Philip Bertie Petrides.

Student's cases : illustrative of all branches of the law online

. (page 14 of 29)
Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 14 of 29)
Font size
QR-code for this ebook


MACHADO v. FONTES. [1897]

(66 L. J. Q. B. 542 ; (1897) 2 Q. B. 231 ; 76 L. T. 588 ;
45 W. E. 565.)

The plaintiff brought an action for damages for an alleged
libel of the plaintiff contained in a pamphlet said to have been
published by the defendant in Brazil. The defendant, who had
delivered a defence denying the libel, and raising certain other
defences, took out a summons for leave to amend his defence by
pleading that if (which was contrary to his intention) the
pamphlet had been published in Brazil, by Brazilian law that
publication could not be a ground of legal proceedings against
the defendant in Brazil in which damages could be recovered.

Held, that the plea was not a good defence, and that, in
order that an action may lie between 'parties in this country
in respect of an act committed in a foreign country, the act
must be one which, if committed in this country, would be
actionable, and one which is not innocent according to the
law of the country /('here ir was committed ; but it is not
necessary that it should be the subject of civil proceedings in
that country.



PERSONAL DISABILITY T< > SUE OR BE .SUED. 155



PERSONAL DISABILITY TO HUE
OR BE SUED.



A Personal Right of Action ceases at Death, except in so far as
the Wrong causes Injury to Property, for Actio personalis
moritur cum persona.

HATCHAED v. MEGE. [1887]

(06 L. J. Q. B. 3il7 ; 18 Q. B. D. 771 ; 51 J. P. 277 ; 56 L. T. 062 :

35 W. E. 576.)

The plaintiff, who was the registered proprietor of a certain
trade mark, and a dealer in a brand of champagne introduced
by him, and known as the " Delmonico " champagne, brought
an action against the defendants for [inter (ilia) falsely and
maliciously publishing certain statements imputing that he had
no right to use his trade mark, and that the wine which he sold
was not of the brand which it purported to be. Before trial
the plaintiff died, and his executrix obtained leave in chambers
to carry on the action.

Held, that find part of the action which was for defama-
tion of the personal character of Hatchard did not survive,
but that part of the claim which was in the nature of slander
of title survived^ anil could be maintained by the executrix if
special damage were proved.

Vide Finlay v. ('hirnei/, supra, p. 10o, for application of principle
to contracts.



156 TORT.

An Infant cannot Sue for Injuries sustained while en ventre

sa mere.

WALKER v. GKEAT NORTHERN RAILWAY COMPANY
OF IRELAND. [1891]
(28 L. R. Ir. 69.)
The mother of thr plaintiff was travelling on the railway of

the defendant company, when the train in which she was met
with an accident. The mother was then quick with child,
namely, with the plaintiff, to whom she afterwards gave birth.
The result of the accident was that the child when born was
found to be permanently crippled In an action by the cripple
the above facts were set forth in the statement of claim.

Held, IIkiI the statement of claim disclosed no came of
action.

A Corporation may Maintain an Action for Libel whereby its
Property is Injured, but not where its Reputation only is
Affected.

MAYOR OF MANCHESTER v. WILLIAMS. [1891]
(60 L. J. Q. B. 23 ; (1891) 1 Q. B. 94 ; 54 J. P. 712 ; 63 L. T. 805 ;

39 W. R. 302.)

In an action brought by the corporation of Manchester to
recover damages for libel, the statement of claim alleged tbat
the (lefendint had falsely and maliciously written and published
wonls meaning that bribery and corruption existed in depart-
ments of the city council, and that the plaintiff's were either
parties thereto or culpably ignorant thereof. There was no
allegation that the property of the corporation had been
injured.

Held, Ih it the action could not be maintained. A cor-
poration at common law may maintain an action for a libel
by ell' ih Us property is injured, but cannot sue in respect
of a charge of corruption, for a corporation cannot be guilty
of corruption, although the members composing il may.



PERSONAL DISABILITY TO SUE OR BE SUED. 157

An Infant is not Liable on a Contract framed as a Tort, but may
be on a Tort independent of any Contract.

BURNARD v. HAGGIS. [1803]

(3'2 L. J. C. P. 180 ; 14 C. B. (N. S.) 45 ; 9 Jur. (N. S.) 1325 ;
8 L. T. 320; 11 W. R, 644.)

The defendant, an infant, hired a horse for a ride on the
road ; the owner expressly refused to allow the horse to be used
for jumping. The defendant, however, lent the horse to a
friend, who rode it, with the defendant's permission, across the
fields, and at fences, in endeavouring to jump which the horse
was injured.

Held, the lend in;/ of the horse by the defendant to his
friend t<> be used for jumping was a trespass, and was an
actionable wrong independent of any contract, and that
therefore the defendant, notwithstanding his infancy, was
liable for the injury which had been done to the horse.

Vide Jennings v. Rundall, supra, p. 00.



A Public Body is liable for Misfeasance, but not for
Non-feasance.

MUNICIPALITY OF PICTOU v. GELDERT. [1893]

(03 L. J. P. C. 37 ; (1893) A. C. 524 ; 1 R. 447 ; 69 L. T. 510;
42 W. R. 114.)

The plaintiff, Greldert, who resided in the municipality of
Pictou, sued the corporation for neglect of its duty to repair a
bridge, whereby severe injuries were suffered by him.

Held, by the common law, public bodies charged with the
duty of keeping public roads and bridges in repair, and
liable to indictment for breach of this duty, are not liable to



L58 TORT.

an action for damages at the suit of a person who has
suffered injury from the failure to keep the roads and
bridges in proper repair. Where, however, a corporation
carries mil work in such a manner that a nuisance is created,
it is liable on the ground of having committed a mis-
feasance.

Note. — A mandamus will lie against a corporation for non-
feasance.



LIABILITY FOR TORTS COMMITTED
BY OTHERS.



Husband is Jointly Liable with his Wife for her Post-nuptial
Torts unless Judicially Separated.

UTLEY v. MITKE PUBLISHING COMPANY AND OTHERS.

[1901]
(17 T. L. R. 720.)

The plaintiff', a journalist, brought an action for an alleged
libel in the Review of the Week. The defendants, besides the
company, were Sir Tatton and Lady Sykes.

Sir Tatton and Lady Sykes were living apart, and Lady
Sykes received from her husband an allowance of 4,500/. a
year under a separation deed.

The article was written by Lady Sykes without the know-
ledge of her husband.

Held, Unit, although if there hud been a divorce or judicial
separation. Sir Tot l<>u Sykes would not have been liable,
he wax still liable though he and his wife had agreed to lire
separate.



LIABILITY FOR TORTS COMMITTED BY OTHERS. 1 59



A Master is Liable for the Act of his Servant done in the Course
of Employment although against his Orders.

LIMPUS v. THE LONDON GENERAL OMNIBUS COMPANY.

[1862]

(32 L. J. Ex. 34 ; 1 H. & C. 526 ; 9 Jur. (N. 8.) 353 ; 7 L. T. 641 :

11 W. E. 149.)

A servant employed by the defendants to drive their omnibus
drew his omnibus across the road in front of a rival omnibus of
the plaintiff to obstruct the passage of the latter, and in doing
so ran against and injured the plaintiff's omnibus. The defen-
dants' servants had express directions from their masters not to
obstruct other omnibuses or to annoy their drivers or conductors.
The defendants' servant said that he did it on purpose, and to
serve the plaintiff's driver as the latter had served him. On
the trial of the action for the injury, the judge directed the
jury that if the defendants' driver, being irritated, acted care-
lessly, recklessly, wantonly, or improperly, and in doing that
which he believed to be for the interests of the defendants, then
the defendants were responsible for the act of their servant ;
that the instructions given by the defendants to the driver not
to obstruct other omnibuses, if he did not pursue them, were
immaterial as to the question of the master's liability, but that
if the true character of the driver's act was that it was an act
of his own, and in order to effect a purpose of his own, then
the defendants were not responsible. The jury found for the
plaintiff, 35/. damages.

Held, on appeal to the Exchequer Chamber, that the

direction was a proper one.



L60 TORT.

A Principal is Liable for the Tort of an Agent acting within the
scope of his Authority.

GOFF v. GEEAT NORTHERN RAILWAY CO. [1870]

(30 L J. Q. B. 118; 3 El. & El. 672 ; 7 .Tur. (N. S.) 280;
3 L. T. 850.)

The plaintiff having taken a return ticket from the London
station of the defendants' railway, at the end of the return
journey gave up an old half- ticket, which he had put in his
pocket by mistake fur the right one, whereupon the ticket-
collector took the plaintiff to the ticket office, where he explained
how the mistake had occurred. By the instructions of the
superintendent of the line he was subsequently arrested by a
police inspector and constable, both of whom were in the pay
i if the defendants. The plaintiff's story proved true, and the
case against him was dismissed. The plaintiff having brought
an action against the defendants for false imprisonment —

Held, that inasmuch as the 8 Vict. c. 20 {by sects. 103,
104y imposes a penalty on any person travelling on a rail-
way without having paid his fare, with intent to avoid the
payment thereof, and empowers all officers and servants, on
behalf of the company, to apprehend -sac// person until he
can convenient/// be taken before a justice, it might reason-
ablybe assumed that a railway company carrying passengers
would, in the ordinary course of business, have on the spot
officers with authority to determine whether the company's
servants should or should not, on the company's behalf,
apprehend a passenger accused of this offence, and there
was sufficient evidence that the superintendent of the line, as
the superior authority, was an officer having authority from
the company to act />>r Hunt in the matter ; and that the
defendants were therefore liable for the false imprisonment
directed by him.



LIABILITY FOR TORTS COMMITTED BY OTHERS. 161

A Principal is not liable for the Unauthorized Act of a Servant
who does an act which the Principal himself had no Authority
to do, for such an act is beyond the scope of the Servant's
Authority.

POULTON v. LONDON & SOUTH-WESTERN
RAILWAY CO. [1867]

(36 L. J. Q. B. 294 ; L. R. 2 Q. B. 534 ; 8 B. & S. 616 ;
17 L. T. 11; 16 W. E. 309.)

By the Railways Clauses Consolidation Act (8 Viet. c. 20),
ss. 103, 104, a penalty is imposed upon any person travelling or
attempting to travel in a railway carriage without having pre-
viously paid his fare, and with intent to avoid payment, and
power is given to all officers and servants and other persons on
behalf of the company to apprehend and detain persons com-
mitting any such offence. A railway company had arranged
that horses, dogs, &c. going to the show of an agricultural
society should he returned free of charge upon production of a
certificate that they were unsold. The plaintiff brought back a
horse by the company's line, taking only a ticket for himself.
LTpon his arrival at his destination he gave up his ticket and
the certificate at the station, but was called upon to pay the
customary charge for the horse, and on his refusal he was
detained by policemen, acting under orders from the station
master, till a telegraphic message was received explaining the
arrangement.

Held, that the defendants were not liable in an action for
false imprisonment^ as there was no evidence upon which the
jury could reasonably find that the station master was acting
within the scope of his authority in arresting the plaintiff \
for, assuming the plaintiff to ha re been guilty of the offence
with which lie was charged, the statute gave no power to
arrest a person fraudulently neglecting to pay the charge
for animals or goon's, and the company could not be presumed

J. M



162 TORT.

to have authorized an act which they themselves had no
authority to do.



A Master is not liable for the act of his Servant committed
beyond the scope of his Authority, e.g., where the act is for
the Servant's own purpose.

EAYNEE r. MITCHELL. [1877]
(2 C. P. D. 357; 25 W. E. 633.)

It was the duty of a carman, employed by the defendant, to
take round beer to customers in the cart of the defendant, and
to call for empty casks wherever they might be found, for which
he was paid the sum of Id. per cask. One day, for a purpose of
his own, totally unconnected with his employer's business, and
without his permission, he took the defendant's horse and cart
out, and on his way back collected two empty casks from a
public-house for which he received the customary 1<7. It was
after he had collected the two casks that he met with the accident
which injured the plaintiff's cab.

Held, that the defendant ivas not liable, as when the
accident occurred the carman was not acting in the course
of his employment, for he was returning on a purpose of his
oivn, and he did not convert his oivn private occupation into
thr employment of //A- master />// picking up the casks of a
customer.



An Agent by Delegating his Duties does not render his Principal
liable for the Negligence of his Substitute, for Delegatus non
potest delegare.

GWILLIAM v. TWIST. [1895]

(04 L. J. Q. B. 174 ; (1895) 2 Q. B. 84 ; 59 J. E. 484 ; 14 E, 461 ;

72 L. T. 579 ; 43 W. E. 566.)

An omnibus belonging to the defendants was beiDg driven
along a public highway by Harrison, a servant of the defendants.



LIABILITY FOR TORTS COMMITTED BY OTHERS. 163

A police inspector, honestly thinking that Harrison was not in
a fit state to drive the omnibus, told him he was not to drive
any further, and that the omnibus must be driven home. There-
upon one Veares, who had formerly been in the employment
of the defendants as conductor only, and not as driver, volun-
teered, and got upon the box of the omnibus and drove it home,
a distance of about a quarter of a mile, and the conductor and
Harrison acquiesced in his doing so. Whilst Veares was driving
the omnibus home he drove negligently or unskilfully, and in
consequence ran over and injured the plaintiff.

Held, that Harrison, being employed by the defendants
for the express purpose of driving their omnibus, had no
authority to delegate that duty to Veares, for a servant
cannot delegate unless there is a necessity to do so, and that
therefore the defendants ivere not liable.



A Tort committed on behalf of another without his previous
Authority may be ratified by him.

CAETEE v. YESTEY OF ST. MAEY ABBOTS,
KENSINGTON. [1900]

(64 J. E. 548.)

The plaintiff's goods having been illegally seized under a
warrant of distress handed by the vestry to a bailiff, he wrote
to the vestiy seeking reparation. The vestry replied, stating
that their solicitors would accept service of any process they
might deem advisable to issue.

Held, that the reply of the vestry indicated that they
stood by the act of the bailiff, and that therefore there was
evidence of ratif cation by the defendants of the illegal distress,
which entitled the plaintiff' to damages.



m 2



164 TORT.



LIMITATION OF ACTION CAUSED BY
TORTS.



The Statute of Limitations runs from date Damage, caused by

Tort, occurs.

THE DAELEY MAIN COLEIEEY CO. v. MITCHELL.

[1886]

(55 L.J.Q. B. 529; 11 App. Cas. 127; 51 J. P. 148; 54 L. T. 882.)

Mitchell owned the surface of land under which the company
had worked out coal iu and previously to the year 18(58. Be-
tween that year and 1871 a subsidence took place, causing
injury to cottages belonging to Mitchell. The company, by
agreement, repaired the injury. There was no further working
of coal under Mitchell's land, but in 1882 a further subsidence
took place, causing injury to other houses belonging to Mitchell.
This further subsidence was in part caused by the working of
coal under adjoining land, but would not have occurred but for
the withdrawal of vertical support by the company's workings.
Mitchell brought an action for the damage sustained in 1882.
The company pleaded the Statute of Limitations.

Held, that a fresh cause of action arose zvhen the injury
occurred in 1882, for which an action could be brought,
although more than six years had elapsed since the first
damage mused by the company's workings.



PARTICULAR TORTS. 165



PARTICULAR TORTS.



Defamation.

Reports of Legal Proceedings are subject to Qualified Privilege.
They must be made bona fide, be fair, and without Malice in
Fact.

STEVENS v. SAMPSON. [1879]

(49 L. J. (J. B. 120 ; 5 Ex. D. 53 ; 41 L. T. 782 ; 28 W. E. 87—

C.A.)

The defendant, a solicitor, conducted a case in a county court
and sent a report of the proceedings containing matter defama-
tory of the plaintiff to several newspapers for publication. In
an action for libel the jury found that the report was a fair one,
but sent with malice.

Held, by the Court of Appeal, that no absolute privilege
attached to the publication of a report, though a fair one,
of proceedings in a court of justice, and that the defendant,
having been actuated by malice in sending the report, was
liable in the action.

If a report in a newspaper or elsewhere is on a subject of
general interest to the public, the occasion of publishing it is
privileged, but the defendant must show that he used it in
the privileged way. The report must be a correct one, it
must be made bona fide, but it is not sufficient merely to
prove that ; he must also shoiv that the report ivas made
without malice in fact.



Itili TORT.

Malice in Law is to be inferred from the Act of making a Defama-
tory Statement, but where the Defamatory Statement is
prima facie excusable Malice in Fact must be proved. Malice
in Fact denotes ill-will against a person. Malice in Law is a
Wrongful Act, done intentionally, without just cause or
excuse.

BROMAUE v. PROSSER. [1825]

(3 L. J. (O.S.) K. B. 203 ; 4 B. & C. 247 ; 6 Dow. & R, 296 ; 1 Car.
& P. 475; 24 R. R. 241.)

In an action for slander of the plaintiffs in their trade as
bankers, it was proved that J. "Watkins met the defendant and
said : " I hear you say Bromage and Sneath's (the plaintiffs)
bank at Monmouth has stopped. Is it true ? " — that defendant
answered " Yes, it is ; I was told so ; it was so reported at Crick-
howell, and nobody would take their bills, and I came to town
in consequence of it myself " ; and that George Brown had told
the defendant "there was a run on the plaintiffs' bank at
Monmouth."

Held, on an application for a new trial, malice is the
gist of the action for slander, but is of hvo kinds — malice in
fact, and malice in laiv : the former denoting ill-will against
a person; the latter meaning a wrongful act, done inten-
tionally, without just cause or excuse. In common actions
for slander, malice in law is to be inferred from the act of
uttering or otherwise publishing the slander, that being a
wrongful act, intentionally done, without just cause or excuse ;
but in actions for slander prima facie excusable, on account
of the cause or occasion of the publishing of it, as in privi-
leged communications respecting a servant's character, to a
party requesting information, malice in fact must be proved.
That the proper question to be left to the jury was,
(1) whether the defendant understood J. Watkins as asking
for information, and whether he had uttered the words merely



PARTICULAR TORTS. 167

as honest advice to J. Watkins to regulate his conduct
accordingly; and if they were in favour of the defendant
on that question (which would make the case one of privileged
communication, and not of common slander) ; then, second!//,
whether the defendant, in so doing, was guilty of any malice
in fact.

The application for a new trial was granted.



In an action of Defamation, if the Words spoken could not in
their Ordinary or Primary Meaning reasonably be read as
Defamatory of the Plaintiff, it must be proved that there is
a Secondary Meaning which is Defamatory.

CAPITAL AND COUNTIES BANK v. HENTY & SONS.

[1882]

(49 L. J. C. P. 830 ; 5 C. P. D. 514 ; 45 J. P. 188 ; 43 L. T. 651 ;
28 W. E. 851.)

The defendants were brewers, and had been accustomed to
receive in payment for beer supplied to a number of their
tenants in Sussex cheques drawn upon different branches of the
plaintiff bank. A dispute arose between the defendants and
the manager of the plaintiffs' branch bank at Chichester,
through the latter refusing to cash cheques for the defendants
drawn upon any other of the branch banks, and the defendants
thereupon sent round to the tenants a printed circular in the
following terms : — " Messrs. Henty & Sons hereby give notice
that they will not receive in payment cheques drawn on any
of the branches of the Capital and Counties Bank." In an
action for libel the statement of claim set out the circular with
the innuendo, " meaning thereby that the plaintiffs were not
to be relied upon to meet the cheques drawn upon them, and
that their position was such that they were not to be trusted to
cash the cheques of their customers." At the trial evidence



168 TORT.

was given that the plaintiffs incurred a loss through the issue
of the circular, and that the defendants, on being informed of
it, took no steps to prevent the loss increasing.

Held, by the Court of Appeal, that the circular according
to Hi" ordinary or primary meaning of the language, could
not reasonably be read as defamatory of the plaintiff's ; that

there was no evidence upon which a jury could reasonably
find that it had any secondary meaning defamatory of the
plaintiffs ; that the publication of it was privileged, and
there was no evidence of express malice on the defendants'
part to destroy the privilege ; and therefore that the
defendants were entitled to judgment.



The Publication to Wife of Libel on Husband is a sufficient
Publication.

WENMAN v. ASH. [1853]
(22 L. J. C. P. 190 ; 13 C. B. 836 ; 1 C. L. E. 592 ; 17 Jur. 579 ;

1 W. E 452.)

The defendant, who had lodged at the plaintiff's house, on
leaving missed a memorandum book and other articles, where-
upon he wrote to the plaintiff's wife a letter, in which he accused
the plaintiff of having taken them, and threatened to expose
him if he did not return them.

Held, inter alia, that sending the letter to thcioifc was a
publication, for though a/an and wife are in the eye of the
law, for many purposes, one person, yet for the purpose of
having his feelings injured by communications made to his
wife, the husband is a different person from the ivifc, and
that being so, there was a sufficient publication of the libel
in this case.



PARTICULAR TORTS. 169

The Innocent Disseminators of a Libel contained in a Book or
Newspaper are liable unless they can prove absence of
Negligence in not discovering it.

A1ZETELLY v. MUDIE'S SELECT LIBRAE Y, Ltd. [1900]
(G9 L. J. Q. B. 645 ; (1900) 2 Q. B. 170.)

The plaintiff had been the victim of a serious libel contained
in a book entitled " Ernin Pacha : His Life and Work," pub-
lished by Messrs. Constable & Co. The publishers on being-
sued for this libel settled the action by paying 1007. damages
together with an apology and an undertaking to withdraw the
libel from circulation, and on November 12, 1898, a notice was
inserted in the Publishers' Circular, a recognised trade publica-
tion, that Messrs. Constable & Co. requested that all copies of
vol. i. of " Emin Pacha : His Life and Work " might be
returned to them immediately, as they wished to cancel a page
and insert another one in its place. A similar notice was on
the same date inserted in the Athenceum.

In March, 1899, the plaintiff found that the defendants were
lending and selling copies of the work as originally published,
and thereupon brought the present action against them.

Held, that the plaintiff -was entitled to damages. In
order to escape their prima facie liability as publishers of
the libel) the burden of proof was on the defendants to show
that it teas not by any negligence on their part that they
did not Inmw that the book contained a libel) and as they
laid failed to do this the plaintiff was en filled to damages.



The Criticism of a Published Work is not Privileged, and if it
exceeds " Fair Comment " it is actionable, and Malice in Fact
does not have to be proved.

MERIVALE v. CARSON. [1887]
(20 Q. B. D. 275 ; 52 J. P. 261 ; 58 L. T. 331 ; 36 W. R. 231.)

The plaintiff brought this action against the defendant, who



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 14 of 29)