drives his cab with very little regard for the safety of the men engaged in scraping the streets, and at the end of that time is negligently run over by the cabman, it does not lie in the cabman's mouth to say, "You know my style of driving; you had seen me drive for a fortnight; I was only driving in my usual style." In that case the defendants employed an independent contractor to do certain work in a tunnel belonging to them. The plaintiff, a servant of the contractor, was engaged on the work in the tunnel, which was dark and rendered dangerous by the frequent passing of the defendants' trains, and after he had been working there for some time with full knowledge that the defendants were taking no precautions for his protection, he was negligently injured by a passing train. It was held by the Court of Exchequer, and by Mellish and Baggallay, L.JJ., in the Court of Appeal, that the railway company were responsible (a). But the question whether in any case the plaintiff has contracted to hold the defendant harmless for injury resulting from his wrong-doing, is a question of fact not of law, and must invariably be submitted to the jury. In Smith v. Baker (b) the plaintiff was employed by the defendants to drill holes in a rock. cutting near a crane, which was being used for the purpose of raising stones. The crane was periodically swung round with stones over the plaintiff's head without warning. The plaintiff was aware of the danger arising from the practice of omitting to give warning, and had so worked for months when a stone fell and injured him. It was held by the House of Lords that the mere fact of the plaintiff having remained on in the defendant's service with knowledge of the dangerous practice did not as matter of law preclude him from recovering, and that it was a question for the jury whether he had contracted to take the risk of accidents upon himself. So too in Yarmouth v. France (c), where the plaintiff, who was in the employment of the defendant, (a) Woodley v. Metropolitan District R. Co.,2 Ex. D.384. It is true that in this case the majority of the Court of Appeal (Cockburn, C.J., Mellor and Grove, JJ.) held otherwise. But in the later case of Membery v. Great Western R. Co. (14 App. Cas. 179), Lords Halsbury and Herschell were evidently of opinion that the view of Mellish, L.J. was to be was required by the defendant's foreman, notwithstanding his remonstrance, to drive a horse which he knew to be vicious, and while driving it was injured by the horse kicking him, it was held to be a question for the jury whether the plaintiff, in driving the horse after knowledge of its vice, had taken the risk upon himself. But although the fact of the plaintiff continuing in the defendant's employment after the knowledge of the danger is not conclusive of his having agreed to take the risk upon himself, it is an element for the jury to consider in determining the question whether he did so agree. It has indeed been suggested in some of the cases that if the source of danger comes into existence after the plaintiff entered upon the defendant's employment, that fact will be a further element in determining whether his conduct in running the risk was voluntary (a); for it has been said that the master has no right to put the servant to the alternative of running the risk without compensation or quitting the employment, and that the servant, having under the circumstances practically no choice, may reasonably run some degree of risk in preference to abandoning the service (b). But there seems to be no substantial reason for drawing any distinction in this respect according as the source of danger comes into existence before or after the commencement of the employment. If a workman is to be heard to say that he could not afford to quit an employment which he had already entered, he must equally be entitled to say that he could not afford to forego the opportunity of entering a service which he knew to be dangerous before he entered it. If poverty does not take away a man's freedom of action in the one case, neither can it be held to do so in the other. (a) Clarke v. Holmes, 7 H. & N. 937; Yarmouth v. France, 19 Q. B. D. 647. (b) See judgment of Pollock, C.B., in Clarke v. Holmes (30 L. J. Ex. p. 139), and of Cockburn, C.J., and Byles, J., in Exch. Ch. (31 L. J. Ex. pp. 358, 361). C.T. G G The representation must be of a past or existing fact. Misrepresentation of intention. CHAPTER XVI. FRAUD. A PERSON who causes another to injure himself is, under certain circumstances, liable for the injury to the same extent as though he had directly inflicted it. One way in which a person may cause another to injure himself is by making a false representation to such person, whereby he, acting upon the faith of the representation being true, suffers damage (a). The inquiry as to the circumstances under which an action for damages for an injury so inflicted, commonly called an action of deceit, will lie, forms the subject of the present chapter. In the first place the misrepresentation which is necessary to found an action of deceit must be a representation as to a past or existing fact. It has been sometimes stated that a misrepresentation as to a person's intention will not suffice, but that view seems to be mistaken. "The state of a man's mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man's mind at a particular time is, but if it can be ascertained it is as much a fact as anything else" (b). Therefore, where directors issued a prospectus inviting subscriptions for debentures, stating that the object of the loan was to enable them to enlarge their trade premises and purchase additional plant, whereas in fact the object was to enable them to (a) Another way of causing persons to injure themselves, namely, that of negligently creating a source of danger, with which such persons in ignorance of the danger bring themselves into contact to their damage, has already been dealt with in the preceding chapter. In connection with that class of injury the' action for negligence and that for deceit meet pressing liabilities, it was held that the misstatement of the purpose to which they intended to devote the money was sufficient to found an action of deceit (a). The great difficulty of proving what the defendant's actual intention was at the time of the statement made has indeed caused the criminal Courts to hesitate to treat a misstatement of intention as sufficiently a statement of fact to found an indictment for false pretences (b), though they have in recent times gone a long way in the direction of holding that it is so (c). the case of vendor and purchaser. To the rule, however, that a misstatement of intention will be Exception in sufficient, there is an exception where the parties stand in the relation of vendor and purchaser, in which case a misstatement as to the highest price which the one party has it as his intention to give, or the lowest price which the other has it as his intention to accept, will not afford a cause of action (d). As the object of such misstatement is undeniably to deceive, the exception must be regarded as somewhat anomalous, and the only explanation seems to be, that it is so customary for persons standing in that relation to tell falsehoods of that description that no reasonable person ought ever to be deceived by them, and it is the party's (a) Edgington v. Fitzmaurice, 29 Ch. D. 459. In Jorden v. Money (5 H. L. C. 185), the obligee of a bond having represented to the obligor that it was her intention not to enforce payment of it, she in fact having that intention at the time that she made the representation, the obligor on the faith of such representation entered into engagements which altered his position. The obligee subsequently changed her mind and sought to enforce her claim. The obligor then sued for an injunction to restrain her from so doing, but the House of Lords dismissed the bill on the ground that the representation of intention did not amount to a contract, and that there had been no misrepresentation of fact which could create an estoppel. The head-note, however, to the report goes further, and states that "to raise an equity in such a case there must be a misrepresentation of existing facts and not of mere intention," and there are certain dicta in the judgments which might be construed as (b) Rex v. Goodhall, R. & R. 461. (c) Reg. v. Cooper, 2 Q. B. D. 510. And in Reg. v. Gordon (23 Q. B. D. p. 360) Wills, J., expressed himself to be unable to see why a misrepresentation as to a person's intention should not be capable of supporting an indictment, though it was unnecessary in that case to decide the point. (d) Vernon v. Keys, 12 East, 632; in Exch. Ch. 4 Taunt. 488. Misstatement of opinion. Misstatement of legal position. у own fault if he is. The purchaser is not bound to disclose the highest price he chooses to give, but is "at liberty to do that as purchaser which every seller in this town does every day, who tells every falsehood he can to induce a buyer to purchase" (a). Indeed, it has been said that persons standing in the position of vendors or purchasers may with impunity make certain kinds of misstatements as to which there can be no question but that they are misstatements of fact. "An action of deceit cannot be maintained against a vendor for having falsely affirmed that a person bid a particular sum for the estate, although the purchaser was thereby induced to purchase it and was deceived in the value" (b). If that be law it would seem clear that the exemption from liability for the species of deception now under discussion does not depend upon any supposed distinction between a statement of intention and a statement of fact. As with intention so with opinion; the question whether a man does or does not entertain a particular opinion is a question of fact. An expression of opinion not honestly entertained, and intended to be acted upon, cannot be regarded otherwise than as a fraud (c). The obstacle in the way of maintaining an action for a false representation as to a mere matter of opinion lies in the difficulty of proving what the defendant's real opinion was. A misrepresentation as to a person's legal position may be a sufficient misstatement of fact to afford matter of defence; thus a fraudulent misstatement as to the legal effect of a deed will preclude the party guilty of the fraud from enforcing the deed (d), but whether such a misstatement will give a cause of action for deceit has apparently never been decided, though there seems to be no valid reason why it should not (e). A misrepresentation may be either express, or implied from conduct. (a) Per Mansfield, C.J., Vernon v. Keys, 12 East, p. 493. 3 (b) Sugd. V. & P. 14th ed. p. 2, citing Rolle, Ab. 101, pl. 16. (c) See per Willes, J., Anderson v. Pacific Insurance Co., L. R. 7 C. P. p. 69; though in Peek v. Gurney (L. R. 6 H. L. p. 404), there is a passage in Lord Cairns's judgment which seems to sug- (e) See West London Commercial Bank v. Kitson, 13 Q. B. D. 360. |