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In case, the declaration stated, that L., the father of the plaintiff, bargained with the defendant to buy of him a gun, to wit, for the use of himself and his sons; and the defendant then, by falsely and fraudulently warranting the gun to have been made by N., and to be a good, safe, and secure gun, then sold the gun to L., for the use of himself and his sons, for 24l.; whereas in truth and in fact the defendant was guilty of great breach of duty, and of wilful deceit, negligence, and improper conduct, in this, that the gun was not made by N., nor was a good, safe, and secure gun, but, on the contrary thereof, was made by a very inferior maker to N., and was a bad, unsafe, ill-manufactured and dangerous gun, and wholly unsound and of very inferior materials; of all which the defendant, at the time of such warranty and sale, had notice: and that the plaintiff, knowing and confiding in the said warranty, used the gun, which but for the warranty he would not have done; and that the gun being in the hands of the plaintiff, by reason and wholly in consequence of its weak, dangerous, and insufficient construction and materials, burst and exploded; whereby the plaintiff was greatly wounded, &c., and wholly by means of the premises, breach of duty, and improper conduct of the defendant, lost the use of his hand:--Held, (after verdict for the plaintiff on the plea of not guilty, and on other pleas denying the warranty, and that the gun was unsafe., &c.,) that the action was maintainable.
CASE.--The declaration stated, that whereas one George Langridge the father of the plaintiff, on the lst of June, 1833, at the request of the defendant, bargained with him to buy of him a certain gun, to wit, for the use of himself and his sons, at and for a certain price, to wit, the sum of 24l., and the defendant then, by falsely and fraudulently warranting the said gun to have been made by Nock, and to be a good, safe, and secure gun, then sold the said gun to the said George Langridge, for the use of himself and his sons, for the said sum of 24l., then paid by the said George Langridge to the defendant for the same: whereas in truth and in fact the defendant was guilty of great breach of duty, and of wilful deceit, negligence, and improper conduct, in this, that the said gun, at the time of the said warranty and sale, was not made by Nock, nor was it a good, safe, and secure gun, but, on the contrary thereof, was made and constructed by a maker very inferior as a gun-maker to Nock, and was then and at all times a very bad, unsafe, ill-manufactured, and dangerous gun, and wholly unsound and of very inferior materials; of all which premises the defendant, at the time of the making of the said warranty, and of the said sale, had full knowledge and notice. And the plaintiff in fact says, that he, knowing and confiding in the said warranty, did use and employ the said gun, which but for the said warranty he would not have done: and that afterwards, to wit, on the 10th December, 1835, the said gun being then in the hands and use of the plaintiff, by reason and wholly in consequence of the weak, dangerous, and insufficient and unworkmanlike manufacture, construction, and materials thereof, then and whilst the said gun was so in use by the plaintiff, burst and exploded, became shattered, and went to pieces; whereby and by reason whereof the plaintiff was greatly cut, wounded, maimed, &c. &c., and wholly by means of the premises, breach of duty, and improper conduct of the defendant, lost, and is for ever deprived of the use of his hand, &c. &c.
Pleas, first, not guilty; secondly, that the defendant did not warrant the said gun to be made by Nock, and to be a good, safe, and secure gun, in manner and form, &c.; thirdly that the gun was not a bad, unsafe, ill-manufactured, and dangerous gun, and wholly unsound, and of very inferior materials, as in the declaration alleged; fourthly, that the gun did not, by reason and wholly in consequence of the weak, dangerous, and insufficient and unworkmanlike manufacture, construction, and materials thereof, burst, &c., as in the declaration alleged:--on all which issues were joined.
At the trial before Alderson, B., at the Somersetshire Summer Assizes, 1836, it appeared that in June, 1833, the plaintiff's father saw in the shop of the defendant, a gun-maker in Bristol, a double-barreled gun, to which was attached a ticket in these terms:--"Warranted, this elegant twist gun, by Nock, with case complete, made for his late Majesty George IV.; cost 60 guineas: only 25 guineas." He went into the shop, and saw the defendant, and examined the gun. The defendant (according to Langridge's statement) said be would warrant the gun to have been made by Nock for King George IV., and that be could produce Nock's invoice. Langridge told the defendant be wanted the gun for the use of himself and [p. 521:] his sons, and desired him to send it to his house at Knowle, about two miles from Bristol, that they might see it tried. On the next day, accordingly, the defendant sent the gun to Langridge's house by his shopman, who also on that occasion warranted it to be made by Nock, and charged and fired it off several times. Langridge ultimately bought it of him for 24l., and paid the price down. Langridge the father and his three sons used the gun occasionally; and in the month of December following, the plaintiff, his second son, having taken the gun into a field near his father's house to shoot some birds, putting in an ordinary charge, on firing off the second barrel, it exploded, and mutilated his left hand so severely as to render it necessary that it should be amputated, There was conflicting evidence as to the fact of the gun's being an insecure one, or of inferior workmanship. Mr. Nock, however, proved that it was not manufactured by him. The defendant also denied that any warranty had been given. The learned Judge left it to the jury to say, first, whether the defendant had warranted the gun to be made by Nock, and to be a safe and secure one; secondly, whether it was in fact unsafe or of inferior materials or workmanship, and exploded in consequence of being so; and thirdly, whether the defendant warranted it to be a safe gun, knowing that it was not so. The jury found a general verdict for the plaintiff, damages 400l.
In Michaelmas Term, Erle moved in pursuance of leave reserved by the learned Judge and obtained a rule nisi for arresting the judgment, on the ground that no duty could result out of a mere private contract, the defendant being clothed with no official or professional character out of which a known duty could arise: and that the injury did not arise so immediately from the defendant's act as that it could form the subject of an action on the case by the plaintiff, between whom and the defendant there was no privity of contract.
Bompas, Serjt., and Ball showed cause.--This declaration discloses a sufficient cause of action against the defendant. The object of the action on the case, given by the Statute of Westminster, was to meet every case of individual and particular wrong as it might arise, on the well-known principle that, if any subject sustained a wrong by the unjustifiable act of another, he ought to have a remedy. It is no objection, therefore, that this particular action may not have been brought. Nor is it material, after verdict, that the declaration may be informally drawn, if on the face of it a sufficient cause of action be disclosed. Although the contract is set out in the declaration, the action is not brought upon that contract, on which undoubtedly the son could not sue. But the action on the case is peculiarly applicable to cases where the party cannot sue on the contract, but where out of the breach of it a wrong has resulted to the plaintiff. The statement of the contract is merely introductory; it is however thus far important, that it shows the defendant had notice that Langridge, the father, bought the gun for the use of his sons: and it is alleged also, that the plaintiff knew of and confided in the warranty. In Chapman v. Pickersgill, 2 Wils. 145, where it was first held that case lay for maliciously suing out a commission of bankruptcy which was afterwards superseded, Wilmot, C. J., says--"It is said this action was never brought, and so it is said in Ashby v. White; I wish never to hear this objection again. This action is for a tort; torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief." Here it is clear that if the plaintiff cannot sue for this injury, no other person can, and there is a wrong without a remedy. But the principle on which it is contended that this action may be supported, is, that wherever by the circumstances of the transaction a duty is imposed upon the defendant, and by a breach of that duty (as distinguished from a contract) an injury happens to the plaintiff, he may sue. This duty may either arise out of a contract, or it may be imposed by law: and the present case may be rested on both these grounds. It should be observed, that it does not follow that because a contract exists, an action of tort may not be maintained even by the party to the contract. Thus, in Mast v. Goodson 3 Wils. 348, a count on an agreement in writing, that the plaintiff should build a yard in the defendant's close, and lay out 20l. upon it, and that the plaintiff should enjoy it for his life, averred that the plaintiff did build the yard, &c., and enjoyed the same for some years as an easement, and assigned for breach that the defendant wrongfully and injuriously obstructed him in the enjoyment of such easement: and this was held to be a good count in tort, and well joined with a count in trover. There the plaintiff might have sued directly on the contract; yet he was held entitled to sue in tort for a breach of the duty arising out of it. In Everard v. Hopkins, 2 Bulstr. 332, the declaration stated, that the defendant, being a common chirurgeon, had undertaken the cure of the plaintiff's servant, being hurt with a cartwheel, and that by agreement between them, he was to have five marks for the said cure; and alleged that he was not only careless of the cure, but applied unwholesome medicines, &c., whereby the plaintiff lost the service of his servant for a year: it was held, on demurrer, that this count was good; and it was also said, that the servant, though he could not sue upon the agreement, might have an action upon the case for the applying of unwholesome medicines to him. So, in an action on the case by a man and his wife against a surgeon for an injury to the wife by reason of the defendant's improper and unskilful treatment, it was held sufficient to state in the declaration that the defendant was retained as a surgeon for reward, and entered on the cure, without alleging by whom he was retained, or was to be paid: Pippin and Wife v. Sheppard, 11 Price, 400. Richards, C. B., there says:--" From the necessity of the thing, the only person who can properly sustain an action for damages for an injury done to the person of the patient, is the patient himself, for damages could not be given on that account to any other person, although the surgeon may have been retained and employed by him to undertake the cure. The party employing the surgeon can have nothing to do with this action." So here, the father could recover only for the breach of the contract, and nothing for the injury to his son, except so far as he might be able to show a loss of his services. In Vin. Abr., Actions, (Case, Deceit,) 0. b, 2, this case is put, which is also referred to in Everard v. Hopkins: --"If I deliver my horse to a smith to shoe, and he deliver him to another smith, who pricks him, I may have action upon the case against him, though I did not deliver the horse to him:"--citing 12 E. 4, 13 a, pl. 9. Another case there stated is, where a party delivers goods to A., who delivers them to B. to keep for his use, and B. wastes them; the owner may have an action on the case against B., though he did not deliver them to him. In these cases the only contract was with the original bailee; yet an action on the case was held maintainable against the second. But, in the second place, a duty was imposed by late on the defendant, not knowingly to sell an article calculated to do injury. Where a party undertakes to furnish that which by his misconduct may become dangerous to another, he [p. 525:] is bound in law to take reasonable care that it is so supplied as not to be injurious. The law imposes such a duty though there may be no contract at all. It is analogous to the liability of a party who puts dangerous animals, knowing their disposition, into a place where they are likely to do injury; Dixon v. Bell, 5 M. & Sel. 198. He who carelessly or wrongfully exposes another to danger by firearms is in a like predicament. Suppose there were no contract in this case, and it appeared that the defendant had put the gun into the plaintiff's hand to fire it off, knowing it to be unsafe; can it be said that be would not be liable if any injury resulted? If a party sold a vicious dog under a representation that he was a quiet one, and being taken home by the buyer, he bit his child; would not the seller be liable for this injury? The law imposes on all persons who deal in dangerous commodities or instruments, an obligation that they should use reasonable care, much more that they should not supply them knowing them to be likely to cause injury. [Parke, B., referred to Williams v. East India Company, 3 East, 192. Alderson, B.--There are many cases which establish that the act of an unconscious agent is the act of the party who sets him in motion. If your declaration had averred that the father was an unconscious agent in the transaction, that is, that he believed the gun to be safe, it would have brought you within that principle.] It is averred that it was delivered to the father, for the use of the sons, on an undertaking from the defendant that it was a safe one; as against him, therefore, it is not necessary to show that the father believed it to be so; at all events, after verdict, the allegation is sufficient. Suppose A. sells oxalic acid as Epsom salts; B., discovering the error puts it back, and goes to inform A. of it; in the mean time C. takes it; would B.'s knowledge affect C.'s right of action against A.? [p. 526:] [Alderson, B.--It is averred that the injury arose wholly by the breach of duty of the defendant; that negatives the inference that it was in any degree by breach of duty in the father.] The onus is on the defendant to show that the plaintiff is not entitled to recover: primÔ facie, every man who suffers an injury is entitled to recover against the party who caused it, and who must be taken to have intended the natural consequences of his injurious act.
Erle and Butt, contra.--
There is no such known right in the English law as is contended for on the other side, whereby the plaintiff is entitled to receive damages from the defendant, with whom he made no contract. The allegation, that the gun was delivered for the use of the sons, is not a direct and traversable allegation; it is laid under a videlicet, and is wholly immaterial. If the contract had been denied, it would have been sufficient to prove a contract in fact, without proving the statement that the gun was bought for the sons' use. The introduction of that allegation, therefore, cannot affect the defendant's legal liability. At all events, the declaration should have shown that it was bought for the use of the sons in some lawful and necessary employment--as in the service of the father--and so used; as it stands, it must be taken that the plaintiff used it merely for his amusement, and without the father's authority. It is consistent with all that is stated, that the plaintiff, having heard of the warranty, and having become aware of the unsafe state of the gun, may have taken it from its place of custody, and of his own act loaded and fired it off, when it exploded. All these presumptions ought to have been excluded, in order to give the plaintiff a right of action. The special damage can give no cause of action, if no breach of duty be shown down to that point. The plaintiff must show a breach of a public duty, or a violation of a private right existing between himself and the defendant--and then follows the damage, which completes the cause of action; but the damage cannot be prayed in aid to support the previous part of the case: and here it is in the statement of the special damage that it is said the injury was caused by the breach of duty and improper conduct of the defendant. No doubt, whenever an instrument is immediately dangerous, and is so placed as to be likely to do an injury to any of the public, the party who places it there is liable for such injury. But here, for aught that appears, the gun was delivered to the father unloaded. And the contract of warranty raises no foundation of public duty: it is a mere representation at the time; and there is no authority that it was in breach of any public duty, or could have subjected the defendant to any public proceeding. In all the cases referred to on the other side, it was alleged as a fact, and is noticed by the Court, that the instrument was at the time actually dangerous. So also, in the cases relating to the setting of loaded spring guns, or other weapons directly dangerous. Holt v. Wilkes, 3 B. & Ald. 308 [E.C.L.R. vol. 7.]; Bird v. Holbrook, 4 Bing. 628 [Id. 15.];1 Moo. & P. 607; Townsend v. Wathen, 9 East, 277. So, ferocious animals are immediately and necessarily dangerous. But there are other cases which may be put, more in analogy with the present. Suppose a chain cable were sold with a warranty of its being secure, when in fact it was imperfect, and the vessel being in a storm, the cable is let go, and breaks; could it be contended that the captain and each of the crew, if injured in consequence, would have a right of action against the seller? So, supposing the owner of an unruly horse, knowing his disposition, sold him with a warranty that he was quiet to drive, and the buyer lent him to a friend, who put other persons into the carriage, and he ran away, and overturned and injured them; would the seller be liable to each of these persons? --Such liabilities would be carried to an extent wholly indefinite. The distinction is this: is the instrument or other thing immediately dangerous or mischievous by the act of the defendant, or is it such as may become so by some further act to be done to it? Thus, in the well-known case of Scott v. Shepherd, 3 Wils. 403, the squib was immediately dangerous, and the injury done by it furnished a right of action. So there is a known head of actions for negligence "in keeping his fire;" Com. Dig. Action upon the case for negligence, (A. 6;) because fire is a known immediate cause of mischief.
The nearest case to the present is that of Witte v. Hague, 2 Dowl. & Ryl. 33 [Id. 16.]. There, A., an engineer, having been employed by B. to erect a steam boiler and other apparatus on premises adjoining to the manufactory of C., and C.'s property having been injured in consequence of the explosion of the boiler by reason of the insufficiency of the materials of which it was composed; and it being found as a fact by the jury that A. was personally present, and that his servants had the management of the apparatus at the time of the accident, it was held that C. might maintain an action on the case against A. for the injury; but the Court intimated an opinion, that if the jury had negatives the fact of A.'s management of the apparatus, though the accident arose from the imperfection of the materials, he would not have been primarily liable. The general principle is, that the damage must be a proximate consequence from the act of the defendant:--here no privity is shown between the defendant and the plaintiff, and the gun is made to produce the damage by the spontaneous and unauthorized act of the plaintiff.
[Parke, B.--The question is, whether a person to whom the representation of the defendant is indirectly made, may not also bring an action. Suppose it be made to the one in order to be communicated to the other?] Then it ought to be so averred. [Parke, B.--May not that be collected from the allegations in this declaration?] There is no statement that the representation was made by the defendant to the plaintiff; or that it was conveyed to him by his father, or that the father was an intermediate agent for the purpose of conveying it. If the defendant had authorized the father to make the representation to the plaintiff, it might and ought to have been averred that the defendant so represented to the plaintiff: but all that is alleged is, that the father, at the time of the sale, told the defendant it was for the use of himself and his sons. It is just the same as the case of the purchaser of a horse for himself and his friends, or of a stage-coach for the use of the proprietors and all the passengers. In the cases cited on the other side, of Everard v. Hopkins, and Pippin v. Sheppard, there was a direct act of misfeasance done by the defendant to the plaintiff. So, in Williams v. East India Company, the action was between the parties to the contract. Scott v. Lara, Peake's N. P. C. 296; Ward v. Weeks, 7 Bing. 211 [E.C.L.R. vol. 20.]. Vicars v. Wilcocks, 8 East, 1, are authorities to show that, in order to support an action for a false representation, the injury must be the natural and legal consequence of the false statement of the defendant.
Cur. adv. vult. [Curia advisari vault: the arguments are taken under advisement; the Court reserves judgment, to be given later, after consideration.]
In the present term, the judgment of the Court was delivered by
PARKE, B.-- In this case a motion was made to arrest the judgment, after a verdict for the plaintiff. [His Lordship stated the declaration and proceeded]:--It is clear that this action cannot be supported upon the warranty as a contract, for there is no privity in that respect between the plaintiff and the defendant. The father was the [p. 530:] contracting party with the defendant, and can alone sue upon that contract for the breach of it.
The question then is, whether enough is stated on this record to entitle the plaintiff to sue, though not on the contract; and we are of opinion that there is, and that the present action may be supported.
We are not prepared to rest the case upon one of the grounds on which the learned counsel for the plaintiff sought to support his right of action, namely, that wherever a duty is imposed on a person by contract or otherwise, and that duty is violated, any one who is injured by the violation of it may have a remedy against the wrongdoer: we think this action may be supported without laying down a principle which would lead to that indefinite extent of liability, so strongly put in the course of the argument on the part of the defendant; and should pause before we made a precedent by our decision which would be an authority for an action against the vendors, even of such instruments and articles as are dangerous in themselves, at the suit of any persons whomsoever into whose hands they might happen to pass, and who should be injured thereby. We do not feel it necessary to go to that length, and our judgment proceeds upon another ground. If the instrument in question, which is not of itself dangerous, but which requires an act to be done that is, to be loaded, in order to make it so, had been simply delivered by the defendant, without any contract or representation on his part, to the plaintiff, no action would have been maintainable for any subsequent damage which the plaintiff might have sustained by the use of it. But if it had been delivered by the defendant to the plaintiff, for the purpose of being so used by him, with an accompanying representation to him that he might safely so use it, and that representation had been false to the defendant's knowledge, and the plaintiff had acted upon the faith of its being true, and had received damage thereby, then there is no question but that an [p. 531:] action would have lain, upon the principle of a numerous class of cases, of which the leading one is that of Pasley v. Freeman, 3 T. R. 51; which principle is, that a mere naked falsehood is not enough to save a right of action: but if it be a falsehood told with an intention that it should be acted upon by the party injured, and that act must produce damage to him; if, instead of being delivered to the plaintiff immediately, the instrument had been placed in the hands of a third person, for the purpose of being delivered to and then used by the plaintiff, the like false representation being knowingly made to the intermediate person to be communicated to the plaintiff, and the plaintiff having acted upon it, there can be no doubt but that the principle would equally apply, and the plaintiff would have had his remedy for the deceit; nor could it make any difference that the third person also was intended by the defendant to be deceived; nor does there seem to be any substantial distinction if the instrument be delivered, in order to be so used by the plaintiff, though it does not appear that the defendant intended the false representation itself to be communicated to him. There is a false representation made by the defendant, with a view that the plaintiff should use the instrument in a dangerous way, and, unless the representation had been made, the dangerous act would never have been done.
If this view of the law be correct, there is no doubt but that the facts which upon this record must be taken to have been found by the jury bring this case within the principle of those referred to. The defendant has knowingly sold the gun to the father, for the purpose of being used by the plaintiff by loading and discharging it, and has knowingly made a false warranty that it might be safely done, in order to effect the sale: and the plaintiff, on the faith of that warranty, and believing it to be true, (for this is [p. 532:] the meaning of the term confiding,) used the gun, and thereby sustained the damage which is the subject of this complaint. The warranty between these parties has not the effect of a contract; it is no more than a representation; but it is no less. The delivery of the gun to the father is not, indeed, averred, but it is stated that, by the act of the defendant, the property was transferred to the father, in order that the son might use it; and we must intend that the plaintiff took the gun with the father's consent, either from his possession or the defendant's for we are to presume that the plaintiff acted lawfully, and was not a trespasser, unless the contrary appear.
We therefore think, that as there is fraud, and damage, the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time as one of its results, the party guilty of the fraud is responsible to the party injured.
We do not decide whether this action would have been maintainable if the plaintiff had not known of and acted upon the false representation; nor whether the defendant would have been responsible to a person not within the defendant's contemplation at the time of the sale, to whom the gun might have been sold or handed over. We decide that he is responsible in this case for the consequences of his fraud whilst the instrument was in the possession of any person to whom his representation was either directly or indirectly communicated, and for whose use he knew it was purchased.
Crown Copyright acknowledged
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