Imágenes de páginas
PDF
EPUB

of authority, seems founded in reason and justice, and will prevail in time. The current of opinion is just now setting the other way. See 34 Am. L. Reg. (N. S.) 231.

TORTS-JOINDER OF ACTIONS-ANIMALS.The Supreme Court of New Jersey decides in State v. Wood, 35 Atl. Rep. 654, that a joint action will not lie against the separate owners of dogs which unite in destroying the property of a third person. Each person is liable only for the damage done by his own dog, and not for that which is done by the dogs which do not belong to him. This rule applies to all cases of trespass by animals. "The reason which makes one who personally aids in or about the wrong done by another liable for the whole amount of the injury done, does not apply in a case like that under consideration. In the case of a joint tort, each offender's liability arises out of the fact that his participation in the wrongful act was voluntary and intentional; and the law, as a punishment for his wrongdoing, as well as for the protection of the rights of the injured party, makes him answerable for all the consequences of that act. But, in the case of animals which wander off and unite in perpetrating mischief, there is no actual culpability on the part of their owners. Liability in such a case only exists by reason of the negligence of the owners in permitting their animals to stray away and commit the depredations, and it has therefore always been held, when the question has come before the courts, that joint action will not lie against separate owners of dogs which unite in committing mischief." Citing Denny v. Correll, Ind. 72 (1857); Buddington v. Shearer, 20 Pick. (Mass.) 477 (1838); Van Steenburgh v. Tobias, 17 Wend. (N. Y.) 562 (1837); Auchmuty v. Ham, 1 Denio (N. Y.), 495 (1845); Partenheimer v. Van Order, 20 Barb. (N. Y.) 479 (1855); Adams v. Hall, 2 Vt. 9 (1829).

CONTRACT-SERVICES RENDERED IN EXPECTATION OF MARRIAGE.-In Lafontain v. Hayburst, 36 Atl. Rep. 623, it is held by the Supreme Judicial Court of Maine that services rendered in expectation of marriage with the party served, and without any expectation of other remuneration, will not sustain an action of assumpsit, even though the party served refuses the expected marriage.

The remedy, if any, is an action for the breach of the contract to marry, and the offering in evidence the services as elements of damage. The court says:

No binding promise to make compensation can be implied or inferred in favor of one party against another, unless the one party, the party furnishing the consideration, then expected, and from the language or conduct of the other party under the circumstances had reason to expect, such compensation from the other party.

In this case the plaintiff alleged a promise to make her compensation in money for the various services she rendered to the defendant. She testified, however, that she did not, at the time, expect any compensation in money or money's worth,-that she was engaged to be married to the defendant, and rendered the various services to him solely in consequence of that relation, and of that expectation of marriage. The defendant afterwards married andefendant, having repudiated the promise of marother woman, and the plaintiff now claims that the riage, must now be held to have promised a money compensation for her services. She cites the case of Cook v. Bates, 88 Me. 455, 34 Atl. Rep. 266.

In Cook v. Bates, the plaintiff furnished board to the defendant without expecting money payment, but with the expectation that it would offset the labor furnished by the defendant to her for the same time. The defendant sued for his labor, and obtained judgment by default through some mistake. Thereupon the plaintiff sued for the board, and it was held that a promise to pay for the board could be inferred. The plaintiff expected compensation, not in money, but in money's worth, in the defendant's labor. The defendant, in suing for his labor, indicated an intention to pay for the board in money, and the plaintiff accepted this election. The defendant could not then be heard to say that his labor was to pay for the board.

Marriage, or a promise of marriage, may be a good consideration for a conveyance or a contract, when it appears that the conveyance or contract was made in consideration of the marriage or promise of marriage. In the case at bar, however, the plaintiff's services were not rendered as a consideration for the defendant's promise of marriage. That promise had been made before the rendering of the services, and upon another and different consideration-the promise of the plaintiff to marry the defendant.

The only contract between them was the mutual promise to marry. If the defendant has broken that contract, her remedy is by an action upon that contract for that breach. The services sued for here were no part of that contract, but merely incidents or consequences of it. The plaintiff expected no pay for them. Her expectation was confined to the promised marriage. With that she would have been satisfied. With damages for its loss she must be satisfied.

[ocr errors][merged small]

ligation to light its streets, where they are safe and convenient for travel the whole width, unless the duty to do so is imposed by its charter. The court says:

The grounds of negligence alleged are (1) that the defendant city had neglected to build a fence or railing along the edge of this street, to prevent the trayeling public from falling into the marsh; (2) that defendant neglected to furnish lights to enable travelers to avoid this dangerous place. There was no claim made that the street was improperly or unskillfully graded, or that the embankment was not properly constructed. Plaintiff was perfectly familiar with the street and neighborhood, with the location of the house, and that it was near, or, as he testified, alongside of the marsh. One of two things quite conclusively appears, viz., that he allowed his horse to go to the place of the accident unguided, or else that hé drove the horse there himself. The undisputed evidence showed, by the wagon tracks, that, when nearly opposite the place of accident, his horse turned nearly at right angles with the highway, and in so doing, if he was in the traveled part of the road, he must have passed over the gutter, three feet wide, and the sidewalk, ten feet wide, before reaching the edge of the street, from which point he was precipitated down the embankment. There was no snow in the street, but some snow and mud in the gutter; but the stones in the gutter could be readily seen by dayight. Evidently he supposed that he was nearly opposite the house of Mrs. McCusick, his place of destination; but in driving, or permitting his horse to turn, from the main track too soon, and allowing him to go too far, the accident occurred only a few feet from Mrs. McCusick's house. The plaintiff's familiarity with the street, the McCusick house, and the embankment, and the manner in which the horse was managed, were important factors in the case, all of which were admitted; and all the facts appearing show conclusively that plaintiff was guilty of negli gence in his conduct, resulting in being precipitated down the embankment, and which caused the injury. If he saw fit, on a dark night, as this was, to encounter the risk of going with his horse and wagon to Mrs. McCusick's house, and thus pass beyond the limits of a properly and skillfully graded street, without any latent or patent defects in it, and the injuries received were beyond the line of such street, we do not think the city liable.

This court has already held in the case of Miller v. City of St. Paul, 38 Minn. 134, 36 N. W. Rep. 271, that a city is under no obligation to light its streets, and a mere neglect to do so is not a ground of liability, unless the charter expressly imposes the duty. This is the general rule, and, if there are exceptions, the facts herein do not bring this case within the exception. Nor are towns necessarily bound to fence, or erect barriers, to prevent travelers from getting outside of the road or way. 2 Dill. Mun. Corp. (4th Ed.), section 1005. The reason for the rule is well stated, in cases of this kind, in Sparhawk v. City of Salem, 1 Allen, 30, as follows: "It appears that the highway in question was safe and convenient for travelers throughout its entire width, and the land adjoining it was also safe and convenient to travel upon. After getting entirely outside the highway in safety, the traveler must proceed still further in order to reach a dangerous place. If Le reached that place, and was injured, the want of a railing was remotely, and not mmediately, connected with the injury. If cities and

towns are bound to protect travelers against such dan. gers, by erecting railings to prevent them from straying out of the highway, it is difficult to see the limit of their liability. In passing over an unfenced plain in the nighttime, the traveler might stray away from the road to a great distance, at the risk of the town, unless they fenced in their whole highway; or he might, by mistake, enter a private way, or an open space, such as is often let about a farmhouse, or a large public common, or an unfenced forest, and hold the town responsible for any injury he might receive there, because they had not fenced against the private way, or open space, or common or forest. Indeed, they would be liable to him for any injury he might receive from coming in collision with any building or structure in the city by straying beyond the limits of a street in the dark, unless they provided railings along all their public streets.",Considering the fact that Burgess street, in its entire width of sixty feet, was graded and in good condition; that plaintiff was well acquainted with the neighborhood; that he turned his horse purposely, or allowed him to turn, at right angles with the street, and had to pass over the gut. ter and sidewalk before reaching the embankmentand all the other attending circumstances, we are of the opinion that the trial court was fully justified in directing a verdict for the defendant and denying the motion for a new trial.

IMPUTED WRONG AS THE SAME AFFECTS RAILWAY LAW.

There are two notable instances wherein the act of one is imputed to another in railway law. The first is the case of the negli gence of the parent or custodian of a minor being imputed to the minor. And the other is where the wrongful, malicious act of the employee is imputed to the master so as to subject the master to exemplary damages. In the case of the minor, there are four different aspects in which the subject may present itself. First. Where the action is by the minor suing by next friend (prochein armi). Second. Where the action is brought by the administrator of the deceased minor. Third. Where the action is in the name of and for the benefit of the parent of the minor. Fourth. This is a statutory action brought by the administrator of the minor; in which action the administrator sues, not only in right of the intestate, but also in right of the next of kin, "and the damages are assessed in view of both aspects of the case."'l

In all

1 Walters v. R. Co., 41 Iowa, 71; Hartfield v. Roper, 21 Wend. 615; Kay v. R. Co., 3 Am. Rep. 628; Grant v. Fitzburg, 39 Am. St. Rep. 450; Wymore v. Ma haska Co., 78 Iowa, 396; Railway Co. v. Crawford, 4 Ohio St. 641; City of Chicago v. Major, 68 Am. De 553; City of Chicago v. Starr, 89 Am. Dec. 422; Wis will v. Doyle, 160 Mass. 42; Westerfield v. Levis. 4 La. Ann. 64; Whirley v. Whitman, 1 Head, 610; Rail

these cases there are only two titles asserted, the one is an action for the damages suffered by the child, and which passes to others by right of inheritance, in case of the death of the child; and the other is an action for damages suffered by the parents on account of the loss of the child, or an action by the parents for the loss of the child's services. There is the child's right for damages suffered by the child, and the parents' right for damages suffered by the parent in the loss of the child or its services, and these two rights may present themselves in the four different aspects above mentioned. And there is still another point of view from which the case might be considered; this is where a minor has neither father nor mother, but is under the care, control, maintenance and protection of its next of kin, its near relatives, and one of these protectors is guilty of contributory negligence with respect to the child, that element of a sole beneficiary being guilty of contributory negligence, does not exist, but it is a case of contributory negligence on the part of one of several joint beneficiaries. Many of the decided cases-and the view is endorsed by some of the ablest and most recent text-writers hold that where a sole beneficiary sues as administrator to the child, the contributory negligence of such a one is a good defense on the merits, as where a parent guilty of contributory negligence, sues as administrator of the child, for an injury causing the death of the child. And some of the cases, heretofore cited, go further, and hold that the fact of the sole beneficiary, who is guilty of contributory negligence, suing as administrator to the child, is immaterial, is but a matter of mere form of procedure. And that it matters not who fills the office of administrator, that if there be only one beneficiary, and such beneficiary be guilty of contributory negligence, then that such negligence is a defense on the merits. If this be true, then by a parity of reasoning, if one of several joint beneficiaries be guilty of contributory negligence, this negligence should be a defense on the merits. Because it is an old and well

road Co. v. Robinson, 18 N. E. Rep. 772; Bottoms v. B. Co. (N. C.), 25, 41 Am. St. Rep. 799; Nisbit v. Town of Garner (Iowa), 1 L. R. A. 153; Loague v. Railroad, 91 Tenn. 461; Railroad Co. v. Graseclooes' Admr. (Va.), 13 S. E. Rep. 454; Glassey v. Railway Co., 57 Pa. St. 172; Westerberg v. R. Co. (Pa.), 24 Am. St. Rep. 510; Whart. Neg. 312-314; Bishop, Non-con. Law, § 582.

established rule of pleading, that where a joint right of recovery is asserted, the recovery must be joint. It is not true as asserted by some authorities, that the statute gives the right of action to the personal representative in all respects the same as if the party injured himself had sued. Because the best considered authorities hold that where a sole beneficiary guilty of contributory negligence, sues as administrator to the deceased minor, that the contributory negligence of such an one is a defense on the merits. All that can be said is, that the statute gives to the personal representatives of the minor, the same right that the minor bad, but the enforcement of that right by the administrator may be attended by circumstances different from those which would have existed, had the minor himself sued. Where a minor is so young that he cannot be held liable for contributory negligence, the question arises whether he can or should stand chargeable with the contributory negligence of his parent or guardian-custodian. ian-custodian. This is a question of no little importance to the great railroad systems that belt this union with bands of iron. These corporations have become a public necessity to the commercial, business and governmental interests of the people, and whilst these organizations are formed by private individuals for private gain, still they are of a quasi-public nature, and the public are concerned in their management and operation. Hot or cold, wet or dry, railroad trains must be run; they have come under an obligation to the public, and this obligation lays on them duties which do not belong to a mere private enterprise. The running of railroad trains is always attended with more or less danger, they are not easily controlled, not readily stopped when once started, but the necessities of rapid transportation demands that these corporations shall run their trains with speed. This rapid speed increases the danger to railroad employees and to passengers; a railroad train and a railroad track is a place of danger-a red flag may be considered as always floating from a train or waiving from a track. Now, then, if a young child, through the negligence of its parents or custodian, is suffered to wander on a railroad

2 Chitty on Pld., vol. 1, p. 79; Gould on Pld. p. 230. 8 Loaguè v. Railroad, 91 Tenn. 461; Grant v. City Fitzburg, 160 Mass. 160; Wiswill v. Doyle, 160 Mass. 107.

track, in front of a rapidly moving train, and is injured or killed, should the railroad be dealt with as though the minor and its parents were free from fault? Shall the parents, but for whose negligence the child would not have been hurt, shall the very parties whose negligence was the direct and proximate cause of the misfortune, be allowed to recover heavy damages against the corporation for the results of their acknowledged negligence? If such is the law, then the law is in conflict with natural justice. Mr. Bishop in his work on Noncontract Law, takes strong position on this subject against the railroad, and says that the negligence of the parent should not be imputed to the minor, and says that the law never took away a child's property because its father was a scoundrel, poor or shiftless. But this has nothing to do with the matter, the two cases are not parallel; the question here is shall an individual profit by an act of which he was the proximate cause. I have never heard of anyone proposing to take a child's property because its father was scoundrel. Mr. Bishop may know of such cases, but he does not cite any authorities to And until he does I cannot give up my convictions, especially in the light of the arguments he makes.

Mr. Beach in his work on Contributory Negligence says that the doctrine of the imputability of the parents' negligence to the minor is an anomaly, and in striking contrast with the case of a donkey, exposed on the highway and negligently run down and injured, or with oysters in the bed of a river, injured by the negligent operation of the vessel, in both of which cases actions have been sustained, and he adds that if the child were an ass or an oyster, he would secure a protection, denied him as a human being. The learned author certainly will not contend, that the two cases are parallel. To make the parallel, there must be two persons, one guilty of the negligence and the other suing, to which last person, the plaintiff, the negligence of the first is proposed to be imputed. In Mr. Beach's case, we have the master at one end of the line and an ass at the other end, this is the parallel he makes. told by the advocates of the doctrine of the non-imputability of negligence to minors, that the minor has done no wrong, that his tender years forbids the supposition that he

We are

is chargeable either with his own negligence or with the negligence of others. But let these same gentlemen who are prone to use such strong language, when speaking of the doctrine to which they are opposed-I say, let these gentlemen remember, that the minor is asserting a right founded on the negligence of those who are responsible for his conduct, yes, the minor is asserting a right founded on the culpable negligence of those who are his keepers and custodians by birth and by blood. A low and depraved parent could willfully expose his own offspring to danger and death, and make profit from the transaction, nay even, this doctrine allows the guilty parent to go from the temple of justice with the price of his iniquity in his bloody hands. The opposers of imputing to the minor the negligence of the parent virtually abandon their position when they decide that the neg. ligence of the parent is a bar in a suit by the administrator of the minor, when the parent is the sole beneficiary. They say, to allow the parent to recover in such case, despite his negligence, would be to allow him to take advantage of his own wrong directly. These respectable authorities then hold, that contributory negligence is a defense when to deny or refuse the same would be to allow a party to take advantage of his own wrong. If a parent through his negligence suffers his child to get injured by a railway train, and then brings suit in his own name as parent for the loss of the child or his services, and recovers damages therefor, is he not taking advantage of his own wrong? And in all cases where a parent sues for an injury, when his negligence was the proximate cause of that injury and recovers damages of the defendant, is he not taking advantage of his own wrong? The law will not allow that to be done indirectly, which it will not allow done directly. And if the parent cannot directly take advantage of his own wrong, he will not be allowed to indirectly do that which he

4 Nisbet

5

v. Town of Garner, 1 L. R. A. 153; Whirley v. Whitman, 1 Head. 610; Railroad Co. V. Wilcox, 8 L. R. A. 494; Kay v. Railroad Co., 3 Am. Rep. 629; Railway Co. v. Crawford, 24 Ohio St. 641.

5 Grant v. City of Fitzburg, 160 Mass. 160; Glassey v. Railway Co., 57 Pa. St. 172; Wiswill v. Doyle, S Am. St. Rep. 451; Bottoms v. R. Co. (N. C.), 25, 41 Am. St. Rep. 799; Burger v. R. Co., 112 Mo. 249; Rid enbrur v. R. Co., 102 Mo. 286; Bluedorn v. Railway Co., 121 Mo. 268; Pat. Ry. Acc. Law, § 72; Pol. Torts, § 299; Cooley, Torts, § 681; 2 Thompson Neg. 1184. Blackstone's Comm. vol. 2, p. 154.

cannot do directly. The minor's title, in the case supposed, is founded on the negligence of another. You cannot separate his title from this negligence. Negligence is a link in his chain, and a link which will snap whenever the "plummet is laid to the line." Estoppel by matter in pais is a wholesome doctrine. In fact it comes about as near enforcing the golden rule of doing unto others as you would have others do to you as human rules applied to human conduct can come. And it is a wise and wholesome application of this doctrine. When the parent is prohibited from recovering either for damages suffered by the minor, or for damages he has suffered by the death or injury of the minor, when he the parent has been guilty of contributory negligence. In fact, we cannot see how it can be; for, truly, may the minor pray to be delivered from a friend, who will negligently suffer the minor to be exposed to almost certain death, and then come demanding the price of his negligence. Most of the States have statutes inflicting severe penalties on persons who carelessly or negligently cause the death of another, yet, these courts with this statute in their codes, will reward the custodian of a minor, whose negligence causes the minor's death, by suffering him to recover heavy damages against the railroad whose train has run over a child who he caused to be on the track. I hope to live to see the day when this heresy will be banished from our jurisprudence, and the trend of the current of judicial thought against the doctrine of the non-imputability of the negligence of the parent or guardian to the minor. Some of the courts which have been firm supporters of the old doctrine, have driven home the entering wedge which will shatter this judicial heresy, by holding that where the parent is the sole beneficiary, in a suit brought by the administrator of the minor, the contributory negligence of such parent is, as a special plea, a bar, or in evidence on an estoppel. Such courts will be compelled to hold, that the beneficiary, or the plaintiff who is guilty of contributory negligence, or when the plaintiff claims through others who are guilty of such negligence, that such per30n is estopped by such negligence, reason

Wymore v. Mahaska, 78 Iowa, 396; Westerberg v. B. Co., 24 Am. St. Rep. 510; Hartfield v. Roper, 21 Wend. 615; 4 Am. & Eng. Enc. Law, 88; Tiffany, Death by Wrongful Act, §§ 68-72.

and justice alike point to this result. As the doctrine now stands in many courts, the infant may well pray to be delivered from his friends, who claim that the parent is not estopped by his own contributory negligence. When he is the beneficiary either in his own right, or when the suit is brought by the administrator of the minor. A great deal is said about the protection of minors. Does this doctrine protect them? But it is said the law can safely rely on the parental affection to shield a minor from the danger of being exposed to danger in order that advantage may be taken of an injury to the minor. Waiving that question, we say, that both parents may be dead, but still the law; applies for parents are not the only persons that can act as custodians of minors, for some of the next of kin might be sole beneficiary of damages recovered for the minor's death, as well as custodian of the minor's person during his life.8

We come, now, to consider the case of the willful, malicious wrong of the employees imputed to the master, so as to make the master liable for exemplary damages. By the common law the master was not liable, to the same extent, for the trespass of the servant, even when done in the line of his employment, as for the master's own personal act. When the servant did an act which made the perpetrator thereof a trespasser and suable in an action of trespass, the master could only he sued in an action of case, that is, by the common law, the master could not be treated as a trespasser for the act of the servant even when done in the line of his employment, where the master did not authorize or ratify the servant's act. The common law only held the master liable to make compensation for the servant's act, which the master did not authorize or ratify. Whilst we find no instance of exemplary damages in the early common law, and Lord Camden's charge to the jury in the case of Wilkes v. Wood, Lofft. 1, 18, 19, contained perhaps the first clear enunciation of the right of the jury to inflict this punishment, yet the principle on which punitive damages is at this day allowed, is found in the doctrines of the common law above laid down.9 But some modern author8 City of Chicago v. Hesing, 25 Am. Rep. 378; Walters v. R. Co., 41 Iowa, 71.

9 McManus v. Cricket, 1 East. 108. Bourcher v.

« AnteriorContinuar »