Francis H. (Francis Hermann) Bohlen.

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in the prosecution of the work White used approved and ordinary
machinery, and employed competent and skillful workmen in the
management and conduct of said machinery; that the work was

in the highway, by the servant of a carpenter employed to repair his house,
of material for use in the repairs ; City of Independence v. Slack, 134 Mo.
66 (1895). similar facts: Riclinio)td v. Sittcrling. loi Va. 354 (1903). plank,
laid by builder, over sidewalk as pathway for hod carriers from a mortar bed
to the building; City of Moline v. McKimmie, 30 Til. App. 419 (18S8) : contra
Bush V. Stcinnwn. \ P.. & P. 404 (1799). an owner lield answeral.le for the
overturning of plaintiff's carriage by a pile of lime placed in the highway
by a buihk r employed to repair his house ; the court did not discuss whether
this obstruction was not necessarily inherent in the performance of the
work contracted for, but based the defendant's liability upon the
broad ground that one employing a contractor to do work for his benefit
(at least upon his own premises'! must answer for the manner in which the
work is done, a position later abandoned in England: Orcrton v. Freeman,
supra, and Rudie v. R\\. 4 Exch. 254 (1840). and one which after a brief ac-
ceptance (Lowell v. R. R.. 23 Pick, 24 11839!. and Stone v. R. R.. 19 N. H.
fT84Ql. 426'! was repudiated in America (Hilliard v. Richardson, supra;
Wright v. Holbrook, 52 N. H. [1872], 120).


superintended with the usual and ordinary care incident to the same ;
that the injury complained of was done during the prosecution of the
work in the manner testified to by plaintiff's witnesses ; that the
employees in, on and about said engine were selected and employed
by White and were under his exclusive control, then the plaintiff
could not recover, although the jury may believe the whistle was
blown on the engine as testified to by plaintift''s witnesses.

(The Court then discusses the relations between White, the
Turnpike Co. and the defendant; says that nothing in the record
shows just what those relations are, and suggests various ways in
which the defendant might be connected with the contract between
the Turnpike Company and White.)

But, however this may be, if the jury believed the work was
being done by White under these contracts, we must assume, in order
to enable the plaintiff to recover at all, that it was being done for the
defendant, and must connect it with the contract. If that be not
done, then clearly the defendant is not liable to the plaintiffs, and
their only remedy would be against White or the Turnpike Company,
if it is not relieved on the ground that White was an independent

We must, therefore, treat the defendant as a party to the con-
tracts, at least as a party having work done for it under them, in
disposing of the prayers.

The evidence of Kinsley, the superintendent in charge for
White, shows that "the machinery used in and about the work was
of the ordinary kind used for such purposes ;" and contract No. 2
requires the contractor "to make all necessary connections with
present track to run cars to crusher." We think, therefore, that
the Turnpike Company had reason to believe a steam engine would
be used in the execution of the work. But the use of the steam en-
gine on that road was not a nuisance per se, and there was no such
obligation on the Turnpike Company to the plaintiff or to the public
as to prohibit it from using or permitting it to be used for hauling
material for repairs or improvements. There was, therefore, no
reason why that company could not make these contracts with White,
although it knew he was going to use a steam engine such as this.
In Ware's case, 16 Wall. 566, although the plaintiff's horse was
frightened by the alleged negligent use of a steam drill, yet the injury
sustained was really caused by the material, dirt, &c., which had
been left in the street, and which came within the duty of the defend-
ant to persons travelling on the streets to see that they were kept
safe. So in O'Donnell's case, 53 Md. no. If Mrs. Moores had
been injured by piles of stone or other material negligently left in
the road by the contractor, then a different question might arise. But
the evidence shows that the injury was sustained by the negligent
use of the engine in not stopping it and in blowing the whistle as
she approached.^

It would be carrying the obligation of the Turnpike Company
beyond that required or authorized by the authorities to hold that

'See Hammond, J., in Boomer v. Wilbur, 176 Mass. 482 (1900), p. 485:
The work to be done (the repair of chimneys) "did not involve throwing the


its duty to the public required it to see that the servants of White
were not thus neghgent, although the use of the steam engine was
not a nuisance per sc and could be operated so as not likely to do
any injury to any one using the road. It would be requiring too
much of it to make it take such precautions against accidents when
letting out lawful work to an independent contractor. It must be
admitted that the work to be done was lawful and the company had
the right to assume that there would not be such negligence as that
complained of, which was entirely collateral to and not a probable
consequence of the work contracted for.^ To hold the company to
such a strict liability would practically forbid it from having such
work done by contractors as it would have to keep its own agents
on engines to see that there was no negligence on the part of the
contractors or their servants.

As there was no such duty resting on the Turnpike Company,
it follows a fortiori that there was none such on the appellant. As
we have determined that White should be treated as an independent
contractor with the Turnpike Company, and that the Railway Com-
pany must be regarded as a party to the contracts, if the jury found
that the work was being done under them, we think the second
prayer should have been granted. The first is perhaps too general,
although intended to raise the same question, but as there was error
in refusing the second, we must therefore reverse the judgment.

Judgment reversed and new trial awarded.^

brick into the street, or causing or allowing them to fall so as to endanger
persons travelling therein. It is plain that unless there was negligence in the
actual handling of the brick there could be no injury to the passing traveller
* * * The negligence, if any, was in a merely detail of the work."

'See Blackburne, J., in Daniel v. Ry. Co., L. R. 3 C. P., p. 594; Engel
v. Eureka Club, note i, ante, p. 629.

'Accord: Wabash, etc., R. R. v. Farver, in Ind. 195 (1887), and Bailey v.
R. R., 57 Vermont, 252 (1884), somewhat similar facts; Burbank v. Bethel
Mill Co., 75 Me. 2,72, (1883), fire started by negligence of contractor in his
maintenance and management, of a stationary engine used in performing the
work contracted for; Leavitt v. R. R., 89 Me. 509 (1^7), fire started by negli-
gence of servants of contractor in charge of cooking car of a work train
on defendant's siding; Strauss v. Louisville, et al, 108 Ky. 155 (1900), plain-
tiff injured by splashing of lime into her eye due to the carelessness of the
servant of the builder, an independent contractor, who was engaged in filling
a mortar bed placed in the highway; Wood v. Independence School District,
44 Iowa, 30 (1876), drilling machine left by contractor in school-house yard,
unlocked and ungua ded.

When an owner of premises abutting upon a highway or adjacent to the
property of another, employs a competent contractor to do building or repair
work thereon it is usually held that he is not liable for the fall of tools,
materials or other objects carelessly handled by the workmen. Reedie v. Ry.
Co., 4 Exch. 244 (1849) ; Pearson v. Cox, L. R. 2 C. P. D. 369 (1877) ; Fits-
Patrick v. R. R., 31 111. App. 649; Boomer v. Wilbur, 176 Mass. 462 (1900').
brick carelessly knocked from chimney by servants of contractor emploved
to repair it: Fitzpatrick v. R. R., 31 111. App. 649 (1888) ; Lonq v. Moon, '107
Mo. 334 (1891); Wolf v. American Tract Society, 25 App. Div. (N. Y.) 98
(1898) ; Strauss v. Louisville, et al., 108 Ky. 155 (1900) ; so one who emplovs
a contractor to erect a building upon his premises liable to his neighbor only
for the dust and rubbish necessarily cast upon his premises and not liable
for what came there through the carelessness of the workmen ; Faxon v. Pye,
156 Mass. 471 (1892) ; but see P. B. & JV. R. R. v. Mitchell, notes i and 2
to Covington v. Steinbrock.

Part 4

Action on the Case for Statements made to the

Plaintiff or Concerning him or his Property,

Trade, Business or Profession.



Fraud and Deceit.

"This writ (of deceit) lieth properly where one man doth anything in
the name of another, by which the other person is damnified and deceived,
then he who is so damnified shall have this writ."* Fitzherbert de Nova
Natura Brevium (1643), London Ed. 1780.

29 George III. 3 Term Reports {Durnford & East), 51.

This was an action in the nature of a writ of deceit, to which
the defendant pleaded the general issue. And after a verdict for
the plaintiffs on the third count, a motion was made in arrest of

The third count was as follows : "And whereas, also, the said
Joseph Freeman afterwards, to wit, on the twenty-first day of Feb-
ruary, in the year of our Lord 1787, at London aforesaid, in the
parish and ward aforesaid, further intending to deceive and defraud
the said John Pasley and Edward, did wrongfully and deceitfully
encourage and persuade the said John Pasley and Edward to sell-^
and deliver to the said John Christopher Falch divers other goods,
wares, and merchandises, to wit, sixteen other bags of Qochin^l of
great value, to wit, of the value of £2,634 i6s. id. upon trust and
credit, and did for that purpose then and there falsely, deceitfully,
and fraudulently assert and affirm to the said John Pasley and
Edward that the said John Christopher then and there was a person


* The instances given are where a man purchases a writ in the name of
another, whereby such other becomes liable for a fine in the chancery: where
one purchases a quare iiupcdit and causcth the writ to abate, etc.. so that the
right of action is lost : and other cases where the defendant has done in the
name of the plaintift some legal act which binds such plaintiff, together with
cases where an attorney has, in the name of the plaintiff, by collusion with
the adverse party or otherwise, acted injuriously to the plaintiff's interests.



safely to be trusted and given credit to in that respect, and did
thereby falsely, fraudulently, and deceitfully cause and procure the
said John Pasley and Edward to sell and deliver the said last-men-
tioned goods, wares and merchandises upon trust and credit to the
said John Christopher ; and, in fact, they the said John Pasley and
Edward, confiding in, and giving credit to, the said last-mentioned
assertion and affirmation of the said Joseph, and believing the same
to be true, and not knowing the contrary thereof, did afterwards,
to wit, on the 28th day of February, in the year of our Lord 1787,
at London aforesaid, in the parish and the ward aforesaid, sell and
deliver the said last-mentioned goods, wares and merchandises upon
trust and credit to the said John Christopher ; whereas in truth and
fact, at the time of the said Joseph's making his said last-mentioned
assertion and affirmation, the said John Christopher was not then
and there a person safely to be trusted and given credit to in that
respect, and the said Joseph well knew the same, to wit, at London
aforesaid, in the parish and ward aforesaid. And the said John
Pasley and Edward further say, that the said John Christopher
hath not. nor hath any other person on his behalf, paid to the said
John Pasley and Edward, or either of them, the said sum of
£2,634 i6s. id. last mentioned, or any part thereof, to the said John
and Edward, to wit, at London aforesaid, in the parish and ward

Application was first made for a new trial, which after argu-
ment was refused, and then this motion in arrest of judgment.
Wood argued for the plaintififs, and Russell for the defendant, in
the last term; but as the court went so fully into this subject in
giving their opinions, it is unnecessary to give the arguments at
the bar.

The court took time to consider of this matter, and now deliv-
ered their opinions seriatim.

^^ ■ — Grose, J. Upon the face of this count in the declaration' no

^" privity of contract is stated between the parties. No consideration

arises' to the defendant ; and he is in no situation in which the law
considers him in any trust, or in which it demands from him any
account of the credit of Falch. He appears not to be interested in
^ any transaction between the plaintiffs and Falch, nor to have col-
^luded with them ; but he knowingly asserted a falsehood, by saying
that Falch might be safely entrusted with the goods, and given
credit to, for the purpose of inducing the plaintififs to trust him with
them, by which the plaintififs lost the value of the goods. Then this
is an action against the defendant for making a false affirmation, or
telling a lie, respecting the credit of a third person, with intent to
deceive, by which the third person was damnified ; and for the dam-
ages sufifered, the plaintiffs contend that the defendant is answerable
in an action upon the case. It is admitted that the action is new in
point of precedent ; but it is insisted that the law recognizes prin-
ciples on which it may be supported. The principle upon which it is
contended to lie is that, wherever deceit or falsehool is practised tp
the detriment of another, the law will give redress. This proposi-


tion I controvert, and shall endeavor to show that, in every case
where deceit or falsehood is practised to the detriment of another,
the law will not give redress ; and I say that by the law, as it now
stands, no action lies against any person standing in the predica-
ment of this defendant for the false affirmation stated in the declara-
tion. If the action can be supported, it must be upon the ground
that there exists in this case what the laws deems damnum cum
injuria. If it does, I admit that the action lies; and I admit that
upon the verdict found the plaintififs appear to have been damnified.
But whether there has been injuria, a wrong, a tort, for which an
action lies, is a matter of law. The tort complained of is the false
affirmation made with intent to deceive ; and it is said to be an action /
upon the case analogous to the old writ of deceit. When this was
first argued at the bar, on the motion for a new trial, I confess I
thought it reasonable that the action should lie; but, on looking
into the old books for cases in which the old action of deceit has
been maintained upon the false affirmation of the defendant, I have
changed my opinion. The cases on this head are brought together
in Bro. tit. Deceit, pi. 29, and in Fitz. Abr. I have likewise looked
into Danvers, Kitchins, and Comyns, and I have not met with any
case of an action upon a false affirmation, except against a party to
a contract, and where there is a promise, either express or implied,
that the fact is true, which is misrepresented ; and no other case
has been cited at the bar. Then if no such case has ever existed,
it furnishes a strong objection against the action, which is brought
for the first time for a supposed injury, which has been daily com-
mitted for centuries past. For I believe there has been no time
when men have not been constantly damnified by the fraudulent
misrepresentations of others ; and if such an action would have
lain, there certainly has been, and will be, a plentiful source of liti-
gation, of which the public are not hitherto aware. A variety of
cases may be put. Suppose a man recommends an estate to another,
as knowing it to be of greater value than it is ; when the purchaser
has bought it he discovers the defect, and sells the estate for less
than he gave ; why may not an action be brought for the loss upon
any principle that will support this action? And yet such an action
has never been attempted. Or suppose a person present at the
sale of a horse asserts that he was his horse, and that he knows
him to be sound and sure-footed, when in fact the horse is neither
the one nor the other ; according to the principle contended for by
the plaintififs, an action lies against the person present as well as the
seller, and the purchaser has two securities. And even in this very
case, if the action lies, the^ plaintififs will stand in a peculiarly fortu-
nate predicament, for they will then have the responsibility both of
Falch and the defendant'. And they will be in a better situation
than they would have been if. in the conversation that passed be-
tween them and the defendant, instead of asserting that Falch might
safely be trusted, the defendant had said, "If he did not pay for
the goods, I will," for then undoubtedly an action would not have
lain against the defendant. Other and stronger cases may be put


of actions that must necessarily spring out of any principle upon
which this can be supported, and yet which were never thought of
till the present action was brought. Upon what principle is this
act said to be an injury? The plaintiffs say, on the ground that,
when the question was asked, the defendant was bound to tell the
truth. There are cases, I admit, where a man is bound not to mis-
represent, but to tell the truth ; but no such case has been cited,
except in the case of contracts ; and all the cases of deceit for mis-
information may, it seems to me, be turned into actions of assump-
sit. And so far from a person being bound in a case like the pres-
ent to tell the truth, the books supply me with a variety of cases, in
I which even the contracting party is not liable for a misrepresenta-
I tion. There are cases of two sorts in which, though a man is de-
1 ceived, he can maintain no action. The first class of cases (though
I not analogous to the present) is where the affirmation that the
Ithing sold has not a defect which is a visible one ; there the impo-
sition, the fraudulent intent, is admitted, but it is no tort. The sec-
pnd head of cases is where the affirmation is (what is called in some
®f the books) a nude assertion, such as the party deceived may exer-
cise his own judgment upon ; as where it is a matter of opinion,
where he may make inquiries into the truth of the assertion, and
it becomes his own fault from laches that he is deceived, i Roll.
Abr ; Yelv. 20 ; i Sid. 146 ; Cro. Jac. 386 ; Bayly v. Merrel. In
Harvey v. Young, Yelv. 20, J. S., who had a term for years, affirmed
to J. D. that the term was worth £150 to be sold, upon which J. D.
gave £150, and afterwards could not get more than £100 for it,
and then brought his action ; and it was alleged that this matter did
not prove any fraud, for it was only a naked assertion that the term
was worth so much, and it was the plaintiff's folly to give credit to
such assertion. But if the defendant had warranted the term to
be of such a value to be sold, and upon that the plaintiff had bought
it, it would have been otherwise ; for the warranty given by the de-
fendant is a matter to induce confidence and trust in the plaintiff.
This case, and the passage in i Roll. Abr. loi, are recognized in
I Sid. 146. How, then, are the cases? None exist in which such
an action as the present has been brought ; none, in which any prin-
ciple applicable to the present case has been laid down to prove that
it wmII lie ; not even a dictum. But from the cases cited some prin-
ciples may be extracted to show that it cannot be sustained: ist.
That what is fraud, which will support an action, is matter of law.
2d. That in every case of a fraudulent misrepresentation, attended
with damage, an action will not lie even between contracting parties.
3d. That if the assertion be a nude assertion, it is that sort of mis-
representation the truth of which does not lie merely in the knowl-
edge of the defendant, but may be inquired into, and the plaintiff
is bound so to do ; and he cannot recover a damage which he has
suffered by his laches. Then let us consider how far the facts of
the case come within the last of these principles. The misrepre-
sentation stated in the declaratfon is respecting the credit of Falch ;
the defendant asserted that the plaintiff's might safely give him


credit; but credit to which a man is entitled is matter of judgment
and opinion, on which different men miglit form (hfferent opinions,
and upon which the plaintiffs might form their own, to mislead
wdiich no fact to prove the good credit of Falch is falsely asserted.
It seems to me, therefore, that any assertion relative to credit, espe-
cially where the party making it has no interest, nor is in any collu-
sion with the person respecting whose credit the assertion is made,
is like the case in Yelverton respecting the value of the term. But
at any rate, it is not an assertion of a fact peculiarly in the knowl-
edge of the defendant. Whether Falch deserved credit depended
on the opinion of many ; for credit exists on the good opinion of
many. Respecting this the plaintiffs might have inquired from
others who knew as much as the defendant ; it was their own fault
that they did not, and they have suffered damage by their own'
laches. It was owing to their own gross negligence that they gave
credence to the assertion of the defendant, without taking pains to
satisfy themselves that that assertion was founded in fact, as in the
case of Bayly v. Mcrrcl. I am, therefore, of opinion that this action
is as novel in principle as it is in precedent, that it is against the
principles to be collected from analogous cases, and consequently
that it cannot be maintained.
-V^ Buller, J. The foundation of this action is fraud and deceit in
'tKFlIeTendant, and damage to the plaintiffs. And a question is,
whether an action thus founded can be sustained in a court of law.
Fraud without damage, or damage without fraud, gives no cause of
action ; but where these two concur, an action lies. Per Croke, J.,
3 Bulst. 95. But it is contended that this was a bare, naked lie ;
that, as no collusion with Falch is charged, it does not amount to a
fraud; and, if there were any fraud, the nature of it is not stated.
And it was supposed by the counsel, who originally made the mo-
tion, that no action could be maintained unless the defendant, who
made this false assertion, had an interest in so doing. I agree that
an action cannot be supported for telling a bare, naked lie ; but that
I define to be, saying a thing which is false, knowing or not know-
ing it to be so, and without any design to injure, cheat, or deceive
another person. Every deceit comprehends a lie ; but a deceit is
more than a lie, on account of the view with which it is practised,
its being coupled with some dealing, and the injury wdiich it is cal-
culated to occasion, and does occasion, to another person. Deceit
is a very extensive head in the law ; and it will be proper to take a
short view of some of the cases which have existed on the subject,
to see how far the courts have gone, and what are the principles
upon wdiich they have decided. I lay out of the question the case
in 2 Cro. 196. and all other cases which relate to freehold interests
in lands ; for they , go on the special reason that the seller cannot have
them without title, and the buyer is at his peril to see it. But the
cases cited on the part of the defendant deserving notice are Yelv.
20, Carth. 90. Salk. 210. The first of these has been fully stated by
my brother Grose ; but it is to be observed that the book does not
affect to give the reasons on wdiich the Court delivered their judg-


merit, but it is a case quoted by counsel at the bar, who mentions
what was alleged by counsel in the other case. If the Court went
on a distinction between the words "warranty" and "affirmation,"
the case is not law ; for it was rightly held by Holt, C. J., in the
subsequent cases, and has been uniformly adopted ever since, that,
an affirmation at the time^of a sale^is.aj^arrajaJ4:«_proyi4ed it^ appear
^ILgvidence to Have been so intendeiL- But the true ground of that

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 93 of 124)