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CHAPTER II.

PRINCIPLES OF LIABILITY.

There was a want of generality in early law. Law began not with authentic general principles, but with enumeration of particular remedies. There was no law of contracts in the modern lawyer's sense, only a list of certain kinds of agreements which might be enforced. Neither was there any law of delicts, but only a list of certain kinds of injury which had certain penalties assigned to them. Thus in the Anglo-Saxon laws we find minute assessments of the compensation due for hurts to every member of the human body, but there is no general prohibition of personal violence; and a like state of things appears in the fragments of the Twelve Tables. Whatever agreements were outside the specified forms were incapable of enforcement; whatever injuries were not in the table of compensation must go without legal redress.

In modern law, on the other hand, there exists a general duty not to do harm. The three main heads of duty with which the law of torts is concerned - namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others — are all alike of a comprehensive nature.

The commission of an act specifically forbidden by law, or the omission or failure to perform any duty specifically imposed by law,' is generally equivalent to an act done with intent to cause wrongful injury. The old-fashioned distinction between mala prohibita and mala in se is long since exploded.

Many public duties are wholly created by special statutes.2 In such cases it is not a universal proposition that a breach of the duty confers a private right of action on any and every person who suffers particular damage from it. The extent of the liabilities incident to a statutory duty

1. See Miller v. Woodhead, 104 N. Y. 471; Edwards v. Railway Co., 98 N. Y. (Anno. Reprint) 245, note, p.

267; Gully v. Smith, 12 Q. B. D. 121. 2. Willey v. Malledy, 78 N. Y. 310.

must be ascertained from the scope and terms of the statute itself.

The duty to respect proprietary rights is an absolute one. See post.

Duties of diligence. What is due care and caution under given circumstances will be worked out in the special treatment of negligence. Generally speaking, the standard of duty is fixed by reference to what we should expect in the like case from a man of ordinary sense, knowledge, and prudence. Moreover, if the party has taken in hand the conduct of anything requiring special skill and knowledge, we require of him a competent measure of the skill and knowledge usually found in persons who undertake such matters. Whoever takes on himself to exercise a craft holds himself out as possessing at least the common skill of that craft, and is answerable accordingly. If he fails, it is no excuse that he did the best he, being unskilled, actually could. He must be reasonably skilled at his peril.*

An exception to this principle arises where in emergency, and to avoid imminent risk, the conduct of something generally entrusted to skilled persons is taken by an unskilled person.5

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Liability in relation to consequences of act or default. When complaint is made that one person has caused harm to another, the first question is whether his act was really the cause of that harm in a sense upon which the law can take action. Liability must be founded on an act which is the immediate cause" of harm or of injury to a right. Again, there may have been an undoubted wrong, but it may be doubted how much of the harm harm that ensues is related to the wrongful act as its "immediate cause,' " and therefore is to be counted in estimating the wrong-doer's liability. The distinction of proximate from remote consequences is needful, first, to ascertain whether there is any liability at all, and then, if it is established that wrong has been committed, to settle

3. See post.

4. See Cooley on Torts (Students' Ed.), 668 et seq. and cases cited;

Ewell's Med. Jur. (2d Ed.), ch. 19,

5. See the unabridged text, Webb's Ed., p. 28.

the footing on which compensation for the wrong is to be awarded.

In cases of tort the primary question of liability itself often depends on the nearness or remoteness of the harm complained of. Except where we have an absolute duty and an act which manifestly violates it, no clear line can be drawn between the rule of liability and the rule of compensation. The measure of damages, which appears at first sight to belong to the law of remedies more than of "antecedent rights," constantly involves, in the field of torts, points that are in truth of the very substance of the law."

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The meaning of the term "immediate cause is not capable of perfect or general definition. For the purpose of civil liability, those consequences, and those only, are deemed "immediate," "proximate," or "natural and probable," which a person of average competence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was "immediate " or not does not matter.8

In the case of wilful wrong-doing we have an act intended to do harm, and harm done by it. In such case liability may ertend to some consequences not intended. Thus, in the case of Scott v. Shepherd," Shepherd throws a lighted squib into a building full of people. It falls near a person who, by an instant and natural act of self-protection, casts it from him. A third person again does the same. In this third flight the squib meets with Scott, strikes him in the face, and explodes, destroying the sight of one eye. Shepherd neither threw the squib at Scott, nor intended such

6. See Burdick on Torts (3d Ed.), 106 et seq.

7. Id.

8. Id., 108-125 and cases cited; Hadley v. Baxendale, 9 Ex. 341.

9. Scott v. Shepherd, 2 W. Bl. 892; s. c. 1 Sm. L. C. *549 and notes; Vandenburg v. Truax, 4 Denio, 464.

grave harm to any one; but he is none the less liable to Scott.

This principle is commonly expressed in the maxim that "a man is presumed to intend the natural consequences of his acts."'1

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The doctrine of "natural and probable consequence most clearly illustrated in the law of negligence. For there the substance of the wrong itself is failure to act with due foresight; it has been defined as "the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.2 A reasonable man can be guided only by a reasonable estimate of probabilities. If in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant's place should have foreseen as likely to happen, there is no wrong and no liability.

CHAPTER III.

PERSONS AFFECTED BY TORTS.

1. Limitations of Personal Capacity.

Generally speaking, in the law of tort 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

1. See this principle illustrated in the cases of Vandenburgh v. Truax, 4 Denio, 464; Guille v. Swan, 19

Johns. 381; Glover v. London, etc.,
Railway Co., L. R. 3 Q. B. 25.

2. See Cooley on Torts (Students' Ed.), 683-687.

every case it would be a question of fact, and no exception to the general rule would be established or propounded.1

There exists a partial exception, however, in the case of alien enemies, and apparent exceptions as to infants and married women. An alien enemy cannot sue in his own right in any English court.2 Nor is the operation of the Statute of Limitation suspended, it seems, by the personal disability. An infant cannot be made liable for what is 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. 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. 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.

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.

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;5 but she had to sue and be sued jointly with her husband."

As to corporations, personal injuries cannot be inflicted upon them. It was long supposed that a corporation also

1. Ulpian, in D. 9, 2 ad leg. Aquil, 5, § 2.

2. See McVeigh v. U. S., 11 Wallace, 259; Burnside v. Matthews, 44 N. Y. 78; and ante, Contracts.

3. Jennings v. Rundall, 8 T. R. 335;

Ewell's Lead. Cases (1st Ed.), 185206, note.

4. See next note, supra.

5. See Burdick on Torts (3d Ed.), 140.

6. Id.

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