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178

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AND

VOL. XXIV.

JOURNAL.

LIABILITY FOR ACCIDENTS HAPPENING IN

SCHOOLROOMS.

CONSIDERING that there are thousands of voluntary schoolrooms throughout the country, attended by tens of thousands of children, while thousands of gentlemen are trustees or members of the committees of management, the question of the liabilities of those trustees or members of such committees for accidents occurring from day to day in the schoolrooms is undoubtedly one of a very serious character, and its importance was fully recognised in the recent case of Crisp v. Thomas. In that case, according to the Times of the 1st inst, it appeared that in the school at St. Michael's, Woodgreen, the incumbent, the vicar, one of the trustees, was the acting member of the committee of management, and that the staff of the school consisted of a head mistress, an assistant mistress, and two pupil teachers, and it was stated that by the constitution of the school the internal management of the school was left to the mistress, the committee having a general control and power to appoint the mistress-with power of dismissal subject to an appeal to the Bishop. The vicar visited the school twice a week and he always attended the board. The mistress said he "appointed' her, but she sent her resignation to the committee. A child at the school (whose parents paid fees for him) was injured by the falling upon him of a black-board, hung up in the school room on an easel, and, as it turned out, insufficiently secured, and an action for damages was instituted accordingly against the vicar. The trial took place before Mr. Justice Charles with a jury; and, the circumstances of the accident being shown, the objection was taken on the part of the defendant that there was no evidence of his liability. Thereupon evidence was given for the defence (the defendant himself, though in Court, was not called, nor was the school trust deed produced), and it was contended on the part of the plaintiff that this evidence strengthened the case for the plaintiff. The evidence disclosed that there had been two such accidents, the other being as to the fall of the easel itself, which had struck the child, but being light had done no mischief. The first accident as to the easel occurred in September, 1888, and the other the one now in question-occurred the next day. The easel, however, was light, the board was heavy, and, as that also had fallen on the head, it was obviously the more serious accident of the two. The child did not at the moment appear to be injured, but in a few days began to show serious symptoms of a paralytic nature. The evidence showed that a girl, an older pupil, who had charge of the class in the absence of the usual mistress, had put up the board on the easel, but it did not appear that she had put the pegs in, though she said they "did not fit." The case for the plaintiff was that the pegs put in the easel upon

No. 1,246

which the board was to rest were insufficient as they did not fit the holes in the sides of the easel, and so came out and let the board down-that is, the case was in the alternative that either the pegs did not fit or that they had been carelessly put in. The witnesses said that the pegs "did not fit tight." The pegs were not used afterwards, and had not been produced and identified. The mistress said that some pegs had been "whittled down" by some one to make them fit, and that they had been used again against her orders, but it was not shown that these were the pegs in question. The plaintiff's counsel called upon the jury to infer that the pegs, if they fitted, and if carefully put in, could not have fallen out as they did, and therefore that either they did not fit the holes or had not been properly put in; and then, as matter of law, citing Briggs v. Oliver (4 H. & C. 403), and Byrne v. Boadle (2 H. & C. 722) they urged that the defendant was liable. The counsel for the defendant still submitted that there was no evidence of negligence for which the defendant was responsible for the purpose; while, on the other hand, it was urged that, as if the pegs had been properly put in they would not have fallen out, the fact that they did fall out and that the board fell was prima facie evidence of negligence in those who had the control over the school and schoolroom and the articles of furniture in it, and for this reliance was placed on Scott v. London Dock Company (3 H. & C. 596). The learned judge, however, rather took the contrary view, but left the question of negligence to the jury, who found for the plaintiff for £20; but the learned judge, conceiving that there was no evidence to make the defendant liable, entered the verdict for the defendant. The plaintiff afterwards applied to have the verdict entered for him, and ultimately appealed before Lord Esher, M.R., Lopes and Kay, EL.JJ.

Now, in Scott v. London Dock Co., the case on which the plaintiff mainly relied, the plaintiff was an officer of Customs, and, being ordered on duty from one part of the docks to another, on his way from one doorway of a warehouse to another, he was knocked down by six bags of sugar falling upon him; and there, formulating the principle applicable, Erle, C.J., said, "There must be reasonable evidence of negligence. But when the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." But, as Willes, J., observed in Smith v. Great Eastern Ry. Co. (L. R. 2 C. P., at p. 9), "It is not enough to show that damage may have occurred through the negligence of the defendant's servants, even coupled with the suggestion that no suffi

The plaintiff must show something which the defendants might have done, and which they omitted to do, before they can be held responsible for the misfortune that happened." And as for Briggs v. Oliver and Byrne v. Boadle, they were plainly distinguishable from Crisp v. Thomas, as the former were cases of operations in themselves dangerous and requiring extraordinary care. But, indeed, both as to the negligence and the liability of the defendant, the plaintiff in Crisp v. Thomas clearly had no case.

As to the negligence of the pupil teacher who put up the board on the easel, said Lord Esher, "there was no evidence that she put the pegs in, and she was only bound to use ordinary care. Now, did persons who put up pictures or boards on easels always test the pegs ? Then it was urged that res ipsa loquitur applied, and that the bare fact that the board fell showed that it was not put up properly. But that maxim only applied where the occurrence itself showed negligence, which was not the case here, for it was not more consistent with negligence than accident. There was no evidence of negligence, therefore, on the part of the pupil teacher; neither was there any evidence as against the mistress, who only told her to put up the board. There was, in fact, no evidence of negligence in anybody, and that was sufficient to determine the case." And, Lopes, L J., observing that in this case the facts were as consistent with a mere accident as with negligence, said, "There had been no want of reasonable care in anybody. It was a mere accident. It followed that there was no case for the jury as to negligence." "To say that every kind of accident happening in a school-room must show negligence," added Kay, L.J., "was a contention utterly untenable. In the cases cited the things being done were highly dangerous; there was nothing apparently dangerous in putting a board up on an easel. Possibly a peg had not been properly put in, but it did not appear that the pupil teacher put them in, and it did not appear who had put them in."

But, even supposing there had been negligence, either on the part of the pupil teacher or the mistress, would the vicar be liable? On this important question the learned Master of the Rolls said: "He was the vicar, but only one of the committee of management, and was only responsible for the negligence of his servants. And was the mistress or the pupil teacher his servant? Certainly not. He could not appoint or dismiss the mistress by himself, but only along with the rest of the committee, and even they could not do so fexcept with an appeal to the bishop. The whole committee could not go into the school and give her directions as to the management of the school, and dismiss her for disobedience without an appeal to the bishop. She was not, therefore, a 'servant' even of the committee, still less so of the vicar. And still less could the pupil teacher be deemed his servant. He could not appoint her or dismiss her, and therefore even if she was negligent he was not responsible. On both points, therefore, the plaintiff failed, and there was no case at all." Lopes, L.J., concurred, as neither the mistress nor the pupil teacher was servant of the vicar; while Lord

strous that members of committees of management of such schools should be liable for all accidents happening there on the supposed ground that the persons employed there were their servants. It was only too plain, in our opinion, that, even taking the case of Scott v. London Dock Co., the case of the plaintiff in Crisp v. Thomas was outside both of the conditions formulated in the passage we have quoted from the judgment of Chief Justice Erle.

CURRENT ENGLISH CASES.

The December number of the Law Journal Reports, completing the fifty-ninth volume, constitutes a goodly volume of 456 pages. In addition to the reports of 10 cases in the Privy Council (pp. 57-108), 14 cases in the Chancery Division (pp. 745-824), 20 cases in the Queen's Bench Division (pp. 537-590), 19 cases in the Probate, Divorce, and Admiralty Division (pp. 65-94), and 3 Magistrates' cases (pp. 145-153), there are Tables of Contents and elaborate and carefully classified indexes to the several volumes.

In the Privy Council, Manning v. The Commissioner of Titles decides that under the Land Transfer Act of Western Australia the commissioner has powers, after notice of an application for registration, to reject the application, though no caveat forbidding the same has been served. Brown and others v. The Commissioner for Railways was a New South Wales appeal, in which it was held that, where private land is compulsorily taken by the Government, the burden of proving the value of the minerals is not cast, as a condition precedent to compensation, upon the owner of the land. Main and others v. Stark deals with a question of the classification of teachers in Victoria, under the Public Service Act, 1883. O'Rourke v. The Commissioner for Railways (New South Wales) defines the authority of arbitrators and the effect of an award as to costs. The Shaw, Savill and Albion Company v. The Timaru Harbour Board (New Zealand) settles a point of construction of the Harbours Act, 1876, and of the powers of the Harbour Board. The New South Wales case of Lyons v. Hoffnung raised a question with respect to the right of stoppage in transitu. Railton v. Wood, from New South Wales, defiued the meaning of the Insolvent Act, 1841, s. 41, and a landlord's power of distress for rent. The City of Peking v. La Compagnie des Messageries Maritimes settled a question of demurrage and restitutio in integrum on appeal from the Admiralty Court of Hong Kong. In The Sanitary Commissioners of Gibraltar v. Orfila the duties and liabilities of the appellants were ascertained under the Sanitary Order, 1865, s. 27. La Banque d'Hochelaga v. Murray was an appeal from Lower Canada with respect to the annulment of letters patent under the Code of Civil Procedure, art. 1,034.

The Chancery Cases open with the remarkable case of The Marquis of Northampton v. Pollock, already noticed in these columns, which deals with a mortgage to an insurance company of a policy and a reversionary interest. Complicated questions of priorities of mortgages, equitable mortgages, and negligence were unravelled by Mr. Justice Kay in Taylor v. Russell. In re Bryant & May was a trade-mark case settling questions of "essential particulars" and "distinctive device." In re Anderton and Milner's Contract defines what are "usual covenants " in a lease. In re The Crown Bank, In re O'Malley settled that newspaper comments on a pending petition for winding-up, even though the comments are not likely to affect the Court's decision, constitute a contempt of Court. The Court of Appeal, in the case of Lord Egmont's Settled Estates, disapproving In re Lord Sudeley's Settled Estates, 57 Law J. Rep. Chanc. 182, sanctioned the application of principal moneys in the hands of trustees to the redemption of a reut-charge created to defray the costs of improvements

authorised by the Settled Land Act, 1882. Questions of the rights of the Crown in respect of gold mines were decided in The Attorney-General v. Morgan. In the case of In re The Earl of Radnor's Trusts the Appeal Court authorised the sale of famous pictures to the National Gallery, and defined the duties of tenants-for-life in such sales, Henderson V. The Bank of Australasia involved questions of the powers of the chairman and the rights of shareholders at extraordinary general meetings of a company. In re Taylor, Turpin v. Pain, is an authority on the practice and procedure of the official referee. Mr. Justice Stirling held, in Moloney v. Brooke; In re Wells, that a creditor in an administration action is only entitled to the appointment of a receiver when the assets are likely to be wasted. In re Bowden, Andrew v. Cooper, illustrates the operation of the Trustee Act, 1888, with respect to breaches of trust committed more than six years before the commencement of the action. Shepherd v. Hirsch, Pritchard & Co. decided that a writ can be served at the principal place of business of a partnership consisting of a British subject and a foreigner residing abroad when the firm has been dissolved without the plaintiffs' knowledge. The liability of members, and the extent of the borrowing powers of a building society, are discussed in the case of In re West Riding of Yorkshire Permanent Benefit Building Society.

In the Queen's Bench Division, in The Pure Spirit Company v. Fowler a company in liquidation, plaintiff in an action, was ordered to find security for costs. In Decroix, Verley & Co. v. H. Meyer & Co. a bill of exchange accepted by the defendauts, and payable to the drawer or order, from which the words "or order " were struck ont by the defendants, was held to be negotiable. Maw v. Jones was a case of the amount of damages recoverable by an apprentice for wrongful dismissal. Read v. Joannon decided that the debenture of an incorporated company was not a bill of sale under the Bills of Sale Acts, 1878 and 1882. In re Skegg defines the extent of undue performance by a bankrapt which will justify the Court in suspending the order of discharge. In The London Steamship Owners' Insurance Association v. The Grampian Steamship Company questions of a "protection policy," the "running down" clauses in a Lloyd's policy, and the liabilities of insurers were argued and settled. Mumford v. Collier decides that an attornment clause in a mortgage is a bill of sale only so far as it relates to chattels. In re Smith disposed of a question as to the effect of a disclaimer by a bankrupt's trustee of leasehold property on the assignees of a mortgage of the leaseholds. The decision of a Divisional Court on a special case stated under the Stamp Act, 1870, s. 19, is not a final but an interlocutory order (Onslow v. The Commissioners of Inland Revenue). De Rothschild Frères v. Morrison, Kekewich & Co. decides the interpleader jurisdiction of the Court under Order LVII., rule 15. Pink and others v. Fleming raised questions of marine insurance and collision. In Clarke v. Sonnenschein & Co. the Court held that it could set aside the findings and judgment of the official referee. Hobbs & Co. v. Hudson and others decided that an action for the fraudulent removal of goods to avoid a distress was a penal action in which interrogatories could not be administered to the defendant. Coltman v. Chamberlain (Woodger, claimant) defines the extent and operation of the mortgage of a ship. Bishop and others v. The Balkis Consolidated Company was a case of invalid transfer of shares in a company. In Bass v. Gregory a curious kind of easement-viz., the access of air through the rock from a neighbouring well-was established. Questions under the Contagious Diseases (Animals) Act, 1889, were settled by The Mayor, &c., of Salford v. The County Council of Lancashire. In re Webber defines the time within which notice of appeal against a receiving order must be served on the official receiver. In The Gresham Life Assurance Society v. Styles annuities granted by an insurance company in consideration of a lump sum were held to be payable out of profits and assessable to income-tex. In Fenton & Co. v. Blythe (Collard, claimant) a bill of sale which had not been re-registered within

five years was held void by virtue of the Bills of Sale Act, 1882, s. 81.

In the Probate, Divorce, and Admiralty Division, in The Quickstep and Hopper Barge a hopper barge in tow of a steam-tug was held not to be liable for damages caused by a collision between it and a third boat, the collision having been caused by the negligence of those on board the tug and the third vessel. In The Ruby pilotage was held to be compulsory on a river by the joint operation of bye-laws and the Merchant Shipping Act, 1854. In Cook v. Cook a question was decided as to the vacation of the registration of writs of sequestration against a husband respondent in a divorce suit. In Ferguson-Davie v. Ferguson-Davie the Court refused to admit to probate a duly executed document headed, "This is not meant as a legal will, but as guide." In the Goods of Annie Ashley a grant was made ad colligenda bona in favour of a creditor on affidavit that the deceased died intestate and without known relatives. The Stakesby was a case of "fixed stern light under the Regulations for preventing collisions at Sea, Articles 2, 11. In the Goods of Henry Calloway was a case in which, of two wills, English and colonial, by which the testator made indepen lent dispositions of property, the English alone was admitted to probate. The construc tion of a charterparty and the effect of a crew's negligence formed the subject of The Caron Pr'. Steel Barges defines the liability for alvag. In the Goods of Mary Hornbuckle decides that when there is an existing graut of administration the Court cannot grant probate of a will. In the Goods of G. B. Russell was a case in which marriage d d not entirely revoke a will. In the Goods of Rhoda Slinn admitted to proba'e a duly executed document purporting to be a deed of gift and intended only to operate after the grantor's death. In Cornish v. Cornish the Court refused to dispense with service on the co-respondeunt in a case in which the wife had confessed adultery. Lodge v. Lodge was a case of a petition on account of adultery and desertion. Iu Butler v. Butler money paid into Court to secure a wife's oosts was, in the case of a collusive petition, ordered to be paid to the Queen's Proctor. Warter v. Warter involved the operation of a divorce under the Indian Divorce Act on a marriage in England. The practice of interrogatories in the Admiralty Division is dealt with in The Isle of Cyprus. The negligence of a chief engineer in the docks was, in The Accomac, held not to be negligence in the navigation of the ship for the purposes of a charter-party. In the case of In the Goods of Cope the Court exempted the official receiver in bankruptcy from finding the usual sureties to an administration bond.

In the Magistrates' Cases, it was held in Regina v. The Justices of London that section 105 of the Highways Act, 1835, gives no appeal except from a conviction. In Regina v. The Justices of Glamorganshire an unsuccessful appellant's recognisance in the case of a summary conviction was estreated on non-payment of the costs of appeal, though the appeal was dismissed on the ground that he entered into the recognisance too late. Anderson v. Hamlin a conviction was quashed on the ground that a water-bailiff had not been authorised by the conservators of a fishery to commence proceedings.— Law Journal.

INTERVIEWS WITH CLIENTS. BY A WORLDLY SOLICITOR.

TRESPASS TO THE PERSON.

In

W. S. (rising to receive his visitor).-Why, Capel Court, my friend, how ill and worried you look! Not encouraging to tell a man that to his face; but you really do look bothered. Come, sit down. No, try this chair. It's my most comfortable chair. When a man sits in that I reckon that he will certainly make it a guinea consultation. But come, tell me, what can I do to drive the gloom from your face?

Mr. C. C.-Thank you; thank you very much, my old friend. Yes, I am bothered. Affairs have been very

dicky in the City lately, as you know. A day-to-day, band-to-mouth kind of existence. However, that's all over. Haha! You looked relieved. No, no; I haven't come to file my petition. You got my letter?

W. S.-Yes, and from it I gather that some unscrupulous member of our profession is making your life a burden.

Mr. C. C.-Well, that's about it, in plain English. You see, I have offered both the unfortunate fellows ample compensation. What more can I do?

W. S.-Well, my friend, I have been looking it up and am pleased to say that you can tell them both to go to theBut stay! Let's see if I have your facts correctly (reads letter). It is obvious that both the injured men have got into the hands of the same lawyer. But let us take your wife's case first. As I understand, she was driving from the station when "King" and "Emperor "-I always told you they were too restive for your wife-became frightened and bolted. Your coachman, however, was able to guide them; but on turning a corner this man Smith was knocked down and injured, seriously, but not so badly as Messrs. Kestrel, Hawk & Kite make out. That's your first trouble. The second

Mr. C. C.-Stop a bit, stop a bit. Let's finish one at a time.

W. S.-Pardon me. In principle the two cases are on precisely the same footing, so that they can better be considered together. Your own trouble is that while out shooting you, quite accidentally-the shot glancing off a tree-and through no fault or want of skill on your part, shot a beater in the eye, thereby causing him to lose the sight of one eye. You have offered him liberal compensation; but he has placed himself in the hands of Messrs. Kestrel, Hawk & Kite, who again claim most extravagant damages.

Mr. C. C.-That's it; that's it. What a man you are to master your facts!

W. S.-No, no; pardon me, your facts! But to proceed. The question is, Are you liable in both or either case? I am delighted to tell you that you are under no liability in either case, provided, of course, that you have not given yourself away when offering compensation by admitting yourself liable; for in neither case were you guilty of negligence.

Mr. C. C.-But here, wait; look here; look what they say. If one man injures another he is liable, whether be acted negligently or not.

W. S.-Yes, I have observed that. Messrs. Kestrel, Hawk & Kite either do not know their law on this poiut, or they are endeavouring in their phraseology to "bounce us." Look at this pile of reports. Will you take my word for the law, or will you listen to the cases?

Mr. C. C.-Well, I daresay I shan't understand them; bat I'm a regular John Bull for law. I like to know all about it.

W. S.-Then make yourself comfortable while I explain the matter. Most curiously, until a quite recent case of Stanley ▼. Powell, which is reported here (7 Times Law Reports, 25), it had never been definitely decided whether a person could sue for an injury received, the result of another person's act, which act was neither wilful nor negligent.

Mr. C. C.-In plain English, "accidental."

W. S.-Quite so; quite so. It will interest you to know that there is a case reported in the reign of Henry VII.

Mr. C. C.-I think after all I'll take your word for

W. S.-Nay, I do not propose to take you through every case since that date. In that case it was held that when one shot an arrow at a mark, which glanced from it and struck another, it was holdeu to be a trespass-another man, of course, the report r meant. But that was a dictum, not a decision. Weaver v. Ward (Hobart, 134), decided in 1617, is more directly on the point. There Weaver brought an action of trepsass for assault and battery against Ward. The defendant pleaded that he was, amongst others, by the commaudment of the Lords of the Council, a trained soldier

Mr. C. C.-I say! I say! Spare me this. Long time since I was at school.

W. S.-In discharging his piece did hurt and wound the plaintiff, which is the same abseque hoc, that he was guilty aliter sive alio modo.

Mr. C. C.-Well, and how went it with that casual volunteer?

W. S. He was held not liable, "for," said the judge, "a man shall be excused of a trespass if it be adjudged to be utterly without his fault."

Mr. C. C.-Well, then, the point is clear!

W. S.-But there have been contradictory cases on which they may rely. There is an old case of Underwood v. Hewson (1 Strange, 596), the head note to which states, "Trespass lies for an accidental hurt."

Mr. C. C.-Why, confound it! that's just the opposite

way.

W. S.-Again there is Leame v. Bray (3 East, 593), where a man caused a collision by driving on a dark night on the wrong side of the road; but he was negligent.

Mr. C. C.-Well, what is the result of it all?

W. S.-That, my dear sir, I am coming to. This case of Stanley v. Powell, in which the facts were precisely similar a beater was shot in the eye by no fault or negligence of the defendant-the shot glanced off a tree, as in your case. Mr. Justice Denman considered all the cases, and practically dismissed the old cases, by showing that many of the decisions turned more on the form of the action-whether the action ought to have been trespass or trespass on the case; and chiefly on the authority of Weaver v. Ward, he held that the defendant was not liable; "for," said his lordship, "if the action is on the case for an injury by negligence the plaintiff must prove this negligence. If it is an action for trespass, the defendant would, of course, deny negligence and allege accident." Now, sir, if Kestrel and his flock sue us for damages for negligence they must prove it.

Mr. C. C.-Which they can't!

W. S.-Precisely, precisely! If they sue us for trespass to the person, we will plead no negligence, and that it was caused by accident, which we can abundantly prove, and.

Mr. C. C.-In both cases we win?
W. S.-Quite so, quite so.

Mr. C. C.-Then I may leave the whole matter in your hands. I'll be off! Ah! but how about my wife's accident?

W. S.-Why, the same principle of course applies. But if you want to feel quite safe there is a very strong case direct on the facts. Here it is (taking up report) Holmes v. Mather (L. R. 10 Ex. 261), where the facts were exactly similar. The plaintiff eued for both negli. gence and trespass; the jury found there was no negligence in any one, and the Court laid down the broad rule that to maintain an action for injury to the person the injurious act must be wilful or the result of negligence. This, with the recent case of Stanley v. Powell, places the law on a firm basis.

Mr. C. C.-In plain English, that the law won't make a man pay up for inevitable accident, he being in no way to blame?

W. S.-That's about a correct statement.

Mr. C. C.-Well; that's a relief. Deal with Kestrel, Hawk & Kite as you think fit, aud after it's all over tell Smith and the beater that I'll give 'em what they asked.

W. S. But, my dear sir!

Mr. C. C.-Yes, I will; only I won't do it at the dictation of all the Kestrels, Hawke, or Kites in the world.