Francis H. (Francis Hermann) Bohlen.

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would cause the upsetting of the coach. It was shown that, just
before the accident, sparks were seen coming from the wheel.

* ^; ****** ^ :1:

As the accident lo the coach was not caused by the mismanage-
ment of the drivers, no question as to whether they were or were
not while driving for the club on this excursion, the servants of the
club, and not of the defendant, can affect the right of plaintiff to
recover. The injury sustained was due to the breach of defendant's
duty to furnish a reasonably safe machine, in good order for the
purpose for which it was hired. For this breach of duty the de-
fendant is liable to a guest of the club, as well as to one of its mem-
bers, and plaintiff was lawfully on the coach as a guest of a member.
The coach was hired by a social club for an excursion, without any
stipulation against inviting guests. There were women in the party,
and it would be repugnant to reason to hold that for an injury to the
wife, family or friend of a member, there could be no recovery
against the owner of the coach under circumstances which would
justify a recovery by the member. It might fairly be implied from
the hiring of the coach for an excursion that there was an under-
standing on both sides that it was to be used, not only by members of
the clul), but by their guests ; and the same duty was owing to one
as to the other, namely, the exercise of reasonable care in providing
a machine fit for the purpose for which it was hired. The
defendant would not be liable to a stranger; that is, a
person not connected with the club, or a member of the club,
and not carrying out some right which the club or its mem-
bers had in using the coach pursuant to the contract.- * * * A
recovery for an injury sustained through the use of a defective ma-
chine let for a particular purpose must be confined, therefore, to the
lessee, or a person connected with him, in carrying out some right
which he had midcr the contract of hire. The distinction is alluded
to in a late case where a landlord was sued for an injury to a child
visiting a tenant, and who was injured through the landlord's neglect
to rci)air a sk}light which he might have been under an obligation to
repair. As the visitor was not, when injured, upon a part of the
premises where she had a right to go. which was a roof used for
hanging out clothes, and was not at the time "connected with her
[the tenant], i. c. carrying out some right which she herself had", a
recovery was denied. Miller v. Woodhcad, 104 X. Y. 471. 11 X. E.
57. In the present case the boy injured was a guest of a member of
a social club which had hired the coach for an excursion, and was



*The statement of the evidence, which the Court holds justified the
Justice's finding that the overturning of the coach was due to its bad con-
dition and not to the carelessness of the driver nor to overcrowding or
misconduct of the club members and their guests, is omitted.

"A part of the opinion discussing U'iutcrbottoin v. Wright, 10 M.
& W. 109 (1842') post p. 315; Biink V. Ward, 100 U. S. 195 (1879); Loscc
V. Chitc, 51 'N. Y. 494 ("1873); Dougherty v. Herzog. 145 Ind. 255 (1896);
Curtiu V. Somerset, T40 Pa. 70 ( 189O ; fhoiiuis v. H'iiiehester, 6 N. Y. 397
(1852) and Loop v. Litchfield, 42 N. Y. 351 (1870) is omitted.



490 WINTERBOTTOM 1'. WRFGllT

using it as contemplated by the contract of hiring, and therefore car-
rying out some right whicli the chib and its members had. Judgment
affirmed with costs. All concur. '"



WIXTERBOTTOAI v. WRIGHT.

In the Court of Exchequer, 1842. 10 Meeson & Welshy, 109.

Case. — The declaration stated, that the defendant was a con-
tractor for the supply of mail-coaches, and had in that character
contracted for hire and reward with the Postmaster-General, to
provide the mail-coach for the purpose of conveying the mail-bags
from Hartford, in the county of Chester, to Holyhead : That the
defendant, under and by virtue of the said contract, had agreed with
the said Postmaster-General that the said mail-coach should, during
the said contract, be kept in a fit, proper, safe, and secure state and
condition for the said purpose, and took upon himself, to wit, under
and by virtue of the said contract, the sole and exclusive duty, charge,
care, and burden of the repairs, state, and condition of the said
mail-coach : and it had become and was the sole and exclusive duty
of the defendant, to wit, under and by virtue of his said contract,
to keep and maintain the said mail-coach in a fit. proper, safe, and
secure state and condition for the purpose aforesaid : That Na-
thaniel Atkinson and other persons, having notice of the said con-
tract, were under contract with the Postmaster-General to convey
the said mail-coach from Plartford to Holyhead, and to supply
horses and coachmen for that purpose, and also not, on any pretence
whatever, to use or employ any other coach or carriage whatever
than such as should be so provided, directed, and appointed by the
Postmaster-General: That the plaintiff, being a mail-coachman, and
thereby obtaining his livelihood, and whilst the said several contracts
were in force, having notice thereof, and trusting to and confiding
in the contract made between the defendant and the Postmaster-
General, and believing that the said coach was in a fit, safe, secure,
and proper state and condition for the purpose aforesaid, and not
knowing and having no means of knowing to the contrary thereof,
hired himself to the said Nathaniel Atkinson and his co-contractors
as mail-coachman, to drive and take the conduct of the said mail-
coach, which but for the said contract of the defendant he would
not have done. The declaration then averred, that the defendant



^Accord: Semblc, Haiah v. Edehneyer & Morgan Co., 107 N. Y. Siipp.
936 (1908;, it was the duty of one leasing a hod hoisting elevator "to fur-
nish an elevator which was safe and suitable for the uses to which it was
to be put." p. 939: Davies v. Pelham Hod Co., 65 Hun, 573 (N. Y., 1892).
A livery stable keeper letting horses and carriages for hire is bound to
exercise the utmost diligence to see that the horses and carriages are safe
for the hirer's use. Hadlcy v. Cross, 34 Vt. 586 (1861). In Hvmait v. Nye,
L. R. 6 Q. B. D. 685 (1881) it was held that a "job master" (livery stable
keeper) is bound to take as much care as coach proprietors and railways
and like them "is an insurer against all defects (in the vehicle let) which
care and skill can guard against'' and it is no defense to show that the de-
fect could not have been discovered by an ordinarily careful inspection but
see Vogan v. Oulton, 79 L. T. 384 (1898) and Jones v. Page, 15 L. T. N. S.
619 (1867).



WINTERBOTTOM 7'. WRIGHT 491

SO improperly and negligently conducted himself, and so utterly dis-
regarded his aforesaid contract, and so wholly neglected and failed
to perform his duty in this behalf, that heretofore, to wit, on the 8th
of August, 1840, whilst the plaintiff, as such mail-coachman so hired,
was driving tlie said mail-coach from Hartford to Holyhead, the
same coach, being a mail-coach found and provided by the defendant
under his said contract, and the defendant then acting under his said
contract, and having the means of knowing and then well knowing
all the aforesaid premises, the said mail-coach being then in a frail,
weak, infirm, and dangerous state and condition, to wit, by and
through certain latent defects in the state and condition thereof, and
unsafe and unfit for the use and purpose aforesaid, and from no
other cause, circumstance, matter, or thing whatsoever, gave way
and broke down, whereby the plaintiff was thrown from his seat,
and, in consequence of injuries then received, had become lamed for
Hfe.

To this declaration the defendant pleaded several pleas, to two
of which there were demurrers ; but as the Court gave no opinion
as to their validity, it is not necessary to state them.

Peacock, who appeared in support of the demurrers, having
argued against the sufificiency of the pleas, —

Byles, for the defendant, objected that the declaration was bad
in suDstance. — This is an action brought, not against Atkinson and
his co-contractors, who were the employers of the plaintiflF, but
against the person employed by the Postmaster-General, and totally
unconnected with them or with the plaintiff. Now it is a general
rule, that wherever a wrong arises merely out of the breach of a
contract, which is the case on the face of this declaration, whether
the form in which the action is conceived be ex contractu or ex
delicto, the party who made the contract alone can sue : ToUit v.
Sherstone, 5 M. & W. 283. If the rule w^ere otherwise, and privity
of contract were not requisite, there would be no limit to such
actions. H the plaintiflF may, as in this case, run through the length
of three contracts, he may run through any number or series of them ;
and the most alarming consequences would follow the adoption of
such a principle. For example, every one of the sufferers by such an
accident as that which recently happened on the Versailles railway,
might have his action against the manufacturer of the defective axle.
So, if the chain-cable of an East Indiaman were to break, and the
vessel went aground, every person affected, either in person or prop-
erty, by the accident, might have an action against the manufacturer,
and perhaps also against every seller also of the iron.

Peacock, contra. — This case is within the principle of the de-
cision in Lez'y v. Langridge. Here the defendant entered into a
contract with a public oflficer to supply an article which, if imperfectlv
constructed, was necessarily dangerous, and which, from its nature
and the use for which it was destined, was necessarily to be driven
by a coachman. That is suflRcient to bring the case within the rule
established by Lez>y v. Langridge. In that case the contract made by
the father of the plaintiff with the defendant was made on behalf of
himself and his family generally, and there was nothing to show that
the defendant was aware even of the existence of the particular son



492



WINTEREOTTOM Z'. WRIGHT



who was injured. Suppose a party made a contract with govern-
ment for a supply of muskets, one of which, from its misconstruc-
tion, burst and injured a soldier: there it is clear that the use of the
weapon by a soldier w^ould have been contemplated, although not by
the particular individual who received the injury, and could it be
said, since the decision in Lcz'y v. Langridge, that he could not main-
tain an action against the contractor? So, if a coachmaker, employed
to put on the wheels of a carriage, did it so negligently that one of
them flew off, and a child of the owner were thereby injured, the
damage being the. natural and immediate consequence of his neg-
ligence, he would surely be responsible. So, if a party entered into
a contract to repair a church, a workhouse, or other public building,
and did it so insufficiently that a person attending the former, or a
pauper in the latter, were injured by the falling of a stone, he could
not maintain an action against any other person than the contractor;
but against him he must surely have a remedy. It is like the case
of a contractor who negligently leaves open a sewer, whereby a
person passing along the street is injured. It is clear that no action
could be maintained against the Postmaster-General : Hall v. Smith,
2 Bing. 156; Humphreys v. Mears, i Man. & R. 187; Priestly v.
Fowler. But here the declaration alleges the accident to have hap-
pened through the defendant's negligence and want of care. The
plaintiff' had no opportunity of seeing that the carriage was sound
and secure. [Alderson, B. — The decision in Leiy v. Langridge pro-
ceeds upon the ground of the knowledge and fraud of the defendant.]
Here also there was fraud : the defendant represented the coach to
be in a proper state for use, and whether he represented that
which was false within his knowledge, or a fact as true which he
did not know to be so, it was equally a fraud in point of law, for
which he is responsible.

Lord Abixger, C. B. — I am clearly of opinion that the defend-
ant is entitled to our judgment. We ought not to permit a doubt
to rest upon this subject, for our doing so might be the means of
letting in upon us an infinity of actions. This is an action of the
first impression, and it has been brought in spite of the precautions
which were taken, in the judgment of this Court in the case of Levy
V. Langridge, to obviate any notion that such an action could be
maintained. We ought not to attempt to extend the principle of that
decision, which, although it has been cited in support of this action,
wholly fails as an authority in its favour ; for there the gun was
bought for the use of the son, the plaintiff in that action, who could
not make the bargain himself, but was really and substantially the
party contracting. Here the action is brought simply because the
defendant was a contractor with a third person ; and it is contended
that thereupon he became liable to every body who might use the
carriage. If there had been any ground for such an action, there
certainly would have been some precedent of it; but with the ex-
ception of actions against innkeepers, and some few other persons,
no case of a similar nature has occurred in practice. That is a
strong circumstance, and is of itself a great authority against its
maintenance. It is however contended, that this contract being made
on the behalf of the public by the Postmaster-General, no action could



WINTERP.OTTOM V. WRIGHT 493

be maintained against him, and therefore the plaintiff must have a
remcd}' against the defendant, liut that is by ncj means a necessary
conse(|uence — he may be remediless altogether. There is no privity
of contract between these parties; and if the plaintiff can sue, every
passenger, or even any person passing along the road, who was in-
jured by the upsetting of the coach, might bring a similar action.
Unless we conline the operation of such contracts as this to the
parties who entered into them, the most absurd and outrageous con-
sequences, to wiiich I can see no limit, would ensue. Where a party
becomes responsible to the public, by undertaking a public duty, he
is liable, tliough the injury may have arisen from the negligence of
his servant or agent. So in cases of public nuisances, whether the
act was done by the party as a servant, or in any other capacity, you
are liable to an action at the suit of any person who suffers. Those,
however, are cases where the real ground of the liability is the public
duty, or the commission of the public nuisance. There is also a class
of cases in which the law permits a contract to be turned into a tort ;
but unless there has been some public duty undertaken, or public
nuisance committed, they are all cases in which an action might have
been maintained upon the contract. Thus, a carrier may be sued
either in assumpsit or case; but there is no instance in which a party,
who was not privy to the contract entered into with him, can main-
tain any such action. The plaintiff in this case could not have brought
an action on the contract; if he could have done so, what would have
been his situation, supposing the Postmaster-General had released
the defendant? that would, at all events, have defeated his claim
altogether. By permitting this action, we should be working this in-
justice, that after the defendant had done every thing to the satis-
faction of his employer, and after all matters between them had been
adjusted, and all accounts settled on the footing of their contract, we
should subject them to be ripped open by this action of tort being
brought against him.

Aldersox, B. — T am of the same opinion. The contract in this
case was made with the Postmaster-General alone; and the case is
just the same as if he had come to the defendant and ordered a car-
riage, and handed it at once over to Atkinson. If we were to hold
that the plaintiff could sue in such a case, there is no point at which
such actions would stop. The only safe rule is to confine the right
to recover to those who enter into the contract: if we go one step
beyond that, there is no reason why we should not go fifty. The
only real argument in favour of the action is, that this is a case of
hardship ; but that might have been obviated, if the plaintiff' had made
himself a party to the contract. Then it is urged that it falls within
the principle of the case of Lay v. Langridgc. But the principle of
that case was simply this, that the father having bought the gun for
the very purpose of being used by the plaintiff"! the defendant made
representations by which he was induced to use it. There, a distinct
fraud was committer] on the plaintiff; the falsehood of the repre-
sentation was also alleged to have been within the knowledge of the
defendant who made it, and he was properly held liable for the
consequences. How are the facts of that case applicable to those of
the present?" \Miere is the allegation of misrepresentation or fraud



494 LONGMEID V. HOLLIDAY

in this declaration? It shows nothing of the kind. Our judgment
must therefore be for the defendant.

GuRNEY, B., concurred.

RoLFE, B. — The breach of the defendant's duty, stated in this
declaration, is his omission to keep the carriage in a safe condition;
and when we examine the mode in which that duty is alleged to have
arisen, we find a statement that the defendant took upon himself, to
wit, under and by virtue of the said contract, the sole and exclusive
duty, charge, care, and burden of the repairs, state, and condition of
the said mail-coach, and, during all the time aforesaid, it had become
and was the sole and exclusive duty of the defendant, to wit, under
and by virtue of his said contract, to keep and maintain the said
mail-coach in a fit, proper, safe, and secure state and condition. The
duty, therefore, is shown to have arisen solely from the contract ;
and the fallacy consists in the use of that word "duty". If a duty
to the Postmaster-General be meant, that is true ; but if a duty to the
plaintiff be intended, and in that sense the word is evidently used,
there was none. This is one of those unfortunate cases in which
there certainly has been damnum, but it is damnum absque injuria;
it is, no doubt, a hardship upon the plaintiff' to be without a remedy,
but, by that consideration we ought not to be influenced. Hard cases,
it has been frequently observed, are apt to introduce bad law.

Judgment for the defendant.-



SECTION 4. By Sale.



LONGMEID V. HOLLIDAY.

In the Court of Exchequer, 1851. 6 Exchequer, 761.

At the trial, before Martin, B., at the Middlesex Sittings in
last Michaelmas Term, it appeared that the defendant, who kept a
shop in London for the sale of lamps (but who was not himself a
manufacturer), sold a lamp, called "Holliday's Patent Lamp," to the
plaintiff's wife, for the purpose of being used by him and his wife.^



^Accord: Earl v. Lubbock. 91 L. T. R. 73; ibid 830; L. R. 1905. i K. B.
253, the defendant being under contract with the plaintiff's employer to
repair his vans, took for repair a van with a twisted axle, he did not repair
the axle but did some minor repairs in the course of which he placed a
piece of zinc over the hub; while the plaintiff was driving the van a wheel
came off and plaintiff was seriously injured — held that a non suit was
properly directed. Compare Haigh v. Co., 107 N. Y. Supp. 936 (1908), p.

939-

Where the defendant makes a contract to have work done for him
by an independent contractor witli his, the owner's apparatus, which he,
the owner, agrees to keep in repair, he is liable to a servant of such con-
tractor injured by reason of a failure to repair. Toomey v. Donovan, T=;8
Mass. 22,2 (1893) ; King v. R. R.. 66 N. Y. 181 (1876). semblc.

'The declaration was in every respect like that in an action of deceit
upon a Warrantizando rcndedit. It alleged that the male plaintiff (the
vendee) had, by a false warranty that the \i\\vp was fit and proper to be
lighted, been induced to purchase the lamp and that the female plaintiff,
wife of the vendee, had, knowing and confiding in the said warranty,
lighted the lamp when it exploded and the naptha therein burned her.



LONGMKID 1'. IIOLLIDAY 495

There was evidence that the lamp was defectively constructed, V)ut
no proof that the defendant ( who thd not personaUy construct it
himself, but had it put together by others in parts purchased from
third parties) knew of the defect; and the jury found that he was
not guilty of any fraudulent or deceitful repre>entation, but sold the
lamp in good faith. In using the lamp with naphtha it exploded, and
the plaintiff's wife met with considerable personal injury, for which
the two plaintiffs brought this action, the plaintiff Frederick Long-
meid having previously recovered damages in another action for the
defendant's breach of implied warrant}- of sale. The jury found
all the facts for the plaintiffs, except the allegation of fraud, they
being not satisfied that the defendant knew of the defects. The de-
fendant's counsel thereupon objected, that, as fraud was not proved,
the action would ncjt lie. The learned Judge inclined to that opinion,
but declined to stoj) the case, and directed a verdict to be entered
for the plaintiffs, reserving to the defendant liberty to move to enter
the verdict for him, or for a nonsuit.

Parke, B. — (His Lordship stated the pleadings and facts as
above set forth, and proceeded) — The case was fully argued before
my Lord Chief Raron, my brother Martin, and myself, and we took
time to consider. The result of that consideration has been, that we
think the rule ought to be made absolute.

There is no doubt, that if the defendant had been guilty of a
fraudulent representation that the lamp was fit and proper to be
used, knowing that it was not, and intending it to be used by the
plaintift"s wife or any particular individual, the wife (joining her
husband for conformity) or that individual would have had an action
for the deceit, upon the principle on which all actions for deceitful
representation are founded, and which was strongly illustrated in
the case of Langridge 7\ Levy, 2 'M. & W. 519, in error, 4 ^L & W^
337, viz., that if any one knowingly tells a falsehood, with intent to
induce another to do an act which results in his loss, he is liable to
that person in an action for deceit. But the fraud being negatived in
this case, the action cannot be maintained on that ground by the
party who sustained damage.

There are other cases, no doubt, besides those of fraud, in which
a third person, though not a party to the contract, may sue for the
damage sustained, if it be broken. These cases occur where there
has been a wrong done to that person, for which he would have had
a right of action, though no such contract had been made.- As for

^ One not party to a contract can acquire no rights under it. So a plain-
tiff can not show a contract between third persons as creative of legal
rights in him or of duty toward him. But such contracts often estabhsli
the status of plaintiff or defendant (as a deed or lease) or show that a land-
lord has retained the control of a part of the demised premises and so is
bound to repair such part {McKcnzic v. Checthain. ante n. 2) or has
covenanted to do the repairs (Chcctham v. Hampson, ante 11. i) or that a
division fence is repairable by one of the adjoining owners ( Quinn v. Crim-
mings, 171 Mass., 255.") So, in Couglitry v. Globe Co., 56 N. Y. 124 (1874').
a contract by which the defendant agreed to furnish such stagings as might
be necessary without expense to the contractor, the plaintiff's employer, was
held to operate "to preclude the defendant setting up tliat the defective
structure was not its own but that of the contractor," and so, in Gross v.



496 LONGMEID :'. IIOLLIDAY

example, if an apothecary administered improper medicines to his
patient, or a surgeon unskilfully treated him, and thereby injured
his health, he would be liable to the patient, even where the father or
friend of the patient may have been the contracting" party with the
apothecary or surgeon ; for though no such contract had been made,^
the apothecary, if he gave improper medicines, or the surgeon, if he
took him as a patient and unskilfully treated him, would be liable to
an action for a misfeasance: Pippin r. Sheppard, 11 Price, 40, Glad-
well z'. Steggall, 8 Scott, 60, 5 Bing. N. C. 733. A stage-coach pro-