RECENT DECISIONS IN THE BRITISH

COURTS.

The Income Tax authorities lately surprised the public by their request to railway servants to furnish for purposes of Income Tax assessment a return of all tips or gratuities received by them. All the same, the courts have had on more than one occasion to consider whether the receipt of tips by a servant can be taken into account, and on each occasion have answered the question in the affirmative. In Penn v. Spiers and Pond, 98 L. T. Rep. 541; 1908, 1 K. B. 766, the question arose in a claim, under the Workmen's Compensation Act 1906, by the representatives of a man who had been employed on a restaurant car and who met with a fatal accident in the course of his employment. On their behalf it was said that the amount of the deceased's tips should be brought into account in arriving at the earnings in his employment for the purpose of assessing the compensation payable by the employers under the Act. It was laid down by the Court of Appeal that where the employment is of such a nature that the habitual giving and receipt of gratuities or tips is open and notorious and sanctioned by the employer, the money thus received by the servant, with the knowledge and approval of the employer, ought to be taken into account in estimating the average weekly earnings of the servant. The principle there laid down received the approval of the House of Lords in Great Western Railway Company v. Helps, 118 L. T. Rep. 235; 1918, A. C. 141, the case of a railway porter claiming compensation under the same Act. In that case, Lord Dunedin commended the limitation laid down by the Master of the Rolls in Penn v. Spiers and Pond (sup.), that the decision is applicable only to tips which are notorious as opposed to illicit gratuities, and, further, that it is not concerned with those which are casual, sporadic, and trivial in amount. By trivial we assume the learned Master of the Rolls and the learned law Lord meant trivial in the aggregate and not in the individual gratuities. The principle of these cases was carried a step further in Manubens v. Leon, 120 L. T. Rep. 279; 1919, 1 K. B. 208, where a hairdresser's assistant was held entitled to include the loss of his tips in his claim for damages in respect of his wrongful dismissal. There, as was said, it was an implied term of the contract that the assistant should be at liberty to receive tips from customers and, that being so, the employer must be held to have contemplated, when the contract was

entered into, that if it should be broken by the assistant being summarily dismissed, he would sustain a loss in respect of tips which he would otherwise have received.

Hackney Borough Council V. Dore (reported Times, 15th November, 1921), was a case stated by a metropolitan police magistrate who had convicted the appellants, the statutory undertakers for a supply of elec tricity in the Borough of Hackney. Under provision 24 of the Hackney Electrical Lighting Order, 1893, the statutory undertakers are bound to supply electricity to consumers who have made the demand in the proper stat utory way and have complied with the stat utory conditions precedent. Here the undertakers, the borough council, had admittedly failed to supply the respondent's premises with the supply of energy to which he was entitled. Their defense was force majeure, namely, that apprehension of a trade dispute threatened as the result of differences between trade unionists and others in their employment had compelled them to take steps in anticipation of a stoppage which prevented them giving the supply required at the time desired. The magistrate convicted, because he found as a fact that the dispute had not actually materialized at the time when the supply was demanded; it was only a grave probability. Now the question simply is this, whether the defense of force majeure is avail able when there is merely a reasonable apprehension of dangers which makes it pru dent to commit a breach of the statutory ob ligation in the general public interest, or only when there has actually been an occurrence which renders the supply impossible. The former rule would apply in the case of a contract. But when a statutory obligation is imposed on an undertaker the magistrate and the Divisional Court who affirmed his conviction both agreed that the duty is impera tive. The undertaker must take steps at his peril to secure the due performance of his statutory obligation and cannot plead force majeure unless he has been actually prevented by force or threats of violence and the like from performing it. The case, as Mr. Justice Darling said, is undoubtedly a hard one and, as his Lordship put it, “many persons will consider such a rule of law mon strous."

A heavy litigation has recently come to a conclusion in the House of Lords, in which the owners of Ellerman and Anchor Line steamers and owners of Cargo therein, sued the trustees of the Dundee Harbor for loss and damage in consequence of these vessels

striking a submerged wreck in the harbor waters, which wreck they alleged ought either to have been removed by the trustees or properly marked. Although the amounts involved were large, the facts complicated and the evidence voluminous, the issue in regard to these actions was a simple one of negligence, and in this connection we quote the following passage from Lord Haldane's opinion, which is instructive in regard to the law of negli gence and contributory negligence: "They owned a harbor to which they must be taken to have invited those navigating vessels to resort, on condition of paying harbor rates. The owners of the vessels so resorting to this harbor became under these circumstances more than bare licensees, for they would approach the harbor in the course of business in order to exercise a privilege they were to pay for, and which they had been invited to exercise. Their legal position would thus be that they would be entitled to look for the discharge of a duty resting on the respondents to exercise reasonable care to avert peril to them from any unusual danger of which the respondents knew, or ought to have known. It was important to bear this in mind, inasmuch as it bore on the extent of the counterduty of those approaching the harbor as regards the standard of skill required of them in navigating their vessels in the course of such approach. The latter approaching under such an invitation were entitled to rely on care having been taken by those inviting them to avert any unusual danger of which they are cognizant. He thought that the duty imposed on the Harbor Trustees arose not only under the principle of invitation, but as the result of Section 92 of the Act of 1911. On the other hand, those approaching with their vessels must, notwithstanding their right to rely on such care having been exercised, use care on their own part not to incur peril rashly. For, as was said in the Bernina, 'if there has been as much want of care on A's part as on B's part; or, in other words, if the proximate cause of the injury is the amount of reasonable care on both sides, A cannot sue B. In such a case, A cannot with truth say that he has been injured by his own carelessness and B's negligence, and the two combined give no cause of action at common law'."

"In all such cases, B must prove affirmatively the contributory negligence of A, and the burden lay on him to do so. He could not discharge this burden if A could show that what he did he did, relying on an assurance expressed or implied from B of his safety in taking the course he did; but, on the other hand, it might be shown against him

that, notwithstanding his title to rely on that assurance, he used his freedom to do so in such a fashion as a prudent man in ordinary circumstances would not have done, and that his own negligence led to the actual damage. The question of whether he had been thus negligent was as a rule at least as much one of fact as law. For the measure of legal ob ligation in cases where negligence was alleged could not readily be laid down a priori apart from consideration of all the material circumstances in each individual case. No merely general principles could extend to all the concrete details of which account had to be taken in estimating whether there had been imprudent action, and for this reason the question of negligence was largely one for a jury or for a judge of fact, who would estimate according to the standards which regulated the daily behavior of ordinary but prudent men, the whole circumstances in each individual instance, and pronounce in accordance with accepted standards of conduct, how a reasonable man ought to have behaved."

A rule of law, first established in the case of commercial contracts, but now becoming accepted as general in its application, imposes on the injured party to a broken contract the duty of acting reasonably in the interests of both contracting parties, and debars him from claiming damages which he could have escaped by prudent conduct; in other words, he is not entitled to his "pound of flesh." The result is that the measure of damages in such a case is not always quite easy to ascertain. An innocent party, indeed, is no longer entitled to sit still, incur losses as the result of the breach, and claim these from the other side, and he must take steps to get the contract performed, if possible, and can only claim the extra expenses involved in so doing-which may be nil. The case of Mertens v. Home Freeholds Co. (1921, 2 K. B. 526), is the most recent Court of Appeal case which illustrates this principle. Here a builder took on a building contract at terms impossibly low; the result was that he could not and did not carry it out. When he finally refused to go on, alleging "frustration" of the contract by the action of the Ministry of Munitions, although such action was due to his own delay in performing his part, the purchaser stepped in and got the building completed at his own expense. What, in such a case, is his measure of damages? The Official Referee, whose decision was supported by the Court of Appeal, gave him the total extra cost of completion, but subject to a deduction of £1,900 for the work already done by the builder before refusal to complete. This carries the doctrine of "mitigation" one step further. In effect, it gives the building owner as damages the difference between the sum the building actually cost him and the

The rapidly increasing applications of the art of photography in the commercial world render it necessary for our Courts to realize more of both its strong and its weak points, for evidential use, in order to avoid serious mistakes in the administration of justice.

The very name of the art-signifying as it does, "writing by light"-indicates a general process of reproducing a given picture or view by means of the actinic action of light alone, without the active participation therein of any human physical element; hence the result is supposed to be free from all errors due to the human equation, and therefore is generally deemed by our Courts as a sufficiently accurate representation of the original object or view for it to be used as such in place of the original. If any preliminary inquiry at all is made, it is usually limited to perfunctorily asking whether or not the picture has been "touched up".

Is such acceptance justifiable? If so, to what extent is it warranted, and with what safeguards should it be surrounded? These are important questions in evidential procedure-particularly when the photographs purport to be of documents of any kind; for (from a practical standpoint) whenever the photographic representation will better serve the litigant's purpose than would the original itself, it is often only too easy to "lose" the original before the hearing, so that, for the purposes of the litigation, the photograph can be placed in evidence instead. of such original; or the original may be changed as desired, and the photograph introduced and used in conjunction with it, the stress being placed on the less suspicious looking photograph.

All will agree that anv photograph is a correct representation of that which the camera

sees, and as the camera sees same; but this by no means settles it that the camera actually sees all that is before it, or sees in a truthful form that which is there; as to these points the result depends on many factors calling for thoughtful consideration on the part of both Bench and Bar.

The photographic process, elementally, consists of the chemical action of rays of light passing through a lens and falling upon a sensitized surface; but the action of rays of one color differs from that of rays of another color, and the action of different lenses also widely varies, and the sensitized surface is variously sensitive to different rays of light; add to these distinguishing characteristics the fact that light lens and surface are subject to the will of the operator, and the further fact that the result will be greatly affected by any malposition of the camera parts, as well as of the camera itself with respect to the object, and you introduce a whole series of human factors of variance into that which was supposed to be the surest and most automatic of processes and this even when only a complete and correct copy is being sought.

Surely these conditions show the easy possibility of unintentional inaccuracy in the resulting photograph. In litigation, however, we must remember that partisan interests create partisan desires, and in such circumstances many things could be done in making that final photograph, to cause it to present such appearance as might be desired. in order to bolster up a partisan claim. Truly (as the late learned Judge Wiltbank of Philadelphia was wont to say when rejecting photographs) there is no readier means of deception possible than a photograph, for it may be caused to show anything that is desired; and yet most persons are inclined to accept it as verity, and without inquiry.

The falsity of a photograph may be confined to some small detail (if that be sufficient for the purposes of the party) or it may extend to something of alarming extent. Hence, if the original document be not present, no photograph should be ad

qualities, the photograph cannot be an accurate copy of the original.

The lighting of the object includes not only its ordinary direct illumination, but also the effects produced by the use of color screens. The former must be good, to get any result at all; but we are here more concerned with the latter, because the absence of any screen, or the use of certain ones, may produce false results similar to some hereinbefore mentioned when referring to what the camera sees, and which need not be repeated.

With respect to position, it is generally understood that the closer the object is to the camera the larger will be the picture of the object; it necessarily follows that if there be the slightest variation in the distance from the camera of any one part of the document from the rest of it, the proportions of the picture will be distorted, and the resultant photograph will not be a correct representation of the document. The writer can say that it is indeed rare that a photograph of a document is found to be accurate in this respect-even where the picture has been taken by skillful operator using a camera the lens whereof has (for ostentatious reasons) been duly "certified" by the Bureau of Standards; it is usually merely a question of the degree of inaccuracy, which may or may not be sufficient to be misleading.

show that they are not all parts of one and the same original.

Notwithstanding all of the photographic misrepresentations hereinbefore referred to -whether due to accident, carelessness, or design-the resulting negative would be free from all retouching and tampering with, and it could be so testified.

The next step, to avail one's self of the photograph secured, is to have prints made from the negative; and it is these prints that are actually used in Court. Here, just as in the case of the first taking of the photograph, the character and accuracy of the prints may be very different, according to the printing materials and methods used, and the skill and desire of the operator: here too, there is the frequent habit of printing from more than one negative, on a print, as a source of danger. In addition. if the print is of any considerable degree of enlargement, it is absolutely unreliable, under all conditions, as to anything beyond the mere purposes of a rough picture; ii the print be enlarged by the ordinary indirect method, all of the most important details of line analysis are lost in a haze, or mixed up with other extraneous conditions: if the enlargement be made directly in the negative, and contact prints made therefrom, then there is less of a loss of details. but the print will be similarly unreliable, because of extraneous conditions. In any event, no print is reliable for use in high power magnification with a microscope, on account of factors inherent in the print surface, though it may perchance do very we for use with an ordinary reading glass.

print, and (as indicated) it is not hard to get entirely false results-in fact it is difficult to get accurate ones.

But now suppose an unscrupulous person wished to go even further, in order to accomplish some end. Such a person can, with ease and the expenditure of a little time and effort, make any desired alterations