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*FARRANT v. BARNES. Jan. 23.

One who employs a carrier to carry an article of such a dangerous nature as to require extraordinary care in its conveyance, must communicate the fact to the carrier, or he will be responsible for any injury which may result to the carrier or his servants from his omission to do so. The defendant being desirous of sending a carboy of nitric acid to Croydon, his foreman gave it to one R., the servant of a railway carrier, who (as the railway company would only carry articles of that dangerous character on one day in each week) handed it to the plaintiff, the servant of a Croydon carrier, without communicating to him (and there being nothing in its appearance to indicate) its dangerous nature. Whilst being carried by the plaintiff to the cart, the carboy from some unexplained cause burst, and its contents flowed over and severely injured the plaintiff :-Held, that the defendant was liable for the injury thus resulting from his breach of duty.

THIS was an action brought by the plaintiff to recover damages for an injury sustained by him from the insufficient packing of a carboy of nitric acid which he was employed to carry for the defendant.

The first count of the declaration stated, that the defendant, by falsely, fraudulently, and deceitfully representing to the plaintiff that a certain carboy contained ordinary acid, and falsely, fraudulently, and deceitfully concealing from him that it contained an explosive article, dangerous to be carried, called nitric acid, caused and procured the plaintiff to carry the same for the defendant, and that the same exploded and burst whilst the plaintiff was so carrying the same, and burned the plaintiff and his clothes, &c.

The second count stated that the defendant employed the plaintiff to carry a carboy of acid for him, the defendant, on the terms that the same was not dangerous to be carried, and that the defendant had taken due and ordinary care to prevent injury to the plaintiff whilst carrying the same, and that the plaintiff then accepted and entered upon the said employment, and carried the said carboy of acid for the defendant on the terms aforesaid: Breach, that the said carboy of acid was then dangerous to be carried, and that the defendant had not taken due and ordinary care to prevent injury to the plaintiff whilst carrying the said carboy; and that, by reason of the default and breach of duty of the defendant, the said carboy of acid exploded whilst the plaintiff was so carrying the same for the defendant, and burned the *554] plaintiff and his clothes; by means of which several premises the plaintiff had been and was permanently injured in his health, and his clothes were destroyed, and he necessarily incurred great expense for medical and other assistance, and was disabled for a long time from following his business of a carrier, and was and is otherwise injured. The defendant pleaded,-first, not guilty, secondly, to the first count, a traverse of the false representation,-thirdly, to the last count, a traverse of the employment of the plaintiff on the terms there mentioned, fourthly, to the second count, that the said carboy was not dangerous to be carried, and that the defendant had taken due and ordinary care to prevent injury to the plaintiff whilst carrying the said carboy. Issues thereon.

The cause was tried before Blackburn, J., at the last Summer Assizes at Croydon. It appeared from the plaintiff's evidence, that he and his father were in the employ of one Russell, a carrier between London and Croydon; that it was part of the plaintiff's duty to collect

goods in the city and to convey them in a van to the Elephant and Castle, at Newington, where he transferred the goods he had collected to a cart in which they were conveyed to Croydon; that, on the 1st of May, 1861, whilst going his round, he met in Cannon Street, in the city, one Rayner, a carman in the employ of one Prescott, a railway carrier, who asked him if he would take a carboy (which he told him contained "acid," without more) and a bottle for Croydon; and, upon his agreeing to do so, Russell brought them and placed them in the plaintiff's van,-the carboy being a glass bottle encased in wickerwork, weighing a little over 1 cwt., and having attached to its neck a wooden label on which was written "Mr. *Wateman, dyer, [*555 Croydon. Acid ;" that he proceeded with his van, containing these and various other goods, to the Elephant and Castle, at a footpace; that, on his arrival there, the other goods having first been taken out, his father removed the carboy from the front to the tail of the van, and put it upon the plaintiff's shoulder; that, as he walked with it towards the Croydon cart, part of the contents (which proved to be nitric acid, an exceedingly corrosive and dangerous liquid) escaped, and, flowing over the plaintiff, burned him so severely that he was unable to resume his employment for more than a month, and was still not perfectly cured; that the carboy appeared to be sound when he received it from Rayner; that it received no injury whilst in the van; that he never saw any label on it except the one containing the direction; and that he did not know the contents to be dangerous, and would not have taken it if he had known the fact.

The plaintiff's evidence was corroborated, with respect to what passed when Rayner delivered the carboy to him, by that of his father, and, as to what occurred at the Elephant and Castle, by the evidence of his father and two other witnesses.

Rayner, who was called as a witness for the plaintiff, stated, that, being at the warehouse of the defendant, who is a dry-salter in Lawrence Pountney Lane, on the day in question, he was asked by the foreman if he could take a carboy and bottle of acid to Croydon; that he told him he could not, as articles of that description were only carried by the railway on Mondays (when special provision was made for the carriage of dangerous articles); that, the foreman saying he particularly wished it to go, he (Rayner) asked the plaintiff if he could take it, and on his assenting, went back and told the foreman, who then gave him the carboy, which *he carried on his back to the plaintiff's van; that he (Rayner) knew that it was acid, [*556

and dangerous, but not that it was nitric acid; and that he told the plaintiff to be careful of it.

It was submitted on the part of the defendant that there was no case to go to the jury, inasmuch as there was no privity between him and the plaintiff. But the learned Judge declining to stop the case, the defendant's foreman was called. He stated that the carboy was securely packed by himself in the usual way; that the bottle was sound; and that it had on it, besides the address of the consignee, another label (that of the manufacturer) which stated what the vessel contained, and which was tied to the handle of the carboy. The witness was corroborated as to this latter fact by a man who was with

Rayner at the time he received the carboy at the defendant's warehouse.

Upon this, it was urged on the part of the plaintiff that there was evidence from which the jury might assume that Rayner, as the defendant's agent, fraudulently removed the label which intimated that the carboy contained nitric acid. The learned Judge, however, thought there was no evidence to justify him in leaving that question to the jury.

The learned Judge then left it to the jury to say,—first, whether they thought the defendant took precautions to make the carrier's servants aware that the article they were about to carry was dangerous,― secondly, whether the plaintiff was in fact ignorant that it was dangerous; and, if so, whether that arose from want of reasonable prudence and skill on his part,-thirdly, whether it was made out to their satisfaction that the accident occurred from the acid being improperly packed, unknown to the plaintiff: telling them that they were not to say that the accident arose from bad packing, unless affirmatively satisfied that it was *so,-fourthly, what amount of compensation the plaintiff was entitled to for the injury he had sus

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tained.

The jury answered the first question in the negative; as to the second, they found that the plaintiff was in fact ignorant, but not from want of reasonable prudence and skill on his part; and, as to the third, that it was not proved that the accident occurred from the acid being improperly packed: and they assessed the damages at 501.

Pursuant to previous arrangement with the respective counsel, a nonsuit was entered; leave being reserved to the plaintiff to move to enter a verdict for 50%. on the findings of the jury, if on those and the evidence the Court should be of opinion that there was a cause of action for the plaintiff: the Court to have all powers of amendment which the Judge had.

Parry, Serjt., in Michaelmas Term last, obtained a rule nisi accordingly, and also for a new trial on the ground that there was evidence to show that the carboy was not properly packed. He referred to Brass v. Maitland, 6 Ellis & B. 470 (E. C. L. R. vol. 88), and Hutchinson v. Guion, 5 C. B. N. S. 149 (E. Č. L. R. vol. 94).

Hawkins, Q. C., and Archibald, now showed cause.-There was no privity between the plaintiff and the defendant. Farrant, the servant of Russell, was not employed by the defendant to carry the carboy. He intrusted it to Rayner, the servant of Prescott. The case therefore does not fall within the principle of Langridge ». Levy, 2 M. & W. 519,† as explained in the Exchequer Chamber in Levy v. Langridge, 4 M. & W. 337.† Parke, B., in the Court below, says: "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 #558] defendant." But, "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." And the judgment was upheld in the Exchequer Chamber upon that ground. In Winterbottam v. Wright, 10 M. & W. 109,† the defendant contracted with the postmaster-general to provide a mail-coach to

convey the mail-bags along a certain line of road; and one Atkinson and certain other persons contracted to horse the coach along the same line, and hired the plaintiff to drive the coach: and it was held that the plaintiff could not maintain an action against the defendant for an injury sustained by him while driving the coach, by its breaking down by reason of latent defects in its construction. Langridge v. Levy was relied upon in support of the plaintiff's case; but the Court thought that the principle of that case ought not to be extended; and Lord Abinger said: "There is no privity of contract between the parties; and, if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action." There was no evidence of any negligence on the part of the defendant or his servants: the carboy from some unexplained cause broke, probably from having come roughly into contact with some of the articles contained in the van in which it was carried to the Elephant and Castle. No action, it is submitted, either of contract or of tort can be maintained under the circumstances. The foundation of this action must be contract; and the contract, if any, was with Russell. In the absence, therefore, of any deceit or fraud, of which there was no evidence, the nonsuit was right. Tollit v. Sherstone, 5 M. & W. 283,† is an authority to show that no action. will lie except as between the parties to the contract. The same principle is affirmed in Howard v. Shepherd, 9 C. B. 297 [*559

(E. C. L. R. vol. 67), where an attempt was made by the endorsee of a bill of lading to maintain an action upon the case for the non-delivery of the goods at the port of delivery. Williams, J., there says: "Boorman v. Brown, 3 Q. B. 511 (E. C. L. R. vol. 43), 2 Gale & D. 793, which was referred to in the course of the argument, simply establishes, that, if there be a contract, and something is to be done in the course of the employment which is the subject of that contract, if there is a breach of duty in the course of that employment, the party injured,that is, the party to the contract,—may recover either in tort or in contract." In Longmeid v. Holliday, 6 Exch. 761,t it was held that a tradesman who contracts with an individual for the sale to him of an article to be used for a particular purpose by a third person is not, in the absence of fraud, liable for injury caused to such person by some defect in the construction of the article. A declaration by husband and wife stated, that the defendant was the maker and seller of certain lamps called "The Holliday Lamp," and thereupon the husband bought of him one of those lamps, to be used by his wife and himself in his shop, and that the defendant then fraudulently warranted that the lamp was reasonably fit and proper for that purpose, whereas the lamp was dangerous and unsafe, by reason whereof, when the wife attempted to use the lamp, it exploded and injured her. At the trial, it appeared that the accident arose from the defective construction of the lamp, but there was no proof that the defendant knew of that defect; and the jury found that he was not guilty of any fraudulent or deceitful representation: and it was held that the action could not be maintained by the wife, there being no misfeasance towards her independently of the contract, which was *with the husband alone. [WILLES, J.-There, the defendant was unaware of the bad [*560 quality of the lamp.] The same principle was upheld in Gerhard v.

Bates, 2 Ellis & B. 476 (E. C. L. R. vol. 75). [WILLES, J.-And in Wontner v. Shairp, 4 C. B. 404 (E. C. L. R. vol. 56), and a number of other cases.] Blakemore v. The Bristol and Exeter Railway Com pany, 8 Ellis & B. 1035 (E. C. L. R. vol. 92), is to the same effect: and there Coleridge, J., in delivering the judgment of the Court, says: "It has always been considered that Langridge v. Levy was a case not to be extended in its application." [ERLE, C. J.-The charge is that the defendant was guilty of a breach of duty in sending a highly dangerous article without notice to the plaintiff of its character.] There was no evidence of negligence in the packing of the carboy: on the contrary, it was proved to have been packed most carefully. [ERLE, C. J.-It was more than ordinarily hazardous, however carefully it might be packed. Dalyell v. Tyrer, E. B. & E. 899 (E. C. L. R. vol. 96), will probably be relied on for the plaintiff; but that case falls within the principle of misfeasance mentioned in some of the authorities.]

Parry, Serjt., and Joyce, in support of the rule.-The argument on the part of the defendant assumes, that, if the carrier (Russell) himself were suing, the defendant would have no answer to the action. But it is said that the carrier's servant cannot maintain an action, by reason of the want of privity of contract. This, however, is not a case of contract at all. There was abundant evidence to sustain even the first count: the defendant was practically guilty of a fraudulent representation when he induced the plaintiff to take the carboy under the impression that it contained merely "acid," which, for anything that appeared, might have been vinegar. The defendant knew that the railway Company would only carry the article on *particular *561] days, and under proper precautionary arrangements, and that the carrier would not have taken it at all if he had known what it

was.

The further argument was stopped by the Court.

ERLE, C. J.-The facts of the case are these:-The defendant wishing to have a dangerous article,-a carboy of nitric acid,-conveyed to Croydon, his foreman asked one Rayner, a carman in the employ of a railway carrier, to forward it. Being unable, in consequence of the Company's regulations, to forward it by railway in time to answer the defendant's purpose, Rayner applied to the plaintiff, the servant of one Russell, a Croydon carrier, to take it for him. And thus the carboy was in effect delivered by the defendant to the plaintiff to be carried to Croydon according to his accustomed course of business. The application to the plaintiff being an application to take charge of and to carry and deliver a dangerous article, it was the duty of the defendant, who knew the danger, to take care that the dangerous character of the article should be made known to all persons who were to be concerned in the carriage of it. The jury have found that he did not do so. There was no evidence as to how the accident occurred, probably it was from the explosive nature of the article. But, be that as it may, if notice had been given of the dangerous character of the article, greater precaution possibly might have been used in the handling of it. I think the plaintiff is brought into such direct contact with the defendant that the distinction relied on to take the case out of the principle upon which the decision in Langridge v. Levy proceeded fails. The defendant, knowing the dangerous cha