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provisions of chapter 78 of the Consolidated Statutes of the then Province of Canada (1859), which, though not identical in expression, were the same in substance with the enactments of the English statute 9 & 10 Vict. c. 93, commonly known as Lord Campbell's Act. In both statutes a right of action is given, in general terms, to the representative of the deceased, for behoof of his widow and other relations entitled, in all cases where an act or default is such as would, if death had not ensued, have entitled the party injured to maintain an action. Their provisions leave indefinite some things which in the code are defined. They leave to implication the conditions upon which the right is not to survive, and by that omission, favour the suggestion that what was intended to pass to the representative was such right of action as the deceased had at the time of his decease."
To give a complete cause of action, however, in such a case there must be damnum et injuria. Mere negligence could not give a right of action unless damage were caused thereby or resulted therefrom. [See Broom's Comm., 6th ed., p. 101 ; Cf. Holmes v. Mather (L.R. 10 Ex. 261).]
To an ordinary action of tort for personal injuries resulting from negligence it is admitted that the maxim, Actio personalis moritur cum personå, applies. Thus, in Pulling v. Great Eastern Railway Company (L.R. 9 Q.B.D. 110), which was an action of tort by the widow, as executrix, of a man who had been injured at a level crossing on the defendants' railway by a passing train, and subsequently died without having recovered any compensation, the plaintiff claimed damages for injury to the personal estate of the deceased by reason of his having incurred medical expenses in endeavouring to effect a cure of his injuries. But it was held that, as the damage arose from tortious injury to the intestate's person, the maxim applied, and the action could not be maintained. And similarly in Lendon v. London Road Car Company (4 Times L.R. 448)—also an action for personal
injuries caused by the defendants' negligence. The injured party, after having commenced his action, died before it came to trial. His administratrix thereupon applied for liberty to continue the action, in order to recover the medical expenses which had been incurred by the plaintiff owing to the accident. This was, however, refused, the Court (Lord Coleridge, C.J., and Mathew, J.) holding that the entire cause of action was gone.
Is the maxim, then, any the less applicable to a case in which the injured person, having been a passenger at the time of the occurrence, relies on an implied contract that all due care shall be taken to carry him safely? No valid distinction can, it is submitted, be maintained between an action in such form, and an action in respect of the breach of duty in not using due care ; for, whatever be the form of the declaration, the action must always be, in substance, one of tort-an action ex delicto, even though founded, in some degree, on contract.
Although the action is often stated in the form of assumpsit, the more regular form of stating it is, as depending on the common-law obligation to carry with reasonable care. (See Ansell v. Waterhouse (6 M. & S. 385); and Marshall v. York, Newcastle, and Berwick Railway Company (11 C.B. 655).] “It seems to me," says Williams, J., in the latter case, at p. 663, " that the whole current of authorities, beginning with Govett v. Radnidge and ending with Poszi v. Shipton, establishes that an action of this sort is, in substance, not an action of contract, but an action of tort against the company as carriers." Marshall v. York, Newcastle, and Berwick Railway Company (supra) was an action for the loss of a passenger's luggage, but the observations of Williams, J., apply a fortiori to a case of personal injuries, because of the broad distinction which lies between actions in respect of the carriage of goods and those in respect of the carriage of passengers. In the former case the law makes the carrier an insurer (Riley v. Horne (5
Bing. 217)); but in the latter case the carrier's liability rests upon the absence of due care to carry the passenger safely ; in other words, negligence is the gist of this action (Redhead v. Midland Railway Company (L.R.2 Q.B.412; L.R. 4 Q.B. 379)). “Where," says Littledale, J., in Burnett v. Lynch (5 B. & C.), at p. 609, "there is an express promise, and a legal obligation results from it, then the plaintiff's cause of action is most accurately described in assumpsit, in which the promise is stated as the gist of the action. But where, from a given state of facts, the law raises a legal obligation to do a particular act, and there is a breach of that obligation and a consequential damage, then, although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case founded in tort is the more proper form of action."
Again, in Howell v. Young (5 B. & C. 266), a case subsequently referred to in Smith v. Fox (12 Jur. 130), and there stated to be good law, Bayley, J., says: “It appears to me that there is not any substantial distinction between an action of assumpsit founded upon a promise, which the law implies, that a person will do that which he is legally liable to perform, and an action on the case which is founded expressly upon a breach of duty. Whatever be the form of action, the breach of duty is substantially the cause of action.” And in the same case Holroyd, J., says: “The cause of action is the misconduct or negligence of the attorney. The Statute of Limitations is a bar to the original cause of action and to all the consequential damages resulting from it, unless, indeed, it can be shown that the damages, or any part of them, constitute a new cause of action which accrued within six years. I think it makes no difference in this respect whether the plaintiff elects to bring an action of assumpsit founded upon a breach of promise, or a special action on the case founded on a breach of duty. The breach of promise, or of duty, took place as soon as the defendant took an insufficient
security. Whether the plaintiff, therefore, elect to sue in one form of action or another, the cause of action, which in either form is substantially the same, accrued at the same moment of time. The breach of duty, therefore, constituting a cause of action, it follows that the Statute of Limitations is a bar to this action, unless the special damage alleged in the declaration constitute a new cause of action.”
The mere form of the pleadings, therefore, cannot alone determine the rights or liabilities of the parties to an action ; but, for this purpose, the substantial cause of action must be considered.*
The right of an executor to recover does not, however, depend upon the distinction between contract and tort, but upon whether the action be a personal action, or one relating to property. Personal actions are for the recovery of a debt, or damages for the breach of a contract, or a specific personal chattel, or a satisfaction in damages for some injury to the person, personal, or real property (see Chitty's Pleading, 7th ed. vol. i. p. 109). “Formerly," says Lord Esher, M.R., in Finlay v. Chirney (L.R. 20 Q.B.D. 494) (see p. 498), “an action of tort was almost inevitably a personal action; but it did not follow necessarily that an action was not personal because it was founded on a breach of contract.” Personal actions are in form ex contractu or ex delicto, or, in other words, are for breach of contract, or for wrongs unconnected with contract (Chitty's Pleadings, 7th ed. vol. i. p. 109).
In actions arising out of the negligence of carriers of passengers, the right of the executor to sue depends entirely upon the statute 4th Edward III. c. 7. [See per Quain, J., in Leggott v. Great Northern Railway Company (L.R. 1 Q.B.D.
* Cf. O'Sullivan v. Dublin, Wicklow, and Wexford Railway Company (Ir. R. 2 C.L. 124); Pontifex v. Midland Railway Company (L.R. 3 Q.B.D. 23); Fleming v. Manchester, Sheffield, and Lincolnshire Railway Company (L.R. 4 Q.B.D. 81); Taylor v. Manchester, Sheffield, and Lincolnshire Railway (1895) (1 Q.B. 134); Kelly v. Metropolitan Railway (1895) (Q.B. 944).
599, 606).] By this statute, which recites that “in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their lifetime," it is enacted “that the executors in such cases shall have an action against the trespassers, in like manner as they whose executors they are should have had if they were living."
"The true test,” says Lord Esher, M.R., in Finlay v. Chirney (L.R. 20 Q.B.D. 494) (see p. 499), “is whether the cause of action itself is one which affects property.” And in that case it was held that an action for breach of promise of marriage would not lie against the executor of the promisor, there being no special damage alleged and proved. [And see Chamberlain v. Williamson (2 M. & S. 408).]
The special damage which would support such an action must also have been in the contemplation of the parties at the time the contract was entered into. [Hadley v. Baxendale (9 Ex. 341); Finlay v. Chirney (L.R. 20 Q.B.D. 494).]
The term "special damage,” which has been found for centuries in the books, is not always used with reference to similar subject-matter, nor in the same context. At times (both in the law of tort and of contract) it is employed to denote that damage arising out of the special circumstances of the case, which, if properly pleaded, may be superadded to the general damage which the law implies in every breach of contract, and every infringement of an absolute right. In all such cases the law presumes that some damage will flow, in the ordinary course of things, from the mere invasion of the plaintiff's rights, and calls it general damage. Special damage, in such a context, means the particular damage (beyond the general damage) which results from the particular circumstances of the case, and of the plaintiff's claim to be compensated for which he ought to give warning in his pleadings in order that there may be no surprise at the trial.
But where no actual and positive right (apart from