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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justioe,
Mr. Justioe Wendt, and Mr. Justioe Middleton.
ATTORNEY-GENERAL v. SMITH.
D. 0., Colombo, 20,723.
Non-liability of Crown for negligence of servants of the hospital—
Point not argued in the lower Court taken for the first time in appeal.
Where the Government provides a hospital, and admits patientsinto it on the terms that they shall have the uae of the rooms andthe instrumentsand medicinesand appliancesandthe services of
physioiaus andsurgeons andnurses and attendants gratuitously,
With only a charge for admission, there is no implied undertakingon the part of the Government to be liable for the negligence of any of theservants employed in such hospital.
Where in anaction by theAttorney-Generalonbehalf of the
Government forcertain chargesin respect ' ofthedefendant's wife,
who was admitted into the Government hospital at ' the defendant'srequest, on his undertaking to pay such charges, the defendantclaimed damages m reconveution, on the ground that the agentsand servants of the Government who were performing or assistingin the operation on the defendant's wife in the hospital acted in eounskilful and negligent' a manner that the defendant's wife was soseverely scalded and sustained such grave injuries that she died fromtheir effects,—
Held, that there being no express or implied undertaking on thepart of the Government to be liable, for the negligence of its servantsemployed in the hospital, the defendant had no cause of actionagainst the Government for damages.
Judgment in appeal, (1907) 10 N. L. B. 263, reversed.
EARING in review of the judgment reported in (9107) 10N. L. B. 263.
Walter Pereira, K.C., 8.-G. (Maartenez, C.C., with him), for theAttorney-General.
Elliott (B. F. de Silva with him), for the defendant.
Cur. adv. vult.
May 11, 1908. Hutchinson C.J.—
The plaint alleges that at the request of the defendant and on hisundertaking to pay the charges, Mrs. Smith (the defendant’s wife)was admitted into the General Hospital at Colombo, the properly ofthe Government of Ceylon, as a patient, and that she remained thereas a patient from May 17 to June 8, 1908; and the plaintiff, whois the Attorney-General, suing , for the Government, claims pay-ment of the charges, amounting to Bs. 131.70.
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The defendant says in paragraphs 2 and 8 of his answer that his 1908.wife was admitted on the undertaking on the part of the Government Maythat all due care and reasonable skill should be exercised by the Hutchinsonagents and servants of the Government-, who comprised the staff of C J-the hospital, in the treatment, nursing, and care of the defendant’swife; that it was on that undertaking that he agreed to pay thecharges; and that while she was a patient in the hospital, and in thecourse of an operation performed on her, the agents and servants ofthe Government who were performing or assisting in the operationacted in so unskilful and negleotful a manner that she was severelyscalded, and sustained such grave injuries that she died from theaffects of them. He accordingly denied his liablity to pay thecharges, and claimed damages from the plaintiff for the loss anddamage which he had sustained by reason of her death.
The plaintiff, in reply, joined issue as to the facts set out in para-graphs 2 and 3 of the answer, and specifically denied the allegedunskilfulness and negligence, or that the death of the defendant'swife'was “ attributed to scalding” and denied that the defendanthad sustained any damage, or that, if he had, he was entitled torecover it from the plaintiff.
The action was commenced in the Court of Bequests; but after theanswer was filed, it was by order dated September 14, 1904,transferred to the District Court.
As I read the answer, the defendant founds his claim on thealleged undertaking by the Government that their < servants in thehospital should exercise oare and skill, and on the alleged negligenceand unskilfulness of some one or more of the servants in breach ofthat undertaking. The plaintiff has contended that the defendant’sclaim is really for a tort and not for a breach of contract, and that itis therefore not maintainable against the Government; but I willfor the present assume that it is for a breach of contract. As theplaintiff had joined issue on the allegation as to the alleged under-taking by the Government, one would have expected that therewould have been an issue settled as to whether there was such anundertaking or not, and that the parties would have asked the Court,or that the Court without being asked would have determined, totry that issue first before embarking on the long and costly inquiryas to whether there was negligence, and if so, whether it was thecause of, or contributed to, the lady’s death. No such issue,however, was specifically settled. The Court settled an ‘‘ issue oflaw ”—whether the answer disclosed a defence to the claim (withwhich we are not now concerned),—and four “ issues of fact agreedupon by both parties, ” viz.: —
(1) Did the agents and servants of the plaintiff (meaning, ofcourse, of the Government) in the course of an operationon Mrs. Smith on May 23, 1903, act so unskilfully andnegligently that she was scalded in three' places?
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Was her death due to the scalding?
'What damages did the plaintiff suffer by the death of his
Is he entitled to recover such damages from the plaintiff ?
The fourth issue was obviously framed with reference to theplaintiff’s averment in the replication that if the defendant sufferedany damage he was not entitled to recover it from the plaintiff.
The District Court gave judgment at once for the plaintiff on hisclaim as to which there is no question now; and the trial of thedefendant’s claim then proceeded on the above four issues. Thedefendant’s counsel first asked for an additional issue as to whetherthe scalding was a “ probable ” or “ contributory ” cause of death,which, however, the District Judge rejected, because it did notarise on the pleadings. Evidence was then given by the defendantand his witnesses at some length, the trial lasting twelve days; andon December 7, 1904, the District Judge, Mr. Weinman, gave hisjudgment. He found that the bums on Mrs. Smith were due tocarelessness on the part of some servant of the Crown, amounting tonegligence, and said that he was unable to particularize the indivi-dual responsible for the negligence; that the death of Mrs. Smithwas not due to the bums;.and that it was unnecessary for him toadjudicate on the third and fourth issues. He therefore gave judg-ment for the plaintiff on his claim, and dismissed the defendant’sclaim.
The defendant appealed against this judgment, and on May 25,1905, the Supreme Court, composed of Layard C.J. and Moncreiff J.,ordered a new trial. This was done, as appears from the judgmentof the Chief Justice, because they thought that the District Judge• ought to have accepted and tried the issue which was suggested bythe defendant, whether the scalding contributed to Mrs. Smith’sdeath. Moncreiff J. gave no reason, but he concurred in the orderproposed by the Chief Justice, and doubtless for the same reason.The Chief Justice also said that the plaintiff had suggested that thedefendant’s claim was an action on a delict, but that he thought itshould be treated as founded on contract, that is, on the impliedundertaking alleged in the answer, and he expressed his opinion thatthe admission of a person into the General Hospital for treatmentinvolves an implied undertaking on the part of the Governmentthat due and reasonable skill will be exercised by the staff of thehospital, i.e., by the servants of the Government, in the treatment,nursing, and care of the person admitted. Moncreiff J. made no refer-ence to this point. Hfis judgment is entirely devoted to the discus-sion of the question—What was the cause of Mrs. Smith’s death; andhaving arrived at the conclusion that, on the materials then beforethe Court, the bums contributed to the death, he simply agreed tothe order suggested by the Chief Justice without noticing the fourth
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issue. The formal order of the Court was that the judgment of theDistrict Court be set aside, and the case remitted to the said Courtfor a new trial and for fresh adjudioation.
The case then came on for a new trial before another Judge,Mr. Djas, in September, 1906, when by consent the following addi-tional issue was framed: Did the scalding contribute to Mrs. Smith’sdeath in any way? By consent all the depositions of the first trialwere taken as part of the proceedings, and additional evidenoewas taken on both sides, and evidence which had been taken onboth sides on commission in England .was also read. Upon objectionbeing taken by the defendant to any evidence being adduced onthe question of negligence, the District Judge quite rightly ruledthat, as this was a new trial, he considered that all the issues wereopen for decision by him, and he over-ruled the objection. OnNovember 5, 1906, he gave judgment. He said that the mainquestions at the first trial were whether the servants of the Crownhad negligently scalded the defendant’s wife, and whether her deathwas caused by such scalding, and that the case had been sent back forthe determination of the further issue, whether or not the scaldingin any way contributed to the death. He came to the conclusionthat the scalding was due to a pure accident, and that the deathwas caused by exhaustion consequent on the lumbar abscess (forwhich the operation took place) complicated with dysentery andacute mania, and that the burns in no way contributed to it. Hav-ing been asked to assess the damages to which the defendant wouldbe entitled if he had succeeded, he assessed them at Rs. 10,000.And he gave judgment for the plaintiff on his claim, and dismissedthe defendant’s claim.
The District Judge makes no reference to the fourth issue, excepthis ruling that all the issues were open for decision by him. In viewof his finding on the additional issue, it was not necessary for himto decide the fourth issue. The defendant appealed against thejudgment of Mir. Dias. The appeal was heard by Middleton J. and'Wood Renton J., and judgment on it was given on August 11, 1907.On the questions whether the burns on Mrs. Smith were caused bythe negligence of some servants or servant of the Government, andwhether the burns contributed to her death, the Court came to adifferent conclusion from the District Judge. They were of opinionthat upon the evidence the bums were caused by negligence, andcontributed to the death as the defendant had contended; thenegligence being, according to the finding of Middleton J., that ofone of the hospital nurses. And they assessed the damages atBs. 15,000. With regard to the question of the liability of theGovernment, they held that the plaintiff was no longer liberty w?contest it. Middleton J. said:“ As regards the question whetner
the Government would be liable for any negligence on the part of thesurgeon and nurses of the hospital, it was admitted that this was
5J. X. A 99909 (8/50)
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1908. not argued in the Court below, and there is no issue which directlyMay 11. raises the question. If this point had been taken at the inceptionHutchinson the case, it might have been raised by a special issue of law aaC.J. provided under the Civil Procedure Code, and a decision in favourof the plaintiff before the commencement of the trial might havebeen taken to the highest Court of the Empire, and, if affirmed, wouldhave prevented the enormous expense which the two trials of the
issues of fact in this case have involvedIn my opinion the
whole case has been fought on the principle that if the defendantproved negligence, and that negligence caused or contributed to thedeath of the deceased, the Government were prepared to pay thedamages the Court might award. Without, therefore, expressingany opinion as to the legal position of the Government in its relationto the employes of the hospital, I am prepared to hold that it has.waived its legal rights in this respect, if such exist, and must be heldnow bound to make that reparation which it impliedly admittedmust be made if the issues agreed upon were decided unfavourablyto it.”
And Wood Renton J. said: “ It was contended by the learnedSolicitor-General, on the argument before us, that the appellanthas no cause of action on the two-fold ground, that by the commonlaw of the Colony a husband has no right to sue for damages inconsequence of the death of his wife owing to the tortious act of a.third party, and also that, even if such a right of action existed, itwould not lie against the Attorney-General, against whom, in hisofficial capacity, the appellant’s claim in reconvention has beenpresented. I do not think that either of these points can avail theCrown in this action.” He then discussed the general right of ahusband to recover damages for the death of his wife owing to thetortious act of a third party, and then proceeded: “ But even if Iwere in doubt whether the present action is maintainable on theground with which I have been dealing, I should still hold that the
point was not open to the Crown in this oaseNo materials
are now before us on which it would have been possible for us todetermine the real contractual relationship between the Crown, thehospital authorities, and patients admitted into the hospital. Suchmaterials, however, could readily have been obtained. But I amclearly of opinion that no opportunity of adducing such evidence
ought at this stage to be given to the CrownFrom start to
finish the attitude of the Crown towards the present appellant, sincethe plea of delict was disposed of, has been to court full inquiry and toaccept the responsibility, if the appellant proved the allegations in
his claim in reconventionIt would be highly inequitable now
to permit the Crown, at the eleventh hour, after the case has beenfought exclusively on the issues of fact, to fall back on a plea in lawwhich would render the proceedings abortive. ”
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I agree with the judgment under review that the burns of Mrs.Smith were caused by the negligence of a nurse, and that theycontributed to her death. I cannot agree that the plaintiff was notentitled to have a decision on the fourth issue. Mr. Weinman didnot decide it because, after his finding on the seoond issue, it wasnot necessary. At the seoond trial Mr. Dias did not again decideit, because again it was not necessary. And it appears to me thatwhen that judgment came up on appeal, the Appeal Court, if itdecided the other issues adversely to the plaintiff, was bound to givea decision on the fourth issue. I cannot infer from the proceedingsat the trials that the plaintiff abandoned that issue. It would clearlyhave been the duty of Mr. Dias, if he had decided the other issuesdifferently, to decide the fourth issue also. If is true that theproceedings were badly managed; that it would have been betterto decide first the fourth issue, the decision of which might haverendered the others unnecessary; the District Judge might havetaken upon himself to take this course, or either of the parties mighthave asked him to do so; but I do not see that the plaintiff is anymore to blame than the defendant for not having done so. Nor canI agree with Wood Benton J. that we have no materials for decidingwhat was the contract between the Crown and the patient. I thinkit is probable that we have all the materials which we could havehad; at any rate, if we have not, it was for the defendant to providethem; and there is no hint anywhere that the plaintiff ever askedfor an opportunity of adducing any further evidence on the point.In my opinion, therefore, we must decide the fourth issue: “ Is thedefendant entitled to recover the damages from the plaintiff ?
The plaintiff in his plaint alleges, and the defendant in his answeradmits, that at the request of the defendant and on his undertakingto pay the charges the defendant’s wife was admitted into the GeneralHospital, the property of the Government, as a patient; and thecharges which the plaintiff claimed, and which the defendant hasbeen held liable to pay, are: costs of her subsistence at Bs.- 5 perdiem, entrance fee Bs. 10£, ambulance hire' Bs. 5$, and 70 centsextra. The defendant adds that there was an undertaking on thepart of the Government that all due care and reasonable skillshould be exercised by the agents and servants of the Government,who comprised the staff of the hospital, in the treatment and careof his wife. There is no evidence of any express understanding,and it may be taken as certain that there was none; so that thedefendant must rely on an undertaking implied from the abovefacts. All that he says on the point in his evidence is that his wifewas ill; that his private medical advisers said that a seriousoperation was necessary, and wanted him to take her to the hospital,and at his suggestion Dr. Garvin was called in, and recommendedthat she should go to the hospital. There is no other evidenceon the point. Is it possible to say from these facts that there was
( H» )19M. suoh an implied undertaking as the defendant alleged ? An impliedundertaking is ..one which is not expressed, but whioh we inferHutobiksok from the circumstances that the parties intended, or, in other0 Ji words, which they would have expressed if they had put down fullyin writing the whole of the terms of their agreement. Would anyGovernment or any association providing a hospital and admittingpatients into it on the terms that they shall have the use of the rooijasand the instruments and medicines and appliances and the servicesof physicians and surgeons and nurses and attendants gratuitously,with only a charge of Bs. 10$ for admission, bind itself to be liablefor any negligence on the part of any physician, surgeon, nurse,dispenser, or bottle washer employed in the hospital ? Would anypatient expect the Government or association to undertake such aliability? In my opinion, certainly not. If any patient were to' ask for suoh an undertaking, thl answer would certainly be a refusal.The question, however, is probably covered by authority either hereor in England; for amongst the thousands of cases which areadmitted into hospitals every day, since hospital staffs are humanbeings and liable to occasional lapses into negligence, there mustbe multitudes of cases in which the patient suffers through the-negligence of some of them.
In Powers v. Massachusetts Homoeopathic Hospital1 the defendantswere a charitable corporation; the plaintiff had been a ‘‘ payingpatient,” paying 14 dollars a week, and sued for damages for injuriescaused by the negligence of a nurse employed in the hospital; theliability of the defendants for which the plaintiff contended was theliability of a master for the torts of his servants, and the-Court treatedthe action as one for a tort. The Court first discussed the generalquestion of the liability of a political or municipal body or trustees ofa charity for the torts of their servants, and referred to several casesin which it had been held that a raiload company, having in itsregular employ physicians and surgeons, whose duty to the companyrequires them to care for the sick and injured among the company’sservants, is not liable to those servants for the negligence of thosemedical men. They then refer to the American case of Macdonaldv. Massachusetts General Hospital, in which it was held that a patientcould not recover for damage caused by the negligence of a hospitalinterne or surgeon. And they held that an agreement by the plain-tiff to hold the defendant harmless from the acts of his servantsarose by necessary implication from the relation of the parties.They said: “ One who accepts the benefit of either a public orprivate charity enters into a relation whioh exempts its benefactorfrom liability for the negligence of his servants in administeringthe charity; at any rate, if the benefactor has used due care in
selecting those servantsit would be intolerable that a good
i (1901) 66 Lava Rep. Ann. 378.
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Samaritan who takes to his house a wounded stranger for surgicalcare should be held personally liable for the negligence of hisservant in caring for that stranger. Were the heart and means ofthat Samaritan so large that he was able not only to provide for onewounded man, but to establish a hospital for the care of a thousand,it would be no less intolerable that he should be held personallyliable for the negligence of his servant in caring for any one of thosethousand wounded men. We cannot perceive that the position of
the defendants differs from the case supposedIf a suffering
man avails himself of their charity, he takes the risk of malpractice,if their charitable agents have been carefully _ selected.” Theyaccordingly held that the defendants were not liable, without deci-ding whether they would have been liable upon proof that a nursewas incompetent, and that her incompetence was or ought to havebeen known to the defendants.
In Hdtt v. Lees1 the claim for damages for injuries caused by thenegligence of a nurse, the defendants were an association whoseobject was to provide for the supply of duly qualified nurses to attendon the sick in a certain neighbourhood; they supplied two nursesto attend on the plaintiff during an operation, and the plaintiff wasburnt through the negligence of one of the nurses in the use of a hotwater bottle. The Master of the Bolls said that the question depend-ed on the true effect of the contract between the association and thepatient, and held that what the association undertook was merelyto find and supply nurses, using all reasonable care and skill in orderto ensure their being competent and efficient; and the Court heldthat the defendants were therefore not liable. That case dependedon what was the contract to be implied from the circumstances, andespecially from the rules and regulations of the association, andis therefore not conclusive of the present case.
In Evans v. Mayor, &c., of Liverpool,2 the defendants, a localauthority, acting under statutory authority, provided a hospitalfor the use of the inhabitants of their district.- The plaintiff’s sonwas treated in the hospital for fever, and the action was ior damagescaused by hi6 premature discharge from the hospital. At the trialcertain issues of fact were tried (as in the present case), and the juryfound, in answer to questions put to them by the Judge, that therewas a want of reasonable care and skill on the part of the visitingphysician of the hospital in or about the discharge of the boy; thatin consequence of such want of skill and care the plaintiff sufferedthe damage complained of; and that there was an undertaking bythe defendants with the plaintiff that their visiting physician shouldact with reasonable care and skill in and about the discharge ofthe boy. The Judge, however, on further consideration, held thatthere was no evidence of such an undertaking. He said that the
i (190$ 2 K. B. 602.2 (1906) 1 K. B. 160.
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1908. defendants in such a case undertake the duties of persons whoMay 11. undertake to manage and carry on the business of a hospital with all “ skill and care; that they do not undertake the duties of medical
C.J. men, but only that the patients shall have competent medical adviceand assistance. And he gave judgment for the defendants.
In the first of the above cases, the claim was put as being in respectof a tort, the claimants seeking to make the defendants liable for thewrongful act, independently of any contract, of the servants. In thelast, as in the present case, it was put in as in respect of a contract. .The Attorney-General’s counsel contended .that the claim is realLyfor a delict, for which he contended that the Crown cannot be sued.
I think, however, that as Layard C.J. said, it is founded on contract;and Mr. Smith’s counsel stated, on the argument before us, that hisclaim is on the implied undertaking. If there was no such impliedundertaking, the claim against the Government must fail.
■Whether there is such an implied or “ tacit ” undertaking is a pureinference of fact, .the question being whether the conduct of theparties has been such that a reasonable man would understand fromit that there was such an undertaking. In my opinion, there isno evidence of such an undertaking. The Government did notundertake to perform the operation on Mrs. Smith and nurse andattend to her while she was in the hospital, but only to supply properrooms and appliances and competent surgeons and physicians andnurses; and there is no evidence of any breach of that undertaking
I would therefore set aside the decree which is under review, andrestore the decree of the District Court, with costs of this hearing inreview.
This is a hearing of this case in review preparatory to an appealto the Privy Council. The decision under review is that pronouncedby this Court (Middleton and Wood Renton JJ.) on August 11, 1907,whereby the judgment of the District Judge dismissing the defend-ant’s claim in reconvention was reversed and judgment entered fordefendant for Rs. 15,000 as damages. The action was originallybrought in the Court of Requests of Colombo, but, in consequenceof the claigr in reconvention exceeding the jurisdiction of that Court,was transferred, after the close of the pleadings, to the DistrictCourt for trial. The plaintiff, who was the Attorney-General suingin. his official capacity, sought to recover from defendant certaincharges in respect of defendant’s wife, on the-allegation that atdefendant’s request and on his undertaking to pay the charges Mrs.Smith had'been admitted as a patient into th.e General Hospital ofColombo, the property of the Government of Ceylon. The chargeswere for admittance (Rs. 10.50), costs of subsistence (Rs. 115.70),and ambulance hire (Rs. 5:50). In answer to that claim, defendant
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admitted the undertaking alleged by plaintiff, but averred “ thathis said wife was so admitted on the undertaking on the partof the Government that all due care and reasonable skill will beexercised by the agents and servants of the said Government, whocomprised the staff of the said hospital, in the treatment, nursing,and care of the defendant’s said wife, and that it was on that under-taking that he agreed to pay the charges. ” Further answering, thedefendant said (paragraph 3) that while his wife was a patient inthe hospital, and in the course of a certain operation performed onher, “ the agents and servants of the Government who were per-forming or assisting in the said operation acted in go unskilful andnegligent a manner that defendant’s wife was severely scalded inthree places, and sustained such grave injuries that she died fromthe effects thereof. ” Defendant then (paragraph 4) set forth that,his wife had jointly with him been carrying on a school, which inconsequence of her death had to be closed, and (paragraph 5}pleaded that by reason of the facts set out in paragraph 3 he wasnot liable to pay plaintiff’s claim, and further said that by reasonof the said acts he had sustained loss and damage to the extent ofRs. 100,000, which he claimed from the plaintiff in reconvention. Inhis replication plaintiff first pleaded that the answer disclosed novalid defence .to his claim. He then joined issue with defendantas to the facts set out in paragraphs 2, 3, 4, and 5 of the answer;denied the unskilfulness and negligence alleged; and that “ the deathof defendant’s wife was attributed to scalding. ” As to paragraph 5of .the answer, plaintiff denied “ that the defendant sustained lossor damage to the extent of Rs. 100,000 or at all, or that if he hadsustained any damage he was entitled to recover the same fromplaintiff. ”
At the first trial on November 22, 1904, the record began asfollows: —
Issues of Law (agreed upon by both Parties).
Do the allegations in the answer disclose a valid defence toplaintiff’s claim?
Issues of Fact (agreed upon by both Parties).
Did the agents and servants of the plaintiff in the course
of a certain operation which was performed on thedefendant’s wife on May 23, 1903, act so unskilfully andnegligently that she was scalded in three places?
Was her death on June 9, 1903, due to such scalding?
What damages did defendant suffer by the death of his
Is he entitled to recover such damages from the plaintiff ?
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190$. To these issues there was added by consent of parties at thesecond trial the following issue suggested by the judgment of thisWhndtJT Court upon the first appeal, viz., “ Did the scalding contribute toMrs. Smith’s death in any way? ”
I have set out the pleadings and issues at length, because both atthe hearing before Middleton J. and Wood Benton J. and at theargument before us counsel for the plaintiff contended under issue (4)that (1) the defendant’s claim was founded on delict and not oncontract, and could not therefore be maintained against the Crown;and (2) that, even if the claim was founded on contract, there was noliability on the part of plaintiff, because the facts did not establish. any such undertaking by the Government to answer for the unskilful-ness or negligence of its servants as the defendant relied upon. Forthe defendant .it was argued that the basis of his claim was contractand not delict; that at all events this Court had finally settled it to becontract by its judgment on the first appeal, which was binding onplaintiff; that the facts did establish the undertaking by the Govern-ment which defendant pleaded in reconvention; and that as regardsboth branches of the objection to the competency of the claim, theCrown had waived its right to object, if any, by its conduct throughrout the action, which it was said amounted to an undertaking tocompensate the defendant if he established that by the negligenceor unskilfulness of its servants he had been damnified. The plaintiff’sobjections, if well founded, go ..to the root of defendant’s claim, and'it is therefore necessary .to examine the proceedings in the actionin order .to determine whether plaintiff is now precluded fromtaking advantage of them.
The fourth issue, although placed among issues of fact, was “ clearly. not a pure issue ” of fact, nor was it a pure issue of law. It partookof both characters. I am unable to accept .the suggestion thrown outby defendant’s counsel that issue (4), read with issue (3), was intendedmerely to raise the question whether a man could recover damagesfor the loss of his wife. I think the plain object of the issue was toask for a ruling whether, assuming defendant had suffered thedamage .alleged, .the plaintiff was liable to indemnify him. At thefirst trial this question was not. disposed of as a preliminary one,as it might conveniently have been, and as was in fact done with thequestion whether .there was a good defence to the claim in con-vention. Neither party moved the Court so to dispose of it, andthe defendant, as plaintiff in reconvention, proceeded to call hiswitnesses. Plaintiff called no witnesses in rebuttal, and the DistrictJudge held on the first issue that the burns on Mrs. Smith’s personwere due to the “ carelessness on the part of some servant of theCrown assisting in the operation, and such carelessness amountedto negligence; ” on the second issue that death was not due to theburns; and it was unnecessary for him to adjudicate on the thirdand fourth issues.
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On appeal by the defendant, the Solicitor-General, on behalf of theplaintiff, presumably depending upon issue (4), argued, as I gatherfrom the judgment of Layard C.J., that the claim in reconventionwas founded on a delict, and could not therefore be maintainedagainst the Grown. The Chief Justice, however, thought—Mr.Justice Monereiff did not deal with the point—that “ we ought totreat the claim as one founded on Contract, and not as an actionon a delict. ” He also said: “ I understand the answer alleges .thatthe contract on which the plaintiff sues contains an implied under-taking on .the part of the Government, the proprietor of the hospital,to use due care and reasonable skill in the treatment and nursingof the defendant’s wife. ” The plaintiffs action is undoubtedly andadmittedly founded on the contraot, and I think that the admissionof a person into .the General Hospital for treatment involves animplied undertaking on the part of the Government that due andreasonable skill will be exercised by the staff of the hospital, t.e.,by the servants of the Government, in the treatment, nursing, andcare of the person so admitted into the hospital. If there was anynegligence on the part of the servants of the Government in treatinghis deceased wife, the defendant has a claim in reconvention fordamages on the implied contract set out by him in his answer.Later on the Chief Justice remarked that the implied contract wasnot specifically denied in the replication, and that no issue wasraised at the trial as to whether the plaintiff’s contract included theimplied undertaking alleged by defendant; but in view of theexpression of his own finding on the point, which I have alreadyquoted, I do not think that the learned Judge treated the questionas not in dispute. Indeed, in view of plaintiff’s joinder of issuewith defendant as to the facts set out in paragraphs 2, 3, 4, and 5of the answer, I do not see how he could have regarded the impliedcontract as admitted on the pleadings. That it was not admittedon the issues I think I have shown in my remarks on the scope ofissue (4); in the' result this Court ordered a new trial, being of opinionthat the District Judge ought to have framed the additional issuesuggested to him by defendant, viz., as to whether the bumscontributed to Mrs. Smith’s death. At this new trial the wholecase was open, and the new District Judge so dealt with it, framingthe additional issue I have mentioned. He held that the bumswere caused by the shifting of the towels in which a hot waterbottle had been wrapped, and that this was due to a pure accident,-for which no one could he held culpable, and that the burns in noway contributed to the patient’s death. He, therefore, dismissedthe claim in reconvention with costs, but having been asked toassess the damages which defendant would have, been entitled toin the event of success, he estimated them at Rs. 10,000. Thatwould fall under issue (3). Issue (4) was not mentioned at all in .thejudgment. It was admitted before us by the Solicitor-General that
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1908. it was not argued because (he suggested) the plaintiff felt thatifa/gll. defendant was making out no case on the facts. He stated,Wendt j. however, that it had never been withdrawn or abandoned; and thatwhen the Appeal Court seemed disposed to take a view of the factsadverse to plaintiff, he pressed this fourth issue, and asked the Courtto hold that, assuming the truth of the facts relied upon by thedefendant, there was no liability on the part of the Crown tocompensate him.
The Judges hearing the appeal held the plaintiff not entitled totake up the position. My brother Middleton said that it wasadmitted that the question whether the Government would.be liable.for any negligence on the part of the surgeons and nurses of thehospital had not been argued in the Court below, and remarkedthat there was no issue which directly raised that question. Thatis only accurate if he meant that the point was not formulated inso many words. As I have pointed out, issue (4) was large enoughto include that question. He was of opinion that “ the whole casehas been fought on the principle that if the defendant provednegligence, and that that negligence caused or contributed to thedeath of the deceased, the Government were prepared to pay thedamages the Court might award. Without, therefore, expressingany opinion as to the legal position of the Government in its relationto the employes of the hospital, I am prepared to hold that it haswaived its legal rights in this respect, if such exist, and must be.held bound to make that reparation which it impliedly admittedmust be made if the issues agreed upon were decided unfavourablyto it.” I am unable to concur in this reasoning. I think thequestion of the Crown’s liability was distinctly raised both in thereplication and in issue (4), and that there was no implied waiver ofthat question. The District Court might no doubt, if it consideredthat the action could be disposed of upon that issue of law, havetaken it up and determined it in the first instance, but the factthat it did not do so does not, in my opinion, debar plaintiS fromrelying upon that issue in appeal.
My brother Wood Benton expressed substantially the same viewas his colleague. He appears to have considered that the onus ofproving the contractual relation between the Crown, as proprietorof the hospital, and the patients admitted thereto lay on the Crown,and he expresses the clear opinion that no opportunity ought atthat stage to be given the Crown of adducing such evidence. Ithink, however, that the onus of establishing the contract, out ofwhich his claim arose, was on the defendant, and it is he thatmust suffer if it be not proved.
Mr. Elliott, in his very able argument before us, relied upon thedecision in the House of Lords in the “ Tasmania,”1 but that is
115 App. Caa. 223.
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not exactly in point. It was an action brought by the owners oithe “ City of Corinth ” against the owners of .the “ Tasmania ” torecover the loss and damage sustained by a collision between thetwo vessels. In .the situation in which the two vessels were, it wasthe duty of the “ City of Corinth ” to get out of the way of the“ Tasmania, whilst the latter vessel was bound to keep her course.It was not contested that the “ City of Corinth ” had starboardedand so brought herself across .the bows of the “ Tasmania ” andcaused the collision, but it was attempted at the trial to justifythis manoeuvre by the allegation that the “ Tasmania ” had luffed.The Judge who tried .the action held that the “ Ci.ty of Corinth ”had wholly failed to establish this case, and he* accordingly foundthat she was to blame for the collision. The Court of Appeal was ofthe same opinion, but it upheld a contention, put forward before itfor the first tame, that the “ Tasmania *’ had also been to blame,in that she had kept on her course too long, and it reversed thejudgment of the Court of first instance on this ground. The Houseof Lords held that that was not an admissible ground of decision,inasmuch as, in the circumstances of that case, the Court of Appealcould not be sure that it had before it all the evidence which theplaintiffs might have placed before the Court if aware that negli-gence was attributed to them, and that, therefore, it would notbe safe .to rely upon that ground. In the present case the point inquestion is one which goes to the root of the whole claim. If it bebased on contract, it is impossible to contend that the contract wasnot put in issue. But whether founded on contract or on tort,there being a distinct issue as to the plaintiff’s liability for thedamages claimed, the defendant acted at his own peril in proceedingto call his witnesses without asking for a preliminary ruling uponthat issue. Nothing whatever that had transpired before thatcould be said to preclude plaintiff from .taking the point. It istrue he did not for himself ask the Court to decide the fourth issuefirst, but, in my opinion, that is not enough. In appeal the ChiefJustice held that the action was ex-contractu and not ex-delicto, andthat from the facts proved an implied contract on the part of theCrown could be inferred to answer for the negligence or want ofskill of the hospital officers. That decision is open to review byus, as we have now upon the whole case to pronounce “ judgmentaccording to law. ”
I hold, therefore, that the Crown is entitled now to have thequestion of its liability determined. Taking the action as onefounded on contract, and therefore maintainable against the Crown,has defendant shown that Government impliedly (for it has not beensuggested that it did so expressly) undertook “ that all due careand reasonable skill should be exercised by the agents and servantsof the said Government, who comprised the staff of the hospital,in the treatment, nursing, and care cf the defendant’s wife? ’*
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The hospital is a very large one, entirely supported by the Govern-ment. While an entrance fee of Bs. 10.50 is charged for the admissionof a patient into the ward in which Mrs. Smith was treated, andBs. 5 a day for the patient’s subsistence, there is no charge what-ever for the services of the medical and surgical and nursing staffor for medicines. Can it be inferred from the acceptance andtreatment of a patient under such circumstances that .the proprietorsof the hospital not only provide a competent staff, but also guaranteethat they shall use due care and reasonable skill, or, in other words,undertake that, if they fail in their duty, such proprietors shallindemnify the patient against loss? I agree with my Lord in thinkingthat that is not a reasonable inference, and that the undertakingrelied upon cannot be implied from the acts of the parties. I agreealso in thinking that the parties have in substance placed before theCourt all the materials at their command relevant to the questionof the relation between them. My brother Middleton tells me that .at the argument before him the Solicitor-General, in meeting aremark from the Bench, offered to produce the hospital regulations,but that the Bench refused at that stage to look at them. Thereis nothing in the record, nor was there anything in the argument ofcounsel before us, to suggest that the contract (if any) between the.parties was entered into with reference to those regulations, or thatthe defendant had ever seen them. It is perhaps to this incidentthat my brother Wood Benton refers, when he expresses toeopportunity of adducing further evidence should be given to theCrown. There are very few cases in the English reports of actionsbrought by patients against the proprietors of hospitals, but in theUnited States of America this would seem to be a by no meansuncommon description of action. In Evans v. Mayor, &c., ofLiverpool1 the plaintiff claimed damages consequent upon hischildren having been infected with scarlet fever by a patient whom
the defendants had improperly discharged from their hospital whilehe was still in an infectious condition. The defendants were theCorporation of Liverpool, and the hospital was one provided JLthem under the Public Health Act, but this circumstance was no>material. They had appointed a competent physician, who wasresponsible for the treatment of the patients from .the beginningto the end of their stay, and also for their freedom from infectionwhen discharged. The plaintiff’s case was that this physician hadbeen guilty of negligence in directing toe discharge of the patient,and the jury found that there was want of reasonable skill or careon the part of the physician, that in consequence plaintiff sufferedthe damage complained of; and that *' there was an undertaking bythe defendants with the plaintiff that their visiting physician shouldact with reasonable care and skill in and about the discharge of the i
i (1906) 1 K. B. 160.
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boy from the hospital.” Upon further consideration it was arguedfor the defendants that there was no evidence to support this latter■finding of the jury. Walton J., in giving judgment, asked thequestion, “ What is the obligation or duty imposed upon or under-taken by the defendants in a case like the present? In my opinion,”he said, " they undertake the duties of persons who manage andcarry on the business of a hospital, that is, the duties of persons whoundertake to manage and carry on the business of a hospital with allskill and care.” After deciding that it made no difference thatdefendants were entitled under the Act to charge the plaintiff forhis son’s residence and treatment in hospital, he proceeded: ” Theydo not undertake die duties of medical men or to g'ive medical advice,but they do undertake that .the patients in their hospitals shallhave competent medical advice and assistance, and it is admittedthat Dr. Archer was a competent medical man, and that no blameattaches to the defendants for employing him. Assuming that hemade a mistake, I do not think that .the defendants are liable forits consequences. They have done all that the. parent himself couldhave done. Had he been able to have his son treated in his ownhouse, he could not have done more than provide a proper homefor the boy, and provide nurses and good medical attendance. Thedefendants have not failed in any of these respects, and I think thatthey are not liable for the mistake, if- there was a mistake, of Dr.Archer.” I think the principle thus laid down is equally applicableto the case now before us.
Lees v. Hall1 was an action against a nursing association, whichhad supplied a nurse whose negligence had caused the injury tothe plaintiff. The Court of Appeal held that the association hadnot undertaken to nurse file patient, but only to supply her with acompetent qualified nurse, and that for the nurse’s negligence theassociation was not liable.
In the American case of Powers v. Massachusetts HomoeopathicHospital,2 which was an action by a patient for damages caused to herby a nurse having negligently placed a hot water bottle against herside and left it there for some time, the United States Circuit Courtof Appeal, after an exhaustive examination of all the cases, bothAmerican and English, said: “ We assume there was evidencecompetent to establish a tort on the part of the nurse, for which theplaintiff could recover against the nurse. We assume that therewas evidence that the nurse was the servant of the defendants, andthat her tort was committed in the course of the defendant’s service.If this be true, it is hard to see that the plaintiff need allege or proveany contract in order to recover against the defendant (because the
defendant in that case could be sued in tort) The absence
of a contract made with the defendant does not exempt it from
1 (1904) 2 K. B. 602; 73 L. J. K. B. 819.* (1901) 65 Lata Rep. Ann. 372.
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liability. If, indeed, there can be shown an agreement by the plain-tiff to hold the defendant harmless for the acts of its servants, then itfollows that this action Oannot be maintained, and we agree withthe learned Judge of the 'fiourt below that this agreement arises bynecessary implication from the relation of the parties. That a man issometimes deemed to assumie :a risk of negligence, so that he cannot
sue for damages caused by1‘ the negligence, is familiar law
Such is the case at bar. (Me'who accepts the benefit either ofa public or a private charity enters into a relation which exemptshis benefactor from liability for the negligence of his servants inadministering the charity, at any rate if .the benefactor has useddue care in selecting those servants.” The evidence as to thecharacter of the hospital in the present case brings it within thecategory of a “ public or private charity ” in the sense intended bythe American Court, and their reasoning applies to the coursebefore us. So far, .therefore, are the facts from supporting the .implication that the proprietors of the hospital undertook to insurethe patient against the consequences of negligence or want of dueskill or care on the part of the hospital staff, that they rather raise. ■the inference that the patient, in taking advantage of the institutions“ entered into a relation which exempts his benefactor from suchliability.”
I have assumed that the defendant’s claim is based on contract.Defendant was obliged to put it so, because the Crown was notordinarily liable for the torts of its servants, and I think he wasentitled to put it in that way, although the damage caused him flowedfrom the tort of the Crown’s employ4. He alleges that the Crown inthe present instance in effect contracted to answer for the torts ofits officers. That allegation he has failed to substantiate.
I would note that, upon the question whether in fact there wa6negligence on the part of one or more of the hospital staff engagedin the treatment and nursing of defendant’s wife, we did not callupon Mr. Elliott to support the judgment under review, and I haveassumed that such negligence was established. In the view which Ihave taken it is unnecessary to consider any further question. Ithink the judgment under review should, so far as affects the claimin reconvention, be set aside, and the decree of the District Courtdismissing that claim restored, and that defendant should pay theplaintiff’6 costs in both Courts, so far as they have not already beendisposed of by the judgment of this Court upon the first appeal.
After hearing the argument in review, I still adhere to the opinionI expressed in my judgment upon the appeal on the question ofnegligence and its contribution to the death of the deceased anddamages. I would only wish to add, upon the question whether
( 148 )
dysentery had been proved by the plaintiff to exist, that I adopt thetheory put forward for the defendant that Dr. Garvin might havebelieved originally when he told Smith so, that dysentery was present,but that he abandoned that view at the date of his report, andsubsequently put it forward to support the conception he nowpresents of the case. If I have treated the case in my judgmentupon the lines that a juryman ought to approach the decision ofquestions of fact, I did so on the footing that the verdict of theDistrict Judge was, in my opinion, wrong, and with a view to showthat the opinion I had formed was right. If on the hearing of anappeal upon facts it appears t.o the Appeal Court that the decisionof the Court below cannot be supported, it must in intricate casesinevitably demonstrate by a detailed examination and criticism ofthe evidence the grounds of that opinion, and I do not feel that indoing so I have improperly dealt with the case. This is the positionwhich I understand was adopted by my brother Wood Benton, who,thinking the verdict of the District Judge clearly wrong on the facts,acted as a jury in saying so. I think I ought to say that I fullyaccept the explanation offered by the Solicitor-General on behalf ofthe Attorney-General as to the way in which he came to make thestatement I have commented on in my first judgment, but at thesame time I feel that, even as a mere expression of opinion, it musthave great weight attached to it as coming from the nominal plaintiffin the action, though even not supported by information receivedfrom the Principal Civil Medical Officer. The only other questionwhich, in my opinion, calls for any further consideration on my partin this case is the contention of the learned Solicitor-General .thatno such action as defendant’s claim in reconvention discloses will lieagainst the Government. In support of this the Solicitor-Generalsays the point was taken in the District Court, and relies on the fourthissue settled at the first trial: Is defendant entitled to recover suchdamages from Idle plaintiff? This issue remained on the pleadingsat the second trial apparently without comment or objection fromone side or the other. It is contended by the learned counsel for thedefendant here that the fourth issue must be read in conjunctionwith the third, and that it was intended to and did only raise thequestion whether defendant was entitled to recover damages for thedeath of his wife, and did not include the question whether theplaintiff was liable at all. I think it is impossible, however, to denythat it goes further, and does in fact raise the question whether theplaintiff, as representing the Government of Ceylon, is liable at all,although, as I said in my former judgment, it is scarcely a directissue on the question of implied undertaking. In the plaintiff’sreplication to the defendant’s answer and claim in reconvention itwas denied (paragraph 4), if defendant had sustained any damage,that he was entitled to recover it from the plaintiff. This plea andissue if raised in argument would have gone to the root of the matter,
( 1*4 )
1608. and might have settled the case without resort to the heavy expenseMay ll. which has been entailed by the trial of the issues of fact as to negli-Mtoduitoh gence and its contribution to the death of the deceased.
J-On the hearing of the case in appeal, when the learned Solicitor- ~
General was concluding his argument on the point, I have it notedthat he admitted he did not argue the point in the Court below. Insending the case back for a new trial after the first hearing on appeal,Sir Charles Layard, C.J. expressed the opinion that the plaintiff’saction, undoubtedly and admittedly founded on contract, involvedan implied undertaking, that due and reasonable skill should beexercised by the staff of the hospital upon the admission of a personfor treatment. The late Chief Justice further held that the impliedcontract was not specifically denied in plaintiff’s replication, and thatno issue was raised at the trial as to whether the plaintiff’s contractincluded the implied undertaking alleged by defendant, and thattherefore the defendant’s claim in reconvention ought to be treatedas one founded on contract and not on- delict, as had been suggestedon the argument. The learned Chief Justice then went on to say,
‘‘ it is admitted that if the action is based on contract, the defendantcan maintain such an action against the plaintiff. The questionremains to be decided whether the defendant has substantiatedthe negligence alleged by him.”
With this judgment staring them in the face the parties wentto a new trial, and not a word was ever advanced on behalf of theplaintiff in support of the objection which he is now upholding. Theplaintiff’s attention must have been drawn to the fact that the ChiefJustice held that the contract was not specifically denied in hisreplication, and yet no attempt was made to amend either thepleadings or issues. To settle the fourth issue it was, in my opinion,the obvious duty of the plaintiff to meet the averment by thedefendant of an implied contract, and to put him to the proof of it atthe very inception of the case. As this was not done it seems to memost inequitable at this stage, as, indeed, it did upon the hearing ofthe appeal, to hold that the defendant-has failed to support an issue,which in fact the plaintiff had utterly disregarded or waived by hisfailure to raise the question of implied contract put forward by thedefendant. It may be that the reason why Hall v. Lees1 was notrelied on for the plaintiff was that it was felt that if the facts inregard to the regulations governing the admission of paying patientsinto Government hospitals in Ceylon were proved, it would befound, in accordance with the ruling of the Master of the Bolls, thatthey undertook to nurse the patient, and not only to supply a com-petent nurse. If that were not so, it is surprising that that casewas not availed of even on the .argument before us to support theplaintiff’s objection to liability. It is further contended by the
– H1904) S K. B. 60S.
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Solicitor-General that it was not necessary under the Civil ProcedureCode to deny the implied contract. This was an action commencedin the Court of Bequests and transferred to the District Courtapparently after the replication of the plaintiff was filed, as thatdocument bears the caption of the Court of Bequests, Colombo, andis dated September 6, 1904. Under section 811 of the Civil Pro-cedure Code, where a defendant pleads a claim in reconvention withhis answer, the plaintiff, shall be called upon to deny or admit thesame.- If he denies the claim, he shall be required to plead thereto.The plaintiff filed a written replication under section 809 (b), inwhich he joined issue on the facts set out in paragraphs 2, 8, 4, and 5of defendant’s answer. He did not specifically deny .the impliedcontract alleged in those paragraphs, and no issue was in fact settledraising the question of its existence, unless the fourth issue can besaid to do so. If the case had been instituted in the District Courtunder section 75 (e), the defendant’s claim in reconvention wouldhave the same effect as a plaint in a cross action, and the plaintiff’sreplication as the answer to it should have admitted or denied theseveral averments in it.
When Sir Charles Layard’s judgment was delivered, the action wasin the District Court under section 81 of the Courts Ordinance (No. 1of 1889), and he directly called attention to a defect in the pleadings,which, if it were so, and the Chief Justice had held it was, mighthave been amended when the case went back, by the framing of anissue which would have clearly raised the question of impliedundertaking. No such issue was settled, and the question was noteven raised, but the case went to trial for the second time on the oldissues, plus the new one as to contribution. The defendant’s casewas entirely heard, and no objection was taken at the close of itthat the defendant had established no. cause of action on impliedcontract. The plaintiff’s evidence was. heard, and no Objection onthe question of contract is to be found on the record on the part ofthe plaintiff. The District Judge reserved his decision, and in hislengthy judgment never touches on the question whether thedefendant was entitled to maintain his action on the ground ofimplied contract, and the point is not raised until the case cameagain in appeal before my brother Wood Renton and myself, andthen, not as a preliminary objection, but at the end of the argumentof the learned Solicitor-General, and after he had fully discussed themerits of the case and formulated all his arguments on those meritsfrom the point of view of the plaintiff. During the argument alsoon the second appeal my brother Wood Renton observed that wehad not the materials before us for deciding whether here was suchan implied undertaking as the claim in reconvention averred, andthe learned Solicitor-General, apparently acquiescing, suggestedthat we might even now take evidence on the point, and offered toput in the hospital regulations. But we thought it was then too
( u# )
1908. late. My brother Wood Benton thought also, and I agreed with.
May 11. him, that ii the plaintiff contended that the position of a Government-pru 7777~7„,^ hospital relieved the Crown from .the ordinary result of such aj.contract, i.e., the duty of reasonable care, it was for the plaintiff to
raise the point specifically and to establish it. The burden, it seemsto me, was specially on the plaintiff after Sir Charles Layard hadpointed out that the replication did not specifically deny the impliedcontract, and had stated that “ it was admitted ” that action, iffounded on contract instead of on tort, lay. Moreover, I do notthink that there are sufficient materials before us to enable us clearlyto infer that a Government hospital must of necessity be deemedexempt from , the obligation of due and reasonable care as averred inthe claim in reoonvention. It may be irrational to suppose that aGovernment hospital would accept patients on the terms of beingresponsible for the negligence of its surgeons and nurses, but I thinkit was incumbent on the plaintiff to rebut the averment by thepleading and production of the hospital regulations^ or some otherevidence showing on what terms patients were admitted. The factthat the point was not taken during the whole of the second trialshows an acquiescence in the dictum of Sir Charles Layard, whichinduced the defendant to act to his own prejudice, and deprived himof .the benefit of suing the hospital authorities instead of, alterna-tively with, the Attorney-General.
I must hold, therefore, that the plaintiff is estopped by his conductat tiie second trial from now denying his liability to the defendant(section 115, Evidence Ordinance, 1895). In my opinion the appealin review should be dismissed with oosts. If, however, I am wrongon this point and on the question of sufficiency of materials, I feel the• force of the opinion expressed by my Lord and my brother Wendt,whose judgn^nts I have been privileged to peruse,'that the plaintiffis not liable to,, the defendant on his claim in reconvention.
Judgment in appeal reversed.
ATTORNEY- GENERAL v. SMITH