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that defendants took upon themselves to do something which they
were not bound to do. At most, the defendants omitted to do some-

ices or not. McCandless v. McWha, 22 Pa. 261 (1853'), 269; McNevins v.
Lowe, 40 111. 209 (1866); Du Bois v. Decker, 130 N. Y. 325 (1891), p. 332
...^.. . ; iJailcs v. Raines. 146 ^^n. App. 232 (1910) ; but see Duucaii v. 5/.
Luke's Hospital, 98 N. Y. S. 867 (1906).


thing which they were not bound to do.^ The plaintiff would have to
prove that he had been induced by the defendants to believe that they
were going to do it again (though he doubted whether even that would
render them liable). The plaintiff, therefore, had to prove that he
thought the defendants were going to alter the moorings before he
went upon the table top. The plaintiff" gave no evidence of that, and
therefore there was no possible evidence of liability in the defendants.

Lord Justice Fry said that it seemed to bim that there was
some evidence of a course of conduct on the part of the defendants
to alter the moorings of vessels in dock. There was no obligation
to continue this course of conduct. If this course of conduct had
raised an expectation in the mind of the plaintiff that it would be
continued, and if on the faith of that expectation he went upon this
table top and the accident happened, he (the Lord Justice) dechned
to say that an action would not Ue.^ But here the plaintiff had no
such 'expectation. The plaintiff knew that the defendants had not
altered the moorings, and yet he went upon the table top. The action,
therefore, would not lie.

Lord Justice Lopes said that there was no duty towards the
plaintiff on the part of the defendants. The defendants, in his opin-
ion, never undertook to watch the moorings of the vessels. Consid-
ering the number of vessels in dock it would be unreasonable to ex-
pect'^them to do so. iMoreover, the defendants' printed rule was
strong evidence to show that they never undertook this obligation.
He (the Lord Justice) expressed no opinion as to what would be
the case if the plaintiff had been misled ; but in this case there was
no evidence that he had been misled.

*"If a person. undertakes to perform a voluntary act, he is liable if he
performs it improperly, but not if he neglects to perform it." WiUes, J.,
Skelton V. L. & N. Rv., L. R. 2 C. P. 631 (1867), p. 636. But see Texas Mid-
land Ry. Co. V. Geraldon, 117 S. W. 1004 (Tex. Ct. of Civil App., 1909)- where
it is held that a railway company was liable for the act of its station
agent in turning the plaintiff, at best a bare licensee out of its station in order
to clo-^e it for the night, the plaintiff being a woman in delicate health and the
night rainy. See also Weymire v. Wolfe, 52 Iowa, 533 (1879), saloon keeper
held liable for turning a patron helplessly drunk, o"t of h's saloon on a
bitterlv cold night- and Depue v. Flatau, 100 Minn. 299 (1907), ^nA Trout
V Wdtkins Livery & Undertaking Co., 148 Mo. App. 621 (1910), where a
livery stable keeper was held liable in tort for neglect or refusal to carry a
palpably ill passenger to his destinations, as agreed by contract.

'Where a railroad, though not required to station a flagman or main-
tain a safety gate at a level crossing, has to the knowledge of the travelling
public habitually done so, it is generally held that, until knowledge of their
intention to abandon such practice has been brought home to travellers, the
latter are entitled to regard the lack of warning from such flagman, or the
fact that such gates are open, as an assurance that the track is clear. Kissen-
ger v. R. R., 56 N. Y. 538 (1874) ; State v. B. & M. R. R., 80 Me. 430 (1888) ;
Richmond v. R. R., 87 Mich. 374 (1891) ; Burns v. North Chicago Mill Co.,
65 Wis. 312 (1886); Diindon v. R. R.. 67 Conn. 266 (1896); but see
Skelton V.' Ry., supra, n. i. And so in Stapley v. Ry., L. R. i Ex. 21 O865),
foot passenger, crossing line by carriage way, seeing the gates required by
statute for the protection of carriage traffic being up, might assume that it
was safe to cross; but cf. R. R. v. Eininger, 114 111. 79 (1885).



In the Court of Appeal, 1879. L. R. 4 C. P. D. 182.
Br^MWELL, L.J. This case comes before us in a very unsatis-
factory way so far as relates to one of the questions principally
argued before us. We are not told how the goods came to be ship-
ped, and are left to guess with whom the plaintiffs made their
contract of carriage. ^ We are, however, satisfied that the plaintiffs
are entitled to recover. The case is in a dilemma. Hither there
was a contract between the plaintiffs and the defendants, or there
was not. If there was a contract between them, it is the one con-
tained in or evidenced by the bill of lading. Now, it is clear that if
that is' the contract, the defendants are liable o'". the ordinary con-
tract of a carrier unless (and there is not) there is some clause in
the contract to relieve them ; whether the words in other respects
would extend to this case we need not say, as there is one respect
in which they do not; they extend to the acts of captain, officers, and
crew ; they do not extend to the acts of the defendants and their
other agents and servants, therefore not to the acts and defaults
of the stevedore.2 But it is by these acts and defaults that the
goods were damaged. If then there is a contract between the
plaintifYs and defendants, the defendants are liable. So also if
there is not. For if so, the case is this: The goods were lawfully
with the defendants' license in their ship, and they tortiously so dealt
with them that the goods were injured. It was found, as a fact,
that the loading of the oxide was negligent. It was therefore
wrongful, not as a breach of contract, but as a wrongful act in
itself. If the defendants had done what was done wilfully, that is
to say intentionally, that it would injure the plaintifTs' goods, it is
clear they would be liable. But what difference does it make, that
they did it ignorantly? It may be asked where is the duty of care?
I answer that duty that exists in all men not to injure the property
of others. This is not a mere nonfeasance which is complained of,
it is a misfeasance; an act and wrongful. Suppose A. lets B. a
horse, B., with C.'s license, puts up at C.'s stables for reward to C.
from B., C. turns into the stables loose a vicious horse, known to
be so, not to injure A.'s horse, but not thinking of the matter ; there
cannot be a doubt that C. would be liable to A. if the horse was in-

*The bill of lading was signed by Pott & Korner, agents, who had
chartered the defendants' ship, which, when it arrived at Hamburg, they
put up as a general ship: and the plaintiflf shipped bj'^ it 280 bags of sugar,
which were spoiled, owing to certain casks of oxide of zinc being stowed
on top of them.

In the court below Denman, J., had held that the bill of lading was
in fact signed by Pott & Korner as the defendants' agents and with
their authority.

*The stevedore was employed by the defendants' agent at Mam-
burg at the expense of the ship, and it is the duty of the ship and not
the charterer to see to the stowage of cargo. Alston v. Herring, 11 Exch.
822, (1856.)


jured. So if he gave the horse bad oats which injured the horse
he would be hable, though he would not be to A. if he omitted to
feed him; so here justice is done, though indirectly. It is certain
that if the charterers sued on the charter in respect of the complaint
in this action there would be no defence, and it is certain that they
ought to sue if necessary for the benefit of the plaintiffs. The
judgment must therefore be affirmed.
Judgment affirmed.^



Court of Common Pleas, 1851. 11 Common Bench, 655.

This was an action upon the case brought by the plaintiff to
recover from the defendants, the York, Newcastle, and Berwick
Railway Company, damages for the loss of a portmanteau con-
taining articles of wearing apparel.

The cause was tried before Jervis, C. J., at the sittings at West-
m.inster after the last term. It appeared that the plaintiff was valet
to Lord Adolphus Vane, that, in the month of September, 1850, he
was travelling to London with his master, that the portmanteau in
question was placed in the railway train at Darlington, and lost on
the road. It appearing, however, upon the evidence of Lord
Adolphus \^ane, that his lordship had himself taken and paid for
the tickets for himself and his servant, it was submitted, on the part
of the defendants, that, the action being founded upon contract, and
the contract having been made with the master, the master and not
the servant should have sued.

The lord chief justice nonsuited the plaintiff, reserving to him
leave to move to enter a verdict for 30/., — the agreed value of the
portmanteau and its contents, — if the court should be of opinion
that the action was well brought.

Knowles and Hugh Hill now showed cause. — This is an action
founded upon a contract : Newberry v. Colvin, 7 Bingh. 190. The
declaration alleges that the defendants, in consideration of hire and
reward to them (which must necessarily intend to he paid by the
plaintiff), undertook safely and securely to carry the plaintiff and
his luggage ; and then alleges a breach of that contract. So much
is this in the nature of an action of contract, that, according to
Powell V. Layton, 2 N. R. 365, — overruling Govett v. Radnidge, 3
East, 62, — the non-joinder of the party as defendant would have
been pleadable in abatement formerly. Sir James Mansfield, in
that case says: "The duty of a servant, or the duty of an officer, I
understand ; but the duty of a carrier I do not understand, otherwise
than as that duty arises out of his contract." [Williams, J. — All
the authorities are considered in Pozzi v. Shipton, 8 Ad. & E. 963.]
Although, at first sight, that would seem to be an authority against
the defendants, it will be found upon a closer inspection to have no

'Accord: Dalyell v. Tyrer, E. B. & E. 899 (1858) ; Bickford v. Richards,
.jh Mass. 16J (1891) ; Consolidated uas Company v. Connor, 114 Md. 140
(1911) ; Dominion Gas Company v. Collins, L. R. 1909 A. C. 640.


material bearing here. There was no allegation there, that the goods
were delivered at the re(iuest of the defendants. 'Ihe ground of the
decision appears from the judgment delivered by Patte.sox, J., who
says : "The form of the declaration is in case, and differs from
that used in Bretherton v. Wood, 3 B. & B. 54, in this, that it con-
tains no positive averment that the defendants were carriers ; where-
as, in Bretherton v. Wood, there was an averment that the defend-
ants were proprietors of a stage-coach for the carriage and con-
veyance of passengers for hire from Bury to Bolton. The present
declaration states simply that the plaintiff' delivered to the defend-
ants, and the defendants received from the plaintiff, goods to be car-
ried for hire from A. to B. It is therefore consistent with the de-
fendants' being common carriers, or being hired on the particular
occasion only." The declaration here is in the same form as in
Bretherton v. Wood, In that case, the party bringing the action
was the party with whom the contract was made, and by whom the
goods were delivered to the carrier. Here, the plaintiff had nothing
whatever to do with the contract with the company. [Willl\ms,
J. — It was an action upon the custom of the realm, for failure in
performance of a public duty. The foundation of the action against
a surgeon for negligence, is, not the contract or employment, but
the breach of a public duty.] The subject is very much discussed
in Ross V. Hill, 2 C. B. 877, where the judgment of Tindal, C. J.,
shows that the degree of care is different in the case of a gratuitous
bailee from that which is required from a bailee for reward. [Wil-
liams, J. — In Pippin v. Sheppard, 11 Price, 400, it was held not to
be a ground of demurrer to a declaration in an action on the case
by a man and his wife against a surgeon, for an injury to the wife
by reason of the defendant's improper and unskilful treatment, that
it is not stated, — in the averment that the defendant was retained
and employed as surgeon for reward to be to him paid, — by whom
he was so retained, or hy whom he was to be paid: it is enough to
aver that the defendant zvas retained as a surgeon, and entered upon
the cure. Chief Baron Richards there says: "I am really at a
loss to know how any declaration should be framed in this case so
as to be right, if thi? be wrong. The defendant, being a surgeon,
undertakes to the puolic to cure wounds and other ailments of the
human system, and professes himself ready to be employed by any
one for that purpose. The declaration states that he was as a
surgeon employed, for a reasonable reward, to attend and cure this
patient, that he entered on the treatment. «S:c. It is, therefore. I
think, sufficiently stated that the defendant undertook the cure.
Then, negligence and improper treatment are charged, and the in-
jurious effects of such misconduct are averred. The question then
is, to whom was the injury done? If a stranger had sent the de-
fendant as a surgeon to cure this woman, undertaking to pay him
for his attendance, he would not be entitled to recover or sue for
damage and injury done to her. in consequence of the surgeon's
negligence and want of skill. From the necessity of the thing, the
only person who can properly sustain an action for damages for an
injury done to the person of the patient, is, the patient himself; for,
damages could not be given on that account to any other person,


although the surgeon may have been retained and employed by him
to v^ndertakc the cure. The party employing the surgeon can have
nothing to do with this action.'"'] No doubt, the servant might main-
tain an action against the company for a personal injury, such as,
the breaking of a leg, or the like. But, here, the master, who may
be said to have been intrusted with the portmanteau, and who made
the contract, is the only proper person to sue for a breach of it. It
may be said that this doctrine would impose undue hardship on the
servant; but there are many difficulties arising from the relation of
master and servant, for which the law affords no remedy: some of
these are illustrated by the cases of Priestly v. Fowler, 3 j\I. & W.
I, and Hutchinson v. The York, Newcastle, and Berwick Railway
Company, 5 Exch. 343. The allegation in the declaration clearly
was not proved.

Humfrey and Willes, in support of the rule. — It is difficult to
see how the declaration in this case could have been framed other-
wise than it is. It is like that in Wyld v. Pickford, 8 M. & W. 443.
The company undertook safely to carry the plaintiff's portmanteau,
for reward, — no matter by whom to be paid ; and, in the perform-
ance of that duty, they were guilty of negligence. That is exactly
the case of Gladwell v. Steggall, 5 B. N. C. 733, 8 Scott, 60. There,
a declaration in case against a surgeon for negligence alleged that
the plaintiff, at the request of the defendant, had employed the de-
fendant to bestow the care, he, of him the defendant, in the pro-
fession and business of a surgeon and apothecary, &c., and the
defendant then accepted and entered upon such employment as such
surgeon ; and then proceeded to allege the duty resulting from such
retainer: and it was held, that it was immaterial by zvhoni the de-
fendant was retained, though a distinct issue was taken by the plea
upon the retainer; and that, if the allegation of employment by the
plaintijf was material, it was supported by proof that the plaintiff
(a child about twelve years old) submitted to and received the
defendant's attendance. And Tindal, C. J., said: "The declara-
tion is not framed as on a contract, but for breach of a duty resulting
from an alleged employment of the defendant by the plaintiff. One
observation that naturally suggests itself, is, that none but the pres-
ent plaintiff could recover damages in respect of the personal
suffering inflicted upon her through the defendant's negligence and
want of skill. Another observation is, that the form in which the
issue is taken does not at all vary the extent of the defendant's duty:
he is bound to exercise the same degree of care and skill, by whom-
soever he might be called in." ^ The real liability of the defendants

* In the same case, p. y^j, Erskine, J., says : "The substance of the issue
is tliat the defendant was employed to cure the plaintiff; not that he was
employed by the plaintiff." Accord: Pippin v. Shcpperd, 11 Price, 400 (1822),
cited at length by Williams, J., arguendo, in the principal case; Du Bois v.
Decker, 130 N. Y. 325 (1891), p. 332, inmate of almshouse treated by surgeon
employed and paid by the public ; and this is so though the physician is
employed by another to give an opinion as to plaintiff's health, Harriott v.
Plimpton, 166 Mass. 585 (1896), wrong diagnosis given by surgeon employed
by plaintiff's prospective father-in-law to ascertain plaintiff's fitness for
marriage, whereby his engagement was broken off; and see Erie, J., in Dal-


arises, no doubt, out of their being common carriers. The fallacy
is in supposing that "for reward" necessarily means, for reward "to
be paid by the plaintiff." And if it z<.'cre necessary,, a payment by
the master, in pursuance of a stipulation tacitly entered into with the
servant at the time of hiring, is a payment by the servant. If
necessary, the words "for hire and reward'" might have been omit-
ted. The declaration alleges that the company received the port-
manteau as common carriers ; and they would not be the less liable
for the negligent loss of it, because they carried it gratuitously. In
the case of the surgeon, there would be nothing to prevent the parent
from maintaining an action on the contract, and the child from hav-
ing another action for the breach of duty. Suppose, here, the plain-
Jiff, besides the loss of his portmanteau, had suffered amputation of
a limb through the carelessness of the defendants, — by whom would
the action for that have been brought? [Jervis, C. J. — Mr. Hill
admits that in that case the servant must have sued. Hill. — The
master could of course maintain no action for the personal suffering
of his servant.]

Jervis, C. J. — I am of opinion that the rule must be made ab-
solute to enter a verdict for the plaintiff for the damages agreed
upon at the trial. Three points have been incidentally made in the
course of the argument. In the first place, it is said, that, under
the circumstances of this case, no action will lie by the plaintiff
against these defendants, whatever the form of the declaration. But
the admissions made in the course of the argument, and the authori-
ties cited, place the defendants in a difficulty ; for, it is conceded. —
and indeed the concession could not have been avoided, — that if,
under the same circumstances, the plaintiff had sustained the loss
of a limb, or any other personal injury, he alone could have sued.
It is said that that is because the master could not maintain an action
in respect of the personal suffering of the servant, though he might
in respect of the loss of service. But, upon what principle does the
action lie at the suit of the servant for his personal suffering?
Not by reason of any contract between him and the company, but
by reason of a duty implied by law to carry him safely. If, under
the circumstances of this case, the plaintiff could have recovered in
respect of a personal injury sustained by him, there is no reason
why he should not also recover in respect of the loss of his luggage.
The breach of duty is the same in the one case as in the other. The
action therefore will lie, if the cause of action be properly alleged
in the declaration. But it has been contended, on the part of the
defendants, that the form of the declaration in this case so ties up
the plaintiff", and restricts the liability of the defendants, that this
action cannot be maintained ; because the declaration alleges that the
defendants received the i)laintiff and his luggage to be carried for
reward to them in that behalf, — which means, according to the
authorities, to be paid by the plaintiff. To that argument, there are
two answers. In the first place, there is no denial on the record ;

yell V. Tyrer, E, B. & E. Sgg (1858). p. 904, "If H. [a third party] pays the
defendants for the use of their ship to carry the plaintiff, and they do so
carry him, are they not retained for hire and reward, to carry the plaintiff?"


for, a traverse inodo ct forma substantially denies merely the allega-
tion traversed ; and therefore the traverse of the receipt of the plain-
tiff and his luggage, to be carried for hire and reward, by the de-
fendants, did not put in issue by whom the reward was to be paid.
And, further, if that ivere put in issue, the words of the allegation
must be construed with reference to the rest of the declaration. If
payment by the plaintiff be necessary, the general allegation that the
defendants undertook to carry the plaintiff and his luggage for hire
and reward, will be understood to mean, to be paid by the plaintiff.
But, if the liability of the defendants arises, not from the contract,
but from a duty, it is perfectly unimportant by whom the reward is
to be paid ; for, the duty would equally arise, though the payment
was by a stranger. I therefore think, that, upon the proper con-
struction of the declaration, the objection does not arise. It becomes
unnecessary to advert to the point suggested by Air. IVilles, that the
payment by the master on the servant's behalf was a payment by the
servant sufficient to sustain the averment, even construing it as it
was contended on the part of the defendants it ought to be con-
strued. The rule must be absolute.

Williams, J. — I am of the same opinion. The case was, I think,
put upon the right footing by Mr. Hill, when he said that the
question turned upon the inquiry whether it was necessary to show
a contract between the plaintiff and the railway company. His prop-
osition was, that this declaration could only be sustained by proof
of a contract to carry the plantiff and his luggage for hire and
reward to be paid by the plaintiff, and that the traverse of that part
of the declaration involves a traverse of the payment hy the plaintiff.
I am of opinion that there is no foundation for that proposition. It
seems to me that the whole current of authorities, beginning with
Govett V. Radnidge and ending with Pozzi v. Shipton, establishes
that an action of this sort is, in substance, not an action of contract,
but an action of tort against the company, as carriers.^ That being
so, the question is whether it was necessary to allege any contract
at all in the declaration. The earliest instance I find of an action of
this sort, is in Fitzherbert's Natura Brevium, Writ de Trespass snr
le Case," where it is said (page 94 D.) : "If a smith prick my horse
with a nail, &c., I shall have my action upon the case against him,
without any warranty by the smith to do it well ; for, it is the duty
of every artificer to exercise his art rightly and truly as he ought."
There is no allusion there to any contract. That being so, it seems
to me to follow that the allegation of a contract in a case of this
kind is altogether unnecessary. Then, the traverse not in terms in-
volving a denial that the payment of hire and reward was to be made
by the plaintiff, does not involve a denial that the contract was with
the plaintiff, unless that is material to the validity of the declara-

'In Ansell v. Waterhousc, 2 Chitty i (1817), it was held that an action
for misfeasance by a carrier, in that a coach was negligently overturned,
being for a tort, the defendant could not plead in abatement the non-joinder
of a co-proprietor, Bayley, J., says, "Declarations against carriers in tort
are as old as the law and continued till Dale v. Hall (i Wils. 281, 1750).
when the practice of declaring in assumpsit succeeded; but this practice

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 46 of 124)