PART TWO.

LIABILITY OF PERSONS.

[Part Two considers extensively the liability of persons. Although almost the entire body of the law of torts might be brought under this head, if the ramifications of the acts of persons be pursued, the subject of particular liability is carried to the extent only of the general doctrines of responsibility, with specific illustrations of some wrongs. The general doctrines of liability of persons-normal, abnormal, natural and artificial, or as affected by status, manner of commission of act, duties, relation, and so on-stand aloof from the specific wrongs, and are more appropriately considered separately.]

CHAPTER III.

LIABILITY OF PERSONS AS AFFECTED BY STATUS.

21. Normal tort-feasor.

§ 22. Infants-Principles governing their liability.

§ 23. Same continued-Capacity to commit torts involving malice. § 24. Liability of infant for tort arising out of or connected with contracts-General doctrine stated.

25. Same continued-Contracts of bailment-Conversion or un

skillful management.

§ 26. Same continued-Liability for conversion not connected with

bailment.

§ 27. Infant's liability for fraud.

§ 28. Infant estopped from denying liability.

29. Infant's liability for money stolen or embezzled.

§ 30. Infant's liability for tort committed under command or duress.

§ 37.

Liability of married woman for torts-Introductory.

§ 38. Same continued-The common law.

§ 39. Same continued-Liability under modern statutes.

§ 21. Normal Tort-feasor.-A normal tort-feasor, if so we may designate anyone who wrongs another, is one who is of full age, of sound mind, and, if a woman, unmarried, who has alone committed the breach of duty, and who stands in no peculiar relation to the person injured, or to the public, or at least one who violates no duty toward another springing out of any peculiar relations toward that other or the public.

In considering the variations upon the liability of the normal person, or who are abnormal, tort-feasors, two things are to be considered, viz.: The liability different from the normal person, and in what respect; and second, To what we may ascribe the cause of their variation.

§ 22. Infants-Principles Governing Their Liability:It is frequently stated by courts and writers that infants are liable for their torts the same as adults.1 This is not a full statement of the law concerning their liability. For some torts an infant, without regard to his age, is liable, the same as an adult; while in respect to others, his liability depends upon his age, by which test alone it may be determined

1 Humphrey v. Douglass, 33 Am. Dec. 179, note, and authorities cited; Cooley on Torts, 103; Smith v. Kron, 96 N. C. 392, 2 S. E. 533; Conklin v. Thompson, 29 Barb. 218.

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whether or not he has capacity to commit a class of torts requiring certain essential constituent elements to constitute a wrong, which can only be committed by persons who have sufficient knowledge and discretion to understand the nature of the acts involved. Subject to the application of this test, the rule may be stated, that an infant is liable for his "personal torts," those not inseparably connected with contract, the same as an adult, the basic principle governing his responsibility being that the person whose right has been violated should be recompensed for the injury done.2

One might well inquire why the capacity of an infant to commit a particular tort should be considered in determining his liability, when the fundamental principle governing his responsibility is compensation to the injured party without regard to age. The answer is, that the same tests must be applied in determining his liability as in the case of an adult, it being impossible to hold an infant for torts where, by reason of his youth, certain essential elements must necessarily be wanting. But different considerations govern the determination of the liability of an infant than that of an adult, viz.: The age of the former. Extreme youth of an infant will excuse him from vindictive or punitive damages, want of discretion being a good answer. Trespasses to property do not involve any elements requiring a certain capacity to commit the wrong, and hence infants are liable therefor at any age, in the same manner as adults. And

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2 Humphrey v. Douglass, 33 Am. Dec. 179, note, and numerous cases there cited; Smith v. Kron, 96 N. C. 392, 2 S. E. 533; Conklin v. Thompson, 29 Barb. 218; Dial v. Wood, 9 Baxt. 296.

8 Hutching v. Engel, 17 Wis. 230, 84 Am. Dec. 741; O'Brien v. Loomis, 43 Mo. App. 29.

4 Paul v. Hummel, 43 Mo. 119, 97 Am. Dec. 381; Humphrey v. Douglass, 10 Vt. 71, 33 Am. Dec. 177; Bullock v. Babcock, 3 Wend.

so may infants of even twelve or thirteen years be held liable for trespass to the person by handling articles or property by which they injure another, even in sport. For example, a boy twelve years of age was held liable in an action for assault and battery for shooting an arrow, by which the eyes of another were put out; and a boy of thirteen who, in sport, but wantonly, threw a piece of mortar, which struck and put out the eye of another, was held liable for assault and battery. And so a boy of fourteen years who frightens a horse, by the explosion of a firecracker, causing the death of the horse, is liable for the value of the horse. An infant may be held liable for nuisance maintained on real property, or for trespass quare clausum fregit, or for disseisin.10 And when of the proper age, he may be held liable for seduction,11 for embezzlement,12 and for unlawful shooting."

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To hold an infant for an act of negligence, he must be of such age as to possess sufficient knowledge and discretion to understand the nature of the act, so as to enable him to determine the degree of care required under the circumstances. A very young child is incapable of committing an act of negligence.14 An in391; Peterson v. Haffner, 59 Ind. 130, 26 Am. Rep. 81; Stack v. Cavenaugh, 67 N. H. 149, 30 Atl. 350; School Dist. v. Bragdon, 23 N. H. 507; Huchting v. Engel, 17 Wis. 230, 84 Am. Dec. 741.

5 Bullock v. Babcock, 3 Wend. 391.

6 Peterson v. Heffner, 59 Ind. 130, 26 Am. Rep. 81.

7 Conklin v. Thompson, 29 Barb. 218.

8 2 Addison on Torts, 1126; Schouler on Domestic Relations, 564; Morain v. Devlin, 132 Mass. 88, 42 Am. Rep. 423.

9 Scott v. Watson, 46 Me. 362, 74 Am. Dec. 457.

10 Marshall v. Wing, 50 Me. 62.

11 Lee v. Hefley, 21 Ind. 98; Becker v. Mason, 93 Mich. 336, 53

N. W. 361; Fry v. Leslie, 87 Va. 269, 12 S. E. 671.

12 Peigne v. Sutclife, 4 McCord, 387, 17 Am. Dec. 756.

13 Conway v. Reed, 66 Mo. 346, 27 Am. Rep. 354.

14 Barnes v. Shreveport City R. R. Co., 47 La. Ann. 1218, 49 Am. St. Rep. 400, 17 South. 782; Evansville v. Senhenn, 151 Ind. 42, 68 Am. St. Rep. 218, 47 N. E. 634, 51 N. E. 88.

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fant is required to exercise only such care as is reasonably expected of children of his age and capacity, and his responsibility is governed accordingly. Hence, an infant cannot be held to the same degree of care as persons of mature age.16 An infant is liable for negligently riding his horse upon a foot-passenger at a street crossing.17

§ 23. Same Continued-Capacity to Commit Torts Involving Malice.-A certain class of personal torts deserves special mention, because the responsibility of an infant may depend, as in criminal law, upon his capacity to commit the act. It has been contended by some writers that, as malice is an ingredient of slander, an infant cannot be held therefor.18 But applying the same rule of responsibility prevailing in criminal law, it will be readily apparent that when the infant has reached the age of discretion, and is capable of appreciating the nature of his act, and of entertaining malice, he can be held responsible for torts of which malice is an essential ingredient. And it has been held that he is liable for tort in circulating a libel or slander.19 As an infant cannot maintain an action in his own name, it must follow that he cannot be held for malicious prosecution of an action brought by his next friend.20 But he may be held where he comes of age during the pendency of such an action and afterward knowingly prosecutes it.21

15 Lake Erie etc. R. R. Co. v. Mackey, 53 Ohio St. 370, 53 Am. St. Rep. 641, 41 N. E. 980; Spillane v. Missouri Pac. Ry. Co., 135 Mo. 414, 58 Am. St. Rep. 580, 37 S. W. 198; Neal v. Gillett, 23 Conn. 437.

16 Price v. Atchison Water Co., 58 Kan. 551, 62 Am. St. Rep. 625, 50 Pac. 450.

17 Stringer v. Frost, 116 Ind. 477, 9 Am. St. Rep. 875, 19 N. E. 331.

18 Humphrey v. Douglass, 33 Am. Dec. 180, note.

19 Fears v. Riley (1898), 148 Mo. 49, 49 S. W. 836.

20 Burnham v. Seaverns, 101 Mass. 360, 100 Am. Dec. 123.

21 Sterling v. Adams, 3 Day (Conn.), 411.