Odger's English Common Law

430 TORTS GENERALLY..
It is sometimes difficult to ascertain whether the facts of the case give
rise to a cause of action founded on tort or on contract. " The distinc-
tion is this : if the cause of complaint be for an act of omission or nonfeasance
which without proof of a contract to do what has been left undone
would not give rise to any cause of action (because no duty apart from
contract to do what is complained of exists), then the action is founded
upon contract and not upon tort. If, on the other hand, the relation of
the plaintiffs and defendants be such that a duty arises from the relation-
ship, irrespective of contract, to take due care, and the defendants are
negligent, then the action is one of tort." 1
An action by a passenger against a railway company for personal injuries
caused by negligence is an action founded on tort, although he took a
ticket. 8 Thus, where a railway company contracted with a master to carry
himself and his servant, and in so doing was guilty of negligence whereby
the servant's luggage was lost, it was held that the servant could sue in tort
for the loss which he had suffered. 8 The master also could bring an action
on the contract which he had made with reference to his servant and
which • the company had broken by not safely conveying his servant's
luggage to its proper destination. Again, to take an illustration given by
a learned judge 4 :— " Eailway A. issues tickets for railway A. and railway
B. The traffic is sometimes worked by carriages and servants belonging
to railway A., and sometimes by carriages and servants belonging to
railway B. A passenger takes a ticket from railway A. and gets into a
carriage belonging Co railway B., drawn by railway B.'s engines and
manned by railway B.'s servants. The passenger traverses some portion
•of railway B.'s line ; an accident is caused by the negligence of railway
B.'s servants and through some defect in railway B.'s carriages not being
properly adapted to the exigencies of the traffic. He could sue railway
A. on the contract arising from the ticket issued by that company to carry
him the whole distance with reasonable care and caution, or he could sue
railway B. as the immediate authors of the negligence " for a breach of
the duty cast on railway B. by his having been received or invited into one
•of their carriages and so become a passenger on their railway.
So, if an apothecary administer improper medicines to his patient, or a
surgeon unskilfully treat him and thereby injure his health, the apothecary
or surgeon will be liable to the patient, even where the father or friend
of the patient may have made the contract and be liable for the fee ;
if no such contract had been made, the apothecary or the surgeon would
still be liable to an action for negligence. 5
Again, there are cases in which a person, who is no party
1 Per Smith, L. J., in Kelly v. Metropolitan By. Co., [1895] 1 Q. B. at p. 947 ;
.and see Meux v. G. E. By. Co., [1895] 2 Q. S. 387.
2 Taylor v. Manchester, #c, By. Co., [1895] 1 Q. B. 134 : Kelly v. Metro-
politan By. Co., [1895] 1 Q. B. 944.
* Marshall v. York, Newcastle and Berwick By. Co. (1851), 11 C. B. 655.
i Per Lopes, J., in Foulkes v. Metropolitan District By. Co. (1879), 4 C. P. D.
at p. 282 ; and see Hooper v. L. and N. W.'By. Co. (1881), 50 L. J. Q B 104 ;
Berringer v. G. E. By. Co. (1879), 4 0. P. D. 163.
6 Gladwell v. Steggall (1839), 5 Bing. N. C. 733 ; and see the judgment of
the Court in Longmeid v. Holliday (1851), 20 L. J. Ex. at p. 432.
for,