was sustained. It was held that, notwithstanding the form of the declaration, the case fell within the principle of Winterbottom v. Wright, supra. It was conceded, however, that if there had been an allegation that the defendant knew that the chandelier was improperly hung, the action might have been maintained. The case would then have come within Langridge v. Levy. See Longmeid v. Holliday, 6 Ex. 766; George v. Skivington, Law R. 5 Ex. 1; also the form of the declaration in Wellington v. Downer Oil Co., 104 Mass. 64. Byles, J., said that negligence alone was not enough; it must be shown that there was some breach of duty. As to that, it did not appear what capacity the defendant filled, or who and what the plaintiff was, whether a guest or bare licensee.' Playford v. United Kingdom Tel. Co., supra, was an action for negligence by the person to whom a message had been erroneously transmitted by the defendants. The court held that the action could not be maintained, on the ground that the obligation of a telegraph company to use due care and skill in the transmission of messages arose entirely out of contract; that the defendants' charter had not affected the relation of the company to the sender or the receiver of a despatch; and that, the contract having been made with the sender of the message, the plaintiff had no right of action. These are the chief English cases upon the point. With all respect for the English courts, we apprehend that it is a mistake to suppose that the plaintiff's cause of action is necessarily the breach of a contract. The fact that a contract existed, and was broken at the same time and by the same act or omission by which the plaintiff's cause of action arose, is only one of the accidents of the situation. The defendant owed, in respect of the same thing, two distinct duties: one of a special character to the party with whom he contracted, and one of a general character to others. The latter, it must be conceded, had an existence before the contract was entered into. A carriage-maker allows the plaintiff to try a carriage, with a view to effecting a sale; and, owing to negligence in its construction, the carriage breaks down and injures the plaintiff. This is a good cause of action; and yet there was no contract. A clerk in a drug-store goes to a phial labelled with a drug used for curing the toothache, and, applying some of the contents to his tooth, becomes badly poisoned; the manufacturer having wrongly labelled the phial. Has not the clerk (his employer not being at fault) as good a cause of action against the manufacturer as if he had bought the drug of him? The duty, therefore, does not grow out of the contract, but exists before and independently of it. The fact might be shown by many cases. See, for instance, the class of cases in which a passenger without hire has been held entitled to recover of a carrier for damage sustained by reason of negligence. Nolton v. Western R. Corp., 15 N. Y. 444; Derby v. Reading R. Co., 14 How. 468; or those in which a party is liable for the negligent performance of an agreement made without consideration. Gill v. Middleton, 105 Mass. 477. What, then, becomes of this duty when the contract of sale is consummated with the intermediate party? How is it possible that an obligation due to third persons can be discharged without their consent, by the mere 1 But quære, if that could be material in an action not against the landlord? formation of a new obligation of a different character with a particular person? What does it mean when it is said that even this contractee may sue in tort or in contract for his damages? Certainly nothing, unless that the original duty which the defendant, before the contract, owed to all alike still survives, even towards his contractee; and, if the original duty is not merged towards the contractee by the contract, it would be strange if it could be merged towards strangers. The breach of duty declared upon, therefore, after the contract, is the very same breach of duty (or may be, if the plaintiff declares properly) for which he would have declared had no contract intervened. :. The original and more extensive duty cannot be lost in the subsequent limited duty. A man may part with his rights, but he cannot cancel his liabilities without the consent of those to whom they are due. And we speak advisedly when we call duties of the wider class obligations and liabilities. Men are bound to perform duties arising dehors contract as fully as they are those arising from express agreement. In the foreign law the former duties are always described as obligations. And if they are as binding as contracts, it is not easy to see how they can be discharged by the mere act of the party who owes them. Suppose a servant were sent by his master to a shop to buy a carriage, and that in riding home with the purchase the carriage should break down from a defect in its construction, and that the servant should be so badly injured as to have to suffer the amputation of an arm. Now, he could not maintain an action against his master, and his master could only recover the price paid for the carriage and the loss of the injured man's services. Can it be that the English law denies a remedy to the unfortunate man against the negligent carriagemaker? He would clearly have a right of action, as we have seen, if he were only trying the carriage. Compare the right of action by a servant against a railway company for injuries sustained while travelling on their line, though the servant himself paid no fare; the only contract being made with the master. Marshall v. York, &c., Ry. Co., 11 Com. B. 655. And see Austin v. Great Western Ry. Co., Law R. 2 Q. B. 442. In the first case cited, Jervis, C. J., said: "Upon what principle does the action lie at the suit of the servant for his personal suffering? Not by reason of any contract between him and the company, but by reason of a duty implied by law to carry him safely." Austin v. Great Western Ry. Co., supra, was the case of an injury by a carrier of passengers to a young child carried in its mother's arms, for which she had paid no fare, though the child was "over age;" and the action was sustained. Several of the judges attempted to sustain the decision on the ground of contract; but Mr. Justice Blackburn took the true ground, that of a violation of a general duty. Referring to the doctrine of Marshall v. York, &c., Ry. Co., supra, as correct, he said: "It was there laid down that the right which a passenger by railway has to be carried safely, does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the company to carry him safely." Nor has the doctrine of Winterbottom v. Wright, when pressed upon the court, been fully accepted even in England. In Dalyell v. Tyrer, El., B. & E. 899, A. had let to B. his steam ferry, with its master and crew, and C., a passenger for hire paid to B., had been injured by a breach of A.'s contract with B., to wit, by the mismanagement of A.'s crew; and C. was held entitled to maintain an action against A., the owner of the ferry. In the course of the argument for the defendants, counsel objected that the cause of action was tort founded upon contract; to which Erle, J., replied, "But, in case of misfeasance, is not the person immediately guilty of it liable, at all events, as well as the contracting party?" And again, in reply to the argument that the plaintiff, not having paid fare to the defendants, was not a passenger for hire, the same judge said, "If Hetherington [B., ut supra] pays the defendants for the use of the ship to carry the plaintiff, and they do so carry him, are they not retained for hire and reward to carry the plaintiff? Suppose A., at B.'s request, pays a surgeon to attend B., and the surgeon maltreats B., is not the surgeon liable at the suit of B?" Finally, in overruling the motion for a new trial, Mr. Justice Erle said: "I take it to be shown by the evidence that the plaintiff had made a contract with Hetherington to be conveyed across the ferry; and, for the purpose of being so conveyed, went on board the vessel hired, with its crew, for that purpose by Hetherington from the defendants, and while on board suffered injury from the negligence of the crew. The question is, are the defendants liable for that negligence? They were, by their crew, in possession of the vessel; and I am of opinion that if the negli gence in question had injured a mere stranger, not on board, but standing, for instance, on the pier at the time, they would have been liable. That is established by Quarınan v. Bennett, 6 Mees. & W. 499, and Fenton v. Dubin Steam Packet Co., 8 Ad. & E. 835. Then, can the plaintiff lose a right of action which he would have had as a stranger merely because he was a passenger for hire paid to Hetherington, and not to the defendants? He clearly loses no right of action against them, though he may possibly acquire an additional right against Hetherington. Pippin v. Sheppard, 11 Price, 400; Gladwell v. Steggall, 5 Bing. N. C. 733; and Marshall v. York, Newcastle & B. Ry. Co., 11 Com. B. 655, decide that the question whether there was an actual retainer of the defendants by the plaintiff for hire does not affect their liability for negligence of this character " But even upon the view that no previous general duty exists, and assuming that the only duty cast upon the defendant grows out of a contract with a third person, it is difficult to understand why he may not owe a duty to the plaintiff to perform that contract properly, as well as to the third per- :. son. The plaintiff, it is true, unlike the co-contractor, could not maintain an action for a breach of such duty unless he should sustain damage thereby; but, if he has suffered injury, what reason exists why he should not be indemnified? The plaintiff can require the defendant so to perform his duties to the other party to the contract as not to injure him (the plaintiff), in case of a fulfilment of the contract, on the principle sic utere tuo etc.; then why not in a case where the defendant has added to this injury an injury to another person ? not show that injury would certainly have happened in the proper use of the article; and the connection is broken by his or another's fault. Comp. Davidson v. Nichols, 11 Allen, 514. And this is probably all that the allegation that defendant knew the nature of the article, and intended the use made of The reason generally urged against it as in Wellington v. Downer Oil allowing an action to one not a party to Co., 104 Mass. 67 - means. But we the contract is, that it subjects the first think that so long as the article is used party at fault to an endless liability. as the manufacturer intended, he should See Winterbottom v. Wright, 10 Mees. be liable for any negligence which the & W. 109; Davidson v. Nichols, 11 plaintiff can prove him or his servants Allen, 514. Thus, it is said that the guilty of in its construction; though the builder of a railway carriage should be alleged breach of duty involved also a liable, in case of an accident which hap- breach of contract with some one else. pened through a defect in the construc- The plaintiff has suffered an injury, for tion of the carriage, to each passenger which the defendant was at fault; and who sustained an injury thereby. David- we think we have shown that this fault son v. Nichols, supra. But this is true involved a breach of duty to the plainin many cases, whether the right of ac- tiff. tion under consideration be given or not. The owner of a boiler is often liable to all who may be injured by an explosion which occurs through a defect in its making; and upon a recovery by them, he may bring an action against his vendor for the breach of the latter's contract, and recover the sum which he was compelled to pay to the first suitors. And so on back to the manufacturer. In many cases, however, it is difficult to trace the defect back to the manufacturer; and the difficulty increases with time and use. The consequence is, that the action will generally be brought against the owner, or, if the owner be himself the sufferer and plaintiff, against his vendor on the warranty. The evils supposed to be in the train of the principle are imaginary. The article used must, of course, be used for the purpose for which it was intended, or the manufacturer or owner will not be liable; for the plaintiff could Of course, for a total failure to perform the contract, a third person could not maintain an action; the duty arises only when performance is undertaken. In other words, there must be a misfeasance. See the telegraph cases to be presently considered. The American authorities have not generally fallen into this difficulty. It is true that the doctrine of Winterbottom v. Wright is recognized in the principal case; and there are other cases of which the same may be said. Loop v. Litchfield, 42 N. Y. 351; Albany v. Cunliff, 2 Comst. 165; Coughtry v. Globe Woollen Co., 56 N. Y. 124, infra; Losee v. Clute, 51 N. Y. 494. See also Davidson v. Nichols, 11 Allen, 514, 517. But, aside from some of the New York cases, it will generally be found that this was unnecessary, and that there has been little direct following of that case in this country. In Coughtry v. Globe Woollen Co., 56 N. Y. 124, the Court of Appeals of New York, while expressing approval of the English rule, have, we apprehend, departed from it. In that case, certain contractors for making a cornice for the defendant agreed to put up any staging necessary for the work; and this was done. But owing to defective construction, the staging fell, and killed the plaintiff's intestate, a workman on the scaffold in the employ of the contractors. It was held that the defendant was liable; the ground taken being that the deceased was killed by an erection on the defendant's premises, put there for the accommodation of the workmen. Winterbottom v. Wright was distinguished on the ground that the defendant did not own or run the coach, that it was not in his possession or control, and that he did not invite any one to enter it. And as to Losee v. Clute, 51 N. Y. 494, supra, where a boiler exploded in the hands of a vendee, and injured the plaintiff, who was held to have no right of action against the manufacturer, it was said that the defective article had been sold and delivered to the purchaser; and he had no longer any control over it. But no such ground as this is taken in the English cases; and it is difficult to understand it. If the injury occurs by reason of the defendant's default, what matters it that he had not control over the thing at the time? The change of control is nothing, unless the original defect has been increased thereby, so that it cannot be proved that the original negligence of the defendant caused the damage. The very fact that the defendant is liable to the party having control of the thing, when this control was even gratuitously obtained (Gill v. Middleton, 105 Mass. 477), shows that the liability for the original negligence survives the change of control. The whole difficulty consists in proving that the original defect was the cause of the action. But that is a question of fact; if the plaintiff cannot prove it, he cannot maintain his action. The decision in Coughtry v. Globe Woollen Co. was right; but the case would have been more satisfactory had the court denied the soundness of the English rule, instead of drawing a distinction equally unsound. The decision itself, as we understand it, is opposed to the doctrine of the English courts. The English rule has been virtually rejected by the Court of Appeals of Kentucky in a recent case. United Society of Shakers v. Underwood, 9 Bush, 609. This was an action brought against the directors of an insolvent bank to recover damages for the wrongful appropriation by officers of the bank of a special deposit; the plaintiffs alleging that the defendants were guilty of negligence in the performance of their duties as guardians of the bank.' It was objected that there was no privity of contract between the plaintiffs and the defendants; that the only privity was between the defendants and the bank. But the objection was overruled, and the defendants held liable. It is true, the court base their decision partly upon an implied contract; but by this nothing more appears to have been meant than that general duty (arising independently of the actual contract set up in defence) of which we have spoken. The directors, say the learned court, "invite the public to deal with the corporation; and when 1 See Bank Directors and Bank Officers in note to Fisher v. Thirkell, post. |