Francis H. (Francis Hermann) Bohlen.

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the plaintiff, by means whereof the said slave became intoxicated,
and died.

It appeared that on the 24th day of December, 1845, Bob, being
patroon of one of the plaintiff's boats, on his way from Charleston,
went into the shop of defendant in Camden, and there received a
gallon jug and a quart bottle of whiskey, and started with them in
the afternoon, to convey to his master in Fairfield, across the Wate-
ree, intelligence of the boat's arrival. Bob drank none at the shop,
but drank repeatedly from the bottle before he reached the river, at
the ferry, and afterwards ; fell down in the road repeatedly ; fell into
a creek, in which he would have been drowned, but for the aid of
some white men then in his company ; and soon afterwards, at the
fork of the roads, proceeded alone, staggering. He was clad in
hornespun, and had a bundle, besides the jug, on his back. The
night was misty, and somewhat cold. He called at a house and got
fire, returned and went again. Next morning he was found dead
near the house where he had called; the jug of whiskey full and
corked near him, the bottle not to be seen j and upon movement of
his body, a fluid smelling like whiskey flowed from his mouth. A
physician examined his body upon the inquest, but could discover
no external injury; and from the want of rigidity in the muscles
and other appearances, had no doubt that he died of drunkenness
and exposure.

A witness for the plaintifif swore positively that he was present
in the defendant's shop, and saw Bob hand his jug and bottle empty
to the defendant, and receive them from the defendant full of whis-
key, this conversation passing: defendant to Bob, when he handed
back the jug, "Now, mind, old fellow, don't hurt yourself or me

way, a smith, in shoeing, doth prick his horse, and so by reason of this, the
money is not paid, this being the servant's horse he shall have no action upon
the case for this pricking of his horse, and the master also shall have his ac-
tion upon the case, for the special wrong which he hath sustained, by thi<;. by
the non-payment of his money occasioned by this;" but see Brozvn v. Cuni-
mhws 7 Allen, 507 (Mass., 1863). nlaintiff held rot entitled to prove as
special damage in an action of assault and battery the loss of a position as
surgeon's mate in the Navy for which he had made application.



HARRISON l\ IIERKLLIV , 27^;^

either." Bob, "Xo, sir, I won't hurt you or myself cither. How
much do I owe you?" Defendant, "two dollars." Bob, "I'll pay
you to-morrow when I come to unload the boat."

A brother of the defendant (as to whom eight witnesses testi-
fied against his credit, and four in favor of it), and one Shegog,
who was acting as occasional assistant in the shop, testified that Bob
applied to the defendant for liquor, but the defendant refused to let
!-,im have it. Eli Bass, a free negro, (who was chief patroon of the
fleet to which Bob's boat belonged,) then took the jug and handed
it to the defendant, who filled it and handed it back to Bass, who
delivered it to Bob, there being no bottle then seen.

I submitted to the jury the question of fact, whether .the de-
fendant sold or delivered the liquor to Bob, saying, upon a proposi-
tion urged by the plaintiff, that if the sale was really made to Bass,
tile defendant was not answerable, although he may have suspected
that Bass would deliver the liquor to Bob; but that if the defendant
knew that Bass was employed as a mere instrument to enable Bob
to make the purchase, such an artifice would place the defendant in
no better situation that if the delivery had been direct to Bob.

The question mainly argued, was, as to the liability of the de-
fendant for the death of the negro, said to be a consequence of his
wrongful act.

I held, that for truly proximate consequences, which, in the
ordinary course of nature, do actually result from a wrongful act,
even where there is no wicked intention, recoverv to t he extent o i-tUe-



actual loss may be had, although the consequencci ^mav be such as
are neither necessary nor easy to be foreseen.

That where there was fraud, malice, gross negligence, or active
evil intention, consequences less truly proximate may be regarded,
and damages be carried beyond the act ual loss^ ___^

That in a case where no aggravation from evil motive arose,
(and such I thought this case.) natural consequences, not imme-
diately proximate, would be considered, if they were probable; but
either those consequences called remote, or those less proximate con-
sequences which were improbable, would be disregarded.

Assuming then, that there was in this case, no aggravation from
evil motive, and that the injurious consequences were not imme-
diately proximate, I left it to the jury (if they should find that the
defendant had been guilty of the wrongful act of selling or deliver-
ing liquor to a slave,) to decide whether the drinking, intoxication,
exposure and death of the slave, were the natural and probable con-
sequences of that wrongful act — holding that if so. the defendant
was answerable for the value of the slave.

I endeavor by various instances to illustrate the meaning of
the terms I used, and to explain the diflFerence between damages
actual and speculative, proximate and remote, probable and contin-
gent, natural and extr«ordinarv : and difficult as it was, by instances,
to show these diversities. T find it much more difficult by any general
terms, to give precision to the propositions T laid down.



234 HARRISON V. BERKLEY

The jury found for the plaintifif six hundred and fifty dollars ;
and the defendant appeals on the grounds annexed.

The defendant gives notice that he will move the Court of Ap-
peals for a nonsuit in this case, on the ground that the declaration
and proof made no sufficient cause of action in law. That the in-
jury was too remote. Failing in this, then for a new trial.

1. Because his Honor charged the jury, that if the defendant
knew that the whiskey was intended for Bob. when he delivered it
to Bass, he is as liable as if he had delivered it to Bob.

2. Because his Honor charged the jury, that if the natural and
probable consequence of giving the liquor to Bob, was that he would
drink, the defendant is liable for his value, if he died.

3. Because Bob did not die from the effect of the liquor alone,
but from the combined efifect of the liquor and exposure, for the lat-
ter of which the defendant is not liable, and therefore not liable
at all.

4. Because the damage was too remote from the injury, and
not a necessary, natural or probable consequence of the wrong.

5. Because the verdict is clearly against the evidence.
Wardlaw, J., delivered the opinion of the Court.

This action is novel in the instance, but that is no objection to
it. if it be not new in principle. The law endures no injury, from
which damage has ensued, without some remedy ; but directs the
application of principles already established, to every new combina-
tion of circumstances that may be presented for decision.

It has, however, been urged here again, as it was on the circuit,
that admitting every thing which the plaintiff has alleged, he has
presented either a case of damage without legal injury, or a case of
injury without legal damage.

First. Damage without injury. It is said, that the act of selling
or giving whiskey to the slave. Bob, was not in itself a wrong to the
plaintiff, but was only a violation of a penal statute, which has im-
posed upon such acts penalties, to be recovered by indictment ; and
that, therefore, no action by the plaintiff lies, nor any remedy but
the indictment prescribed by the statute.

The wrong, for which an action of trespass on the case lies, may
be either an unlawful act. or a lawful act done under circumstances
which render it wrongful — any act done or omitted, contrary to the
general obligation of the law, or the particular rights and duties of
the parties. It might not be difficult to distinguish between the
selling, or giving of spirituous liquor to a slave, and the fair selling
to a slave of an article, which could not be expected to produce
harm : and to show that, independent of any express statutory pro-
hibition, the former act is so contrary to the rights of the master,
and to the duties imposed upon other persons in a slave-holding
community, that the person who does it without special matter of
excuse, subjects himself to liability for all the legal damage, that
may thence ensue ; in like manner, as if he had carelessly or wan-
tonly placed noxious food within reach of domestic animals. But
this case may be rested where the plaintiff left it. Our statutes,



HARRISON V. BERKLEY 235

time after time, have subjected him, who sells to a slave any article
without license, to tine and imprisonment upon his conviction after
indictment; and the last statute on the subject provides especially,
for the punishment, u\K)n conviction after indictment, of him, who
sells or gives spirituous liquor to a slave. No express prohibition is
contained in either of the statutes, but the penalties necessarily imply
a prohibition, and make the thing prohibited, unlawful; (10 Co.,
75. j For the injury to the public, the only remedy is that provided
by the statute — indictment ; but as in case of a nuisance to the whole
community, if any person has suffered a particular damage beyond
that suffered by the public, he may maintain an action in respect
thereof. (2 Ld. Ray. 985) ; so in case of a misdemeanor punish-
able by statute, a party grieved is entitled to his action, for the par-
ticular damage done to him by reason of the unlawful act.

Second. We come then to the main ground assumed in the de-
fence— ^thMJloJeo^aI - dama^S_[QllQAi:iidJl^^

s hown was too r eniote — not such a "'^n - "qii'"n'''^j - £_ll!Ili'^.ilin' ns t'^^
_la^^_iaulLnotiee .

It would be vain to attempt to define with precision, the terms
which have been used on this subject, or to lay down any general
rules, bv which consequences that shall be answered for, and those
which are too remote for consideration, may be always distinguished.
But we will endeavor, without dwelling on particular cases, to de-
duce from the general course of decision on this point, so much as
may show that the instructions given, were sufficiently favorable
for the defendant, and that verdict is conformable to law.

We are troubled here with no distinctions between the loss sus-
tained and gain prevented ; nor with any between cases, which have
been aggravated bv evil motive, and those which have not been : for
the plaintiff here has claimed only compensation for his actual loss;
and the defendant may be regarded as the jury were instructed to
regard him — that is. as one who, with no particular evil purpose, or
ill-will towards master or slave, has violated the law only for his a« - ~y^
own gain. *^£> - v>t-L »-

A distinction, howeverj^ to be observed between ^ases where "f"^ ^fi/^-o-
the damage ensu^whilst t he injurious act is c gnJun ued in operation
"aiTcT -force,' and those l\'TTicre the damag e follow^ , after the act has
ceased.^



* The idea that the defendant's conduct can be the lepal cause of the
plaintiff's harm only when it creates the final active injurious force is ex-
hibited in the opinions of IMartin. J., in Laidhnc v. Sage, 158 N. Y. 73 (iSgg),
where defendant changed plaintiff's position slightly so as to use him as a
shield against tlic force of a bomb exploded by a maniac, and by Potter, J.,
in Elliott V. AUcghcuy Light Co.. 204 Pa. 568 (igo.O, where plaintiff fell from
a ladder and came into contact with defendant's uninsulated wire. Recovery
was denied because the defendant had not caused the explosion of the bomb
or the fall from tlie ladder. The first decision may be supported on the
ground that plaintiff would have been equally injured had defendant not
changed his position ; in the second it may be that the wire was in a position
where it required some extraordinary occurrence, such as this fall, to make it
dangerous to any one. See contra, to Elliott v. Co.. Birsch v. Citizcus' Elect.
Co., 36 Mont. 574 (1008). very similar facts, and see contra, to views ex-



236 HARRISON f. BERKLEY

In the former class, were the cases of Wright & Gray, (2
Bay. 464,) and all the cases which have been cited, or supposed, of
slaves put without permission of the owners on race-horses, in
steam-boats, or on rail-roads — those of property injured during a
deviation from the course which was prescribed concerning it, (6
Bing., 716;) and in general all where unexpected damage was done,
whilst an unauthorized interference with another's rights lasted.
Here it is usually of small moment to inquire, whether the damage
was the natural consequence of the injury, because the immediate
connection between the wrongful act, and the damage sustained,
shows that the damage, however extraordinary, has actually resulted
directly from the injury. But in the latter class, to which the case
before us must be assigned, the connexion is not immediate between
the injury and the consequences ; and it becomes indispensable to
discriminate in some way between the various consequences that
in some sense, may be said to proceed from the act, for all of them
cannot constitute legal damage.

Every incident will, when carefully examined, be found to be
the result of combined causes, and to be itself one of various causes
which produce other events. Accident or design may disturb the
ordinarv action of causes, and produce unlooked for results. It is
easy to imagine some act of trivial misconduct or slight negligence,
which shall do no direct harm, but set in motion some second agent
that shall move a third, and so on, until the most disastrous conse-
quences shall ensue. The first wrongdoer, unfortunate rather than
seriously blameable, cannot be made answerable for all of these con-
sequences. He shall not answer for those which the party grieved
has contributed by his own blameable negligence or wrong, to pro-
duce, or for anv which such party, by proper diligence, might have
prevented. (Com. Dig. action on the case, 134; 11 East., 60; 2
Taunt., 314 ; 7 Pick., 284.) But this is a very insufficient restriction ;
outside of it would often be found a long chain of consequence upon
consequence. Only the proximate consequence shall be answered
for. (2 Greenleaf Ev., 210. and cases there cited.) The difficulty
is to determine what shall come within this desisi'nation. The next
consequence only is not meant, whether we intend thereby the direct
and immediate result of the injurious act, or the first consequence
of that result. What either of these would be pronounced to be,
would often depend upon the power of the microscope, with which
we should regard the affair. Various cases show that in search of
the proximate consequences, the chain has been followed for a con-
siderable distance, but not without limit, or to a remote point. (8
Taunt., 53=^ ; Peak's cases, 20^.) Suc h nearness in the order of
events, and close ness in tlie relation" ot c ^ise and effect, mu st sub-
si st, tha t thejinfluence of the mjurious act, m av predominate over
"TFTat of~otTTer~causeS;_and shall c^ricur to pt'ocTuce the consequence.



pressed bv Martin and Potter. TJ.. Eaqlc Hose Co. v. Elect. Light Co.. ^3
Pa. S. C.'pSi C1007') ; Dufur v. R. R.. 7=^ Vt. 16^ CiQO.^") ; Thompson v. R. R.,
170 Mass. 577 (1898) ; Thornton v. Agricultural Society. 97 Maine. 108 (1902),



HARRISON' l\ BERKLEY 237

or nia ^; be traced in those muses. _ To a sound judgment must be
lefFeach part'cular case. Tlie connection is usually enfeebled, and
the influence of the injurious act controlled, where the wrongful act
of a third jt^rson intervenes, and where any new agent, introduced
by accident or design, becomes more powerful in producing the con-
sequence, than the first injurious act. (8 East, i; i Esp., 48. j It
is, therefore, required that the consequences to be answered for,
should be natural as well as proximate. (7 Bing., 211 ; 5 B. & Ad.,
645.) By this, 1 understand, not that they should be such, as upon
a calculation of chances, would be found likely to occur, nor such as
extreme prudence might anticipatc ^but only, that they shoukM )e
such, as have actually eiTs ucd one from auDther. witho ut the occur-
rence of any such extraordinary conjuncture of circumstances, or
the intervention of an y gtldr- t^trrrao nlniaryj ^iiiUjlL, ajr^hat the usual
course of nature s hould se eni to have been departed from. In re-
quiring concurring consequeliLt's, ili'UL Ihcy-should be proximate and
natural to constitute TegaFTfeTrrageT it seems that in proportion as
one quality is strong, may the other be dispensed with : that which is
immediate, cannot be considered unnatural ; that which is reasonably
to be expected, will be regarded, although it may be considerably
removed. (20 Wend., 223.)

It has been supposed, in argument, that without any of these
distinctions, it is always sufficient, to inquire only, whether the con-
sequences have certainly proceeded from the injurious act: but it
will be seen, that in settling what have certainly proceeded from the
act, we will be obliged to determine what are natural and proximate,
unless we mean to run to absurd extremes.

In the case before us, the defendant has insisted, that the dam-
age resulted, not so much from his act, as from the acts of the slave,
who was a moral being, and a free agent. (4 McCord. 223.) In
cases where damage has been done, during the continuance of a
wrongful interference with a slave, it was considered of no conse-
quence, that the slave was a free agent: (2 Rich., 613; Id., 455; 9
La. Rep.. 213) for there the consent of the slave could not justify
the interference, and even the wilful act of the slave producing the
damage, was like any other improbable misfortinie. which might
have occurred, whilst the wrongful act was in operation. But in
cases like this, the will of a slave may well interrupt the natural
consequences of a wrongdoer's act. and produce consequences, for
which he should not answer. Selling whiskey to a slave is no more
unlawful, than selling to a slave any other article, without license.
And if a rope, sold to a slave, without license and without suspicion
of mischief, should be employed by the slave to hang himself, the
prominent ground of distinction between that case and the present
one. would depend upon the will of the slave. If it should be said
that the slave would have got a rope elsewhere or would have taken
some other means of self-destruction, it might be answered
that if this defendant had not sold the whiskey, Rob would have got
it, or some other means of intoxication, elsewhere. But where the
mischievous purpose of a slave is manifest, or should be foreseen by



238 HARRISON Z'. BERKLEY

ordinary prudence, the injurious act embraces the will of the slave,
as one of its ingredients ; — the wrong consists, in part, in minister-
ing to the purpose, and natural consequences of that purpose, (al-
though the purpose may have been carried to an extent not antici-
pated, or the consequences may have been altogether undesigned and
unusual) are the legal consequences of the injurious act. There-
fore, It was well left to the jury, to decide whether the drinking
and intoxication of Bob, were the natural and probable con-
sequences of selling liquor to him. If fault be found with the
instructions given on this head, it is that they were too
favcjrable to the defendant, in requiring, that the consequences
should be found to be probable as well as natural. For proximate
and natural consequences, not controlled by the unforeseen agency
of a moral being, capable of discretion, and left free to choose, or
bv some unconnected cause of greater influence, a wrongdoer must
generally answer, however small was the probability of their occur-
rence. In many instances, the will of a slave, as a controlling cause,
would be found as feeble as was the will of a child, that received
damage from a cart left carelessly in the street, which he unlawfully
attempted to drive, (i Adol. & El, N. S., 28.) Often the inter-
vention of a third person's will, influenced by the injurious act, has
no efifect in rendering consequences too remote, (i Ad. & El, 43;
2 C. Aler. & Rose., 707.)

The defendant, however, has further insisted, that if the drink-
ing and intoxication were the proximate and natural consequences
of his act, the exposure and death were not ; but that the death re-
sulted mainly from the exposure, and not from the intoxication only.
It may well be said, (speaking in the language of every day 'ife,
which attempts no philosophical analysis) that the exposure was the
immediate effect of the intoxication, and that the two produced the
death. Thus, without any unconnected influence to be perceived, the
death has come from the intoxication, which the defendant's act
occasioned. The defendant cannot complain that an agent, which
his own act naturally brought into operation, has occurred to pro-
duce the result. The proximity in order of events, and intimacy of
relation as cause and effect, between the injurious act and the dam-
age, are as great here as in various cases which have been cited. (17
Pick., 78; 3 Scott New R.. 386; 17 Wend. 71; 9 Wend. 325; 11
East, 571; and the cases before cited.)

The jury have decided the facts, and this Court is of opinion
that under the inferences, which must be drawn from the finding,
the verdict is free from the objection, that the damages were too
remote.

The instructions concerning a delivery to Bass, as an instru-
ment of Bob, are approved.

The motion is dismissed.

Withers, J., having been of counsel in this cause, gave no
opinion.^



See Hoard v. Peck, 56 Barb. 202 (N. Y., 1867), druggist selling lauda-



^ ^* SMITH Z\ LONDON & SOUTH WliSTliRN RV. CO. 239

SMI^H V. LONDON AND SOUTHWESTERN RAILWAY

CO.

In the Exchequer Chamber, 1870. L. R. 6, Common Picas, 14.

Appeal from a decision of the Court of Common Pleas, L. R. 5,
C. P. 98 (1869), discharging a rule to enter a verdict for the de-
fendants or a nonsuit.

This was an action of negligence and the only material count
of the declaration in substance sets out that "by the want of due
care in the keeping and management of their engines and banks,
quantities of cut grass and hedge trimmings were heaped up on the
said railway and banks and became and were ignited and a fire was
occasioned which spread over and along a stubble field unto the
plaintiff's premises" and consumed it.



num to a woman as a beverage, held liable for her husband's loss of her
services. In actions under statutes making vendors of intoxicants liable "to
the husband, wife," etc., of their vendee or "other person injured in person
or means of support." "on account of" (Indiana) or "in consequence of"
(New York, Ohio and Illinois), the latter's intoxication, while the statute
makes the sale per se wrongful, "the material inquiry whether the injury"
(complained of) "is the proximate and natural result of the wrongful act re-
mains." Elliott, J., Dunlap v. Wagner, 85 Ind. 529 (1882), p. 531.

The vendor is held liable where the drunken vendee is injured or killed
and his family loses his support, Meyer v. Butierbrodt, 146 111. 131 (1893) ; Bot-
zvinis V. Allgood, 113 111. App. 188 (1904), drunken vendee killed by fall from
wagon; Wall v. State, 10 Ind. App. 530 (1894) ; Mead v. Stratton, 87 X. Y. 493
(1882), all similar facts; Currier v. McKee, 99 Me. 364 (1904), vendor liable
where no wrongful act of third party supplies final cause of injury; McNary
V. Blackburnc, 180 Mass. 141 (1901), whether vendor liable for harm caused by
third party's wrongful act, left undecided.

Where the plaintiff or his property is harmed by drunken vendee, the
vendor is held liable. Dunlap v. Wagner, supra (overruling Krach v.
Heilman. 53 Ind. 517 (1876), and Backcs v. Dant, 55 Ind. 181 (1877), con-
tra, to Wall v. State), plaintiff's horse lent to friend injured by his careless
driving while drunk; Jackson v. Brookins, 5 Hun. 530 (X. Y., 1873), action
by widow of man shot in drunken brawl; King v. Haley, 86 111. 106 (1877), and
Bodge V. Hughes, 53 N. H. 614 (1872), plaintiff shot "by drunken vendee (the
latter case decided under Act of 1870, making vendor liable as principal for
vendee's torts) ; Aldridgc v. Sagcr. 9 Hun. 537 ( X^. Y., 1876). woman thrown
from wagon driven by drunken son-in-law: Duroy v. Blinn, 11 Ohio St.
331 (i860), contractor's business interrupted by drunkenness of workmen;