Francis H. (Francis Hermann) Bohlen.

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those who were at fault in failing to give him proper treatment.

The judgment of the court below will be reversed, with direc-
tions to enter judgment on the findings of the jury in favor of the
railway company.

All the Justices concurring.^

'In this case (1879) it was held that it was no more the duty of the
defendant railway to extinguish a fire, started without their fault on their
right of way, than of any other person who saw it; ace, K. R. v. Shipley,
39 Md. 251 (1874) ; but see Beckham v. R. R., 127 Ga. 550 (1907)-

'Accord: Griswold y. R. R., 183 Mass. 434 (1903) ) ^^^<?m v. Hixson, iii
Ga. 460 (1900); in Ollctt v. P. R. R., 201 Pa. 361 (1902), it is held, that
there being no obligation on the railroad's part to care for an injured tres-
passer, the train crew in giving aid were not acting within the scope of their
employment and the company was not liable for their conduct therein. Con-
tra: Whitcsidcs v. R. R., 128 N. C, 229 (1901), decided against the vigorous
dissent of Cook, J., upon R. R. v. State, to use of Price, 29 Aid. 420 (1868),
supra, as construed by Beach (miscited as "Black") on Contributory Negli-
gence', su-pra; Raasch v. Elite Lauudrv Co., 98 Minn. 357 (1906). semble:
SchoH v. Becker. 127 Pa. 968 (Oregon 1912) hotel keeper held not liable for
failing to care for intoxicated guest who fell from his porch and who died
from exposure, compare, JVeymire v. Wolfe and Depiie v. Flatau, note 1
to London v. London, etc., Docks, post,

By the maritime law not only is the ship bound to fiirnish medical aid
to the seamen at its expense during the voyage and in foreign ports. Scarf
V. Metcalf, 107 N. Y. 211 (1887), and see 28 L. R. A., p. 549 n, and if within
reasonable distance of a port, to put into it in order to obtain necessary
medicdl attendance if it is not available on board the ship. The Iroquois,
194 U. S. 240 (1903): The Fullcrton, 167 Fed. i (1908), but the master is
bound to make reasonable efforts to rescue a seaman from those perils, in-
cidental to the nature of his employment, into which he in any way falls —
as by falling overboard. Field, J., U. S. v. Knoiflcs. 4 Sawy. 517 (U. S. Dist.
Ct. 1864), p. 520. So in O. & .M. R. R. v. Early. 141 Ind. 73 (1895). and
Shaw V. R. R., 103 Minn. 8 (1907), it was held that the agents of an em-
ployer, present at the scene of an accident to a servant, are bound to give
him such emergency aid as thej' are able and to bring him into reach of
medical assistance: Contra, King v. R. R., 23 R. I. 583 (1902). Such duty
only arises out of the emergency and ceases with it. R. R. v. Early, supra,
nor does it require the exercise of more than good faith and common human-
ity, Shazi' v. R. R.. supra.

In Raasch v. Elite Laundry Co.. 98 Minn. 357 (1906), it was held that
"those who employ methods or instrumentalities which are naturally danger-
ous, and are liable to be the means of causinc injury to the ignorant and



306 STATHAM — ABRIDGMENT



CHAPTER II.

Duties Attached to the Tenure of Land, Incunfbency of Office,
and the Exercise of Trades and Professions.



STATHAM— ABRIDGMENT.
(Circa, 1470), Accions sur le cas, 2 pi. 23.

F. Pelham brought a writ of trespass against the Prior of B.,
inasmuch as the said Prior by reason of his water mill in S. should
have repaired a bridge over the water which ran to the said mill,
by which bridge the plaintiff, by reason of his manor of F., and all
those whose estate, etc. (he had), could pass with their provisions
and cattle, etc. And he showed how the said Prior and his prede-
cessors and all those whose estate they had in the said mill had
repaired this same bridge, etc., there had the defendant suffered the
said bridge to be out of repair so that the plaintiff could not pass
for a long time, to the damage, etc.

Skrcne. Judgment of the writ since the plaintiff" has claimed
a road appendant to the manor of F., and has not claimed the road
to go to his freehold, and no place, etc., and non allocutor. Skrene.
Still you should have an assize of nuisance and not this action.
Hankford. That cannot be for he has raised nothing to the (plain-
tiff's) nuisance, nor thrown down anything,^ but he has suffered the
bridge to fall, wherefor answer."



FITZ-HERBERT, DE NOVA NATURA BREVIUM.

Fits-Herbert, De Nova Natura Brevium (1547),, London 1666, 93 G.

And a Man shall have an Action of Trespass upon the Case
against his Neighbour who has Lands between him and the Sea,
and ought to make Banks ; and cleanse certain Ditches and Sewers
betwixt him and the Sea, and he doth not cleanse them as he ought
to do, by reason whereof his Land is surrounded, etc., he shall have
his Action on the Case against him for not mending the Banks, and
the cleansing the Ditches and Sewers, etc.



unfortunate, should be required to take reasonable means to alleviate the
suffering occasioned by an accident" "and to prevent further injury," even
though not at fault up to this point, and are bound to see that their super-
intendent has sufficient knowledge of the machinery to accomplish these
objects: contra, Stager v. Troy Laundry Co., 38 Oregon, 480 (1901) ; Allen
v. Hixson, III Ga. 460 (1900), but see Bessemer Co. v. Campbell, 121 Ala.
50 (1898), and for whole subject 56 Am. L. Reg. 217, 316.

^ Gar rem ne leve a nusans ne prosterne ; compare the formal averments
in the assize of nuisance.

* Public bridges are repairable by the county and not by the lord of the
manor save ratione tenurae or by prescription — and where the lord of the
manor is so bound to repair, his tenant for years being in possession will be
obliged to do so, per Holt, C. J., R. v. Bucknall, 2 Ld. Raym. 804 (1702)—
and though the land be divided the whole 'charge lies upon the owner of
each part, though all the owners arc contributory among themselves, and a



YELDING V. FAY . 307



FITZ-HERBERT'S XATURA BREVIUM.

Writ de Trespass sur le Case, 93 A. & B.

And if the Sheriff doth arrest a man upon a Capias directed
unto him sued forth upon a Statute-Merchant, and afterwards set
him at hberty, he who sued the Writ shall have a special Action
upon the Case against the Sheriff'.

And if the Sheriff' in a Writ of Account or Debt return upon
any, quod non est inventus, nee habet terras, &c. per qu. distringi
poterit, &e. for which a Capias is awarded against him, and he is
arrested thereupon, where he hath sufficient Lands, or Goods and
Chattels ; then he shall have an Action upon the Case against the
Sheriff, directed unto the Coroners, as before is said, &c.^



YELDING V. FAY.

Tr'in. id Elis., rot. 948 (1596). Moor. 355.

Action on the case by Yelding against Fay, and declares that
the custom of the parish that the parson had kept a bull and a boar
for the increase of the cattle of the inhabitants within the parish;
and shows that, the defendant being parson and the plaintiff an
inhabitant, the defendant did not keep the bull or a boar for four
years together to the damage of the plaintiff. The defendant prist

covenant by the lord of the manor discharging his alienee from this duty-
binds only the lord and does not alter the public remedy, Regina v. Duchess
of Biickhigh {sic), i Salk. 358 (1704)-

' Ministerial officers are liable for nonfeasance as well as misfeasance,
see Holt, C. J., in Lane v. Cotton, i Ld. Raym. 646 (i/Oi), p. 654, "If a man
takes upon himself a public employment, he is bound to serve the public so
far as the employment extends; and for refusal an action lies, as against a
farrier refusing to shoe a horse, against an innkeeper refusing a guest, when
he has room, against a carrier refusing to carry goods, when he has con-
venience, his wagon not being full. So an action will lie against a sheriff
for refusing to execute process." Accord: Amy v. Supervisors, 11 Wall. 136
(U. S., 1870), p. 138, "where the law requires absolutely a ministerial act to
be done by a public officer and he neglects or refuses to do such act, he
may be compelled to respond in damages to the extent of the injury arising
from his conduct" and this liability arising at common law is not affected by
the repeal of an act which specifically enacts that delinquent officers shall
be personally liable; Wright v. Shanahan, 149 N. Y. 495 (1896). But a
public officer is liable to a private action for the nonfeasance of his duties
as such only where the duty is one in the proper performance of which
the individual injured has a private interest, Gage v. Springer, 211 111. 200
(1904), no one citizen has such an interest in efficient public service as to
give him a right of action if the state be badly served.

A Sheriff was liable for the misconducts, both of commission and omis-
sion, of his deputies, as his bailiffs, Acktvorth v. Kemp. Doug. 40 (1778');
or, until the Prisons Act of 1865. 28 & 29 Vic, c. 126, his gaoler, Broivn v.
Compton, 8 T. R. 424 (1800)— but in Lane v. Cotton, supra, it was held
that public officers (the Postmasters-GeneraH were not liable for the mis-
conducts of their subordinates, though appointed by them — Lord Mansfield
dissenting, emphasized the receipt by the Postmaster of a salary paid out
of the profits of the office: Accord: Bainbridge v. Postmaster-General, L. R.
1906. I K. B. 178. no liability by negligence of workmen employed to erect
and maintain telegraph poles and wires.



308 . COGGS V. BERNARD

le custome per protestation (protestaudo that there is not any such
custom^) and pleads not guilty. And it is held on demurrer for
the plaintiff ; since the action lies ; and since not guilty is not a
good plea when the offense and tort is in iw7t feasance of a thing;
but that there he ought to have shown affirmatively le feasance (the
perfomiance) of the thing; since the protestation is not good as to
the custom, which is the ground and substance of the action, as in
Fox and Gresbrokes case in Plowden.



FITZ-HERBERT, NATURA BREVIUM.

Accioii sur le cas, 94 D.

But if a smith prick my horse with a nail, etc, I shall have
my action of trespass upon the case without any warranty by the
smith to do it rightly, etc.^ For it is the duty of every artificer to
exercise his art rightly and truly as he ought.



CHAPTER III.

Duties Attached to Relations Voluntarily Entered Into.



COGGS V. BERNARD.
Court of King's Bench, 1703. 2 Ld. Raym. 909.

Holt, chief justice. The case is shortly this. This defendant
undertakes to remove goods from one cellar to another, and there
lay them down safely, and he managed them so negligently, that
for want of care in him some of the goods were spoiled. Upon
not guilty pleaded, there has been a verdict for the plaintiff, and
that upon full evidence, the cause being tried before me at Guildhall.
There has been a motion in arrest of judgment, that the declaration
is insufficient, because the defendant is neither laid to be a common
porter, nor that he is to have any reward for his labour. So that the
defendant is not chargeable by his trade, and a private person can-
not be charged in an action wthout a reward.

I have had a great consideration of this case, and because some
of the books make the action lie upon the reward, and some upon
the promise, at first I made a great question, whether this declara-
tion was good. But upon consideration, as this declaration is, I think
the action will well lie. In order to shew the grounds, upon which
a man shall be charged with goods put into his custody, I must shew



^ Same case suh. nom. Yielding v. Fay, Cro. Eliz. 569, in which it is also
said that the Court was of the opinion "that it is a good and reasonable cus-
tom; and that every inhabitant who hath prejudice by the not keeping the
bull or the boar, may well maintain his action." Accord: (semble) Waples
V. Basset, Skinner 399, 4 Mod. 241 (1693), where however the declaration
was bad in that it did not set forth that the parson was bound to keep the
animals, either by custom or prescription or "that the defendant being rec-
tor of a church ought to find a boar in consideration of paying him tithes."

^Accord: Y. B. 46 Ed III, 19 pi. 19 (1491).



COGGS V. BERNARD 3O9

the several sorts of bailments. And there are six sorts of
bailments. The first sort of bailment is, a bare naked bailment of
goods, delivered by one man to another to keep for the use of the
bailor; and this 1 call a deposition, and it is that sort of bailment
which is mentioned in Southcote's case. The second sort is, when
goods or chattels that are useful, are lent to a friend gratis, to be
used' by him; and this is called cominodatuin, because the thing is to
be restored in specie. The third sort is, when goods are left with
the bailee to be used by him for hire; this is called locatio ct con-
ductio, and the lender is called locator, and the borrower conductor.
The fomih sort is, when goods or chatties are delivered to another
as a pawn, to be a security to him for money borrowed of him by
the bailor; and this is called in Latin radium, and in English a pawn
or a pledge. The fifth sort is when goods or chatties a*-^ delivered
to be carried, or something is to be done about them for a reward
to be paid by the person who delivers them to the bailee, who is to
do the thing about them. The sixth -sort is wdien there is a delivery
of goods or chatties to somebody, wdio is to carry them, or do some-
thing about them gratis, without any reward for such his work or
carriage, which is this present case. I mention these things, not so
much that they are all of them so necessary in order to maintain
the proposition wdiich is to be proved, as to clear the reason of the
obligation, which is upon persons in cases of trust.

As to the first sort, where a man takes goods in his cus-
tody to keep for the use of the bailor, I shall consider, for what
things such a bailee is answerable. He is not answerable, if they
are stole without any fault in liim, neither will a common neglect
make him chargeable, but he must be guilty of some gross neglect.
There is I confess a great authority against me, wdiere it is held,
that a general delivery will charge the bailee to answer for the goods
if they are stolen, unless the goods are specially accepted, to keep
them only as you will keep your own. But my lord Coke has
improved the case in his report of it, for he will have it, that there
is no difference between a special acceptance to keep safely, and
an acceptance generally to keep. But there is no reason nor jus-
tice in such a case of a general bailment, and wdicre the bailee is
not to have any reward, but keeps the goods merely for the use
of the bailor, to charge him without some default in him. For if
he keeps the goods in such a case with an ordinary care, he has
performed the trust reposed in liim. But according to this doctrine
the bailee must answer for the wrongs of other people, which he
is not, nor cannot be, sufficiently armed against. If the law be so,
there must be some just and honest reason for it, or else some uni-
versal settled rule of law, upon which it is grounded ; and therefore
it is incumbent upon them, that advance this doctrine, to shew an
undisturbed rule and practice of the law according to this position.
But to slicw that the tenor of the law was always otherwise, T sb.all
give a historv of the authorities in the books in this matter, and by
them shew, that there never was any such resolution given before
Southcote's case. The 29 Ass. 28, is the first case in the books
upon that learning, and there the opinion is. that the bailee is not
chargeable, if the goods are stole. As for 8 Edxi'. 2. Fitz. detinue.



310



COGGS V. BERNARD



59. where goods were locked in a chest, and left with the bailee,
and the owner took away the key, and the goods were stolen, and
it was held that the bailee should not answer for the goods. That
case they say differs, because the bailor did not trust the bailee
with them. But I cannot see the reason of that difference, nor
why the bailee should not be charged with goods in a chest, as well
as with goods out of a chest. For the bailee has as little power
over them, when they are out of a chest, as to any benefit he
might have by them, as when they are in a chest ; and he has as
great power to defend them in one case as in the other. The case
of 9 Ediv. 4. 40. h. was but a debate at bar. For Danhy was but
a counsel then, though he had been chief justice in the beginning
of Ed. 4. yet he was removed, and restored again upon the restitu-
tion of Hen. 6. as appears by Diigdale's Chronica Series. So that
what he said cannot be taken to be any authority, for he spoke
onlv for his client; and Genney for his client said the contrary.
The case in 3 Hen. 7. 4. is biit a sudden opinion and that but by
half the court; and yet that is the only ground for this opinion of
my lord Coke, which besides he has improved. But the practice
has been always at Guildhall, to disallow that to be a sufficient evi-
dence, to charge the bailee. And it was practiced so before my
time, all chief justice Pcmherton's time, and ever since, against the
opinion of that case. When I read Sonthcote's case heretofore, I
was not so discerning as my brother Powys tells us he was, to
disallow that case at first, and came not to be of this opinion, till I
had well considered and digested that matter. Though I must con-
fess reason is strong against the case to charge a man for doing
such a friendly act for his friend, but so far is the law from being
so unreasonable, that such a bailee is the least chargeable for neg-
lect of any. For if he keeps the goods bailed to him, but as he
keeps his own, though he keeps his own but negligently, yet he
is not chargeable for them, for the keeping them as he keep:
his own, is an argument of his honesty. A fortiori he shall not
be charged, where they are stolen without any neglect in him.^

^Accord: Lord Mansfield, Gibbon v. Paynton, 4 Burrows, 2298 (1769),
p. 2300; Sir William Jones, Bailments 46 and Chancellor Kent, 2 Comm.
563; but the tendency of later decisions is contra, Roofh v. Wilson, i B. &
Aid. 59 (1817) ; Doorman v. Jenkins, 2 A. & E. 256 (1834) ; The William, 6
Ch. Rob. (Adm.) 316 (1806), per Lord Stowell; Story, J., Tracy v. Wood,
3 Mason, 135 (U. S., 1822).

In Wallace v. Casey Co., 116 N. Y. Supp. 394 (App. Div., 1909) _ it was
held that one granting to another a gratuitous benefit is not liable for injuries
done to the recipient of his charity by the negligence of his servant assisting
therein. The defendant had instructed its servants to give away its empty
barrels to the poor of the neighborhood for their use as fuel. In throwing
a barrel into the street, one of its servants carelessly threw it upon a small
boy who had come with his older Isrother to the sidewalk in front of the
factory to carry away the barrels for fuel.

The more recent cases dealing with the liability of charitable corporations
show a tendency to hold that, while they are not liable to the beneficiaries
of their charity for the negligence of those employed to administer it, Pozvers
V. Mass. Hospital, 109 Fed. 294, 47 C. C. A. 122 (C. C. A., ist Circ, 1901)
and cases cited therein, they are liable to the same extent as any other em-
ployer of labor, to a servant employed by them, Hewett v. Woman's Hospital,
73 N. H. 556 (1906) ; Bruce v. M. E. Church, J47 Mich. 230 (1907) ; contra,



COGGS V. BERNARD 3 1 1

Agreeable to this is Bracton, lib. 3. c. 2. 99. h. J . S. opud quern res
deponitiir, re obligatur, et de ea re, quam accepit, rcstitiienda te>ir-
etxir, et etiam ad id, si quid in re deposita dolo commiserit; culpae
aiitcm nomine non tenetur, scilicet desidiae vel ncgligentiae, quia
qui ncgligcnti amico rem custodiendam tradit, sibi ipsi et propriae
fatuitati hoc debet imputare. As suppose the bailee is an idle, care-
less, drunken fellow, and comes home drunk, and leaves all his
doors open, and by reason thereof the goods happen to be stolen
with his own ; yet he shall not be charged, because it is the bailor's
own folly to trust such an idle fellow.- So that this sort of bailee
is the least responsible for neglects, and under the least obligation
of any one, being bound to no other care of the bailed goods, than
he takes of his own. This Bracton I have cited is, I confess, an old
author, but in this his doctrine is agreeable to reason, and to what
the law is in other countries. The civil law is so, as you have it
in Justinian's Inst. lib. 3. tit. 15. There the law goes farther, for
there it is said. Ex co solo tenetur, si quid dolo commiserit: culpae
outem nomine, id est, desidae ac negligentiae, non tenetur. Itaque
secnrus est qui parum diligenter cnstoditam rem surto amiserit, quia
qui negligent! amico rem cnstodioidam tradit non ei, sed suae facil-
itati fd imputare debet. So that a bailee is not chargeable without
an apparent gross neglect. And if there is such a gross neglect, it
is looked upon as an evidence of fraud. Nay, suppose the bailee
undertakes safely and securely to keep the goods, in express words,
yet even that won't charge him with all sorts of neglects. For if
"such a promise were put into writing, it would not charge so far,
even then. Hob. 34. a covenant, that the covenantee shall have,
occupy and enjoy certain lands, does not bind against the acts of
wrong doers. 3 Cro. 214. ace. 2 Cro. 425. ace. upon a promise for
quiet enjoyment. And if a promise will not charge a man against
wrong doers, when put in writing, it is hard it should do it more so,
when spoken. Doct. & Stud. 130. is in point, that though a bailee
do promise to re-deliver goods safely, yet if he have nothing for
the keeping of them, he will not be answerable for the acts of
a wrong doer. So that there is neither sufficient reason nor author-
ity to support the opinion in Southcotc's case; if the bailee be guilty
of gross negligence, he will be chargeable, but not for any ordinary
neglect. As to the second sort of bailment, viz. commodafum or
lending gratis, the borrower is bound to the strictest care and dili-
gence, to keep the goods, so as to restore them back again to the
lender, because the bailee has a benefit by the ues of them, so as if
the bailee be guilty of the least neglect, he will be answerable ; as
if a man should lend another a horse, to go Westward, or for a
month; if the bailee go Northward, or keep the horse above a



Whittakcr v. St. Lukes Hospital, 117 S. \V. 1189 (Mo. Ct. of App. Mo., 1909) ;
or to a stranger who is injured by a servant employed upon a charitable
errand. Kellogg V. Churcli Charity Foundation, 128 N. Y. App. Div. 214
(1908).

'This, it would seem, is only so if the bailor is aware of the bailee's
character or negligently oblivious of it. See Bevcn on Negligence, 3rd Ed.,
vol. II, p. 744.



312 COGGS V. BERNARD

month; if any accident happen to the horse in the Northern jour-
ney, or after the expiration of the month, the bailee will be charge-
able; because he has made use of the horse contrary to the trust he
. was lent to him under, and it may be if the horse had been used
no otherwise than he was lent, that accident would not have befal-
len him. This is mentioned in Bracton ubi supra: his words are.
Is autem cui res aliqua utcnda datur, re obligatur, quae commodata
est, sed magna differentia est inter mutuuni et commodatum; quia
is qui rem mutuam acccpit ad ipsani restituoidaiji tenctur,
vel ejus pretium, si forte incendio, ruina, naufragio, ant latronum
vel hostium incursu, consumta fuerit, vcl deperdita, subtracta vel
ablata. Et qui rem utendani accepit, non sufficit ad rci austodiam,
quod talem diligeetiam adhibeat, qualent suis rebus propriis adhibere
solet, si alius earn diUgentius potuit custodire; ad vim autem ma-
jorem, vel casus fortuitos non tenctur quis, nisi culpa sua int erven-
erit. Ut si rem sibi commodatam donii, secum detulerit cum peregre
profectus suerit, et illam incursu hostium vel praedonum, vel nau-
fragio amiserit non est dubiumquin ad rei resiitutioneni teneatur. I
cite this author, though I confess he is an old one, because his
opinion is reasonable, and very much to my present purpose, and
there is no authority in the law to the contrary. But if the bailee
put this horse in his stable, and he were stolen from thence, the
bailee shall not be answerable for him. But if he or his servant
leave the house or stable doors open, and the thieves take the oppor-
tunity of that, and steal the horse, he will be chargeable ; because
the neglect gave the thieves the occasion to steal the horse. Bracton
says, the bailee must use the utmost care, but yet he shall not be
chargeable, where there is such a force as he cannot resist.