Lapas attēli
PDF
ePub

laration. "Not guilty" was pleaded, and issue joined. The cause came on to be tried at Guildhall, before Lord MANSFIELD, at the sittings after Michaelmas term 1771: when the plaintiff was nonsuited, subject to the opinion of the Court on the following case.

The goods in question, being the property of the plaintiff, were delivered by the captain of a vessel, to the defendants as wharfingers for the use and upon the account of the plaintiff, to whom they were directed; but were stolen or lost out of their possession; and afterwards, before the commencement of this action, were demanded by the plaintiff of the defendants; to whom he tendered the wharfage for the same; but the goods were not delivered to him. The question for the opinion of the Court was, "Whether this action will lie." If the Court shall be of opinion "That this action will lie," then the nonsuit to be set aside; and a verdict entered for the plaintiff, for £92 damages and 40s. costs.

Mr. Mansfield, for the plaintiff, argued, that trover would lie. . . . A demand and non-delivery are evidence of a conversion; and are sufficient, unless the defendant can give some legal excuse to a wharfinger, who takes them for hire. Isaack v. Clerk, Moor, 841 [ante, No. 306]....

Mr. Walker, contra, for the defendants, argued that this action of trover could be maintained. . . . A demand and refusal is only evidence of a conversion. And trover will not lie for mere negligence, for losing the goods, without any actual wrong. And so is 2 Salk. 655 on trover against a carrier, for losing a box.

Mr. Mansfield agreed, that where a lawful reason is shewn for not delivering the goods, the defendant is not to be considered as guilty of a conversion. But here is no lawful reason shewn, why they are not delivered: and therefore, the mere non-delivery does amount to a conversion. If they are, in fact, lost or stolen, what is that to the owner? It does not alter the obligations which the defendants are under to deliver them to the owner: nor can the owner know what is to become of them.

Lord MANSFIELD looked upon it as established, upon principles and authorities, that trover would not lie in the present case; but that it must be an action upon the case.

It is impossible, he said, to make a distinction between a wharfinger and a common carrier. They both receive the goods upon a contract. Every case against a carrier is like the same case against the wharfinger. But, in order to maintain trover, there must be an injurious conversion. This is not to be esteemed a refusal to deliver the goods. They can't deliver them: it is not in their power to do it. It is a bare omission.

Mr. Justice ASTON agreed that this being a bare omission, and no evidence of a conversion, trover would not lie; but the clear remedy was by action upon the case; and he cited 1 Ventris, 223, Owen v. Lewyn; where Hale said, "That if a carrier loseth goods committed to him a general action of trover doth not lie against him."

Mr. Justice WILLES and Mr. Justice ASHHURST concurring in opinion with his lordship and Mr. Justice Aston.

The Court ordered that the nonsuit should stand.

388. VAUGHAN v. MENLOVE

COMMON PLEAS. 1837

3 Bing. New Cases 468

THE declaration alleged, in substance, that plaintiff was the owner of two cottages; that defendant owned land near to the said cottages, that defendant had a rick or stack of hay near the boundary of his land which was liable and likely to ignite, and thereby was dangerous to the plaintiff's cottages; that the defendant, well knowing the premises, wrongfully and negligently kept and continued the rick in the aforesaid dangerous condition; that the rick did ignite, and that plaintiff's cottages were burned by fire communicated from the rick or from certain buildings of defendant's which were set on fire by flames from the rick.

Defendant pleaded the general issue; and also several special pleas, denying negligence.

At the trial it appeared that the rick in question had been made by the defendant near the boundary of his own premises; that the hay was in such a state when put together, as to give rise to discussions on the probability of fire; that though there were conflicting opinions on the subject, yet during a period of five weeks the defendant was repeatedly warned of his peril; that his stock was insured; and that upon one occasion, being advised to take the rick down to avoid all danger, he said "he would chance it." He made an aperture or chimney through the rick; but in spite, or perhaps in consequence of this precaution, the rick at length burst into flames from the spontaneous heating of its materials; the flames communicated to the defendant's barn and stables, and thence to the plaintiff's cottages, which were entirely destroyed.

PATTERSON, J., before whom the cause was tried, told the jury that the question for them to consider was, whether the fire had been occasioned by gross negligence on the part of the defendant; adding, that he was bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances.

A verdict having been found for the plaintiff, a rule nisi for a new trial was obtained. . .

Talfourd, Serjt., and Whately, showed cause...

R. V. Richards, in support of the rule. . . .

TINDAL, C. J. I agree that this is a case "primae impressionis"; but I feel no difficulty in applying to it the principles of law as laid down in other cases of a similar kind. Undoubtedly this is not a case of con

tract, such as a bailment or the like, where the bailee is responsible in consequence of the remuneration he is to receive. But there is a rule of law which says you must so enjoy your own property as not to injure that of another; and according to that rule the defendant is liable for the consequence of his own neglect. And though the defendant did not himself light the fire, yet mediately he is as much the cause of it as if he had himself put a candle to the rick; for it is well known that hay will ferment and take fire if it be not carefully stacked. It has been decided that if an occupier burns weeds so near the boundary of his own land that damage ensues to the property of his neighbor, he is liable to an action for the amount of injury done, unless the accident were occasioned by a sudden blast which he could not foresee. Turbervill v. Stamp, 1 Salk. 13. But put the case of a chemist making experiments with ingredients, singly innocent, but when combined liable to ignite; if he leaves them together, and injury is thereby occasioned to the property of his neighbor, can any one doubt that an action on the case would lie? . . .

The present rule must be discharged.

1 [TOPIC I. PROBLEMS:

Rule discharged.1

The defendant's servant borrowed the plaintiff's sled for his personal use and took it to the defendant's house. The sled not being returned when promised, the plaintiff requested the defendant to bring it back. The defendant declined to do so, and told the plaintiff to come and get it himself. Was this a conversion? (1864, Farrar v. Rollins, 37 Vt. 295.)

The plaintiff's goods were in the defendant's warehouse on storage. An officer without authority came to attach them on a writ against a former owner. The officer demanded access; the defendant opened the door of the compartment; and the officer then took away the goods. Is the defendant liable for the conversion? (1889, Clegg v. Boston Storage W. Co., 149 Mass. 454.)

The defendant had a vicious dog, which he sold to M. Afterwards the dog came back and stayed in the defendant's possession, without M.'s consent. Is the defendant responsible for harm done by the dog? (1895, Mitchell v. Chase, Me., 32 Atl. 866; compare Boylan v. Everett, 1899, 172 Mass. 453, 52 N. E. 541.)

The plaintiff went to a hotel to a dinner of a society. A policeman, by the defendant's order, stood at the door. The plaintiff proceeded to enter, but the policeman obstructed his entrance; and after pushing for a while in vain, the plaintiff retired. Is the defendant responsible for a battery? (1844, Innes v. Wylie, 1 C. & K. 257.)

The defendant, as surety on a note of H. S. for the purchase of Texas cattle, had a lien on the cattle; this lien gave him the right to have them sold on demand, but he never had custody of the cattle. The cattle communicated disease to the plaintiff's cattle; and a statute made any one owning or possessing such cattle liable for such damage. Is the defendant responsible? (1874, Hatch . Marsh, 71 Ill. 370.)

NOTES:

"Instinctive acts: liability for."

(H.L. R., VIII, 225; VII, 302.)

"Instinctive acts: definition of." (H. L. R., XIII, 599.)

"Damage to persons and chattels by animals: What amounts to keeping and harboring sufficient to impose liability." (H. L. R., XIX, 463.)]

Topic 2. Personal Physical Passivity, with Instigation of Another Person's Activity

389. ST. GERMAN. Dialogues between a Doctor of Divinity and a Student in the Laws of England. (B. I, c. IX, ed. 1575.) The law of England is that if a man command another to do a trespass, and he doth it, that the commander is a trespasser. And I am in doubt whether that it be only by a maxim of the law, or that it be by the laws of reason.

390. T. RUTHERFORTH.

(2d Amer. ed. 1832, p. Besides the person who

Institutes of Natural Law. 204. Book I, c. XVII). Reparation for Damage Done. immediately does the injury, others may be so far concerned in it, as to be under an obligation with him of making good the damages arising from it. As far as we concur in what another man does, so far the act is our own; and the effects of it are chargeable upon us, as well as upon him: if he is considered as the principal party, we, by our concurrence, make ourselves accessories in the injury. We may make ourselves accessories to what another man does in two ways, either by our acts, or by our omissions; and in either of these ways we may be accessories in a higher or a lower degree.

They who have authority over him that does the injury, and command the doing it; they who give their consent, when the injury could not have been done without such consent; they who assist the principal party in doing it; or they who protect and screen him after it is over, are, any of them, accessories to the injury in a higher degree, and make themselves so by their acts.

391. Sir WILLIAM BLACKSTONE. Commentaries on the Laws of England. (1758-65. Book I, p. 429.) As for those things which a servant may do on behalf of his master, they seem all to proceed upon this principle, that the master is answerable for the act of his servant, if done by his command, either expressly given or implied; "nam qui facit per alium facit per se." Therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it. . . . In the same manner, whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. . . . A wife, a friend, a relation, that use to transact business for a man, are quoad hoc his servants; and the principal must answer for their conduct; for the law implies that they act under a general command; and without such a doctrine as this no mutual intercourse between man and man could subsist with any tolerable convenience. . . . [As to a servant's negligence], in these cases the damage must be done while he is actually employed in the master's service.

...

392. JOEL v. MORISON

NISI PRIUS. 1834

6 C. & P. 501

FROM the evidence on the part of the plaintiff it appeared that he was in Bishopsgate Street, when he was knocked down by a cart and horse coming in the direction from Shoreditch, which were sworn to

have been driven by a person who was the servant of the defendant, another of his servants being in the cart with him. The injury was a fracture of the fibula.

On the part of the defendant, witnesses were called who swore that his cart was, for weeks before and after the time sworn to by the plaintiff's witnesses, only in the habit of being driven between Burton Crescent Mews and Finchley, and did not go into the city at all.

Thesiger, for the plaintiff, in reply, suggested that either the defendant's servants might in coming from Finchley have gone out of their way for their own purposes, or might have taken the cart at a time when it was not wanted for the purpose of the business, and have gone to pay a visit to some friend. He was observing that, under these circumstances, the defendant was liable for the acts of the servants.

PARKE, B. He is not liable if, as you suggest, these young men took the cart without leave. He is liable if they were going extra viam in going from Burton Crescent Mews to Finchley; but if they chose to go of their own accord to see a friend, when they were not on their master's business, he is not liable. . . . The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable.

Thesiger and S. Martin, for the plaintiff.

Platt, for the defendant.

393. JOHN H. WIGMORE. Responsibility for Tortious Acts; its History. (1894. Harvard Law Review, VII, 405; reprinted in Select Essays in AngloAmerican Legal History, III, 536.) A review of this history of the idea

of the master's and principal's liability throws some light on the validity of the principle in point of policy. As an existing rule, it cannot be objected to as the mere fossil remnant of a fiction. A learned writer has however averred that "common-sense is opposed to the fundamental theory of agency." This is not the place to offer to do what no one has yet succeeded in doing, - to phrase the feeling of justice which every one has in the more or less extended responsibility for agents' torts. But it is worth while noting that . . . the Command or Authority principle may prove to be, theoretically as well as historically, the true support of the rule of responsibility for agents' torts. Perhaps the nearest approach to theoretic adequacy is that of Lord Brougham, in Duncan v. Findlater, 6 Cl. & F. 894, 910: "I am liable for what is done for me and under my orders by the man I employ, . . . and the reason that I am liable is this, that by employing him I set the whole thing in motion, and what he does, being done for my benefit, and under my direction, I am responsible for the consequences of doing it." In other words, (1) if I command A to do act x, I ought to be liable for the natural consequences peculiar to that act taken in itself; (2) the

1 Or this: "If, instead of driving the carriage with his own hands he employs a servant to drive it, the servant is but an instrument set in motion by the master." (Alderson, B., in Hutchinson v. R. Co., 5 Exch. 350.)

« iepriekšējāTurpināt »