364. HALSEY v. WOODRUFF SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1830 9 Pick. 555 TRESPASS against Halsey and Avery for entering Woodruff's close and pulling down a blacksmith's shop; with counts for carrying away the materials. The defendants plead severally the general issue. The jury find "that the said Avery is guilty in manner and form as the plaintiff has alleged, and assess damages against said Avery at two dollars, and the jury also find that said Halsey is guilty in manner, &c., and assess damages against said Halsey at seventy-five dollars." The plaintiff elected to take judgment against both defendants for the greater damages, and entered a remittitur as to the lesser damages. The defendants sued out a writ of error, assigning for error, that although the jury which tried the cause returned a separate verdict of seventy-five dollars against Halsey and also a separate verdict of two dollars against Avery, the Court rendered a judgment against both for the sum of seventy-five dollars and costs. Dwight and Bishop, for the plaintiff's in error. . . . Porter, contra. . . . PER CURIAM. We think the judgment was rightly entered. The result of the authorities, which are numerous, is, that where a joint action is brought against two for a trespass done, and there is a judgment against both, it must be a judgment for joint damages. All the legal consequences of there being a joint judgment must necessarily follow; one of which is, that each is liable for all the damage which the plaintiff has sustained by such trespass, without regard to different degrees or shades of guilt. Heydon's Case cites many of the authorities, the effect of which is given in Tidd, that where the action is brought against several defendants and the jury assess several damages, the plaintiff may enter a remittitur as to the lesser damages and take judgment against all who are guilty of the joint trespass, for the greater damages. And this is founded on a sufficient reason. Each defendant is liable for the whole damages of a joint trespass. A release to one discharges both, and the reason is, that the damage is joint. The plaintiff here alleges a joint trespass. The defendants plead severally, that they are not guilty of what? of the joint trespass; and they are found guilty of what? of the same joint trespass. Damages are assessed against one at seventy-five dollars; this therefore, by the finding of the jury, is the damage which the plaintiff has sustained, and the law draws the inference that both are liable for that sum. . . . On principle, as well as authority, the judgment entered in the case before us was correct. Judgment affirmed. - 365. PRIEST v. NICHOLS SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1874 116 Mass. 401 TORT for injury to the plaintiff's goods by leakage from pipes alleged to be under control of the defendants. Trial in the Superior Court before DEWEY, J., who allowed a bill of exceptions in substance as follows: Evidence was offered by the plaintiffs that they occupied the floor and basement under the premises occupied by the defendants. There was an engine on the defendants' floor over the premises of the plaintiffs, put in and used by the defendants to run their manufacturing establishment, after their lease to the plaintiffs, and also used to carry an elevator, which was used principally by the defendants, and occasionally by the plaintiffs. There was also a waste pipe, which, passing from a water closet and two sinks of the defendants, ran down, inclosed in a wooden box, through the premises of the plaintiffs to the basement. At about four feet from the basement floor it made a right angle, and flowed into the sewer, and connected with this waste pipe was a sink and water closet of the plaintiffs. The damages alleged in the declaration were caused by the water flowing back from the sewer at high tides and flooding the basement, and thereby damaging the plaintiff's wool, then piled up on the floor, by a leak in the waste pipe at the angle in the plaintiffs' basement, and at a similar angle immediately over it on the premises of the defendants, from which the water-pipe leaked in upon the plaintiff's wool in a room above the basement, and by water leaking down from the defendants' boiler and engine upon the plaintiffs' wool in the same upper room. The plaintiffs testified that about the middle of July, 1872, their floor was flooded by water backing in from the sewers, and damaging their wool, but were unable to state the precise amount of damage then caused or by any subsequent leaking. The plaintiffs also testified that from July, 1872, to November, 1872, water came down occasionally from the engine and boiler in the defendants' premises, and on one occasion water enough came down to wet the floor to a considerable extent, and that they were obliged to move some bags of wool. They were not able to say exactly how much wool was injured in this way, but stated the amount of the injury in their judgment. . . . At the request of the defendants' counsel, all evidence of damage done by the tide backing in to the sewers and doing damage by flooding the basement was excluded. At the close of the plaintiffs' case upon the foregoing evidence, the defendants asked the judge to rule that the plaintiffs were not entitled to recover; but the judge declined to give this ruling. . . . The counsel for the defendants asked for the following instructions: . . . "6. In this action, where the damages alleged were caused by different causes, each of which causes more or less damaged the plaintiffs' wool, if a portion of the damages was for causes for which the defendants were not liable, the burden of proof is upon the plaintiffs to show the damage done by causes for which the defendants were liable; and if they fail to offer testimony tending to show this, or to apportion the damages done by the different causes, they cannot recover." The judge declined to give these instructions, and instructed the jury as follows: . . . "5. That when the damage was occasioned by different causes, from each of which there was more or less damage to the plaintiffs' wool, if a portion of the damage was from the causes for which the defendants were not liable, as from the tide-water, the burden of proof was on the plaintiffs to show damage to the wool from causes for which the defendants are liable, as distinguished from the other causes; and for this damage only could the plaintiffs recover. . . ." The jury found for the plaintiffs, and the defendants alleged exceptions. T. Weston, Jr., for the defendants. B. Dean, for the plaintiffs, was not called upon. ENDICOTT, J. There was evidence upon which this case could properly be submitted to the jury. . . . The rulings of the presiding judge were carefully stated, and are not open to exception. Exceptions overruled. 366. WORCESTER COUNTY v. ASHWORTH SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1893 TORT, against Samuel J. Ashworth and Esther E. Ashworth, in two counts under the Pub. Sts. c. 102, § 106, as qualified by St. 1889, c. 454, to recover of the defendants, as the keepers of certain dogs. alleged to have engaged in doing damage to sheep belonging to Darling Brothers on June 12 and 26, 1891, the sums of $58 and $35, respectively; which sums had, before the bringing of the action, been ordered to be paid as damages to Darling Brothers by the county commissioners of the county of Worcester. At the trial in the Superior Court, before DEWEY, J., without a jury, it was admitted by the defendants that the several sums had been ordered by the commissioners to be paid as alleged. There was evidence tending to show that a dog belonging to and kept by Darling Brothers, together with three young dogs belonging to the defendant Samuel J. Ashworth, and claimed by the plaintiff to have been at that time kept by the defendants, who were husband. and wife, were on June 12, 1891, engaged in doing damage alleged by the plaintiff to have been done; that soon afterwards Darling Brothers' dog was killed; and that no more sheep were killed after the killing of such dog; although there was evidence tending to show that Ashworth's dogs were, on June 26, 1891, seen in the pasture of Darling Brothers worrying and injuring the sheep. The judge ruled that, notwithstanding the fact that Darling Brothers' dog was engaged in doing the damage, if the dogs kept by the defendants were also engaged in doing damage the plaintiff was entitled to recover the whole of the sums ordered to be paid to Darling Brothers by the commissioners. . . . C. S. Dodge, for Samuel J. Ashworth. G. S. Taft, for the plaintiff. KNOWLTON, J. In Pub. Sts. c. 102, § 106, is the following language: "Every owner or keeper of a dog engaged in doing damage to sheep, lambs, or other domestic animals, shall be liable in an action of tort to the county for all damage so done which the county commissioners thereof have ordered to be paid, as provided in this chapter." The first question in the case is whether, under this section, an owner of a dog engaged in doing damage is liable for all the damages in the doing of which the dog is engaged, or only for that part done by his own dog. The natural construction of the language is that “all damages so done" means the damages which the dog was engaged in doing, not that part of the damages which he did alone. . . This is after the analogy of joint tortfeasors at common law. Moreover, there are strong reasons why the Legislature should have created such a liability in case of this kind. There is such danger of damage to sheep from dogs, and the difficulty of protecting the flocks is so great, that it has been thought necessary to adopt stringent measures for this purpose. It is a well known fact that two or more dogs which have a propensity for killing sheep often make their attacks together. The damage they do results from frightening and scattering sheep, as well as from killing or wounding them. In most cases where two dogs are together, it is practically impossible to tell what part of the damage is done by one dog and what by the other. It is therefore quite reasonable to make each owner of a dog which is concerned or engaged in doing damage liable for the whole amount which his dog was concerned in doing. Although there may be several suits and judgments, as in the case of claims against joint tortfeasors, there can be but one satisfaction. . . . Under the circumstances of this case the ruling was right that the county was entitled to recover the whole sum.1 367. COREY v. HAVENER. SAME v. ADAMS SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1902 182 Mass. 250, 65 N. E. 69 [Printed ante, as No. 361.] 1 [Compare the ruling as to trespass by cattle of different owners, in Wood v. Snider, post, No. 496, point 5.] 368. THE "ALABAMA" AND THE "GAMECOCK” SUPREME COURT OF THE UNITED STATES. 1875 92 U. S. 695 APPEAL from the Circuit Court of the United States for the Southern District of New York. The case was argued by Mr. Edwards Pierrepont for the "Alabama," by Mr. W. R. Beebe for the "Gamecock," and by Mr. John E. Parsons for the libellant. Mr. Justice BRADLEY delivered the opinion of the Court. On the question of blame, the conclusion is, that both the "Alabama" and the "Gamecock” were in fault, and contributed to the loss; and that the "Ninfa," which was in tow of the "Gamecock" and suffered the loss, was not in fault. On this finding arises the question of law which is of principal interest in the case; namely, against whom, and in what manner, should the damage be adjudged? The "Alabama" was a large steamer, and was bonded for $100,000; whilst the "Gamecock" was a small tug, bonded at the stipulated value of $10,000. The loss was found to be about $80,000. The District Court rendered a decree against both for the whole, regarding them as liable in solido. The Circuit Court, on appeal, reversed this decree, and divided the loss between them, rendering a decree against each for one-half the amount. The Court adopted this division of liability in obedience to the supposed views of Dr. LUSHINGTON, in the case of The Milan, 1 Lush. 404, which was followed in the case of the steamboat "Atlas" both by the District and Circuit Courts of the Southern District of New York. 4 Ben. 27; 10 Blatch. 459. . . . It would seem to be just that the owner of the cargo, who is supposed to be free from fault, should recover the damage done thereto from those who caused it; and if he cannot recover from either of them such party's due share, he ought to be able to recover it from the other. The same reason for a division of the damage does not apply to him which applies to the owners of the ships. The safety of navigation requires that if they are both in fault, they should bear the damage equally, to make them more careful. And this consideration may well require, or at least justify, a primary award against each of a moiety only of the damage sustained by the cargo, for as between themselves that would be just. But if either is unable to pay his moiety of damage, there is no good reason why the owner of the cargo should not have a remedy over against the other. He ought not to suffer loss by the desire of the Court to do justice between the wrongdoers. In short, the moiety rule [allowing a division of loss when both are negligent] has been adopted for a better 'distribution of justice between mutual wrongdoers; and it ought not to be extended so far as to inflict positive loss on innocent parties. |