3 Conn. 64 | Conn. | 1819
The right determination of this case, depends on a correct answer to the following questions; what action has the plaintiff instituted ; and what is the legal remedy applicable to the facts, which appear on the motion for a new trial ? As no suit can be maintained for trespass vi et armis after three years, and as in trespass on the case there is no limitation, it becomes highly important to preserve the established boundaries between these actions.
What action has the plaintiff instituted ? His declaration is founded merely on non-feasance. From the frame of the action it manifestly appears, that he has not complained of any act of the defendant, committed with force. “ The person who drew this declaration,” as was said by Grose, J. in Savingac v. Roome, 6 Term Rep. 130. “meant to draw a declaration on the case ; if he had thought that trespass was his proper remedy, he would have moulded the declaration differently.” The action is denominated “ a plea of trespass on the case;” and every such allegation is expressive only of neglect, want of care, imprudent omission, and mismanage
This brings me to the remaining enquiry ; what is the legal remedy applicable to the facts-, which appear on the motion for a new trial ? It appears, that the defendant was proceeds ing with the Susan, under his personal direction .> and management, to New-TIaven. One of the plaintiffs, in an opposite direction, was navigating the Mary to New- York. When distant from each other about thirty rods, the defendant commanded the person at the helm of the Susan to luff; “ in obedience to which, the helmsman suddenly luffed, and turned said sloop Susan to windward, and in pursuance of the direction thus given, she directly struck the larboard quarter of the Mary,,with,great violence.” This is the history of the transaction,, which the motion gives, and from which certain incontrovertible propositions are established., 1. By reason of the express : command to the helmsman, the defendant is precisely ki the same condition as if he had steered the sloop. 2.. The Susan obeyed the helm, andi was guided by it., The expression, “ the helmsman turned the sloop, and in pursuance of the direction thus given, she directly struck theMaryff as definitely ascribes to the defendant the act of turning and directing her movement, until the injury was effected, as if she had been a cane wielded by his hand. Whether the word directly is considered as synonymous with the term immediately, or the whole phrase is viewed as indicating that the defendant, by the helm, controlled and regulated the movemeut of the Susan, the con
On these facts, I am extremely clear, that the only legal remedy is trespass vi et armis.
The general principle, which discriminates trespass from case, is stated with great accuracy, by Sir William Blackstone. “ It is a settled distinction,” said that learned^ commentator, “ that where an act is done, which is in itself an immediate injury to another’s person, or property, there the remedy is usually by an action of trespass vi et armis ; but where, tHore is no act done, but only a culpable-amission. or where the act is not immediately injurious, but only by consequence, and collaterally; there no action of trespass vi et
It has been contended, that the defendant did not intentionally, or wilfully, do the act complained of; and hence was deduced the unwarrantable inference, that trespass vi et armis could not be sustained. Whether the act was the result of the will, or is attributable to neglect or miscalculation, the legal consequence is the same. In actions on the case, the quo animo, is the material enquiry ; but in trespass vi et armis, when the act complained of was done by the defendant personally, or by his express command, it is of no imaginable importance. Tarlton v. Fisher, Doug. 646. 649. “ In trespass, innocence of intention is no excuse; in case the whole turns upon it,” ike. Idiots and lunatics, as to their legal capacity of committing trespass, are not distinguishable from moral agents; and he who strikes another through negligence, or by accident', is as much a trespasser, as if the stroke had been intentionally given. Reynolds v. Clarke, 1 Strange 634. Shapcott v. Mugford, 1 Ld. Raym. 187. Hayward v. Bankes, 2 Burr, 1114. Harker & al. v. Birbeck & al. 3 Burr. 1556. Gates v. Bayley, 2 Wilson, 313. Scott v. Shepherd, 2 Wm. Black. 892. Morgan v. Hughes, 2 Term Rep. 225. Day v. Edwards, 5 Term Rep. 649. Savignac v. Roome, 6 Term Rep. 125. Ogle & al. v. Barnes & al. 8 Term Rep. 188. Sheldrick v. Abery & al. 1 Esp. 55. Leame v. Bray, 3 East 593. Adams & al. v. Hemmenway, 1 Mass. Rep. 145. Taylor v. Rainbow, 2 Hen. & Mun. 423. Underwood v. Hewson, l Strange, 596. Covell v. Laming, 1 Campb. 497. Lotan v. Cross, 2 Campb. 464. e contra, Rogers v. Imbleton, 2 New Rep. 117.
A difference has been attempted, between the injury resulting from the incautious, or negligent casting a stone, or striking with a cane, and the running down a ship in the same manner ; and it has been said, that the former is trespass, but that the latter is not. In the nature of the case, there is no foundation for the supposed distinction. From the same premises, the legal and logical result, must invariably be the same. The case of Leame v. Bray, 3 East 593. which was an action of trespass for running down a carriage, in my opinion, is sound law: and in Covell v. Laming, 1 Campb. 497. the same action was maintained for damage produced by the defendant’s ship, on the ship of the plaintiff, unintentionally, and from unskilful management. Mr. Chitty (1 Plead. 127.) has contributed
Cases have been cited of suits brought for acts done by the servant of the defendant, in his absence, and not by his express command. These have no bearing on the question before the Court. “ It is difficult to put a case, where the master could be considered a trespasser for an act of his servant, which was not done by his command.” Morley v. Gaisford, 2 Hen. Black. 442. Hugget v. Montgomery, 2 New Rep. 446. Bowcher v. Noidstrom, 1 Taunt. 567.
The decision most relied on, by the defendant, is Ogle & al. v. Barnes & al. 8 Term Rep. 188. The action was trespass oa the case, for an injury done by the incautious and negli
It has been said, that if the injury were attributable to negligence, though it were immediate, the party injured has an election either to treat the negligence of the defendant as the cause of action, and to declare in case ; or to consider the act itself as an injury, and to declare in trespass. This, as a gene
There exists no question, if the act from which the injury, resulted, was in the nature of trespass, that consequential damages, if shewn with particularity, may be recovered ; although they are more remotely consequential from the act,than any matter which the plaintiff’s declaration discloses. 1 Chitty, 386. Hence, the principle contended for by the plaintiffs, is unnecessaay ; and would authorize the manifest in
The only question, in this case, is, whether from the facts admitted, an action of trespass on the case, Can be supported, or whether trespass only will lie.
If decided cases are to govern in the decision of this case, it seems to me, that there can hardly be a doubt hut that the former is the appropriate action. An examination of the cases cited, and relied on, by the plaintiffs, will evince this.
In the case of Ogle & al. v. Barnes & al. 8 Term Rep. 188. it is alleged in the declaration, “that through negligence, &c* the defendants, with great violence and force, sailed against, and ran foul of, the plaintiffs’ ship and all the judges concurred in saying, that case was the proper action.
The case of Turner & al. v. Hawkins & al. in error, 1 Bos. & Pull. 472. is, if possible, stronger in favour of the plaintiffs. It is there statéd, “ that the defendants wrongfully, unlawfully -and injuriously, drove their cattle, with great force and violence,'1'1 he.-, and yet, as the injury was caused by the negligence of the defendants, it was held, that case would lie ; the -Chief Justice remarking, “ that it was fair to infer, that it was not intended to charge the defendants with wilfully driving” he.
The case of Savignac v. Roome, 6 Term Rep. 125. is not opposed to the cases cited above. In that case, it is alleged, “ that the defendant wilfully drove his horses upon and against the chaise of the plaintiff.” Where the injury is caused by force, and done wilfully,-trespass is the appropriate action. In this respect the decisions are uniform; but where negligence is the ground of action, though the injury is the effect of force, case is, in general, the proper action. In the case of Leame v Bray, 3 East 593. 603. Le Blanc, J. remarks, “ It is chiefly in actions for running down vessels at sea, that difficulties may occur, because certainly the force, which occasions the injury, is not so immediate '■ from the act of the person steering.” ■“ The immediate agents of the force are the wind and waves-, and the personal act of the party rather consists in putting the vessel in the way to be so acted upon.”
What, then, is this case? The defendant, through carelessness, ran his vessel against that of the plaintiffs. What is the evidence to support this allegation ? Why, that this was done by injudiciously luffing. Suppose it had been done, by injudiciously bearing away, carrying too much sail, or too little, or any other injudicious act.
But the great objection, here, is, that the injury was the effect of force. Was it not in all the cases before cited? Indeed, were one vessel to run foul of another, in so gentle a manner, as to do no injury, it would be difficult to conceive how any action would lie. The injury is always the effect of force ; but then it is the force of the winds and waves ; and the defendant becomes liable in consequence of his misconduct ; if wilful, in trespass,—if negligent, in case.
I am confident, that in relation to injuries done by one vessel to another, the proposition last laid down will be supported, by every adjudged case, both in England and in the United States. I think, therefore, that there ought to be ⅜. new trial.
New trial not to be granted,.