Hayes v. Porter, 22 Me. 371

Hayes v. Porter

22 Me. 371 | Me. | 1843

The opinion of the Court was afterwards drawn up by

Tenney J.

— 'Chap. 148, of the St. of 1821, requires, under the sanction of a penalty, that all salted beef and pork, before the same is exported from the State, shall be inspected and marked in the manner therein specified, by an Inspector General, appointed by the Governor, or by a deputy of said Inspector General; both Inspector aud deputy are to give bonds and take an oath faithfully to perform their duties, and as an additional security, for any neglect or fraud in the discharge of their trusts, penalties are incurred.

The present action is not for the purpose of recovering a *376penalty,'but is an action of the case for the damages-alleged to have been sustained by the plaintiffs, by the neglect of the defendant in not faithfully performing what he undertook, by virtue of his appointment and their request, for a full consideration.

It is insisted by his counsel that the action cannot be maintained ; that he is the creature of the statute, and no common law remedy can be applied ; that resort can be' had only to the mode and to the penalty pointed out in the statute. Where the law has affixed forfeitures for certain infractions thereof or for neglects in not conforming to its requirements, whereby individuals are injured, they are not in consequence thereof deprived of the remedy, which would exist if no penalties were prescribed. If such penalties were not intended for individual protection, private loss may be remunerated by recourse to the same means, which are resorted to for other neglects. A sheriff, deputy sheriff, coroner or constable, are liable in an action at common law, for all official neglects and violations of duty, to the extent of the injury, notwithstanding their powers are all derived from an appointment, under the statute. When they are qualified as public officers, they still may be regarded as private agents of persons, who employ them to act officially in individual concerns, and as such are answerable like agents differently selected.

In cases, where the public have an interest in the faithful discharge of official duty, the penalty for neglect, unless the contrary appear, is for the protection of that interest, rather than to secure private rights ; and in many cases the forfeiture is entirely inadequate for the latter purpose, and is not even certainly available to the injured party. In Beckford v. Hood, 7 T. R. 620, which was an action of the case for the publication of a work, without the consent of the plaintiff, who had secured therefor a copy-right, and for which publication a penalty was incurred, Lord Kenyon says, “ nothing could be more incomplete as a remedy than those penalties alone; for without dwelling upon the incompetency of the same, the right of action is not given to the party grieved, but *377to any common informer.” And Ashurst J. in the same case observes, “ Now I can only consider the action for the penalties given to a common informer, as an additional protection, but not intended by the Legislature to oust the common law right to prosecute by ail action any person, who infringes this species of property. “ In Farmer’s Turnpike Co. v. Coventry, 10 Johns. R. 389, the penalty is decided to be an additional remedy. There can be no distinction in this respect between a positive invasion of another’s right and the neglect of a manifest duty to another’s injury. The eighth section of the chapter referred to, imposes a penalty on the inspector or his deputy for any neglect of official duty, and section 17 provides, that a moiety thereof shall go to the town where the offence was committed, and the other moiety to him or them who shall inform or sue for the same. This clearly shows that the penalty was not intended to secure the individual against loss, but to create in the officer an additional motive to fidelity.

It is insisted, that as the plaintiffs employed packers and coopers, the defendant is not liable for their want of skill or neglect; and that the barrels being furnished by the plaintiffs, they alone are to be affected by any loss occasioned by defects therein. “ The inspector general and his deputies shall not, nor shall either of them, brand any packages of provisions, other than those which have been inspected and caused to have been weighed and packed as the law requires.” Chap. 148, <§> 8. The case finds, that the defendant did brand the barrels containing the beef in question as the law requires. If he did not attend to every part of the business of cutting, weighing, packing, salting and coopering said beef with his own laborers and coopers, or such other laborers and coopers as he employed, and for whose conduct in said business he is accountable, he was guilty of a fraud upon the public, which we are not to presume. The branding the barrels was certainly prima facie evidence, that he took the responsibility imposed by law ; the legal inference to be drawn therefrom is, that all who aided in the business were employed by him ; and whether *378they were his own laborers, or were furnished by the plaintiffs, is wholly immaterial. It was equally his duty to see that the barrels were in every way suitable for the purpose, so far as it could be done by an examination at the time they were used. If they were made of other materials and in another manner, than such as the statute requires, the Inspector has no more authority to pack in them beef or pork to be exported from the State, and affix on them the usual brand or mark, than to omit entirely any part of his duty in the business; and in an action for the penalty, it would be no defence, that the packers, coopers, and barrels were furnished by the owner of the beef or pork, if the neglects of the laborers or defects of the barrels at any stage of the process were obvious on a careful examination. He having, by the official act of marking the barrels, declared that all the requisites of the statutes have been observed, the burden rests upon him to show, that he is not liable to the plaintiffs for any injury sustained by them in the article inspected.

If however any of the work was known to the plaintiffs at the time, to be other than what was proper, or if the barrels were such, that they must have been aware that they were unsuitable, and they did not object thereto, but yielded then-assent to the whole, or if by any argreement or understanding between the parties, any part of the inspector’s duty was dispensed with and thereby the loss took place, he would not be liable to those who had caused it. This question was substantially submitted to the jury under all the evidence in the case, and their verdict has settled the fact that there was no collusion between the parties, but that the plaintiffs relied upon the inspector, to have the beef packed and inspected according to law, and in all respects properly secured.

This action is to recover the damages alleged to have been sustained by the plaintiff by the neglect of the defendant in cutting, weighing, packing, salting and coopering the beef in question, after being requested, and for a consideration paid, having undertaken to do it according to law. To whatever cause the loss is attributable, whether to the unsuitable con*379dition of the meat, when it was cut, and packed, to the want of sufficient salt or pickle, want of faithful coopering, or to an apparent defect in the barrels, any neglect in either particular is embraced within the allegations of the writ. Salting and packing are important parts of the operation and embrace many particulars. If the barrels were obviously unfit, the beef could not be packed and salted in the manner contemplated in the statute.

There was much evidence tending to show, that the injury took place from want of care or skill in the business intrusted to the defendant; and much also tending to show, that the loss was occasioned by a defect in the barrels, which could not be easily discovered, when they were used. The facts relied upon were important and were matter for the jury, on which they have passed, and their verdict is not so against the evidence as to justify the Court in interfering to set it aside.

Exceptions and motion overruled.