Workmen's Compensation Act: Contributory Negli

gence.

Paul v. G. E. Railway 3 is a case where the muchdiscussed principle of "contributory negligence" received discussion and a fresh re-statement which is worth noting.

The action itself was one between the Employers of a man who had been killed and to whose representatives they had paid compensation under the W. C. Act, and the Railway Company whose servant by negligence caused the accident. It was a case of indemnity as provided by the Act.

The facts were that the man killed was deaf. He was employed by the Plaintiffs doing general work along the rails which ran from the Plaintiffs' premises to a Wharf along which the Defendants hauled waggons loaded and unloaded. The Employees of the railway all knew Blyth, the dead workman, knew he was deaf, and they regarded him as a nuisance.

On the day of the accident he was cleaning up some beans that had been spilled on the track and was on his knees with his back to the direction whence the Defendant's waggons might come, and as a fact did come. Two waggons were being hauled by a shunter, an inspector of the Defendants pointed the dead man to the waggons but he could not hear and paid no attention. The waggons came along in charge of a man named Ellis. Ellis admitted he saw and knew Blyth. He said he called to him, but knew he was deaf and could not hear; and still he hauled on until it was too late to stop before the waggons ran over and killed Blyth. The Court held that right of indemnity should be determined upon the same principle as if Blyth had not been killed, but only injured and had sued the Railway Company for negligence. Contributory negligence was, therefore, in issue.

The Court admitted negligence on Blyth's partthat is to say he should not, being deaf, have been

36 36 T. L. R. p. 344.

working at all in a place of danger. But that was a different thing from contributory negligence in Law. And laid it down that the true proposition in regard to contributory negligence is that "if a person while taking no step in regard to an accident is injured without knowing he was in imminent danger, although he could have known it and could have protected himself but for his own carelessness, and if the person who ran over him saw that he did not know it but negligently drove on and killed him, the person who so caused the injury is liable and the plea of contributory negligence fails." Tuff v. Warman, followed.

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Workmen's Compensation: Accident in Course of

Employment.

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Dennis v. Taylor as is a Taxi-Cab Case of importance in Canada. The Plaintiff, a woman, was a Taxidriver for Defendant. At Easter time she got on request the half of Monday. On the morning of that day she drove several people in the ordinary course. On her way back, the half holiday having then commenced, she was accosted and agreed to drive some other people to a place outside the limit within which, as she knew, the car was licensed. On finally returning about six o'clock in the evening she met with an accident which resulted in the loss of her left arm. She claimed compensation and was awarded it.

The Court of Appeal unanimously reversed the Order on the ground that the accident did not arise in the course of the employment. The plaintiff was under no employment to drive the car at all at the time of the accident. She was on a holiday so far as the employer was concerned or knew; and she was violating his specific instructions not to drive any one beyond the limits of the area for which the car was licensed.

Everett v. Falstaff 39 was referred to though it was not nearly so strong a case as the present.

375 C. B. N. S. p. 573, followed.

38 89 L. J. K. B. p. 158.

39 1913, W. C. & Ins. Rep. 164.

Sale of Goods Act: Warranty of Fitness.

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A rather remarkable case is that of Geddling v. Marsh. Mineral water was sold and supplied in bottles, the contents and the bottle being separately charged; and the price charged for the bottle being refunded on its return, failing which the purchaser forfeited or had to pay the price.

The Court of first instance held the bottle was not a mere bailment, but was goods supplied under a contract of Sale within Section 14 of the Sale of Goods Act and gave damages for breach of the warranty of fitness under that Act.

In the Court of Appeal this decision was upheld.

Both the Judges of Appeal agreed on this and on the doctrine put forward by the Defendant's Counsel that the liability for a warranty with respect to a bailment is different from that on a Sale of Goods, and a Sale of Goods under the Sale of Goods Act.

They held, too, that whether the accident arose from the defect of the bottle or the imperfect composition of the contents, the result was the same so far as the warranty was concerned-all were supplied, mineral water and bottle, under a Contract of Sale of Goods.

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42

Vide Hyman v. Nye,11 Bates v. Batey.12

Leased Premises Requisitioned by Crown: Is the Lessee Ejected?

Whitehall v. Ettlinger, is an interesting case where certain flats held under a Lease were required by the Crown for war purposes. The Lessee was ousted-practically evicted. He refused to pay rent from the time the Crown took possession, and died before the Crown vacated.

The Landlord sued the Lessee's representative under his Lease for full rent, ignoring the fact of the

40 36 T. L. R. p. 337.

41 6 Q. B. D. 685.

42 1913, 3 K. B. 351.

43 89 L. J. K. B. p. 126.

Crown's possession. The representatives of the Lessee claimed that they were in the same position as if evicted or ejected by title paramount, and entitled to identical relief.

--

Lord Chief Justice Reading, however, held the contrary, that the term of the demise had not been interfered with by the entry of the Crown, and that the rent was payable by the Lessee whose right of redress lay against the "War Losses Commission." He intimated, however, that he had compunctions, and that if he were determining a Contract that had been frustrated by the action of the Crown his view would be different.

I would like to see this in the Higher Court.

Criminal Law: Incriminatory Questions.

Rex v. Ratcliffe is a decision of the Court of Criminal Appeal as to the right to put to a prisoner questions concerning his antecedent life with a view of incriminating him when he himself has not put his antecedent character in issue or pleaded it in extenuation of the offence with which he is immediately charged.

In this case on the first trial the Prisoner was undefended, but the Recorder who tried him interrogated him with 18 questions which insinuated previous offences, and left the jury under the impression he was guilty of these.

On Appeal the Court held the questions illegal, and ordered the conviction to be quashed.

Assignment of Lien Note: Obligation to Preserve Remedy.

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Fairchild v. Thompson * restates the principle laid down in Sawyer-Massey v. Weder, that if a Lien Note

44 89 L. J. R., K.B. p. 135.

45 89 L. J. K. B. 90; 36 T. L. R. 17.

48

46 79 L. J. K. B. 841; (1910) 2 K. B. 746.

47 1920, W. W. R. vol. 1, p. 774.

48 22 W. L. R. 150.

has been assigned as a collateral security there is a duty on the assignee to preserve the security thereof; and he should see that none of the remedies are lost. If lost the assignee is chargeable with the loss.

The fact that a return of nulla bona had been made against the Defendant who had given the Lien Note so far from being an excuse for not preserving the remedy on the Lien Note was an augmented reason for putting it into operation.

The absence of the requisite Affidavit of bona fides in no way affected the value of the Lien Note as between the parties to it or as between the giver of it and the assignee of the person who first received it.

Claim for Specific Performance and Rescission for Fraud.

In Elliott v. Barry," an action was brought for specific performance, and the claim was afterwards. amended by asking rescission on ground of Fraud.,

This was clearly incompatible, the two claims being destructive of one another.

Specific performance involves an affirmance of a contract. Fraud is its disaffirmance. If disaffirmance does not follow within a reasonable time after the acquisition of the knowledge of the Fraud, there is deemed to be a waiver of the matter and the affirmance of the Contract in spite of it.

In this case the Plaintiff was given the alternative of striking out one claim or other and proceeding with the action.

The subject of Fraud and affirmance is stated in Clough v. L. & N. W. R.50 and in Consolidated v. Acres.51

49 1920, W. W. R. vol. 1, p. 777.

50 1871, L. R. 7 Ex. 26; 41 L. J. Ex. 17.

51 1917, 1 W W. R. 1426.