defendants as a passenger, and thereby they undertook the duty of not exposing him to unreasonable peril in any matter incident to the journey.

action in

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

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

Again, an officer in Her Majesty's service and his baggage were carried under a contract made with the carriers on behalf of the Government of India; this did not prevent the carriers from being liable to the officer if his goods were destroyed in the course of the journey by the negligence of their servants. "The contract is no concern of the plaintiff's; the act was none the less a wrong to him" (7). He could not charge the defendants with a breach of contract, but they remained answerable for "an affirmative act injurious to the plaintiff's property" (m).

(k) Marshall's ca. (1851) 11 C. B. 655, 21 L. J. C. P. 34, supra, p. 469.

(1) Martin v. G. I. P. R. Co. (1867) L. R. 3 Ex. 9, per Bramwell B. at p. 14, 37 L. J. Ex. 27. (m) Channell B. ibid.; Kelly C. B.

and Pigott B. doubted. The later
case of Becher v. G. E. R. Co.
(1870) L. R. 5 Q. B. 241, 39 L. J.
Q. B. 122, is distinguishable: all
it decides is that if A. delivers B.'s
goods to a railway company as A.'s
own ordinary luggage, and the

and tort

at suit of different plaintiffs.

Alton v.
Midland

R. Co., qu.

whether good law.

The decision of the Court of Common Pleas in Alton v. Midland Railway Co. (n) is difficult to reconcile with the foregoing authorities. A servant travelling by railway on his master's business (having paid his own fare) received hurt, as was alleged, by the negligence of the railway company's servants, and the master sued the company for loss of service consequent on this injury. It was held that the action would not lie, the supposed cause of action arising, in the opinion of the Court, wholly out of the company's contract of carriage; which contract being made with the servant, no third person could found any right upon it. "The rights founded on contract belong to the person who has stipulated for them" (o); and it is denied that there was any duty independent of contract (p). But it is not explained in any of the judgments how this view is consistent with the authorities relied on for the plaintiff, and in particular with Marshall's case, a former decision of the same Court. The test question, whether the reception of the plaintiff's servant as a passenger would not have created a duty to carry him safely if there had not been any contract with him, is not directly, or, it is submitted, adequately dealt with. The case, though expressly treated by the Court as of general importance, has been but little cited or relied on during the twenty-five years that have now passed; and the correctness of the decision was disputed (extrajudicially, it is true) by Sir E. V. Williams (q). A

company receives them to be carried
as such, B. cannot sue the company
for the loss of the goods. Martin's
case, however, was not cited.

(n) 19 C. B. N. S. 213, 34 L. J.
C. P. 292(1865). This case was not
cited either in Martin v. G. 1. P. R.
Co. or Foulkes v. Met. Dist. R. Co.

(0) Willes J., 19 C. B. N. S. at

P. 240.

(p) Montague Smith J. at p. 245.

(9) "The Court decided this case on the principle that one who is no party to a contract cannot sue in respect of the breach of a duty arising out of the contract. But

directly contrary decision has also been given in the State of Massachusetts (r). Alton's case, moreover, seems to be virtually overruled by Foulkes's case, which proceeds on the existence of a duty not only in form but in substance independent of contract. The only way of maintaining the authority of both decisions would be to say that in Alton's case the master could not recover because the servant had a contract with the defendant railway company, but that he might have been entitled to recover if the servant had been travelling with a free pass, or with a ticket taken and paid for by a stranger, or issued by another company, or had suffered from a fault in the permanent way or the structure of a station. But such a distinction does not appear reasonable.

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

it may be doubted whether this was correct; for the duty, as appears by the series of cases cited in the earlier part of this note, does not exclusively arise out of the contract, but out of the common law obligation of the defendants as carriers;" 1 Wms. Saund..

474. Sir E. V. Williams was a member of the Court which decided Marshall's case, supra, p. 469.

(r) Ames v. Union R. Co. (1875) 117 Mass. 541, expressly following Marshall's ca. (1851) 11 C. B. 655, 21 L. J. C. P. 34, supra, p. 469.

decided. The questions what degree of negligence must be shown, whether a mere non-feasance would be enough, or the like, could have been properly raised only when the evidence came out (s).

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

It must be admitted that the Court of Appeal itself has spoken with a somewhat ambiguous voice (u). We should be bound, however, to prefer the later and more considered decision even if it did not appear to be more in harmony with the general current of authorities.

bottom v.

It appears, then, that there is a certain tendency to Winterhold that facts which constitute a contract cannot have Wright, any other legal effect. We think we have shown that &c. such is not really the law, and we may add that the authorities commonly relied on for this proposition really prove something different and much more rational, namely, that if A. breaks his contract with B. (which may happen without any personal default in A. or A.'s servants), that is not of itself sufficient to make A. liable to C., a stranger to the contract, for consequential damage. This, and only this, is the substance of the perfectly correct decisions of the Court of Exchequer in Winterbottom v. Wright (x) and Longmeid v. Holliday (y). In each case the defendant delivered, under a contract of sale or hiring, a chattel which was in fact unsafe to use, but in the one case was not alleged, in the other was alleged but not proved, to have been so to his knowledge. In each case a stranger to the contract, using the chattel-a coach in the one case, a lamp in the otherin the ordinary way, came to harm through its dangerous condition, and was held not to have any cause of action against the purveyor. Not in contract, for there was no contract between these parties; not in tort, for no bad faith or negligence on the defendant's part was proved. If bad faith (z) or misfeasance by want of ordinary care (a) had been shown, or, it may be, if the chattels in question had been of the class of eminently dangerous things which a man deals with at his peril (1), the result would have been different. With regard to the last-mentioned class of things the policy of the law has created a stringent and

(x) 10 M. & W. 109, 11 L. J. Ex. 415 (1842).

(y) 6 Ex. 761, 20 L. J. Ex. 430 (1851).

(z) Langridge v. Levy (1837) 2 M. & W. 519.

(a) George v. Skivington (1869) L. R. 5 Ex. 1, 38 L. J. Ex. 8.

(4) See Thomas v. Winchester (1852) 6 N. Y. 397, Bigelow L. C. 602, p. 439 above.