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quences may be traced is much greater, and the right of election as to parties defendant is more favorable to the plaintiff, than in an action on the contract. And the statute of limitation may bar an action on the contract when it will not bar an action on the tort.9s

THE LAW SUBSTANTIVE AS TO THE PERSON INJURED.

10. The law recognizes a normal right of every one against whom a tort is committed to secure legal redress therefor. But this right may be defeated by plaintiff's own conduct, as by his consent or his own wrong.

The Normal Right.

This is another way of putting the familiar maxim that wherever there is a wrong there is a remedy." The remedy in tort lies ordinarily at the suit of the person injured. The action cannot generally be brought by one person to the use of another.100 But personal disability may in certain cases necessitate bringing an action in tort in the name of some person other than the party injured. Thus, an infant, or a person absolutely insane, can sue only through a guardian 101 or other person designated by law. Damages thus recovered for a tort against an insane person go to his estate. This requirement as to the appointment of a guardian is part of the law adjective, and not of the law substantive. At common law the husband

98 Galveston, H. & S. A. R. Co. v. Roemer, 1 Tex. Civ. App. 191, 20 S. W. 843; Frick v. Larned, 50 Kan. 776, 32 Pac. 383. And see Blakely v. Le Duc, 22 Minn. 476. On the other hand, recovery may sometimes be had in contract, where it would be denied in tort; because of the death of one of the parties prior to the commencement of the suit. Post, c. 4, p. 329, note 148.

99 Post, p. 348.

100 Kansas City, M. & B. R. Co. v. Cantrell, 70 Miss. 329, 12 South. 344. 101 Though in suits conducted by a next friend the minors ought regularly to sue by him, yet, if the next friend sue in behalf of the minors, it is the same in substance. Van Pelt v. Chattanooga, R. & C. R. Co., 89 Ga. 706, 15 S. E. 622. Appearance in judicial proceedings is generally regulated by statute. Plympton v. Hall, 55 Minn. 22, 56 N. W. 351; In re Hunter's Estate, 84 Iowa, 388, 51 N. W. 20; Redmond v. Peterson, 102 Cal. 595, 36 Pac. 923; Harlammert v. Moody's Adm'r (Ky.) 26 S. W. 2; Worthington v. Mencer, 96 Ala. 310, 11 South. 72. The infant plaintiff should sue as plaintiff, not the guardian as plaintiff. Perine v. Grand Lodge, A. O. U. W., 48 Minn. 82, 50 N. W. 1022,

Damages

brought an action in his own name for a tort to his wife. recovered were really part of her estate, although they actually went to him together with all her other property.102 These apparent exceptions to the principle as stated, properly viewed, are really its adaptation to other branches of jurisprudence.

Personal status, as a rule, is immaterial in the law of torts.193 "For a Roman of the republic, and even of the empire down to Justinian's time and later, the question, 'With what kind of a person have I to do?' had a very clear and prominent legal meaning, and no question could be more practical. However, there is a general tendency among modern authors to regard the law of persons as supplementary to the general body of legal rules." 104 Capacity in fact is a material consideration, especially in cases of negli gence.1

Consent.

105

Before the conduct complained of, plaintiff may have actually or impliedly consented to what would otherwise be a tort. A football player cannot complain of damage suffered in accordance with the rules of the game. No action can be maintained for damages arising from conduct to which the plaintiff consented, provided the conduct was not illegal, that is, criminal. Consent, however, cannot make an illegal action lawful. A person can only consent to the commission of lawful acts. His consent justifies only so far as it goes. A patient may lawfully consent to a surgical operation on him. This consent justifies the physician in performing the operation, but not in committing an assault. A prize fight is illegal, and, notwithstanding the consent of the parties in participating in it, one of them may sue the other for damages.

Plaintiff's consent operating as a bar to his recovery may be subsequent to the wrong complained of. Thus, if he has executed a release or accepted something in satisfaction of his claim for the wrong done, or has waived the tort, he cannot succeed in an action on the tort.

102 Post, p. 464, "Husband and Wife."

103 Pol. Torts, *46.

104 8 Harv. Law Rev. 189.

105 Pol. Torts, *46. Post, p. 871, "Negligence."

Wrong.

Again, the plaintiff cannot recover unless he himself be innocent. "In an action on a tort, a bad man stands on the same footing as a good one, but neither can have judicial assistance in breaking the law, or compensation for having broken it, or reimbursement for what may have been expended in its breach." 108 In Meryweather v. Nixan,107 plaintiff and defendant damaged a mill, for which plaintiff was forced to pay the whole. It was held that he could not recover contribution from defendant; for ex turpi causa non oritur actio.

Plaintiff's wrong may consist in conscious wrong, or in mere inadvertence or negligence.108 But, while plaintiff's wrong doing may prevent his recovery, to have this effect it must have been connected as a proximate cause of the tort. If a person rides his horse faster than the law allows, this does not justify a cowboy in using his lasso to throw the horse.109

THE LAW SUBSTANTIVE AS TO TORT FEASORS.

11. Liability for torts normally extends to every person, natural or artificial, independent of personal status; but modifications of and exceptions to, or exemptions from, liability are recognized. These may be:

(a) General or

(b) Special.

106 Bish. Noncont. Law. So, "A man must come into equity with clean hands." However, where corporations enter into an illegal trust, and one of them, on withdrawing, attempted to recover the property put into the combination, the court sustained it in so doing, on the theory "that, as a continuing execution of the contract involves a continuing wrong to the public, the judicial courts will aid either party in abandoning it and in extricating itself from it, and that the doctrine in pari delicto does not apply in such case." Mallory v. Hanauer Oil Works, 86 Tenn. 599, 8 S. W. 396.

107 Merryweather v. Nixan (1799) 8 Term R. 186; Smith, Lead. Cas. (Am. Notes) 1700.

108 Plaintiff's own conduct, to prevent his recovery, "cannot in any case be less than (1) a willful and intentional act of wrongdoing; (2) a voluntary assumption of the risk which resulted in injury; (3) negligence." 2 Thomp. Neg. 154.

109 Post, p. 189.

The law of torts was a substitute for private war.110 It was designed to suppy a sufficient remedy for the illegal harm which men were caused to suffer. Award of pecuniary compensation was the commonest, but by no means the only, form of redress.. The purpose was not, primarily, to punish the wrongdoer (the criminal courts did that), but to make good the damage the injured party had suffered, and, incidentally perhaps, to deter others from evil.111 Accordingly, it was generally immaterial whether the defendant in an action on a tort be natural or artificial, responsible or irresponsible, or whether his conduct was intentional or unintentional, so far as the mere right, but not the extent, of the plaintiff's recovery was concerned.112

The earliest theory of liability for tort was, as will presently be seen, based largely on the common-law action of trespass.113 In the simple act of trespass there is involved a minimum of mental element. Accordingly, the early cases stated the doctrine broadly, that individual status-youth, old age, insanity, or incapacity generally had nothing to do with liability in tort.11 This language. was afterwards strained beyond the original holdings (as was done with Weaver v. Ward, conspicuously) and made to cover classes of cases not contemplated when the doctrine was formulated.115 There has been a distinct reaction against the universal application of this general principle, especially to cases in which the mental attitude of the wrongdoer is an essential part.116

110 Pol. Torts, *53; Townsh. Sland. & L. 39, 44, note 1.

111 Post, p. 392, “Exemplary Damages." And see Pol. Torts.

112 "As long as a man keeps himself within the law by doing no act which violates it, we must leave his motive to Him who searches the heart." Black, J.. in Jenkins v. Fowler, 24 Pa. St. 308-310. "The legal wrong is found in the injury done, and not in the motive. Motive generally becomes important only when the damages for the wrong are to be estimated." Cooley, Torts, 88 692–694.

113 Amick v. O'Hara, 6 Blackf. 258; Haynes v. Thomas, 7 Ind. 38; Indianapolis R. Co. v. Caldwell, 9 Ind. 397-421; Leach's Ex'r v. Prebster, 35 Ind. 415.

114 Post, p. 109. Weaver v. Ward, Hob. 89; Chase, L. C. 49.

115 Bullock v. Babcock, 3 Wend. 391; Welch v. Durand, 36 Conn. 182; Flinn v. State, 24 Ind. 286; Mercer v. Corbin, 117 Ind. 450, 20 N. E. 132. Post, p. 48, "Theory of Liability."

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In whatever way the liability may attach, it can attach only as to wrongs of which the person sought to be charged is directly or indirectly connected as the legal cause. Merely that his servant may have had something to do with an alleged wrong done is not sufficient. Even if the defendant individually in some remote way was the occasion or condition of the wrong, this would not charge him. He must be connected, directly or indirectly, as the legal cause of the wrong.

There are further variations in the normal right to sue arising from the defendant's condition, based on exceptions which the law, for reasons of public policy, for example, recognizes. These exceptions or exemptions are of two kinds: (1) General, or those which apply indifferently to all or to most all kinds of wrongs; or (2) special, which are peculiar to specific torts. Thus the state cannot, in absence of its consent, be sued for any tort. Privilege of the state is a general exemption. But privileged communication, for example, is a special exception, peculiar as a defense to libel and slander. Accordingly, general exceptions will be considered in the first part, and special exceptions in the second part, of this book.

LAW SUBSTANTIVE AS TO THE WRrongful CONDUCT. 12. Wrongful conduct has reference to

(a) The mental attitude of the wrong doer, or mens

rea;

(b) The act or omission complained of, which may be

Mental Element.

(1) Complete or

(2) Continuing.

Each act or omission may be involuntary, intentional, or negli gent.118 Accordingly, in dealing with a tort, it is of increasing importance to consider how far the state of the mind of a tort feasor

117 Pol. Torts, c. 4 ("General and Particular Exceptions").

118 "The English law, which in its earliest stages began with but an imperfect line of demarcation between torts and breaches of contracts, presents us with no scientific analysis of the degree to which the intent to harm, or, in the language of the civil law, the animus vicino nocendi,' may enter into

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