28 Vt. 180 | Vt. | 1855
The opinion of the court was delivered by
In regard to the carriage, and the wagons and sled, which were not past use, although the carriage was an old one, and the wagons and sleds were described by the witnesses, as being “ not very new nor very old,” it seems to us there was no testimony in the case tending to show that an officer who held them under attachment, would be fully justified in letting them stand outdoors all winter. We could scarcely conceive of a state of facts jus-1 tifying such a course, short of absolute necessity, which, it would seem, would never occur when boards could be obtained.-- And where there is no testimony, tending to excuse an officer in such case, it becomes a mere question of damages. Questions of negligence are said in the books to be mixed questions of law and fact, but where there is no testimony tending to show negligence, or where a given course of conduct is admitted, which results in detriment, and no excuse is given, the liability follows, as matter of law, and there is nothing but a question, of damages for the jury.
We do not think a judge is ever bound to submit to a jury questions of fact, resulting uniformly and inevitably, from the course of nature, as that such carriages will be injured móre or less by exposure to the weather during the whole winter,- or that a judge is bound to submit to a jury the propriety of such a course, when it is perfectly notorious that all prudent men conduct their own affairs differently. This uniformity of the course of nature or the conducts of business, becomes a rule of law. But while there is any uncertainty, it remains matter of fact, for the consideration of a jury. It could not be claimed, that it should be submitted to a jury whether cattle should be fed or allowed to drink, or cows be milked.
II. As, from the determination of the first point, a new trial
We have been at some pains to look into the English books upon this point, and although there may be some exceptions, the general rule certainly is, among the English judges, to express common care and ordinary care by terms less liable to misconstruction, and, as we think, likely to be more justly appreciated by juries. In Duff v. Budd, 3 Brod. & Bing. 177, the rule is laid down by Dallas, Ch. J., to the jury, in these words : “ Gross negligence is where the defendant or his servants have not taken the same care of the property as a prudent man would, have taken of his own,” and the judgment is affirmed by the full bench. In Riley v. Horne, 5 Bing. 217, Best, Ch. J., says of a carrier, “ the notice will protect him, unless the jury think that no prudent person, having the care of an important concern of his own, would have conducted himself with so much inattention, or want of prudence.” In Batson v. Donovan, 4 Barn. & Aid. 32, the same learned judge lays down the rule thus: “ They must take the same care of it that a prudent man does of his own property. This is the law with respect to all bailees for hire or reward.” In Wyld v. Pickford, 8 M. &. W. 443, Parke B. seems to claim a distinction between gross negligence
It may with some plausibility be said, that one who employs a man known to the employer to be habitually indifferent to the management of his own concerns, has no right to expect him, .all at once, even for reward, to assume a wholly different character, and the jury would be likely so to decide, the question being ordinarily one of fact, when the testimony raises any doubt; and when one employs a man of skill and talent in the management of his own affairs, he may justly expect him to exert the same skill and talent, to the same extent in the management of the business which he undertakes for others; and in the case of a public officer who is selected for his fitness for the particular trust, every one may justly expect all the care and diligence, which men entirely competent and careful could reasonably be expected to exert in their own business of equal importance.
The absurdity of this measure of duty in a public officer will become sufficiently obvious, if we advert to the form of the oath, or of the official bond of public officers. What should we think of having one sworn or giving bond to perform his duty as common men ordinarily do such things. This certainly sounds very different from the official oath, “ that you will faithfully execute the office to the best of your judgment and ability,” and an official bond obliges officers to the strictest, most faithful performance of all of their duties. Any other standard would sound absurd, and it is obvious to us, that the case of Bridges v. Perry, 14 Vt. 262, was not intended to impose any different rule of liability upon offi-, cers in keeping property. As said in Drake on Att. § 273, “The officer must comply with all the requisitions of the law,” (one of which is, to keep safely, property attached on mesne process, and restore it when required by law,) “ or show some legal excuse for not doing so.” Hence in Sewall v. Marston, 9 Mass. 530, an offi
Any injury or loss, in such cases, renders the officer rima facie liable, and imposes upon him the burden of showing some valid excuse; Logan v. Matthews, 6 Barr 417; Story on Bail. §411; Platt v. Hubbard, 7 Conn. 501, Burt v. Miller, 13 Barbour 482. There is undoubtedly some contradiction in the cases, in regard to the burden of proof of negligence in the ordinary case of bailments for hire, blit there can be no doubt, we think, in regard to the question in the present case. This is expressly so laid down in Bridges v. Perry. The court in that case, as will be obvious from a careful examination, had no purpose of excusing this class of officers from any degree of care and diligence, which careful men would expect under the circumstances.
And this, it seems to us, is the true measure of liability in all cases of bailment. The bailee is bound to that degree of diligence, which the manner and the nature of his employment makes it reasonable to expect of him; anything less than this is culpable in him, and renders him liable. The conduct of men in general in the region where the attachment was made, may be some guide to what ought to be required of the defendant in keeping property attached. We mean, of course, prudent and careful men, for no one is expected to go very essentially beyond the common custom of the country in such matters, as it must be attended with extraordinary expense, and a question might thereby arise as to the propriety of incurring such expense.
Judgement reversed, and case remanded.