THE JURIST. LONDON, SEPTEMBER 29, 1866. THE late case of Fletcher v. Rylands (12 Jur., N. S., part 1, p. 603; 1 Law Rep., Ex., 265), in which the Court of Exchequer Chamber reversed the decision of the majority of the Court of Exchequer, in conformity with the dissentient opinion in the court below of Baron Bramwell, is, both by the weight of its authority, and by the fundamental character of the principle of law involved in it, one of the most important of recent decisions. We shall, therefore, direct our readers' attention to it for a few minutes. damage which is the natural consequence of its escape." They added, "He can excuse himself by shewing that the escape was owing to the plaintiff's default; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient." It was also unnecessary to decide whether the same rule applied to personal injuries; but the Court could scarcely avoid considering it, and, after shortly reviewing that branch of the subject, they say, "It is believed that all the cases in which inevitable accident has been held an excuse for what primâ facie was a trespass, can be explained on the same principle (as that applicable to accidents happening on highways), viz. that the circumstances were such as to shew that the plaintiff had taken that risk upon himself." Upon this statement several observations occur. First, the ground upon which the non-liability of the author of an accident not coupled with negligence is placed, disposes of the doubt which has been sometimes made, whether, if the circumstances justified an The case was, in substance, as follows:-The plaintiff was a mineowner; the defendants, who owned a mill, constructed a reservoir for their use on land separated from the plaintiff's colliery by intervening land. Mines had been formerly worked under the site of the reservoir, and under part of the interven-action of trespass instead of an action on the case, the ing land; and the plaintiff had, by workings lawfully made by him in his own colliery and in the intervening land, opened an underground communication between his own colliery and the old workings under the reservoir. The defendants employed competent engineers and contractors for the purpose of making the reservoir, and it was not known to the defendants, nor to any person employed by them in its construction, that such communication existed, or that there were any old workings under its site. In making it, however, five old shafts were discovered, filled up with soil, which, though the fact was not suspected, led down to the old workings. The defendants were personally guilty of no negligence, but proper care and skill were not used by the persons they employed in providing against the danger caused by the shafts, and in making the reservoir capable of bearing the pressure of its full complement of water. The reservoir was in fact inadequate, and, on its being filled, the water burst down the old shafts, and, flowing by the underground communication, drowned the plaintiff's mine. For the injury so done, the plaintiff sought to recover damages, and the majority of the Court of Exchequer (Pollock, C. B., and Martin, B.) having decided against him, contrary to the opinion of Bramwell, B., he carried the case to the Exchequer Chamber. The counsel for the defendants argued the case on the ground, that no one was liable for injury caused by acts done upon his land, unless, personally or by his servants, he was guilty of negligence; and he relied strongly upon the analogy of personal injuries, for which, he contended, a plaintiff could never recover without shewing negligence in the defendant, But the Court, agreeing with the plaintiff's contention, laid down the rule as follows:-"The person who for his own purposes brings on his land, and collects and keeps there, anything likely to do mischief, if it escapes, must keep it in at its peril, and, if he does not do so, is primâ facie answerable for all the plaintiff could, under any circumstances, be compelled to prove negligence in the defendant, or the defendant be entitled to allege that the accident happened without any negligence on his part. The supposition that negligence is immaterial in such a case proceeds on the assumption, that a man is liable in all events for every act directly done by himself, or the result of his specific instructions, and which is injurious to another, who is not himself in fault, with the apparent exception of acts which are, in fact, not his acts at all, he being passive under the influence of some external force; though for acts only indirectly done by him, or done by those under his control, as the result only of general instructions or agency, he is not liable unless some negligence is shewn in himself or his agent. But the assumed distinction is, in fact, grounded on the forms of pleading; for the latter class of acts, a person would, without the action on the case for negligence, not have been liable at all. For the former, it may be said, he would always have been liable in trespass; but when his liability was extended to the latter class by the action on the case, the new liability was limited by requiring as its condition some negligence in himself or his agents; but this limit, though annexed to the added liability, was not, therefore, incorporated in or attached to the previous law as to trespass. Now, almost all the decided cases where the question of negligence has been discussed, and the more modern cases especially, have been cases which trespass could not have been brought, the injury not being the direct act of the defendant. And although in the judgment of the Court they are spoken of as cases of trespass, it is plain that the word is used in a general sense, with reference to the plaintiff's person or property being trespassed on, and not to the defendant's having himself done the act, and in such a manner as to include trespass on the case. With respect to cases of accidental injury occurring before the powers of amendment given by the Common-law Procedure Acts, it may be said, as to those on the case for negligence, equally open to, or equally free from, moral blame, and the distinction of fact is one so obscure as to evade any clear conception. For, in the great days of technicality, the distinction between an injury directly and one indirectly caused was a perpetual subject of dispute. It is not equivalent to the modern distinction between proximate or probable conse quences which are not proximate or probable, no man is liable, even in respect of his acts of negligence, though it is admitted that he may be liable for consequences of his acts which are not direct. Yet direct injuries must be so called from the more or less immediate connexion of cause and effect, from the greater or less distance of time, the greater or less number and magnitude of the intervening causes by which the act and its consequences are separated; and it is on the very same consideration that the distinetion of proximate and not proximate is founded. No doubt "direct" was originally supposed to mean “im that by adopting that form of action in circumstances | either case the same; the plaintiff is in each case where the injury being the direct act of the defendant, the plaintiff might have sued in trespass, the plaintiff had taken upon himself to prove negligence in the defendant, so that no question as to the necessity of that proof could or did arise; as to those in trespass, that there was in these also no decision as to whether the absence of negligence on the defendant's part would exempt him from liability, but he failed by endea-quences, and those which are not so; since for consevouring to give exculpatory evidence under the general issue (as in Hall v. Fearnlay (3 Q. B. 921)); or he sought to get rid of his liability, by shewing that the plaintiff ought to have sued in case, just as where the plaintiff sued in case, the defendant endeavoured to shew that he ought to have sued in trespass. But in those cases, both before the power of amendment was given, and since, where the question of negligence has been discussed and decided upon (if the cases relating to mischievous animals be excepted, a point to which we will afterwards return), the controversy has turned on whether there has been negligence, in fact, or negligence for which the defendant could be held respon-mediate," but when, as in Gregory v. Piper (9 B. & Cr. sible. Now, if Fletcher v. Rylands was a case of trespass (which on the authority of Courtney v. Collett (1 Ld. Raym. 272) it might perhaps be held to be, although it was not so declared upon), the Court might have evaded the analogy pressed upon them by saying, that the cases referred to were not cases of direct injury. If it was not a case of trespass, then, as the law now stands, the defendant may be liable where he has done no direct act of injury, and has been guilty of no negligence, so that the distinction is rendered futile. But the Court do not advert to the question of whether the injury was direct or indirect, but distinguish the cases cited, on the ground that the defendant must be held in those cases to have taken upon himself the risk of injury not caused by negligence. Now, this reason applies as fully to injuries caused by the direct act of the defendant as to those caused by him indirectly, or through a person for whom he is responsible. It may, therefore, be concluded, that under the circumstances mentioned by the Court, i. e. under any circumstances where the plaintiff can be held to have taken the risk upon himself, the defendant cannot be held liable even for acts directly done by him to the injury of the plaintiff, unless those acts are either wilful or negligent. Their dictum in substance amounts to this, that for any acts done by one person, which, by a natural consequence, cause injury to another, the doer is liable, unless the plaintiff is in fault, or unless, by virtue of some relation between the parties, or their common use of public property, necessarily involving risk, the plaintiff must be held to have taken the risk upon himself. And since the Court do not attempt to distinguish the cases of injury to real property from other cases of injury-since it is difficult to imagine any reason for the distinction, and no authority in law was produced in its favour-we shall for the present purpose assume that this statement of law is correct. Now, common sense, and convenience, and scientific method, are certainly in favour of this view; for whether the defendant is directly or indirectly the author of the injury, the loss to the plaintiff is in 591), the defendant was held liable in trespass for an act done by his servant by his direction, but in a mode contrary to his instructions, on the ground, that if the act directed were done, the consequence which actually followed, and which his instructions were intended to guard against, must inevitably follow, although it was not shewn that he knew of that necessary consequence; or when, as in Courtney v. Collett (1 Ld. Raym. 272), the unintentional overflow of a neighbour's land, in consequence of the defendant's erecting a dam upon his own, was held to be his direct act; or when, as in Scott v. Shepherd (2 W. Bl. 892), the defendant was held liable in trespass for the act of a third person, done under a sudden impulse which the defendant's act had caused; it became obvious that the word "direct" was one of flexible meaning, and the error of the pleader in Sharrod v. The London and North-western Railway Company (4 Exch. 580) might almost be held excusable. If the word does not differ at all in meaning from "proximate," it had better be rejected as a superfluity; and if it does, the distinction is so obscure as to make it unfit to be the foundation of a legal rule. So far, then, as concerns results of which the defendant's act was the originating cause, it is certainly an advantage not to be guided by this antiquated and uncertain distinction, out of which the Courts formerly sought to extricate themselves, by giving the aggrieved party liberty in every case, except that of wilful injury, to adopt, at his discretion, the less technical and rigid action on the case. So far as concerns acts done by persons for whom the defendant is responsible, it is immaterial to consider the matter, as such cases were excluded altogether from the class of trespasses strictly so called, except in cases where, as in Gregory v. Piper, the act was specifically directed. What meaning ought to be attached to the word "proximate," we propose to consider in the sequel. But if, now, the rule above gathered from the judgment in Fletcher v. Rylands is correct, it follows, that when the defendant is sued in trespass for an act, free Sept. 29,1 THE JURIST. 1866. from negligence, done by him on (for instance) the | his immediate present purpose, and that not to be inhighway, and causing directly an injury to the plaintiff, he is entitled to defend himself upon these facts. But as the declaration states nothing about negligence, nor, we may suppose, anything about the highway, it must be necessary for the defendant to state these matters by plea; his plea, therefore, ought, it seems, to shew the circumstances creating the presumption that the plaintiff had taken upon himself the risk of injuries not caused by negligence, and to deny negligence in himself. This would be, in fact, doing what the Court suggested in Weaver v. Ward (Hob. 134), that the defendant should have "set forth the case, with the circumstances, so that it might have appeared to the Court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt;" but with this difference, that the plea must show some circumstances raising the presumption that the plaintiff had taken upon himself the risk, and as that risk is limited to injuries not caused by negligence, must also negative the negligence. tended, which, though in fact done by him, is not the Before leaving this branch of the subject, the inquiry suggests itself, what is the real value of the form of action called trespass. All acts causing injury to another, may be classified thus:-First, acts which the author of them does with wilfulness and malice, that is, knowing and meaning that they should be injurious, These are properly classed apart, for though malice may sometimes do no more than aggravate the damages recoverable, it may sometimes make that legally wrongful which would not otherwise be so. Secondly, acts causing injuries, but done without wilfulness or malice. These may be divided according as they are or are not meant to be done by their author. Now, on the one hand, some philosophers declare that no acts ought to be called voluntary except the actual bodily motions, though, indeed, even of these some are by no means in the most strict sense voluntary which appear to be such, that is, they are not the motions On the other which are intended to be produced. hand, it may be said, that whenever an ultimate purpose is in view, all things which are done for effecting that purpose are within its meaning; as, that the meaning and purpose of accomplishing a journey, is the meaning and purpose of every act done with a view to its accomplishment. But it is plain, that for legal purposes both these views are equally frivolous and irrelevant, and that we must have recourse to some more practical test; and though, from the nature of the case, no scientific precision can be attained, yet it may be defined with tolerable clearness what is the act which is meant to be accomplished, that is, what is within the entire present meaning of the agent. If a man wishes to cross the road, he may pull the rein and apply the whip, and he means and purposes to do each of these things, but practically his purpose is to cross The result, however, of the present state of pleadthe road. So, also, by crossing the road he purposes to reach the end of his journey, but that general purpose is to be carried out by a number of acts, each ofing is, that with respect to injurious acts done by the which is accomplished by virtue of a distinct purpose defendant, a class which is really of a very marked Let that act, then, be taken to be in-character and distinct legal consequences, is joined of its own. tended by the agent, which is in a practical way within with another class which has not that character or injury, and was he, in doing it, acting as servant to the defendant? Since, then, for this purpose, the injury caused by means of a servant stands on the same footing as injury caused by means of any other agent, animate or inanimate, under the control of the defendant, there is no reason for a difference in the form, beyond what is necessarily caused by the short statement of what was on the particular occasion the means of causing the injury. Now, with respect to forms of action in general, where they are applied with strict technicality, and without any remedial power of amendment, they may almost be described as an unmitigated evil; but it is certainly convenient that the plaintiff's claim should be so far formal as to shew what in general is the nature of the injury complained of, and what is the general character of the blame imputed to the plaintiff, and of the evidence to be adduced. Having regard, then, to the law as it appears to be ascertained, if we might venture to suggest an outline of forms of those consequences; and further, that this latter class enjoys the privilege of being also sued upon in a different form of action, but is itself in legal consequences identical with the residue of the class belonging exclusively to that second form, and is separated from it, in fact, only by an uncertain and indefinite line. It is true, that forms of action are now of comparatively little consequence, but they still to a considerable degree govern our conceptions; and the word "trespass" still carries some magic in its sound. A third class of cases, in which a defendant may be made liable for injury suffered by the plaintiff, suggests itself; that, namely, where he is responsible by reason of his employment of the person whose act has caused the injury. This liability appears to involve a distinct principle of law, with various qualifications peculiar to itself, and, if we were to engage anew in the work of classification, would have some pretence to be the basis of a third class. Yet this claim would not stand on solid ground; for if the matter is examined, it will appear that, so far as a master is re-action appropriate to injuries done to the plaintiff's sponsible for the acts of his servants, his liability is precisely the same in nature and degree as in the case of injuries caused by himself. The servant is only the means by which the injury is brought about; of the servant's action, the master's will is the originating cause, and the moment the servant forms an intention of his own, distinct from that employment in which his master has commissioned him, and proceeds to carry it out, his commission and his master's responsibility are both at once determined. The only new principle of law, therefore, which is applicable here, is that which lays down, that with respect to persons acting as servants, and under the control of another, the interposition of their power of voluntary action between the original commission of the master and their own acts is not so important a circumstance as to prevent the injury caused by those acts from being a proximate consequence of the master's act of direction. That is, the will of such persons, acting generally in their employment, is treated as no more constituting their acts independent of their master, than the will of a person acting under the specific direction of another prevents his acts from being the acts of the person so specifically directing. But whether a person is acting in the capacity of servant, is a JUDICIAL STATISTICS FOR 1865.-ENGLAND question of fact. The question, therefore, of a master's liability in case of injuries done by a servant in the course of his employment is, in substance, the same as in the case of injuries done by the intervention of other means: that question will be-was the defendant the author of the injury by means of his servant? And the question consists of two partswas the act of the servant the proximate cause of the person or property by the defendant's act, the following would seem to be the most methodical and injury done by the defendant, on the one hand withaccurate:-First, where the plaintiff complains of an out malice, and on the other hand without any circumstances raising the presumption of his having taken the risk on himself, he should allege the injury to be done wrongfully. Secondly, where he means to charge malice, he should state that it was done maliciously. stances in which the plaintiff would be held to have Thirdly, where the injury was done under circumtaken on himself the risk of purely accidental injuries, and where he must, therefore, prove negligence on the part of the defendant, he should state that the defendant's act was negligent. the judgment now delivered, we would suggest wheFinally, looking at the principal case in the light of ther the declaration might not have been sufficiently framed as follows:-That the plaintiff was possessed of coal mines in &c., and that the defendants were possessed of a reservoir situated in land lying near to the plaintiff's mines, in which they collected water, from the reservoir into the plaintiff's mines, whereby and that they wrongfully permitted the water to flow &c. Want of space compels us to postpone the other comments which we had proposed to offer on this case. AND WALES. ders made in different matters as given in the followThe registrars' return shews also the number of oring abstract for 1865, the numbers under each head being added for the preceding year and the average for the five years: Sept. 29,] 1866. THE JURIST. Under each of the foregoing heads a decrease ap-| cellor and the Master of the Rolls can transfer any pears in 1865, except in the orders on hearing of peti- cause to or from the paper of any of the Vice-ChanThe number of causes, &c. thus transferred from each tions under the Winding-up Acts, the number of which cellors from or to that of the Master of the Rolls. was, less one, double the number in 1864. As comagainst 102 in 1864. The judges and the courts to and pared with the average of five years, there is an in-judge to other branches of the court was 115 in 1865, crease in 1865 under every head. from which transferred are shewn in the return for 1865. The return further shews the number of cases standing for judgment at the commencement and at the end of the year, which were respectively 14 and 9. In the preceding year these numbers were reversed. Five cases less, therefore, remained at the end of the year in 1865 than in 1864. The number of days each of the judges sat in court, as shewn in the return, was as follows:-The Lord Chancellor, 79: the Lords Justices, 122: the Master of the Rolls, 150: the three Vice-Chancellors respectively, 171, 163, and 170. In 1864 the numbers were-the Lord Chancellor, 60: the Lord Justices, 148: the Master of the Rolls, 154: the three Vice-Chancellors, 167, 166, and 169. The total number of days was less in 1865 by nine. In neither year were there any sittings by the Lord Chancellor and Lords Justices. On filing his bill the plaintiff may select the branch of the court to which his suit is to be attached; but the Lord Chancellor has power to transfer any cause from the paper of any of the Vice-Chancellors to that of any other of the Vice-Chancellors; and the Lord Chan There was one cause tried with a jury, and one without a jury; one cause for trial with a jury, and one for the year. There were 344 cases referred to the counsel trial without a jury, awaiting a hearing at the end of of the court, against 367 in 1864. The number of orders drawn up in the registrar's office was 12,231, and the total amount of fees collected thereon by stamps was 13,4487. 158. In the preceding year the number of orders was 12,356; and the amount of fees 13,6307. 10s. The total of the proceedings in the chambers of the Master of the Rolls, and of each of the three ViceChancellors, as shewn in the returns furnished by the respective chief clerks, were as follow for the year ended the 1st November, 1865, in comparison with the proceedings in 1864, and with the average of the totals for 1859-63. The proceedings in each of the chambers separately for 1865 are given in the table: 1865. Average, 1864. |