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was the editor of a theatrical paper which contained a criticism



170 TORT.

on a play called " The Whip Hand," of which the plaintiff was
one of the joint authors, on the ground that the criticisms were
libellous.

Held, in an action in respect of a criticism upon a pub-
lished tvork it is not necessary to prove malice in fact, for
such a criticism is not privileged, and is a libel if it goes
beyond the limits of fair comment i?'respcctive of the motivi
of the writer. " Fair comment" is such criticism which,
in I Iir opinion of a jury, docs not go beyond that which any
fair man, however prejudiced or however strong his opinion
limy be, would say of the work in question.



Maintenance.



Action will lie for Maintenance if Person meddling' has no
Common Interest in the Suit, or does not do it for pur-
poses of Charity.

ALABASTER v. HARNESS. [1895]
(64 L. J. Q. B. 76; (1895) 1 Q. B. 339; 14 R. 54; 71 L. T. 740;

43 W. R. 196.)

The plaintiffs published an article containing libellous impu-
tations upon Dr. Tibbits and Mr. Harness. In respect of this
article, so far as it reflected upon his character, Tibbits brought
an action against the plaintiffs. Harness maintained Tibbits in
his action. The libels on Harness contained in the article did
not form any part of Tibbits' cause of action, nor was any issue
raised as to Harness's character. The action resulted in a
verdict for the plaintiffs, and Tibbits was unable to pay their
costs. In an action brought by the plaintiffs for maintenance —

Held, llinl although in Tibbits 1 action questions might
incidentally arise affecting Harness's character ; he had no

common interest in the action, and that an action for mo in-



PARTICULAR TORTS. 171

tenance would lie at the suit of the plaintiff against Harness
for the amount of the taxed costs of their defence to Tibbils 1
action.

Seduction.

The action of Seduction is founded on the fiction of Relationship
of Master and Servant, between the Plaintiff and the Person
seduced, and for that fiction there must be some Foundation,
however slender in Fact.

TERRY v. HUTCHINSON. [1868]

(37 L. J. Q. B. 257 ; L. R. 3 Q. B. 599 ; 9 B. & S. 487 ; 18 L. T.
521 ; 16 W. R. 932.)

The plaintiff's daughter, a minor, left his house and went
into the service of a third party. After nearly a month she
was dismissed at a day's notice, and the next day on her
journey back to her father's house, was seduced by the
defendant.

Held, that she was constructively in her fathers service
at the time of her seduction, as he ?uas entitled to her
services the moment after her former service had terminated,
and that the plaintiff was therefore entitled to damages.



Deceit or Fkaud.

Where a Contract is induced by Misrepresentation, the fact that
if the other Side had used due Diligence he would have
discovered the untruth of the Representation, is no Answer
to a Claim for Rescission. The Onus is on the Party guilty
of Misrepresentation to prove that the Misrepresentation did
not induce the Contract.

REDGRAVE v. HURD.
(51 L. J. Ch. 113 ; 20 Gh. D. 1 ; 45 L. T. 485 ; 30 W. R. 251.)

The plaintiff, a solicitor, inserted an advertisement in a law
paper stating that he had a moderate practice with extensive



172 TORT.

connections in a populous town, and that being shortly about to
retire would take into partnership an efficient lawyer who would
not object to purchase his suburban residence for 1,600/. The

defendant, another solicitor, answered the advertisement, and in
personal interviews the plaintiff represented his business as
bringing in about 300/. a year. The plaintiff had no regularly
kept accounts, but the defendant inspected such papeis as there
were relating to his business, and these appeared to show
business done to the gross amount of about 200/. a year. The
defendant then entered into partnership and contracted to buy
the house for 1,600/. Afterwards, finding the practice to be
worthless, he refused to complete the purchase of the house.

lu an action by the plaintiff for specific performance, with a
counterclaim by the defendant for rescission of the contract, —

lie If/, that the defendant was entitled to rescission of the
contract.

When a person has been induced to enter info a contract
by representations which turn out to be untrue, it is no
ansiver to his claim for rescission of the contract to say that
if he had used due diligence he tvould have discovered the
untruth of the representations.

Held a/so, that where misrepresentations have in fact
been made, the inference ought not to be drawn /hat the
party seeking relief did not rely upon them; hud that in
order to exclude relief it must be shotvn either that the
party seeking relief had knowledge contrary to the repre-
sentations made, or that he stated explicitly that he did not
rely upon them.



PARTICULAR TORTS. 173

There can be no Contribution between Wrong- doers unless an
Innocent Person is induced to do a Wrongful Act by Frau-
dulent Misrepresentation of the other.

BUEEOWS v. EHODES AND ANOTHER. [1899]

(68 L. J. Q. B. 545 ; (1899) 1 Q. B. 816; 63 J. P. 532 ; 80 L. T.

591 ; 48 W. E. 13.)

The statement of claim set out that the plaintiff was employed
in the British Africa Company to serve for a year in the armed
forces of the company. The defendants, having- secretly deter-
mined to invade the territory of the South African Republic
with a hostile force, induced the plaintiff to remain in the force
after the expiration of his period of service on the representa-
tion that the service on which they wished to employ him was
lawful ; that as fighting would shortly take place in the said
South African Republic between other forces, his services were
required for the protection of women and children ; that the
force of which he was a member would have the support of
other lawfully-appointed forces, and that such invasion of the
territory of the South African Republic had the sanction and
support of Her Majesty's Government ; whereas, in fact, all the
aforesaid representations were untrue to the knowledge of the
defendants. Acting on and believing these statements, the
plaintiff continued in the service of the defendants, and in
obeying their orders received the injuries and suffered the losses
complained of in the battle of Doornkop, and for which he
sought to recover damages in this action.

Held, thdl this statement of claim showed a good cause
of action, for although if the plaintiff had known that the
act was a wrong one he could not have recovered, for even
an express promise of indemnity jar the commission of such
an act is void, yet an innocent person who has, by the
fraudulent misrepresentation of others , been induced to lake
fart with them in the commission of a criminal offence, and
tvho has been induced by those who procured his participa-



174 TORT.



tion I" believe the proceeding neither criminal nor against
public policy ', can ma in In in an action against I hone, by whose
inducement and false statements he teas led to commit it,
and recover damages from them for losses lie has sustained.



Causing a Mental Shock is Actionable.

WILKINSON v. DOWNTON. [1897]

(G6 L. J. Q. B. 493 ; (1897) 2 Q. B. 57 ; 76 L. T. 493 ;

45 W. E. 525.)

The defendant, in execution of what he seems to have regarded
as a practical joke, represented to the plaintiff, Mrs. Wilkinson,
that he was charged by her husband with a message to her to
the effect that the husband had been " smashed up " in an
accident, and was lying at " The Elms," at Leytonstone, with
both legs broken, and that she was to go at once in a cab with
two pillows to fetch him home. All this was false. The effect of
the statement on the plaintiff was a violent shock to her nervous
s} r stem, producing vomiting and other more serious and permanent
physical consequences, at one time threatening her reason, and
entailing weeks of suffering and incapacity to her, as well as
expense to her husband for medical treatment of her.

Held, the pla in I iff was entitled to damages, for a false
s la h 'in en I made luilfully, the direct and natural effect of
which is to cause a mental shock resulting in the illness of
the person to whom it is made, is an infringement of the
right to personal safety, and actionable. It is wilful
injuria, although no malicious purpose to cause the harm
nor motive of spite be imputed, ami its effect — illness from
mental shock — may be, and in this case was, not too remote
to be in law regarded as a consequence for which the speaker
is answerable in damages.



PARTICULAR TORTS. 175

Interference with Contractual Relations of Another.

Where one Person induces another to commit a Breach of Con-
tract of Service, an Action will lie for such unlawful
Interference.

LUMLEY v. GYE. [1853]
(22 L. J. Q. B. 463; 2 E. & B. 216 ; 17 Jur. 827 ; 1 W. R. 432.)

The plaintiff, the owner and manager of Her Majesty's
Theatre, had engaged the services of Johanna Wagner, who
was a singer with a great reputation, for three months. Not-
withstanding this the defendant, before the expiration of the
three months, induced Johanna Wagner to break off her engage-
ment with the plaintiff. The plaintiff accordingly brought tin's
action.

Held, the plaintiff ivas entitled to damages, for the mali-
ciously procuring Johanna Wagner to break her contract ivas
a wrongful act from which damages accrued to the plaintiff ,
and that the action for maliciously persuading a servant to
quit the service of another is maintainable ivhercvcr there is,
at the time of the persuading, a binding contract of hiring
and service existing between the parties, whether the service
be then actually subsisting or not.

Note. — This principle is no longer confined to inducements to
break covenants of service, but extends to all wrongful inter-
ferences with a man's contractual rights. Quinn v. Leathern, 70
L. J. P. 0. 76.



It is not Unlawful to induce a Person not to enter into a Contract
with another or not to Re-engage that other.

ALLEN v. FLOOD. [1898]

(67 L. J. Q. B. 1 19 ; (1898) A. C. 1 ; 62 J. P. 595 ; 77 L. T. 717 ;

46 W. R. 258.)

Boilermakers in common employment with Flood, who was a
shipwright working on wood, objected to work with him, on the



176 TORT.

ground that in a previous employment he had been engaged
on ironwork. Allen, an official of the Boilermakers' Union, in
response to a telegram from one of the boilermakers, came to
the yard and dissuaded the men from immediately leaving their
work, as they threatened to do, intimating that if they did so
he would do his best to Lave them deprived of the benefits of
the union, and also fined; they must wait till the matter was
settled. Allen then saw the managing director, to whom he
said that if Mood, who was engaged from day to day, were not
dismissed the boilermakers would leave their work or be called
out. Flood, who was engaged from day to day, was thereupon
dismissed, and brought this action claiming damages against
Allen.

Held, lluil Allen in inducing the employers not to re-
engage Flood hail v 'mini aj no legal right of Flood, done no
unlaivful act, and used no unlawful means ; and that there-
fore his conduct, however malicious or bad his motive might
be, was not actionable, and that Allen was entitled to
judgment.



Negligence.



In an Action for Damages caused by Negligence, the Onus is on
the Plaintiff to prove Negligence — the Onus of proving
Contributory Negligence is on the Defendant.

WAKELIN v. LONDON AND SOUTH- WESTEEN RAILWAY.
.",(', L. J.Q. B. 229 : 12 App. Cas. 11 ; 55 L. T. 709 ; 35 W. E. 141 ;

51 .1. P. 104.

The dead body of the plaintiff's husband was found at night
on the defendants' railway near a level crossing, in a condition
which showed that he had been killed by a train. There was
nothing to show how he came to be on the line or how the
accident occurred. No statutory duty had been neglected by
the defendants, but there was some evidence that the crossing



PARTICULAR TORTS. 177

was a dangerous one, and might have been rendered safer by
extra precautions, such as the sounding of a whistle by approach-
ing trains and the keeping of a watchman at the crossing to
give warning in case of danger.

Held, that whether or not the defendants had been guilty
of negligence, yet, as there was nothing to show a connection
between any negligence on their part and the accident, there
tvas no case to go to the jury, and judgment must be entered
for the defendants.

Where contributory negligence is alleged, the burden of
proving it affirmatively rests upon the defendant.



Contributory Negligence on the part of the Plaintiff is no Defence
to an Action unless the Plaintiff might by the exercise of
Ordinary Care at the time of the Accident have avoided it.

DAVIES v. MANN. [1842]
(12 L. J. Ex. 10 ; 10 M. & W. 549 ; 6 Jur. 954 ; 62 B. E. 698.)

The plaintiff having hobbled his donkey by the fore legs left
it to graze at the side of a road. The defendant's servant drove
along the same road on his master's business at such a pace that
he could not pull up when he saw the donkey. The donkey
was not able to get out of the way and was killed by the force
of the impact. The defendant pleaded contributory negligence.

Held, a plaintiff is not precluded from recovering for an
injury negligently done by the defendant, by the fact that he
himself has been guilty of unlawful or negligent conduct,
unless he might by the exercise of ordinary care at the time
have avoided the injury. If this tvere not so a man might
justify driving over and damaging goods, or even over a
person asleep on the road, or running against a carriage

J. N



178 TORT.

travelling on the wrong side of the road, token he might
have avoided it.

See also The Bywell Castle, infra.



Reasonable Care must be used by Occupier of Premises to prevent
Injury to Persons on Premises on Business.

INDEKMAUK v. DAMES. [1866]

(36 L. J. C. P. 181 ; L. E. 2 C. P. 31 1 ; 16 L. T. 293 ;
15 W. E. 434.)

The plaintiff visited the premises to test certain burners on
the defendant's premises in accordance with a contract by the
plaintiff's employer with the defendant. The burners were in
the sugar-refinery, where there was a shaft for raising and
lowering sugar, which was necessary, usual and proper for the
business. This shaft was unfenced, though when out of use it
might have been fenced round. The plaintiff was warned by
the defendant's manager that the place was dangerous and
lights not allowed, and that he should keep by a man who
would have a light ; but having left a tool in a part of the
refinery where he had been, he went back for it, and in return-
ing to the man with the light fell through the shaft without auy
fault on his part. The jury found a verdict for the plaintiff.

Held, on appeal, the plaintiff was (//fit/tut to damages.
Whirr a person resorts to a building in the course of
business on the express or implied invitation of the occupier,
such person, using reasonable care, is entitled to expect the
occupier to use reasonable care to prevent damage from
unusual danger which lie Inioivs or ought to Jcnoto ;
where there is evidence of neglect it is a question for the
jury ; and in this case there was evidence for the jury
that the plaintiff was on the defendant" s premises on busi-



PARTICULAR TORTS. 179

ness by his tacit invitation, that the shaft was an unusual
danger known to the defendant, and that damage accrued to
the plaintiff from the defendant and his servants not using
sufficient means to avert it and warn hint of it.



Prima facie the Occupier and not the Owner is liable for Injury
to a Stranger from Premises being out of Repair.

NELSON v. THE LIVERPOOL BREWERY CO. [1877J
(46 L. J. C. P. 675 ; 2 C P. D. 311 ; 25 W. R. 877.)

The plaintiff, a stranger to the defendants, was injured by a
chimney-pot accidental!}' falling upon hirn from a house in the
occupation of a tenant to the defendants. The defendants
were under no contract with their tenant to repair, and the
premises were not out of repair at the time they let them.

Held, therefore, that the defendants were not liable to the
plaintiff for the injur g he had sustained.

Held also, that the prima facie liability of the occupier
for repairs can only be displaced so as to make the landlord
liable in ttvo cases : —

1st, where the landlord contracts to do the repairs, and
can be sued bg the tenant for not doing them.

2nd, in the case of misfeasance bg the landlord, as, for
instance, where he lets premises in a ruinous condition.

The prima facie liabilitg of the occupier would not be
altered by a custom amongst landlords to do external repairs
in the absence of any express provision in the agreement for
letting, since such custom would not create an obligation to
repair, for the neglect of which they could have been sued
by their tenant.

Todd v. Flight, 30 L. J. C. P. 21, is often cited as the leading case
for this principle. The above case, however, better illustrates the
principle and its exceptions.

N 2



180 TORT.

The Landlord who lets Flats, Offices or Rooms in a Building must
take reasonable care that the parts not demised cause no
Nuisance to Tenants.

HARGROVES v. HARTOPP. [1905]

(74 L. J. K. B. 233 ; (1905) 1 K. B. 172 ; 53 W. R. 262 : 21 T. L. R.

226.)

A floor of a building was let to the plaintiffs by the defen-
dants, who retained the roof, with gutters attached, thereto, in
their own possession. One of the gutters became stopped up.
The defendants had notice of its condition but delayed taking
any steps to clear it out, owing to which delay the plaintiffs'
floor was flooded.

Held, the defendants were liable, for a person ?vho lets part
of his premises, retaining the oilier part, is hound to take
reasonable care in the user of the pari retained not to cause
damage to the tenant in his occupation of the part let.



A Passenger is no longer considered so identified with the Carrier
who carries him as to be unable to bring an Action for Negli-
gence against a Third Party where his Carrier has been
guilty of Contributory Negligence.

THE BERNINA. [1887]

(57 L. J. P. 05 ; 13 App. Cas. 1 ; 52 J. P. 212; 58 L. T. 423;
36 W. R. 870 ; 6 Asp. M. C. 257.)

A passenger on board the Bushire and. one of the crew lost
their lives by drowning in consequence of a collision with the
Bemina. Both vessels were to blame, but neither of the deceased
had anything to do with the negligent navigation of the Bushire.

Held, that their representatives could maintain actions
under Lord Campbell 1 s Act against the oivncrs of the



PARTICULAR TORTS. 181

Bernina, as the deceased were not identified with those
guilty of negligence in navigating the Bushire, and could
recover the whole of the damages^ as the Admiralty rale as
to half damages does not apply to actions wider Lord
Campbell's Act.



Contributory Negligence of a Child is not necessarily a Defence
to an Action against a Person for Negligence causing Injury
to the Child.

HAEEOLD v. WATNEY. [1898]

(67 L. J. Q. B. 771 ; (1898) 2 Q. B. 320 ; 78 L. T. 788 ;

46 W. E. 642.)

The plaintiff, a boy of the age of four years, while passing
along a highway, climbed upon a fence situate upon the
defendant's adjoining land and separating it from the highway,
for the purpose of looking at other boys at play on the further
side of the fence, and not for the purpose of climbing over it.
The fence, which was so defective as to constitute a nuisance,
fell upon the plaintiff and injured him.

Held, in an action to recover damages for the injury,
that , as the plaintiff in climbing upon the fence was merely
indulging the natural instincts of a boy of his age, and
doing an act which the defendant ought to have contemplated
as Ulcely to be done by children using the highway, the
defendant was not entitled to avail himself of the defence
that the injury was caused by the plaintiff's own act, and
that the plaintiff iv as therejore entitled to recover.

Note — Lynch v. Nurdin, 1 Q. B. 29 ; 10 L. J. Q. B. 73, is some-
times referred to as the leading case of this principle.



1 82 TORT.

Nuisance.

A Public Nuisance, which materially interferes with Private
Rights, gives Person injured a right to an Injunction.

BAEBEE v. PENLEY. [1893]
(62 L. J. Ch. 623 ; (1893) 2 Ch. 447 ; 3 E. 489 ; 68 L. T. 662.)

"Charley's Aunt" was iu the heyday of its popularity in
1893, and nightly large crowds collected outside the Globe
Theatre, of which the defendant was the manager and. lessee,
for at least an hour before the doors opened.

The plaintiff, who carried on a lodging house next door to
the theatre, was seriously incommoded by the popularity of the
play, as the long queue prevented fresh lodgers coming to her
house. She accordingly sought to restrain the defendant by
injunction.

Held, Hit' performance every night at a theatre of a
particular piece may be such a nuisance as a Court of
equity wilt rest rain />// injunction if by reason of the attrac-
tion of the piece, it draws together such a crowd of people
for an unreasonable lime before the theatre doors are opened,
as to obstruct the access to the adjoining premises.

II having appeared from the plain! iff'* affidavit in reply
that the nuisance hod been abated, Hie Court did not think
fit to make any order e.eeepl that the plain//'//'* costs of the
a. -linn />,■ paid by I lie defendant.



A Nuisance caused by an Act permitted but not directed by Law
is Actionable, even though not due to Negligence.

METROPOLITAN ASYLUM BOARD v. HILL. [1881]

.-.() L. J. Q. B. 353 ; 6 App. Cas. 193; 45 J. P. 664 ; 44 L. T. 653;

29 W. R. 617.)

The Metropolitan Asylum Board, a body incorporated under
the Metropolitan Poor Act, 1867, erected a smallpox hospital



PARTICULAR TORTS. 183

under powers conferred by that Act, and with the sanction of
the Local Government Board. In an action for an injunction
and damages by occupiers of neighbouring houses, it was found
by a jury that the hospital was a nuisance.

Held, that the Act did not necessarily require anything
to be done under it which might not be done without causing
a nuisance, and that the act permitted by the statute having
been done in such a way as to create a nuisance, the persons
injured were entitled to damages and an injunction.



A Dangerous Thing which comes on to the Land of one Person by
no fault of his, must not be shifted to the Land of another
so as to cause Damage to that other.

WH ALLEY v. THE LANCASHIRE AND YOEKSHEE

RAILWAY COMPANY. [1884]

(5 5 L. J. Q. B. 285 ; 13 Q. B. D. 131 ; 48 J. P. 500 ; 50 L T. 272 ;

32 W. R. 711.)

Owing to an excessive rainfall a quantity of water accumu-
lated on the upper side of the defendants' railway embankment
which crossed some sloping land. They, finding that the
pressure of water was causing danger to their embankment, cut
trenches through the embankment, and thereby caused the
water to flow through and on to the land of the plaintiff, which
lay at a lower level on the lower side of the embankment. In
an action for damages for the injury thus caused to the land of
the plaintiff, the jury found that the defendants had acted
reasonably, regard being had to the safety of their own pro-
perty, and that there was no negligence.

Held, that the defendants were liable, for that what they
had done was not to ward off a common danger, bat to
transfer to the land of the plaintiff the danger and mischief
already existing on their own land.



1 8 1 TORT.



Trespass to Chattels.

The Finder of an Article in a Public Place has a Good Title to it
against everyone but the True Owner. The worst is pre-
sumed against a wrong-doer.

AEMOEY v. DELAMIEIE. [1722]
(1 Str. 504; 1 S. L. C. 343.)

The plaintiff, who was a chimney sweeper's boy, found a
jewel, and carried it to the defendant's shop. The defendant,
who A\as a goldsmith, examined the jewel and took it out of its
socket, and then offered the plaintiff three halfpence for it.
This the plaintiff refused, and insisted upon having the jewel
back, whereupon the defendant handed him back the socket
without the jewel. In an action against the jeweller it was

Held, (1) that the finder of a feivel, though he does not
by such finding acquire an absolute property or ownership,
yet he has such a property as will enable him to keep it
against all but the rightful owner, and consequently may
maintain trover.

(2) That the measure of damages ivas the value of the
jeivcl of the finest ivater that would fit the socket, for Omnia
praesumuntur contra spoliatorem.



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 15 of 29)