TORT AND CONTRACT. 1895. MEUX v. THE GREAT EASTERN RAILWAY COMPANY, When the same state of facts shows not only a breach of contract but also a breach of a common law duty, a party to the contract may sue at his election on the contract, or in tort for a breach of the common law duty; but a stranger to the contract can only sue in tort. APPEAL from the judgement of Mathew, J., at the trial without a jury. 1895. MEUX v. THE GREAT EASTERN COMPANY. The action was brought to recover the value of a servant's livery under the following circumstances. The plaintiff directed her servant to travel by the defendants' line from a station in the RAILWAY country to London. He went to the station with a portmanteau, in which was his livery, which belonged to the plaintiff. At the station he took his ticket, which he paid for with money supplied to him by the plaintiff. The portmanteau (as appeared by admissions made in the case) was handed into the custody of the defendants' servants, to be carried by them to town as passenger's luggage, and it was overturned in front of a train by one of the defendants' servants, and was damaged and became useless to the plaintiff. The learned judge decided that the plaintiff could not recover in contract as the contract made by the defendants was a personal contract with the servant, and that she could not recover in tort because the goods were not lawfully on the premises of the defendants. Judgement was accordingly given for the defendants on the ground that the goods were delivered to the defendants not as being the property of the plaintiff but as the personal luggage of the servant. The plaintiff appealed. KAY, L. J.—In this case the plaintiff's servant was about to travel on the defendants' line, and he took to the station a port 1895. MEUX v. THE EASTERN manteau apparently belonging to himself, and containing livery which was the property of the plaintiff. The livery was damaged, and in respect of such damage this action is brought. It was GREAT damaged by an act described in the admissions in the following RAILWAY terms: 'The property was overturned in front of the train by one COMPANY. of the defendants' servants, and the same was destroyed and became Kay, L. J. useless to the plaintiff.' It is quite plain that there was an act, not of omission but of commission, which was negligent and improper, and which caused the destruction of these things. The law as to such a state of things has been summed up in Taylor v. Manchester, Sheffield and Lincolnshire Railway Company 1. That was an action for personal injuries to the plaintiff, and the general doctrine is stated thus by Lindley, L. J.2: It appears to me that this is an action founded on tort, and the conclusion to which I have arrived is based upon the following reasons. That which caused the injury was not an act of omission, it was not a mere non-feasance; it was not merely the not taking such care of the plaintiff as by the contract the defendants were bound to take, but it was an act of misfeasance-it was positive negligence in jamming his hand. Contract or no contract, he could maintain an action for that. All that the plaintiff would have to prove in such a case would be that he was lawfully on the premises of the railway company, and the contract is merely a part of the history of the case.' A. L. Smith, L. J., expressed himself to the same effect that 'It is clear that a person lawfully upon railway premises may maintain an action against a railway company for injuries sustained whilst there by reason of the active negligence of the company's servants, whether he has a contract with the company or not. To apply that case to the present one-Were these goods lawfully on the premises of the defendants? They were in the portmanteau of the servant, and they were his livery which he was accustomed to wear. He was about to travel as a passenger, and the portmanteau was accepted as his personal luggage, which the company were engaged to carry for him, 3 1 [1895] I Q. B. 134. 8 [1895] 1 Q. B. 134, at p. 140. 2 [1895] 1 Q. B. 134, at p. 138. In Kelly v. The Metropolitan Railway Company (1895), 1 Q. B. at pp. 946-7 (C. A.), A. L. Smith, L. J., explained that in the expression 'active negligence' the Court intended to include all such acts of omission or commission as would give rise to an action for negligence apart from contract.—[ED.] 1895. MEUX V. THE GREAT EASTERN COMPANY. receiving no payment except for the ticket which he took for himself. It seems to me impossible under these circumstances to say that the livery was not lawfully on the company's premises. I think the test is this. Supposing the company had known that the portmanteau contained the servant's livery, could they have RAILWAY said they would not carry it as personal luggage? It seems to me quite plain that they could not have said anything of the kind, and Kay, L. J. in that respect the case differs from that of luggage containing goods belonging to other people in which the person who is carrying them as his personal luggage has no kind of interest. The learned judge came to the conclusion that the goods were not lawfully on the company's premises; but on this matter, on which his decision as to this part of the case seems to have been founded, I cannot agree with his view. I am not going to give any opinion upon the question whether, if the goods had not belonged to the servant at all but to some one else, and were in his portmanteau, they would have been lawfully upon the premises of the company. It seems to me, I must confess, a strong proposition to say that, where the company make no inquiry as to what is in the portmanteau, but accept it as personal luggage, they should be able to turn round and say, 'The goods were not yours.' However, on that point I give no opinion at the present time, because there seems to be some authority in a sense opposite to the view which I have indicated. In this case it seems to me quite impossible to say that the goods were not properly treated by the servant as being his personal luggage and were not lawfully on the defendants' premises. If they were lawfully there and were injured by an act of misfeasance, the authorities seem quite clear that the owner of the goods has a right to sue for damages for the injury caused by the tortious act of the servants of the company. A. L. SMITH, L. J.—I also am of opinion that this judgement cannot be supported. The facts lie in the smallest compass. The plaintiff's footman was sent to London by his mistress, who gave him the money for his fare. He took in a portmanteau his livery, which was the property of the plaintiff. It was received as passenger's luggage, which in fact it was. It did not render it any the less the luggage of the footman because the property in the clothes still remained in the plaintiff. The livery was damaged by the active 1895. Μευχ บ. THE EASTERN L. J. negligence of the company's servant, and the plaintiff seeks to recover in respect of this damage. I am not going to decide as to what cause of action the footman GREAT might have, and what damages he could recover. The case of RAILWAY Claridge v. South Staffordshire Tramway Company1, which bears on COMPANY. this point, may possibly require at some future time further conA.L. Smith, sideration 2. Of this I am clear, that in the circumstances of this case the footman who had taken the ticket could have sued the company either on contract or in tort, but what damages he could have recovered it is not necessary to discuss. The question before us is whether the plaintiff can sue. She has incurred loss by reason of her property having been destroyed by the active negligence of the servants of the company while it was lawfully on the premises of the company; she has therefore a right of action in tort wholly irrespective of contract. Her goods were lawfully on the defendants' premises, and by their active negligence those goods have been damaged. That gives her a good cause of action in tort. The only answer given is that Alton v. Midland Railway Company has decided otherwise; but this is not so. I pointed out in Taylor v. Manchester, Sheffield and Lincolnshire Railway Companyʻ that when the former case is looked into it appears that the sole point which was decided was on demurrer, which raised the question whether, the servant having contracted with the railway company to be safely and securely conveyed, the master could take advantage of that contract and sue for breach of it. That case is no authority for the proposition that the plaintiff cannot sue in tort irrespective of contract. There is plenty of authority on the other side: Marshall v. York, Newcastle and Berwick Railway Company, Hayn v. Culliford, Foulkes v. Metropolitan District Railway Company', Taylor v. Manchester, Sheffield and Lincolnshire Railway Company*, and Kelly v. Metropolitan Railway Company, the bulk of the cases being in this court. It seems to me, therefore, that it is impossible to say on the facts of this case that the plaintiff has not a good cause of action against the company in tort. I agree, therefore, that the appeal should be allowed. 1 [1892] 1 Q. B. 422. 2 This case was overruled by The Winkfield,' 1902, p. 42, and supra, p. 319. [ED.] 4 [1895] 1 Q. B. 134. 7 L. R. C. P. D. 157. 5 C. B. (N. S.) 213; 34 L. J. (C. P.) 292. 3 19 5 II C. B. 655. L. R. 4 C. P. D. 182. [1895] I Q. B. 944. 8 LORD ESHER, M. R., delivered judgement to the same effect. NOTE. Compare per Littledale, J., in Burnett v. Lynch (1826), 5 B. & C. at p. 609, where he says: 'Assumpsit lies where a party claims damages in consequence of a breach of a promise not under seal. That promise may either be express or it may be implied from a legal obligation to do a particular act. Where there is an express promise and a legal obligation results from it, then the plaintiff's cause of action is most accurately described in assumpsit, in which the promise is stated as the gist of the action. But where from a given state of facts the law raises a legal obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, there, although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case founded in tort is the more proper form of action in which the plaintiff in his declaration states the facts out of which the legal obligation arises, the obligation itself, the breach of it, and the damage resulting from that breach.' Under s. 116 of the County Courts Act, 1888, where an action is brought in the High Court which could have been commenced in the County Court, if the plaintiff recovers less than £20 in an action founded on contract, or less than £10 in an action founded on tort, he is entitled to no costs unless a special order is made. It has been decided, for the purposes of this section only, that unless a plaintiff is driven to rely upon a contract as the foundation of his case, the action will be deemed to be founded on tort: see Turner v. Stallibrass (1898), 1 Q. B. 56 (C. A.) and Sachs v. Henderson (1902), 1 K. B. 612 (C. A.). It is well to bear in mind the limited application of these cases.-[ED.] 1895. MEUX บ. THE GREAT EASTERN COMPANY. RAILWAY 1877. DICKSON v. REUTER'S TELEGRAM COMPANY, LIMITED, L. R. 3 C. P. D. 1 (C. A.). Where a breach of contract incidentally causes damage to a stranger to the contract, he cannot recover in an action against the contracting party in default, unless fraud, negligence, or other breach of a legal duty on the part of such contracting party be proved vis-à-vis the person damaged. 1877. DICKSON บ. REUTER'S Appeal from the judgement of the Common Pleas Division in favour of the defendants on demurrer to the statement of claim, which alleged that the plaintiffs were merchants at Valparaiso, and were a branch house of the firm of Dickson, Robinson, & Co., TELEGRAM COMPANY, of Liverpool; the defendants were a telegraph company, having LIMITED. their chief offices in London, and agencies in Liverpool and in various parts of the world, including South America. The de |