41 N.Y.S. 692 | N.Y. App. Div. | 1896
The plaintiff is the receiver of an insolvent debtor, Ryan, and the defendant is engaged in the business of equipping premises with wire and other appliances for the use of electricity, and of furnishing electricity from its central station for such use. The defendant equipped the premises o'f Ryan with wires and appliances, and furnished him with electricity. The buildings and property of Ryan therein took fire from the electricity and were destroyed, and this action was brought to recover damages for such destruction of property, it being alleged that it was due to the negligent manner
No evidence was given in behalf of defendant as to such question, because, upon the evidence as to the defendant’s liability therefor, the court held that there could be no recovery, by reason of the contract between the parties. There were two contracts executed, one for equipping the premises with wires and appliances, and the other for furnishing the electricity. Among the provisions in the latter contract was one, numbered 8, reading as follows: “ The company (defendant) is hereby released from all claims resulting from the use of electric current, when the wiring and electrical equipments ón the premises of the consumer shall have been approved by the New York Board of Fire Underwriters, or other proper authorities,” and id . this case such approval had actually been obtained.
The destruction of property and consequent damage resulted from negligence in equipping the premises with wires and other appliances, which was done under the first, contract, and the question was whether this eighth provision of the last contract relieved the defendant from liability for such negligence in the performance of the first contract.
It was claimed by the plaintiff that the two contracts were separate and distinct, and that the eighth provision in the last contract did not refer to the work done under the first contract, but referred alone to the work done and materials furnished under the second contract.
The defendant claimed that the two contracts were made at the same time, and as a part of one and the same transaction, and were to be considered as a single contract, and that the eighth provision of the second contract, therefore, relieved the defendant from liability for the destruction of the property and the consequent damages. Upon the evidence given the court held with the defendant, and, therefore, ordered the verdict in its favor. The court was not justified in ordering the verdict if upon the whole evidence the jury would have been justified in any view of the case in rendering a verdict for the plaintiff. The contracts, by their language, in no way referred to each other. The inference, therefore, from the ■ contracts themselves was that they were separate and distinct.
The necessary conclusion to be drawn from the decision of the General Term would seem, to be that, in the absehee of evidence outside of ■ the contracts themselves, a defense could only be made out by considering the two contracts as one, inasmuch as it was held on demurrer to the answer that no defense was alleged, because it was not alleged that the two contracts were made at the same time and as a part of the same transaction, and were to be considered and read together.
The question then arose upon the pleadings alone, however, -while the question is now -to be determined upon the pleadings and evidence given on the trial.
It- seems to us, as the case now stands, that the two contracts must be treated and considered as one in order to relieve the defend ant from liability for its negligence in equipping the premises with wires and other appliances under the first contract. Assuming, the second contract to have been a separate one, the eighth provision thereof could not be considered as intending to relieve the defend, ant from liability for damages resulting from a negligent performance of the first contract. Its sole purpose would seem to have been to relieve the defendant from liability for the damages resulting from any negligence in the performance of the second contract. Even through the premises might have been properly equipped with wires and other appliances under the first contract, still the introduction of the -electric current involved dangers for which the defendant would have- been liable in the absence of this eighth provision in the second contract. Such dangers might result from an excessive supply of electricity; from an improper relation between the quantity of current and the size of the wire through which the electricity was transmitted, the number of lamps supplied by
The rule as to this class of contracts is that when a release from liability is alleged to have been made, the contract should be strictly construed against the party seeking to absolve itself from a liability which it would otherwise incur. Having regard to this rule of construction, and considering the nature of these two contracts, and that the second one in no way, by its terms, refers tó the first one, it seems to us that if the contracts are tó he regarded as separate and distinct, it cannot be held that the fair or necessary inference is that the eighth provision in the second was intended by the" parties to relieve the defendant from any liability for the negligent performance of its work under the first contract..
There was much examination and cross-examination of these two witnesses, and their evidence was more or less shaken and varied from time to time, but their credibility was for the jury, who were to consider all the evidence and to determine what the truth was, and it seems to us that their verdict in favor of the plaintiff upon this issue, to the effect that the contracts were separate and distinct contracts, and were not understood hy the parties to constitute a single agreement, would have been supported by the evidence, and could not,, under the rules applicable to the trial of issues of fact before juries, have been set aside by the court.
The result of the suggestion here made is that the court erred in taking the case from the jury and ordering a verdict for the defendant.
For this error the judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.
Van Brunt, P. J., Barrett and Bumsey, JJ., concurred; Patterson, J:, dissented.
Judgment reversed, new trial ■ ordered, costs to appellant to abide event.