Priestley v Fowler 150 ER 1030 is an old English tort law case, which introduced the old rule of common employment (or "fellow servant rule" in the United States). This is idea that the employer is not liable for injuries caused by one employee to another in the course of their employment. The rule was removed in its entirety in the United Kingdom by the Law Reform (Personal Injuries) Act 1948.
Despite this, there was no allegation by the plaintiff in this case "about the act of any fellow servant or indeed any suggestion that the duty sought to be put on the employer was other than a primary duty to ensure that the van was a safe conveyance."F.H. Newark, Elegantia Juris (Belfast: Northern Ireland Legal Quarterly, 1973), p. 145.
Facts On 30 May 1835 Charles Priestley,Two individuals surnamed Priestley had previously litigated related issues. Underhill v. Priestley (1781) reported a claim against one Thomas Priestley for negligently driving a loaded cart, while Priestley v. Watson, 3 C. & M. 691, 149 Eng. Rep. 938 (Ex. 1834), recounted the suit by a Joseph Priestley challenging Brotherton township's Poor Law assessments against the Aire & Calder Navigation Company. The former opinion may be found in James Oldham, 2 The Mansfield Manuscripts and the growth of english law in the eighteenth century 1137 (1992). The latter case was determined in the Court of Exchequer one term before Lord Abinger was appointed Chief Baron. a servant of butcher Thomas Fowler of Market Deeping, was ordered to deliver mutton to market. The meat was placed in a wagon driven by William Beeton, another of Fowler's employees.None of the accounts make clear who loaded the wagon with the "peds" (i.e., hampers) of mutton. Priestley was to accompany the cart only as far as Buckden, some twenty miles from Peterborough, where he was to sell some quantity of the loaded provisions. Beeton would then continue on to London to vend the remainder.
The four-horse team could not move the van and "jibbed," meaning that they stopped in their tracks and would not move forward. Turning to the nearby Fowler, Beeton protested that "he ought to be ashamed of himself for sending such a dangerous load." Fowler responded by calling Beeton "a damned fool for saying anything of the sort." Although present during the exchange, Priestley held his peace.Diverging from the other four accounts, Murphy & Hurlstone reported that the "plaintiff remonstrated, on account of the cart being overloaded, and too weak to bear the load, and it being dangerous to go by it." Priestley, 3 Murph. & H. at 305. Although arguments before the Court of Exchequer would later make heavy weather over Priestley's acquiescent riding in the van, the discrepancy over the complaint's source is immaterial. Whether Priestley or Beeton, Priestley either was of the opinion, had confirmed his opinion, or was given notice of Beeton's opinion, that the van was overloaded. Relying on the Murphy & Hurlstone report, Ingman's account in Rise and Fall was rightly taken to task as "incorrect" by Simpson. SIMPSON, supra note 2, at 107 n.28; see Ingman, Rise and Fall, supra note 7. Kostal was likewise mistaken. See KOSTAL, supra note 8, at 260. Following this ominous start, the wagon soon embarked on its journey, propelled into motion by some of Fowler's other employees.Simpson intimated that the cart might have been loaded by unidentified mutton suppliers. See SIMPSON, supra note 2, at 103.
Nearing Peterborough, Beeton and Priestley heard a cracking noise as the cart rolled over some stones. Consequently, they had the van inspected by Gideon Lucas, owner of the King's Head Inn. The perusal, conducted by lantern light because they had departed Market Deeping at nine thirty at night, revealed nothing amiss with the cart. Nevertheless, while traversing the mile south from Peterborough towards Norman Cross, the wagon's front axle cracked along a third of its length and gave way, overturning the vehicle. Beeton was pulled ahead of the van's collapse by the horses, escaping substantial harm. Priestley was less fortunate: some four hundredweight worth of mutton fell on him, resulting in a broken thigh, a dislocated shoulder, and various other injuries.
As was customary upon the occurrence of such accidents,This is demonstrated, among other cases, by Tomlinson v. Bentall, 5 B. & C. 738, 108 Eng. Rep. 274 (K.B. 1826), and Lamb v. Bunce, 4 M. & S. 274, 105 Eng. Rep. 836 (K.B. 1815). Priestley was taken to the closest public lodging, in this case the King's Head Inn from which he and Beeton had recently departed. Lying "in a very precarious state," Priestley remained at the inn for nineteen weeks, during the course of which he was treated by two surgeons. Exactly what happened during this convalescence period remains open to conjecture, but the total cost of Priestley's care and treatment, a hefty £50,A considerable amount, especially when compared to the annual £80 medical budget of the parish union that presented the charge to Priestley. See SIMPSON, supra, at 126. was paid by his father, Brown Priestley.
Judgment During the Lincoln Summer Assizes of 1836, Charles Priestley (as a minor through his father) sued his master Fowler for compensation relating to his accident."The present action was brought to recover the amount of the expenses for which the father had been put in consequence of this lamentable occurrence." NORTHAMPTON MERCURY, July 23, 2016.
On 18 July 1836 the action was tried before Park, J.,In relating the events of trial, Kostal inadvertently identified the jurist as Parke, B. rather than Park, J., possibly because Bartrip and Burman identified the jurist as "Parke, J." P.W.J. BARTRIP & S.B. BURMAN, THE WOUNDED SOLDIERS OF INDUSTRY 104 (1983); KOSTAL, supra note 8, at 262, 262 n.45. The error is significant because Park, J. in both the Priestley assize case and the Court of Common Pleas case of Vaughan v. Menlove, 3 Bing. (N.C.) 468, 132 Eng. Rep. 490 (C.P. 1837), fostered master/servant liability. As will be seen below, Parke, B. took the opposite approach. See infra notes 115-116 and accompanying text. who by all accounts was a sound judge, although given to occasional losses of temper.See E. Foss, a biographical dictionary of the judges of England 1066-1870, at 496-97 (1870) (describing Park, J.'s "only drawback" as "a certain irritability about trifles, which too frequently excited the jocularity of the bar"); 15 Dictionary of national biography 216 (Oxford University Press CD-ROM, version 1.0, 1995) ("as a judge, though not eminent, he was sound, fair, and sensible, a little irascible, but highly esteemed"). A popular yarn represented Park, J. as the illegitimate son of George III, to whom he bore a resemblance. See Michael Gilbert, the Oxford book of legal anecdotes 234 (1986). Serjeant Edward Coronet and Lieutenant in the Royal Horse Guards, and Tory M.P. for Leicester during the course of Priestley. See 7 Dictionary of national biography, supra note 25, at 283. Simpson mistakenly reported Goulbourne's legislative career as "M.P. for Ipswich." SIMPSON, supra note 2, at 102 n.8. Although not egregious, the oversight is relevant. Had Goulbourne successfully contested representation for Ipswich in 1832, he would have been a colleague of Sir James Scarlett (later Abinger, C.B.), who was returned for Norwich in that same election. See 17 Dictionary of national biography, supra note 25, at 890. and Mr. Nathaniel Clarke Afterward a county court judge. See SIMPSON, supra note 2, at 102 n.9. represented Priestley, while Serjeant John Adams Also the author of a legal text. See J. Adams, a treatise on the principles and practice of the action of ejectment and the resulting action for mense profits (2d ed. 1818). and Mr. Andrew Amos A respected lecturer on jurisprudence, Amos would become the first Professor of Law at the University of London (later University College), then the Downing Professor at Cambridge University from 1849 to 1860. See 1 Dictionary of national biography 366-67, supra note 25. acted as counsel for Fowler.No evidence exists of how such expensive legal talent was retained, although Simpson surmised that a contingency fee may have been arranged for Priestley. SIMPSON, supra note 2, at 102. Kostal concurred, adding that "the number of lawyers in towns like Lincoln was on the rise in this period," thereby "increasing the chance that one of their number would become interested in Priestley's predicament." KOSTAL, supra note 8, at 261 n.34. This raises the question of how Fowler, as a defendant unable to proceed under a contingency fee, could have afforded his counsel, and raises the conjecture that those costs contributed to his subsequent bankruptcy. See Priestley v. Fowler, 3 Murph. & H. 305, 305 (Ex. 1837); Lincolnshire Chron. & Gen. Advertiser, Jan. 24, 1837.
Pleadings Priestley pleaded two grounds in support of his claim against his master, a latent defect and the van's overloading. The declaration stated that when Fowler had "directed" the plaintiff to accompany the mutton to market "in" the van, Fowler was under a duty "to use due and proper care that said van should be in a proper state of repair" and "not be overloaded, and that the plaintiff should be safely and securely carried thereby." As a result of Fowler having breached this duty, the van had broken down and the plaintiff was harmed. No allegation was made as to negligent actions or omissions, nor of the existence or violation of a duty towards Charles Priestley by anyone in Fowler's employ.See Priestley, 3 Murph. & H. at 305.
Trial Throughout the trial, Serjeant Goulbourne emphasised the over-loading claim, with contrary evidence presented by the parties as to the weight both properly and actually borne by the wagon. Evidence was also given as to the extent of the axle's defect prior to the accident. In putting Priestley's case to the jury, Goulbourne played to their sympathies, remonstrating the unprincipled behaviour of the "wealthy butcher" defendant towards the plaintiff who "was one of a large family," and asking for not only reimbursement of medical expenses, but also recompense for Priestley's pain and suffering:That a very opulent tradesman, a man in a very large way of business like the defendant, should have driven this poor lad into court, for he would say that not only justice, but also in common humanity, he ought to pay the pecuniary damages his client had sustained, and also some remuneration for the suffering he had undergone, and the deprivation under which he was now labouring and would labour for the rest of his days.Lincolnshire Chron. & Gen. Advertiser, July 22, 1836.
Opposing the claim, Serjeant Adams denied that the cart had been overloaded, noting that Priestley had continued on the journey after first witnessing Beeton's protest, and then hearing the cart crack near Peterborough. Nor could Fowler be held liable, Adams continued, as he was only bound to use "such ordinary care and diligence as he would use over himself," and the defendant had been satisfied as to the state of his property.See id. In any event, Serjeant Adams asserted that as a legal matter, Fowler as a master was not liable to his servant Priestley. This was because there was "no such case in the books,"See id. and for good reason: "If the defendant was responsible in this case, every master was liable to any accident that might occur to his servant about his work."Lincoln, Boston & Newark Tuesday's Gazette, July 19, 1836. No evidence reveals the possible negligence of Priestley's fellow servants ever being raised or at issue during the trial.
Judge rulings and jury verdict