1 D.C. 109 | D.D.C. | 1802
The Court was of opinion for the defendant upon both points, and that opinion, so far as it respected the first point, was affirmed by the Supreme Court upon writ of error, at February term, 1803. 1 Cranch, 345. But that court gave no opinion upon the question of inevitable casualty.
in giving his opinion upon that point in this Court, expressed himself as follows:
This question arises upon the demurrer to-the first plea, which alleges that before the expiration of the lease the demised premises, “against the will, and'without the negligence, or other default of the defendant, were burned and consumed by fire, happening from some cause to him then and yet wholly unknown ;” “ and that saving and excepting the damage occasioned by the said burning and consuming, he hath at all times kept in good and sufficient repair the said demised premises, and that he hath, at the end of the term, delivered up the same to the plaintiff, so well and sufficiently kept in repair, excepting,” &c.
To this plea there is a general demurrer; and the question arising is, whether the facts stated in the plea bring the defendant’s case within the exception of inevitable casualties.
It is admitted that a casualty may be inevitable without happening by the act of God, or by the public enemies of the country. In the present case the expression seems to me to mean only such casualties as are inevitable by the defendant, and not such as might not be avoided by the united efforts of the whole society. But it was contended, on the part of the plaintiff, that the plea obliges the plaintiff to prove more than ordinary negligence on thfe part of the defendant, and that such is the meaning of the expression in the plea,. “ negligence or other default.”
I confess I do not so understand the plea, nor do I know
It is unnecessary for us to inquire what degree of negligence is sufficient to charge' the defendant, because the plea denies all negligence whatever. If issue had been joined on the plea, it might have become a question what degree of negligence the plaintiff must prove in order to maintain the issue on his part. The term negligence cannot be appropriated exclusively to the omission of any given degree of care and diligence. Its degrees are infinitely variable, from the omission of the greatest possible care, to the. very boundary of fraud. I have no hesitation, therefore, in saying, that an accident which happens without the slightest degree of negligence or default of the defendant, is, as to him, an inevitable casualty.
Thus far the argument is grounded on the words of the plea, which I consider as a more advantageous plea for the plaintiff than any other which the defendant could have pleaded, because the issue might strictly have been maintained on the part of the plaintiff, by proving the slightest possible degree of negligence in the defendant.
But if the defendant had pleaded, in the words of the lease, that the house was destroyed by an “ inevitable casualty,” then the authorities cited by the defendant would have applied with great weight. The case of Forward v. Pittard, 1. T. R. 27, is a very strong one, to show that an accident happening by fire, without the negligence of the carrier, is an inevitable casualty; and the frequent use of the expression when applied to fire, by Sir William Jones, derives great force from his acknowledged accuracy of language, and profound knowledge of the law. Some of the old cases go so far as to call fife the act of God.
There are three modes of ascertaining the meaning of doubtful, expressions in a contract: by common acceptation, by technical
When we consider the subject of this contract, that it was the lease of a house for eight months only, we can hardly suppose that the lessee would take pains to insert a clause to guard himself from accidents which might arise from the unusual casualties of earthquakes, tempests, lightning, or public enemies, and entirely overlook the common accident of fire, or that he meant to make himself or the United States insurer against fire.
It is not usual for lessees, for short terms, to become the insurers of the premises against accidental fire, and I shall not presume a contract of that kind, unless it was in very express terms. For these reasons I think this demurrer must be overruled.