W. 710. (3) Pickard v. Smith, 10 C. B. (N.S.) 470; Ringwood on Torts, p 52. et seq., where the authorities are collected; and see Bower v. Peate, 1 Q. B. D. 321, 326, and comments (4) Evans on Principal and Agent, tion. Ratification. Corporations. and the agent occupies a position identical with that of one invested with full authority to do the act ratified. He can neither sue in his own right nor be rendered personally liable. When on the other hand an individual duly ratifies a tort committed by another on his behalf, the ratification has not the same wide effect.... For whilst on the one hand it avails to shield the agent from any liability to the principal from the conduct so ratified, it does not take away his liability to third parties who have suffered a tort at his hands. This distinction applies universally, except in cases of ratification by the Crown" (1). CORPORATIONS. Lord Ellenborough, C.J., in Yarborough and Others v. The Governor and Company of the Bank of England (2), stated the rule of law in reference to the torts of corporations to be that "Wherever they can competently do or order any act to be done on their behalf, which, as by their common seal they may do, they are liable for the consequences of such acts if it be of a tortious nature and to the prejudice of others." Can a corporation be liable in an action for malicious prosecution? Years ago Baron Alderson (3) intimated his opinion that such an action would not lie, because, " in order to support the action, it must be shewn that the defendant was actuated by a motive in his mind, and a corporation has no mind." This opinion, however, was dissented from in subsequent cases. In a case, however, which came before the House of Lords in 1886, Lord Bramwell expressed in the strongest terms his opinion that such an action would not lie. "I think," he said, "the reasoning is demonstrative. To maintain an action for malicious prosecution, it must be shewn that there was an absence of reasonable and probable cause, and that there was malice or some indirect and illegitimate motive in the prosecutor. A corporation is incapable of malice or of motive" (4). And Lord Bramwell went on to say that even if the whole body of shareholders were to meet and direct, or the directors were, by order under the common seal of the company, to order an avowedly malicious prosecution, no action would lie against the corpora (1) Buron v. Denman, 2 Ex. 167. (3) Stevens v. Midland Railway Co., C. B. (N.S.) 290, and Edwards v. (*) Abrath v. North-Eastern Railway Co., 11 App. Cas. 247. |