Ii.—: Concurrent Causes of Action.

Concurrent causes of action. Herein we have to consider—

Cases of tort, whether contract or no contract between same parties. (a) There are two modern railway cases in which the majority of the Court held the defendants liable on a contract, but it was also said that even if there was no contract there was an independent cause of action. In Denton v. Great Northern Railway Company, an intending passenger was held to have a remedy for damage sustained by acting on an erroneous announcement in the company’s current time-table, probably on the footing of the time-table being the proposal of a contract, but certainly on the ground of its being a false representation. In Austin v. Great Western Railway Company, an action for harm suffered in some accident of which the nature and particulars are not reported, the plaintiff was a young child just above the age up to which children were entitled to pass free. The plaintiff’s mother, who had charge of him, took a ticket for herself only. It was held that the company was liable either on an entire contract to carry the mother and the child (enuring, it seems, for the benefit of both, so that the action was properly brought by the child), or independently of contract, because the child was accepted as a passenger, and this cast a duty on the company to carry him safely. Such a passenger is, in the absence of fraud, in the position of using the railway company’s property by invitation, and is entitled to the protection given to persons in that position by a class of authorities now well established. Whether the company is under quite the same duty towards him, in respect of the amount of diligence required, as towards a passenger with whom there is an actual contract, is not so clear on principle. The point is not discussed in any of the cases now under review.

Again if a servant travelling with his master on a railway loses his luggage by the negligence of the company’s servants, it is immaterial that his ticket was paid for by his master, and he can sue in his own name for the loss. Even if the payment is not regarded as made by the master as the servant’s agent, as between themselves and the company, the company has accepted the servant and his goods to be carried, and is answerable upon the general duty thus arising, a duty which would still exist if the passenger and his goods were lawfully in the train without any contract at all. Evidently the plaintiff in a case of this kind must make his choice of remedies, and cannot have a double compensation for the same matter, first as a breach of contract and then as a tort; at the same time the rule that the defendant’s liability must not be increased by varying the form of the claim is not here applicable, since the plaintiff may rely on the tort notwithstanding the existence of doubt whether there be any contract, or, if there be, whether the plaintiff can sue on it.

Contract “implied in law” and waiver of tort. On the other hand we have cases in which an obvious tort is turned into a much less obvious breach of contract with the undisguised purpose of giving a better and more convenient remedy. Thus it is an actionable wrong to retain money paid by mistake, or on a consideration which has failed, and the like; but in the eighteenth century the fiction of a promise “implied in law” to repay the money so held was introduced, and afforded “a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex aequo et bono he ought to refund”, and even to cases where goods taken or retained by wrong had been converted into money. The plaintiff was said to “waive the tort” for the purpose of suing in assumpsit on the fictitious contract. Hence the late Mr. Adolphus wrote in his idyllic poem “The Circuiteers”:

This kind of action was much fostered by Lord Mansfield, whose exposition confessed the fiction of the form while it justified the utility of the substance. It was carried so far as to allow the master of an apprentice who had been enticed away to sue the person who had wrongfully employed him in an action of indebitatus assumpsit for the value of the apprentice’s work.

Implied warranty of agent’s authority (Collen v. Wright). Within still recent memory an essentially similar fiction of law has been introduced in the case of an ostensible agent obtaining a contract in the name of a principal whose authority he misrepresents. A person so acting is liable for deceit only if the misrepresentation is fraudulent, and that liability (when it exists), being purely in tort, does not extend to his executors. Neither can the professed agent, whether acting in good faith or not, be held personally liable on a contract which he purported to make in the name of an existing principal, though for some time it was a current opinion that he was so liable. To meet these difficulties it was held in Collen v. Wright that when a man purports to contract as agent there is an implied warranty that he is really authorized by the person named as principal, on which warranty he or his estate will be answerable ex contractu. Just as in the case of the old “common counts,” the fact that the action lies against executors shows that there is not merely one cause of action capable of being expressed, under the old system of pleading, in different ways, but two distinct though concurrent causes of action, with a remedy upon either at the plaintiff’s election.

We pass from these to the more troublesome cases where the causes of action in contract and in tort are not between the same parties.

Concurrent causes of action against different parties in contract and in tort. (b) There may be two causes of action with a common plaintiff, or the same facts may give Z. a remedy in contract against A. and also a remedy in tort against B.

The lessee of a steam ferry at Liverpool, having to meet an unusual press of traffic, hired a vessel with its crew from other shipowners to help in the work of the ferry for a day.Dalyell v. Tyrer. The plaintiff held a season-ticket for the ferry, and therefore had a contract with the lessee to be carried across with due skill and care. He crossed on this day in the hired vessel; by the negligence of some of the crew there was an accident in mooring the vessel on her arrival at the farther shore, and the plaintiff was hurt. He sued not the lessee of the ferry but the owners of the hired vessel; and it was held that he was entitled to do so. The persons managing the vessel were still the servants of the defendants, her owners, though working her under a contract of hiring for the purposes of the ferry; and the defendants would be answerable for their negligence to a mere stranger lawfully on board the vessel or standing on the pier at which she was brought up. The plaintiff was lawfully on their vessel with their consent, and they were not the less responsible to him because he was there in exercise of a right acquired by contract upon a consideration paid to some one else.

Foulkes v. Met. Dist. R. Co. A leading decision on facts of this kind was given by the Court of Appeal in 1880.

The plaintiff, a railway passenger with a return ticket alighting at his destination at the end of the return journey, was hurt by reason of the carriages being unsuitable to the height of the platform at that station. This station and platform belonged to one company (the South Western), by whose clerk the plaintiff’s ticket had been issued: the train belonged to another company (the District) who used the station and adjoining line under running powers. There was an agreement between the two companies whereby the profits of the traffic were divided. The plaintiff sued the District Company, and it was held that they were liable to him even if his contract was with the South Western Company alone. The District Company received him as a passenger in their train, and were bound to provide carriages not only safe and sound in themselves, but safe with reference to the permanent way and appliances of the line. In breach of this duty they provided, according to the facts as determined by the jury, a train so ordered that “in truth the combined arrangements were a trap or snare,” and would have given the plaintiff a cause of action though he had been carried gratuitously. He had been actually received by the defendants as a passenger, and thereby they undertook the duty of not exposing him to unreasonable peril in any matter incident to the journey.

Causes of action in contract and tort at suit of different plaintiffs. (c) There may be two causes of action with a common defendant, or the same act or event which makes A. liable for a breach of contract to B. may make him liable for a tort to Z.

The case already mentioned of the servant travelling by railway with his master would be an example of this if it were determined on any particular state of facts that the railway company contracted only with the master. They would not be less under a duty to the servant and liable for a breach thereof because they might also be liable to the master for other consequences on the ground of a breach of their contract with him.

Again, an officer in Her Majesty’s service and his baggage were carried under a contract made with the carriers on behalf of the Government of India; this did not prevent the carriers from being liable to the officer if his goods were destroyed in the course of the journey by the negligence of their servants. “The contract is no concern of the plaintiff’s; the act was none the less a wrong to him”. He could not charge the defendants with a breach of contract, but they remained answerable for “an affirmative act injurious to the plaintiff’s property”.

Alton v. Midland R. Co., qu. whether good law. The decision of the Court of Common Pleas in Alton v. Midland Railway Co. is difficult to reconcile with the foregoing authorities. A servant travelling by railway on his master’s business (having paid his own fare) received hurt, as was alleged, by the negligence of the railway company’s servants, and the master sued the company for loss of service consequent on this injury. It was held that the action would not lie, the supposed cause of action arising, in the opinion of the Court, wholly out of the company’s contract of carriage; which contract being made with the servant, no third person could found any right upon it. “The rights founded on contract belong to the person who has stipulated for them”; and it is denied that there was any duty independent of contract. But it is not explained in any of the judgments how this view is consistent with the authorities relied on for the plaintiff, and in particular with Marshall’s case, a former decision of the same Court. The test question, whether the reception of the plaintiff’s servant as a passenger would not have created a duty to carry him safely if there had not been any contract with him, is not directly, or, it is submitted, adequately dealt with. The case, though expressly treated by the Court as of general importance, has been but little cited or relied on during the thirty years that have now passed; and the correctness of the decision was disputed (extrajudicially, it is true) by Sir E. V. Williams. A directly contrary decision has also been given in the State of Massachusetts. Alton’s case, moreover, seems to be virtually overruled by Foulkes’s case, which proceeds on the existence of a duty not only in form but in substance independent of contract. The only way of maintaining the authority of both decisions would be to say that in Alton’s case the master could not recover because the servant had a contract with the defendant railway company, but that he might have been entitled to recover if the servant had been travelling with a free pass, or with a ticket taken and paid for by a stranger, or issued by another company, or had suffered from a fault in the permanent way or the structure of a station. But such a distinction does not appear reasonable.

It might perhaps have been argued that at all events such negligence must be shown as would make a carrier of passengers liable to a person being carried gratuitously; it might also be open to argument whether the person injured (apparently a commercial traveller) was really the servant of the plaintiff in such a sense that an action could be maintained for the loss of his service. Doubtless the action for wrong to a servant per quod servitium amisit is of an archaic character and not favoured in our modern law, and this may have unconsciously influenced the Court. Neither of these points, however, was discussed, nor indeed were they open to discussion upon the issues of law raised by the pleadings, on which alone the case was argued and decided. The questions what degree of negligence must be shown, whether a mere non-feasance would be enough, or the like, could have been properly raised only when the evidence came out.

The most ingenious reason for the judgment of the Court is that of Willes J., who said that to allow such an action would be to allow a stranger to exercise and determine the election (of suing in contract or tort) which the law gives only to the person actually injured. But it is submitted that the latter is (or was) required to elect between the two causes of action as a matter of remedy, not of right, and because he is to be compensated once and once only for the same damage; and that such election neither affects nor is affected by the position of a third person. Moreover the master does not sue as a person claiming through the servant, but in a distinct right. The cause of action and the measure of damages are different. On the whole the weight of principle and authority seems to be so strong against Alton’s case that, notwithstanding the respect due to the Court before which it came, and which included one of the greatest masters of the common law at any time, the only legitimate conclusion is that it was wrongly decided.

The case has now been commented on in the Court of Appeal with doubt only short of express disapproval.

Winterbottom v. Wright, &c. It appears, then, that there has been a certain tendency to hold that facts which constitute a contract cannot have any other legal effect. We think we have shown that such is not really the law, and we may add that the authorities commonly relied on for this proposition really prove something different and much more rational, namely, that if A. breaks his contract with B. (which may happen without any personal default in A. or A.’s servants), that is not of itself sufficient to make A. liable to C., a stranger to the contract, for consequential damage. This, and only this, is the substance of the perfectly correct decisions of the Court of Exchequer in Winterbottom v. Wright and Longmeid v. Holliday. In each case the defendant delivered, under a contract of sale or hiring, a chattel which was in fact unsafe to use, but in the one case was not alleged, in the other was alleged but not proved, to have been so to his knowledge. In each case a stranger to the contract, using the chattel—a coach in the one case, a lamp in the other—in the ordinary way, came to harm through its dangerous condition, and was held not to have any cause of action against the purveyor. Not in contract, for there was no contract between these parties; not in tort, for no bad faith or negligence on the defendant’s part was proved. If bad faith or misfeasance by want of ordinary care had been shown, or, it may be, if the chattels in question had been of the class of eminently dangerous things which a man deals with at his peril, the result would have been different. With regard to the last-mentioned class of things the policy of the law has created a stringent and peculiar duty, to which the ordinary rule that the plaintiff must make out either wilful wrong-doing or negligence does not apply. There remain over some few miscellaneous cases currently cited on these topics, of which we have purposely said nothing because they are little or nothing more than warnings to pleaders.

Concurrence of breach of contract with delict in Roman law. If, after this examination of the authorities, we cannot get rid of the notion that the concurrence of distinct causes of action ex delicto and ex contractu is a mere accident of common law procedure, we have only to turn to the Roman system and find the same thing occurring there. A freeborn filius familias, being an apprentice, is immoderately beaten by his master for clumsiness about his work. The apprentice’s father may have an action against the master either on the contract of hiring (ex locato), or at his option an action under the lex Aquilia, since the excess in an act of correction which within reasonable bounds would have been lawful amounts to culpa. It is like the English cases we have cited where there was held to be a clear cause of action independent of contract, so that it was not necessary for the plaintiff to make out a breach of contract as between the defendant and himself.