Francis H. (Francis Hermann) Bohlen.

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being out of repair the tenant requested the defendant to put it in
repair. He said he would do so and himself with the aid of a com-
mon laborer made some repairs and told the female plaintiff that he
had made it safe, so she need not fear to use it. During the ensuing
evening. Mrs. Gill had occasion to go to the outhouse, when the
floor gave way and she was injured. There was no evidence of any
obligation of the defendant to make repairs in the contract by which
he demised the premises to Mr. Gill ; nor of any promise on his part
to make them, other than above stated.^

The defendant reciuested the judge to instruct the jury, i. that,
"if there was no agreement between the plaintiffs and the defendant
that the defendant should make repairs, then the defendant was
under no obligation to make the repairs, and the plaintiff's cannot
recover;" 2. that "if the defendant made repairs, and such as he be-
lieved to be sufficient and proper in order to make the premises safe,
then he is not liable for the injury complained of;" and 3. that "the

'Accord: Albert v. State to use of Ryan, 66 Md. 325 (1887), defective
wharf at pleasure park leased by defendant ; State to use of Bashe v. Boyce,
73 Md. 469 (1891), owner of a wharf held to be liable only where he knew
or by diligence could have known of the defect when he leased it; Joyce v.
Martin, 15 R. I. 558 (1887), facts substantially similar to those in Albert V.
State, supra, except that lessee was ignorant of the defect when he took
possession but learned of it before the accident. See also Nugent v. R. R.,
80 Me. 62 ( 1888), ace. (scmblc) : but cf. Campbell v. Portland Sugar Co.. 62
Me. 552 (1873), and McKcnzie v. Chectham. ante p. 458.

In Willcox V. Mines, 100 Tenn. 538 (1897) Wilkes, J., says, p. 558, that he
is "unable to see any ground for the application of a different rule in such
cases" (premises leased as places of public resort). "The obligation not to
expose the individual to danger is the same as not to expose the public to
danger."

* The facts are restated.



468 GILL Z'. MIDDLETON

defendant is not liable, unless he knew or believed that the repairs
which he made were insufficient, and that the premises were still
unsafe and dangerous."

The judge "refused the instructions prayed for, except the first,
but did instruct the jury, that a landlord, independently of special
contract, is not bound to repair; but if the jury are satisfied, from
the evidence, that the defendant agreed to assume the repair of
the privy, and did in fact repair the same himself, and thereafter
assured the female plaintiff that the same was safe and in good
repair, but in point of fact the same was not put in safe repair, by
reason of the want of ordinary skill or care in the workmanship or
selection of materials on the part of the defendant, and the female
plaintiff, relying on the said assurance of the defendant, and using
due care herself, was injured, then the plaintiffs may recover." The
jury found for the plaintiff's, with damages in the sum of $500; and
the defendant alleged exceptions.

Ames, J. In the ordinary contract between landlord and tenant,
there is no implied warranty on the part of the former that the
demised premises are in tenantable condition. He is under no obH-
gation to make repairs, unless such a stipulation makes a part of
the original contract ; and any promise to do so, founded merely on
the relation of the parties, and not one of the conditions of the lease,
would be without consideration, and for that reason would create no
liability. But although a gratuitous executory contract of that kind
would not be binding upon him, he would place himself in a very dif-
ferent position if he should see fit to treat it as binding, and actually
enter upon its fulfilment. He is at liberty to repudiate or to perform
it, at his option; but if his choice should be to perform it, he comes
under some degree of liability as to the manner of its performance.
It is well settled, that, for an injury occasioned by want of due care
and skill in doing what one has promised to do, an action may be
maintained against him in favor of the party relying on such promise
and injured by the breach of it, although there was no consideration
for the promise. Bendcn v. Manning, 2 N. H. 289. Thome v. Deas,
4 Johns. 84. Ehce v. Gatzvard, 5 T. R. 143. Shiells v. Blackhurne,
I H. Bl. 158. Balfe v. West, 22 Eng. Law & Eq. 506.

In this case, the landlord was told that the building was in an
unsafe condition ; and what he undertook to do, at the request of his
tenant, was to make it safe. He not only assumed to do the work,
but he notified the tenant when it was done, and invited him to make
use of the building, assuring him that it was perfectly safe. Under
these circumstances, it was correctly ruled by the presiding judge, that
if on trial it proved to be unsafe, by reason of the want of ordinary
care and skill on the part of the defendant in the workmanship or
in the selection of the materials used, he might be held responsible
in damages.

It is argued, that upon a gratuitous undertaking of this nature
the defendant could only be held responsible for bad faith or for
gross negligence, and that it was therefore an error to instruct the
jury that he was liable for want of ordinary care and skill. But in
assuming to make the repairs at the request of the tenant he must be
considered as professing to have the requisite skill as a mechanic,



MACCARTHY V. YOUNG 4^

and as undertaking to select and furnish the kind and quality of ma-
terials appropriate to the accomplishment of the desired object. It
appears to us that this is one of the cases in which there is no prac-
tical difference between gross negligence and the want of ordinary
care and skill; and that the omission of what Baron Rolfe calls a
mere vituperative epithet is not a valid objection to the judge's
charge. The true c|ucstion for the jury was, whether the defendant
had discharged the duty which he had assumed, with that due regard
to the rights of the other party which might reasonably have been
expected of him under all the circumstances. His undertaking re-
quired at least the skill of an ordinary mechanic, and his failure to
furnish it, either because he did not possess or neglected to use it,
would be gross negligence. Steamboat New World v. King, i6 How.

469.

Exceptions are overruled?



-i a CHAPTER III.

Persons Supplying Chattels for the Use of Others.



SECTION I. Gratuitously.



MacCARTHY v. young.

In the Court of Exchequer, 1861. 6 Hurl. & Nor. 329.

Wilde, B. — In this case the declaration charged the defendant
with having undertaken to erect a scafifold, and with having so neg-



•Accord: Gregor v. Cady, S2 Me. 131 (1889), closely similar facts; Shufe
v. Bills, 191 Mass. 433 (1906). leaky gutters so imperfectly repaired that it
continued to leak. Contra: Malone v. Laskey, L. R., 1907, 2 K. B. 141, the
defendants sent plumbers to brace an insecure cistern, the brackets put in,
being insufficient it fell on the plaintiff, a sub-tenant of their lessee — held
there was no liability — since there being no contractual relation between them
on which to base an action of contract nor any duty owed to do a voluntary
task efficiently nor any misrepresentation other tliaii an innocent misrepre-
sentation that the cistern was safely made in full belief that in fact it was
so; and Earl v. Lubbock, L. R. 1905, i K. B. 253, defective repair of van.

A fortiori the landlord is liable where the repairs are so badly done as
to make the condition worse than before, Rchder v. Miller, 35 Pa. S. C. 344
(1908). in such case anyone doing the repairs, though not the landlord, is
liable, Toomcy v. Sanborn, 146 Mass. 28 (1888).

If the landlord by any act done or directed by him creates a latent and
dangerously defective condition upon the demised premises he is bound to
replace the premises in as good order as when he interfered with them,
whether he is acting for his own benefit. O'Dzuyer v. O'Brien. 13 N. Y. App.
Div. 570 (1897, or in performance of his duty as owner. Little v. McAdaras,
38 Mo. App. 187 (1889), or as a favor to his tenant, Aldag v. Ott, 28 Ind.
App. 542 (1902').

But the injury must be caused by the bad condition of that particular
part of the premises which the landlord has proffered to repair. Gah'in v.
Bcals. 187 I\Iass. 250 (1905), a porch floor having been gratuitously re-
paired, plaintiff was injured by the fall of the railing around it; nor is the
repair on one occasion of a part an admission of a liability either to re-



4/0 MACCARTIIV t'. YOUNG

ligently and carelessly done so, that the plaintiff, who was lawfully
working upon it, was exposed to unreasonable risk and thrown to
the ground and injured by the scaft'old giving way.

The defendant pleaded first, not guilty; secondly, that he did not
undertake to erect the scaffold as alleged.

It was proved on the trial that the plaintiff was a labourer: that
he was employed by one Portlock to pull down the party-wall of a
house belonging to the defendant: that Portlock said to him, "there
is the scaffold for you to go to work".

The scaffold to which the remark applied was erected under the
following circumstances : —

The defendant was a builder and had purchased a house which
he was about to pull down ; he erected the scaffold in question for
his own use, and did use it in pulling down the front and back walls
of the house; and on being called upon afterwards to pull down the
party-wall, he was about to do so, when the said Portlock, who was
his carpenter, asked for the job, and accordingly the defendant en-
tered into a written contract with him to pull down the party-wall
for iji. The written contract contained no provision for the use of
the scaffold already erected, nor was it in any way understood at
the time of making such contract that Portlock was to have the use
of the scaffold. But the defendant was aware of its being so used
when the wall came to be pulled down ; and it may fairly be taken
that he allowed Portlock the use of it gratuitously.

One of the putlegs, or cross supports on which the planks of the
scaffold rested, turned out to be rotton. There was no evidence
whatever that the defendant knew of this defect. The putleg gave
way, and was the cause of the accident for which the action was
brought. The plaintiff was thrown to the ground and seriously
injured.

The jury found the defendant guilty of negligence in the orig-
inal construction of the scaffold by reason of the defective putleg, and
that the plaintiff's injury was caused by such negligence.

A verdict was entered for the plaintiff for 5oi., the defendant
having leave to move to enter the verdict for him.

The question that has arisen for this Court is, whether under
the foregoing circumstances the defendant is liable in any form of
action to the plaintiff for what has occurred ; and that the question
might be fully raised it was very properly agreed that any necessary
amendments in the pleadings might be made. The pleadings there-
fore become immaterial.

The Court however is of opinion that no such liability exists.

The result of the evidence appears to us to be, that the scaffold
in question was lent by the defendant without reward to Portlock, as
a ladder or any tool might have been, to assist him in completing
the work he had undertaken to perform. And the plaintiff was the
servant of Portlock, and nothing more.

So far as the relation of the parties is concerned, it is the case



pair the whole or to repair even that part again, Phelan v. Fitzpatrick,
i88 Mass. 237 (1905).



MACCARTHY V. YOUNG 47 1

of a gratuitous lender for use on the one liand, and the servant of the
part)' to wlioni the article is lent on the other.

In this relation of parties, and in the absence of all proof of
knowledge by the lender of the defect which created the mischief,
what are the obligations of the lender towards those to whom the
article is lent, or by whom it is afterwards used? When the case
was argued, it appeared to the Court that the matter was of sufficient
general interest and novelty to make it desirable that time should be
taken to consider maturely the terms of the judgment they were pre-
pared to give.

Upon consulting the authorities, however, we find that the whole
matter has been fully considered lately in the Court of Queen's
Bench, and an elaborate judgment delivered in which we entirely
concur.

This makes it unnecessary to do more than refer to that de-
cision. .

In Blakemove v. The Bristol and Exeter Railivay Company, 8
E. & B. 1035, 1050 (E. C. L. R. vol. 92), which was an action for
injury by an insufficient crane lent by the defendant, the Court laid
down the rule of the lender's responsibility thus: — "It may be safely
laid do\vn that the duties of the borrower and lender are in some
degree correlative. The lender must be taken to lend for the purpose
of a beneficial use by the borrower; the borrower, therefore, is not
responsible for reasonable wear and tear ; but he is for negligence,
for misuse, for gross want of skill in the use, above all, for anything
which may be (jualified as legal fraud. So, on the other hand, as the
lender lends for beneficial use, he must be responsible for defects in
the chattel with reference to the use for which he knows the loan is
accepted, of zi'hich he is azvare, and owing to which directly the
borrower is injured."

And again : — "The principle laid down in Coggs v. Bernard, and
followed by Lord Kenyon and Duller, J., and by Lord Tenterden. in
the Nisi Prius cases cited in the note i Lead. Cas. 162 (4th ed.),
that a gratuitous agent or bailee may be responsible for gross neg-
Hgence or great want of skill, gets rid of the objection that might
be urged from want of consideration to the lender. Bv the necessarilv
implied purpose of the loan, a duty is contracted towards the bor-
rower not to conceal from him those defects, kiiozvn to the lender.
which may make the loan perilous or unprofitable to him."

It is obvious that, upon the above principle, the defendant would
not have been liable even to Portlock, to whom the scafi^old was lent,
if the accident had happened to him, inasmuch as the defendant was
not aware of the defect in question: and. without deciding anything
as to the position of the plaintift'. it is plain that he at any rate stands
in no better position that Portlock would have done. The verdict
must therefore be entered for the defendant.

Judgment for the defendant.'



^Accord: Gagnon v. Dam. 69 N. H. 264 (1897). So in Moffatt v.
Batemati, L. R. 3 P. C. 115 (1869) it was held tliat one gratuitously takinir
a friend for a drive in his carriage is only liable for gross negligence.
See also Shiells v. Blackburne, i Ky. Bl. 158 (1789), one, whose situation



4/2



HEAVEN V. PENDER



SECTION 2. For Use for the Purpose of the Supplier's

Business,



HEAVEN V. PENDER.
In the Queen's Bench Division, 1883. L. R. 11 Q. B. D. 503.

Action" to recover damages for injuries alleged to have been
sustained by the plaintiff through the negligence of the defendant,
under the following circumstances : —

The defendant was the owner of a dry dock used for the paint-
ing and repairing vessels, and as incident to its being so used he
supplied and put up the staging necessary to enable the outside of
the vessel to be painted and repaired when in the dock, but after the
staging had been handed over to the shipowner it no longer re-
mained under the control of the defendant.

The plaintiff was a ship painter in the employ of one William
Gray, a master painter, who had contracted with the owner of a
vessel in the defendant's dock to paint the outside of the vessel, and
on the 8th of April, 1882, whilst the plaintiff was engaged in painting
the vessel, and using for that purpose the staging which the defend-
ant had put up on that same day, one of the ropes by which is was
suspended from the vessel gave way, and the plaintiff fell in con-
sequence into the dock and was injured.

The ropes had been supplied by the defendant as part of the
machinery of the staging, and there was evidence that they had been
scorched and were unfit for use with safety at the time the staging
was put up, and that reasonable care had not been taken by the
defendant as to their state and condition at that time.

The action was remitted for trial before the Bow County Court
under s. 10 of the County Court Act, 1867 (30 & 31 Vict. c. 142).
The county court judge gave judgment for the plaintiff for 20/., the
amount of damages agreed between the parties.

The Queen's Bench Division, on motion by way of appeal,
ordered judgment to be entered for the defendant.^

The plaintiff appealed.

or profession is not such as to imply special skill or knowledge, who
gratuitously undertakes to do another a service is only liable if he be
guilty of gross negligence or fails in good faith to take as much care
as he does in similar undertakings when his own interests are concerned,
ace. Ray v. Biirbank & Jones, 61 Ga. 505 (1878). If the lender know that
the article lent is latently defective and that because of such defect it
was unfit for the purposes for which it was lent, he is liable to the borrower
for injuries resulting therefrom to him, Blakcmore v. Ry., 8 E. & B. 1035
(1858), or to those, but only to those, who the lender has reason to ex-
pect will assist the borrower in its use, ibid.

*L. R. 9 Q. B. D. 302 (1882). The judgment was reversed on the
ground that the duty to see that one allowed to use a chattel shall not be
exposed to unusual danger "arises out of the possession and control of
the thing, not out of the property in it." Cato, J., p. 307- "The defendant
parted with the control of his staging as a landlord does with the con-
trol of his pronerty when he lets it." Field, J., p. 306, cf. Burke v. Castro,
II Hun 354 (N. Y., 1877)-



HEAVEN V. PENDKR 473

Brett, ]\r. R. In this case the plaintiff was a workman in the
employ of Gray, a ship painter. Gray entered into a contract with a
shipowner whose shij) was in the defendant's dock to paint the out-
side of his shij). The defendant, the dock owner, supplied, under
a contract with the shipowner, an ordinary stage to be slung in the
ordinary way outside the ship for the purpose of painting her. It
must have been known to the defendant's servants, if they had con-
sidered the matter at all, that the stage would be put to immediate
use, that it would not be used by the shipowner, but that it would be
used by such a person as the plaintiff, a working ship painter.
The ropes by which the stage was slung, and which were supplied
as a part of the instrument by the defendant, had been scorched and
were unfit for use and were supplied without a reasonably careful
attention to their condition. When the plaintiff began to use the
stage the ropes broke, the stage fell, and the plaintiff' was injured.
The Divisional Court held that the plaintiff could not recover
against the defendant. The plaintiff appealed. The action is in
form and substance an action for negligence. That the stage was,
through want of attention of the defendant's servants, supplied in a
state unsafe for use is not denied." But want of attention amounting
to a want of ordinary care is not a good cause of action, although
injury ensue from such want, unless the person charged with such
want of ordinary care owed a duty to the person complaining to
use ordinary care in respect of the matter called in question.
Actionable negligence consists in the neglect of the use of ordinary
care or skill towards a person to whom the defendant owes the duty
of observing ordinary care and skill, by which neglect the plaintiff,
without contributory negligence on his part, has suffered injury to
his person or property. The question in this case is whether the
defendant owed such a duty to the plaintiff.

If a person contracts with another to use ordinary care or skill
towards him or his property the obligation need not be considered
in the light of a duty ; it is an obligation of contract. It is un-
doubted, however, that there may be the obligation of such a
duty from one person to another although there is no contract
between them with regard to such duty. Two drivers meeting have
no contract with each other, but under certain circumstances they
have a reciprocal duty towards each other. So two ships navigating
the sea. So a railway company which has contracted with one
person to carry another has no contract with the person carried but
has a duty towards that person. So the owner or occupier of house
or land who permits a person or persons to come to his house or
land has no contract with such person or persons, but has a duty
towards him or them. It should be observed that the existence
of a contract between two persons does not prevent the existence
of the suggested duty between them also being raised by law in-
dependently of the contract, by the facts with regard to which the
contract is made and to which it applies an exactly similar but a



' But sec the facts appearing on the notes of the trial judge — "there
was no evidence to show its (the rope's) condition when the staging
was put up." L. R. 9 Q. B. D. p. 303.



474 HEAVEN V. PENDER

contract duty. We have not in this case to consider the circum-
stances in which an impHed contract may arise to use ordinary care
and skill to avoid danger to the safety of person or property. We
have not in this case to consider the question of a fraudulent mis-
representation express or implied, which is a well recognised head of
law. The questions which we have to solve in this case are — what is
the proper definition of the relation between two persons other than
the relation established by contract, or fraud, which imposes on the
one of them a duty towards the other to observe, with regard to the
person or property of such other, such ordinary care or skill as may
be necessary to prevent injury to his person or property ; and
whether the present case falls within such definition. When two
drivers or two ships are approaching each other, such a relation
arises between them when they are approaching each other in such
a manner that, unless they use ordinary care and skill to avoid it,
there will be danger of an injurious collision between them. This
relation is established in such circumstances between them, not only
if it be proved that they actually know and think of this danger,
but whether such proof be made or not. It is established, as it
seems to me, because any one of ordinary sense who did think would
at once recognise that if he did not use ordinary care and skill
under such circumstances there would be such danger. And every
one ought by the universally recognised rules of right and wrong,
to think so much with regard to the safety of others who may be
jeopardised by his conduct; and if, being in such circumstances,
he does not think, and in consequence neglects, or if he neglects
to use ordinar}^ care or skill, and injury ensue, the law, which
takes cognisance of and enforces the rules of right and wrong, will
force him to give an indemnity for the injury. In the case of a
railway company carrying a passenger with whom it has not entered
into the contract of carriage the law implies the duty, because it
must be obvious that unless ordinary care and skill be used the
personal safety of the passenger must be endangered. With regard
to the condition in which an owner or occupier leaves his house or
property other phraseology has been used, which it is necessary
to consider. If a man opens his shop or warehouse to customers
it is said that he invites them to enter, and that this invitation
raises the relation between them which imposes on the inviter the
duty of using reasonable care so to keep his house or warehouse
that it may not endanger the person or property of the person in-
vited. This is in a sense an accurate phrase, and as applied to the
circumstances a sufficiently accurate phrase. Yet it is not accurate
if the word "invitation" be used in its ordinary sense. By opening
a shop you do not really invite, you do not ask A. B. to come in to
buy; you intimate to him that if it pleases him to come in he will
find things which you are willing to sell. So, in the case of shop,
warehouse, road, or premises, the phrase has been used that if you
permit a person to enter them you impose on yourself a duty not to
lay a trap for him. This, again, is in a sense a true statement of the
duty arising from the relation constituted by the permission to