46

ing the article bailed, to the bailor, and thus bar his recovery for injuries to the article. When a person claims an injury to a right which grows out of a relationship, it is frequently held that he cannot recover therefor if the person through whose relationship the right arose was negligent and this negligence contributed to the harm. Thus, if a child is hurt and the father brings an action, not for the child's harm, but for the loss of the services of the child to himself, there is authority for the proposition that the child's negligence bars a recovery. So, if the husband sues for the loss of his wife's services, her negligence contributing to the accident by which he suffered the loss, bars him.47

87. Same subject-Wife's action for her own injuries. There is a difference of opinion on the question whether a wife's action for her own injuries is barred by the negligence of her husband contributing to the result. The preferable rule is that his negligence should not affect her. What is injured here is not a right arising out of the marital relation, but the wife's own person. The principle of the case of Railroad v. Honey does not apply and it is difficult to see how she can be barred by his act in any other situation unless he is in fact her agent in the transaction. It may be difficult sometimes to distinguish the case from that involved in the common enterprise rule situation of § 84. Thus, in Yahn

46 Illinois Central R. R. Co. v. Sims, 77 Miss. 325, 27 So. 527. The better rule and the weight of authority is otherwise.

47 C. B. & Q. R. R. v. Honey, 63 Fed. 39.

v. Ottumwa,18 the plaintiff and her husband were riding in a wagon on a city street, the husband driving. He did not drive carefully and ran against a stone which the city had allowed to lie in the street. It was held that his negligence was imputed to the wife and that she could not recover. If she were regarded as a mere passenger, the rule of "The Bernina" would allow her to recover. If the case be one involving a common enterprise, the plaintiff would be barred. If her husband be her agent for driving, the same result would be reached. But it would seem that unless the situation were treated as one of these last two, she ought to be allowed to recover. case is not one of injury to a marital relationship and hence the fact that the two were married seems immaterial. This last is the view of many cases.*

The

49

88. Certain situations discriminated.-A father cannot recover for the loss of his child's services if the child was injured through the joint negligence of the father and a third party.50 Nor can he for his wife's services if she be injured under the same circumstances. A sole beneficiary under a statute giving a right of action for the death of a human being cannot recover in some states if his negligence contributed to that death.51 This last question requires a construction of the particular statute involved. These cases do not involve the doctrine

48 60 Iowa 429, 15 N. W. 257. This case is probably overruled in Iowa by Bailey v. Centerville, 115 Iowa 271, and Willfong v. O. & St. L. Ry. Co., 116 Iowa 548.

49 Louisville, etc., R. R. v. Creek, 130 Ind. 139, 29 N. E. 481.

50 Glassey v. Hestonville, etc., Ry., 57 Pa. St. 172.

51 Tucker v. Draper, 62 Neb. 66, 86 N. W. 917.

of imputed negligence, for the plaintiff in each is barred, if at all, by his own contributory negligence and not by that of another.

BIBLIOGRAPHY.

Text Books: Pollock on Torts (8th ed.); Salmon on Torts (2nd ed.), p. 20; Bigelow on Torts (7th ed.); Bishop, NonContract Law, § 433; Clerk & Lindsell on Torts, p. 457; Burdick on Torts (2nd ed.), p. 420; Street, Foundations of Legal Liability, chap. 6; Beven on Negligence; Wharton on Negligence; Shearman and Redfield on Negligence; Thompson on Negligence; Lawson on Negligence; 1 Jaggard on Torts, p. 372; Pigott on Torts; Terry, Leading Principles of AngloAmerican Law; Cooley on Torts (2nd ed.), chap. 21; Beach on Contributory Negligence.

Magazine Articles: 3 Harvard Law Review, 263; 8 Harvard Law Review, 457; 18 Harvard Law Review, 505; 21 Harvard Law Review, 238; 2 Columbia Law Review, 105; 58 University of Penn. L. R., 233; 2 Ill. Law Review, 487; 8 American Law Review, 649; 45 American Law Review, 214; 26 L. Q. Rev., 22 Am. Law Reg. (N. S.), 117; 9 L. R. A. (N. S.), 338, note.

159;

LAW OF TORTS

PART IV

DECEIT

BY

EDWARD D. OSBORN*

CHAPTER I.

INTRODUCTION.

1. Nature of deceit.-Deceit as a tort consists in wrongfully misleading another to his harm by arousing in him an erroneous belief as to some fact upon which he relies and acts to his damage. The wrongfulness of the misleading conduct depends upon (1) the defendant's intent to influence the plaintiff, and (2) his lack of bona fide belief in the truth of the representation which causes the erroneous belief.1

Deceit is unlike most other torts in that the harm to the person injured is self-inflicted, the defendant's part in the causation being limited to influencing the conduct of the former and thus bringing about the act which directly produces the harm.

2. Injury to B by deceiving A.-The same deceit which injures A by influencing his conduct may also

*Professor of Law, University of Kansas. Former Professor of Law and Acting Dean, Washburn College School of Law.

1 See §§ 15-18.