The demurrer was properly overruled. The declaration is in case, and alleges, that the negro of the plaintiff was bound for a term of years to one Sadler, a bricklayer, to learn the trade; that the defendant engaged one Coxe, who was in the employ of Sadler, and was his agent, to do certain brick work about the boilers, within a building belonging to the defendant, used as a cotton-press, which building was unsafe and dangerous, and known to be so'by the defendant; that said Coxe took said slave with him, to assist in doing the work, and while engaged in it, in such work, the building, owing to the carelessness and neglect of the defendant in not repairing it, fell, and killed the slave. It also avers, that the dangerous condition of the building was known to the defendant, and unknown either to the plain*667tiff, Sadler, Coxe, or the slave, and that tbe defendant fraudulently and with the intention to injure the plaintiff, concealed the same. It further avers, that when Coxe was employed to do the work, and when be and the slave commenced the same, neither they, nor the plaintiff, nor Sadler, had any means of ascertaining the dangerous condition of the building; and that the defendant, knowing of its dangerous condition, fraudulently represented to them that it was safe and secure.
The only defect which is insisted upon by the plaintiff in error, is duplicity; but the declaration is relieved from this objection, by considering the last allegation as surplusage only, which we are authorized under the rules of pleading to do, as the whole of it may be struck out, and the declaration still be sufficient.—Williamson v. Allanson, 2 East 452 ; Panton v. Holland, 17 John. 92.
In relation to the charge of the court, we entertain no doubt, that in ordinary cases, where a workman is employed to do a dangerous job, or to work in a service of peril, if the danger belongs to the work which he undertakes, or the service in which he engages, he will be held to all the risks which belong either to the one or the other ; but where there is no danger in the work or service by itself, and the peril grows out of extrinsic causes or circumstances, which cannot be discovered by the use of ordinary precaution and prudence, the employer would be answerable, precisely as a third person, if the injury or loss was occasioned by his neglect or want of care. In such a case, the injury would be outside of the employment, and the employer would, as to such injury, be in fact a third person, and fall within the same rule as to responsibility.
We are clear, also, that, without reference to the fact whether the injury or loss was occasioned by the carelessness or neglect of the employer, in not using due care in relation to the cause of the danger (as in allowing the walls or roof of a building to remain, for an unreasonable length of time, in a condition hazardous to the safety of others), if he employs a workman in a service, which is apparently safe, but which becomes hazardous from causes disconnected with the service, and not discoverable by the exercise of ordinary prudence, he would be bound, upon the strongest principles of morality *668and good faith, to disclose to those whom he has employed the danger to which they were exposing themselves, if those dangers were known to him; and the failure to make this disclosure, under such circumstances, would be a breach of duty, for which the employer would be held responsible, if, while engaged in the work, the workman sustained an injury. These views are based upon legal principles familiar to all. If a slave is hired without any special contract, the law implies that he is not to be employed in labor or service requiring more than the ordinary exposure ; and in all contracts, the suppression of material facts, which one party is bound, in conscience and in duty, to disclose to the other, and in respect to which he cannot innocently be silent, is regarded as evidence of fraud.
To apply these principles to the case before us: The court charged, that if there was imminent danger and peril to life in working in the building ; — if the defendant knew that such was the case, and Coxe did not; — and if .the defendant himself made the contract with Coxe, and did not notify him of his danger, — in that event, the defendant would be liable. The court also charged, that, if, instead of Coxe having no means of ascertaining the danger, he might have ascertained it, by a close and minute examination of the building, unless he was a builder or carpenter, or one likely to think of examining the house from his avocations in life, he could only be expected to know such defects as a prudent man would be presumed in law to know.
We consider this charge, as simply asserting the legal proposition, which we have already recognized, that where the danger does not consist in the service, but grows out of extrinsic causes, not to be discovered by ordinary prudence, the employer is bound to disclose the danger, if known to him and unknown to the workman.
It is urged, however, on the part of the plaintiff in error, that the gravamen of the declaration is, the fraudulent concealment of the danger ; and that the charge given ascertained the responsibility of the defendant, without reference to fraud. The words of the declaration are, that the defendant, “ fraudulently, and with the intention to injure the plaintiff, concealed the true situation of the building, and the danger of working *669within it, from” &c. The allegation of fraud, here, is not descriptive, but refers to the intention of the defendant, at the time of the alleged concealment (Panton v. Holland, supra); and as the concealment of the danger, under the circumstances alleged in the declaration, was a breach of duty, and therefore sufficient to sustain the action, the averment of the fraudulent intent, was not essential, and may for that reason, as a good cause of action remains without it, be rejected as surplusage. Panton v. Holland, supra. In this aspect, as the charge asserted a correct legal proposition, it was free from error. It is not pretended that the other portion of the charge was erroneous.
Note by Reporter. — A rehearing having been granted in this case, on the application of the appellant’s counsel, the cause was re-argued in writing ; but the court adhered to its first opinion.The views we have expressed, are decisive of the refusals to charge. A false representation was not necessary to maintain the action under the declaration. The record affords no evidence that Coxe did make any examination of the building ; and ordinary prudence did not necessarily require him to make inquiries of the defendant as to the condition of the building.
The judgment is affirmed.
Mr. DarsaN, for the appellant. — The principles asserted in the opinion, as I understand it, I do not controvert, but I do not think they cover the whole case. The last charge requested by the defendant below is clearly governed by a principle entirely different, and I think it ought to have been given. No one will deny, that, if a carpenter or mason is employed to repair a building, the defects of which are open to common observation, and he examines the work to be done, and, without asking any questions, agrees to do it, — he then judges for himself, and assumes the risk incident to the repairs ; unless, indeed, there is some secret or hidden defect or danger, which is known to the employer, but unknown to the workman, and the injury results from this secret source of danger. I take the rule to be this, that fraud and injury must both concur, to give a right of action in such a case. For *670instance — if no injury had resulted from the secret danger, there could have been no right of action ; or, if the employer had disclosed the secret danger, there could have been no action against him, although the injury resulted from that danger. The correct rule is laid down by C. J. Kent, in Upton y. Vail, 6 Johns. 180, where it is said, “Fraud, or deceit, with damages, gives a cause of action but if either is wanting — that is, either the fraud, or the damage — no action can lie. Now I think it clear from the bill of exceptions, that there was no secret danger or defect: the defects, if any, were open to common observation ; Ooxe saw the chimney and furnace, and that the chimney, from the sinking on one side, did not stand perpendicularly ; and this was all that Perry knew. If, then, all the defects which Perry knew were open to common observation, and he made no false statement in reference to them, he certainly could not be guilty of a fraud. In Keates v. Cadogan, 70 E. C. L. R. 591, the Court of Common Pleas held, that there was no implied duty on the owner of a house, which is in a ruinous condition, to inform a proposed tenant that it is unfit for habitation ; and that no action will lie against him for an omission to do so, in the absence of a warranty or actual deceit. The ground on which the court went, was, that the condition of the house could have been ascertained by the tenant by inquiry, or observation, and that the landlord had no reason to presume that he would not make the proper inquiry.
2. The charge given, in my opinion, cannot be sustained, when tested by the principles sanctioned in the opinion ; for, although secret peril to life not disclosed would be a fraud, yet, to give an action, it must appear that the damage resulted from that secret cause of danger. Suppose there had been a secret danger, known to Perry but not disclosed by him, and also a visible cause of danger, which was known to all and duly considered, and that the damage resulted from the latter; this damage certainly would not give a right of action.— Testing the charge by this view, it was well calculated to mislead the jury under the evidence. The injury, all will perhaps say, resulted from the leaning of the chimney against the roof; and it is shown that Coxe examined the furnace and chimney, and saw that the latter did lean. Now, although *671tbe jury might have believed that this was the immediate cause of the injury, yet, under the charge given, they would have been compelled to find for the plaintiff, if they believed there was also a secret danger in the building not disclosed : the charge, therefore, is too broad, when applied to the evidence.
PEE CUEIAM.We have carefully reviewed the grounds on which the opinion heretofore delivered in this case rests, and have attentively considered the authorities to which we have been referred by the counsel on the rehearing ; but we are unable to perceive any good reason for changing our conclusions, as they are set forth in the opinion heretofore delivered by Mr. Justice G-oldthwaite. A further examination of the record, and of the law arising upon the points presented by it, has only tended to confirm us in the correctness of our former opinion.
Let the judgment be affirmed.