34 Wis. 139 | Wis. | 1874
Lead Opinion
That the defendant is under a legal obligation to use all ordinary and reasonable means and appliances to guard against the breaking away of the embankment of its canal, and, failing to do so, if a break therein occur which results in an injury to the person or property of others (the latter being free from contributory negligence), that the defendant is liable to respond in damages for such injury, is too clear for argument.
Had the injury of which the plaintiff complains occurred on any day other than the Sabbath, there would be no doubt that the learned circuit judge gave the law correctly to the jury. In a very clear and concise manner he submitted to them the questions, whether the defendant was negligent in permitting too much water to flow into the canal from the Wisconsin river, or in not discharging sufficient water through the mill and lower lock gates or valves, by means whereof the embankment of the canal was overflowed and broken ; and whether the persons in charge of the tug and barge were guilty of negligence in passing the same through the lower lock into the canal, which contributed to cause the break in the canal, and the resulting injury. There was sufficient testimony tending to show such negligence on the part of the defendant, to authorize the court to submit the former question to the jury; and a verdict for the plaintiff is, in effect, a finding that the defendant was negligent in that behalf, and that the plaintiff was not guilty of any negligence which contributed to the injury.
It may as well be remarked here as elsewhere, that the ver-
It should be observed, however, that no good reason is perceived why the counterclaim is not a valid one. If it does not arise out of the transaction set forth in the complaint, it certainly is connected with the subject of the action. R. S., ch. 125, sec. 11, subd. 1. Were the plaintiff justly chargeable with negligence which produced or caused the break in the embankment (the defendant being free from negligence which contributed thereto), we think that the defendant might lawfully, recover damages therefor in this action, under and by virtue of such counterclaim. In other words, we think that the defendant is entitled to the same relief in this action, under the pleadings, that it would have been entitled to had it brought an action against the plaintiff for the cause stated in the counterclaim.
Thesé preliminary observations bring us to the consideration of the principal question in the case, and the only one remaining to be determined, which is, whether the use of the lock and canal by the plaintiff on Sunday was negligence on his part which defeats the action. What has been said respecting the rejection of testimony has no reference to this question; for if
' The following instruction was asked on behalf of the defendant, and refused: “ If the attempt was made by plaintiff, or the owners of the tug, or his agents or servants, to pass the lock and canal on Sunday without the permission and assistance of the lock-tender, it was an act of negligence, because of which the plaintiff cannot recover.” The court held that the mere fact that the plaintiff or his agents was or were using the lock and canal on Sunday was not negligence.
An attempt was made on the trial to show the existence of a regulation of the defendant prohibiting boats from passing through locks on Sunday without the consent in writing of certain agents of the defendant. It appeared that this regulation was printed on the back of receipts or clearances, one or more of which, the testimony tended to show, had been issued to the captain of the tug. But it does not appear that either he or the plaintiff had actual knowledge of the regulation, or that the same was ever adopted by the board of directors of the defendant. The regulation is as follows : “ No boat will be allowed to pass the lock on Sunday without a written permit from the superintendent or his assistant; and this permit will not be granted, unless in cases of actual necessity.” It is claimed that this regulation was made by the superintendent, and that he had authority, under the general powers of such agents, to make it, without the concurrence of the board of directors. But we are of the .opinion that neither the superintendent nor board of directors has the power to make and enforce such a regulation. The canal of the defendant is a public highway, which all persons, upon complying with all lawful requirements, may navigate and use at their pleasure on all days except Sunday, and on Sunday in cases of necessity. This regulation makes the superintendent or his assistant, and him alone, the judge of
The foregoing views relative to the invalidity of the regulation are sustained by the supreme court of Illinois, in the case of Tyler v. The Western Union Telegraph Co., not yet reported, but which may be found in the Albany Law Journal, vol. 8, p. 181. The action was to recover damages for a mistake in transmitting an unrepeated message. The telegraph company had adopted regulations restricting its liability for such mistakes unless the message was insured, and- providing that no person except the superintendent of the company could make a contract for such insurance. The court held the regulations unreasonable, inoperative and void.
The proposed instruction which the court refused to give is predicated upon the supposed validity of the regulation, and the same being invalid, the instruction was properly refused. Besides, while there was no express permission given to the captain of the' tug to. lock’his boat and the barge through on Sunday, neither was he forbidden to do so. The undisputed testimony is, that the defendant’s lock-tender at Portage City told the captain of the tug, on his trip next preceding that when the break occurred, if he, the lock-tender, was not there when the captain made his next trip, to lock through himself. The usual signals were given from the tug, the lock-tender was not there, and the captain passed the tug and barge through the lock and into the canal. The jury have found that he did so in a proper manner, and without negligence. Hence it appears that the captain of the tug (who, for the purposes of this case, is regarded as the agent of the plaintiff) had the permission of the lock-tender to pass the lock without the presence and assistance of the latter. This is another reason why the proposed instruction was propérly refused.
If, as I have attempted to show, the regulation in question is invalid, and the captain of the tug had authority, under the circumstances, to pass the boats through the lock, and did so with due care, the only ground upon which contributory negligence can be imputed to the plaintiff, is the mere fact that the boats were thus passed through the lock in violation of the statute which prohibits the doing of unnecessary work on Sunday ; and hence the plaintiff is in the same position as was the plaintiff in Sutton v. The Town of Wauwatosa, 29 Wis., 21. It was "there held that in an action brought against a town to recover for injuries caused by a defect in the highway, the mere fact that the plaintiff was unlawfully traveling upon such highway on Sunday, at the time of the injury, is not, of itself, con-
We are confirmed in the opinion that the case of Sutton v. The Town of Wauwatosa was correctly decided, by the fact that the supreme judicial court of Massachusetts has, in three late cases, substantially indorsed the views expressed by the chief justice in his opinion in the former case, in opposition to the older decisions of that court, which are referred to and commented upon in that opinion. In Steele v. Burkhardt, 104 Mass., 59, it was held that “ one who places his horse and wagon in a street in a city, transversely to the course of the street, while loading articles which a city ordinance permits to be loaded only in vehicles placed lengthwise and as near as possible to the sidewalk, is not restrained by the mere fact of thus violating the ordinance, from maintaining an action against one who injures' the horse by negligently driving another wagon against it, when by exercising more care he might have avoided doing so.” Chapman, C. J., concludes his opinion in that case with the following language: “It is true, generally, that, while no person can maintain an action to which he must trace his title through his own breach of the law, yet the fact that he is breaking the law does not leave him remediless for
In Hall v. Corcoran, 107 Mass., 251, it was held that a person who hires a horse of its owner to drive to a particular place, and drives it to another place, is liable in tort for the conversion of the horse, although the contract for hiring was made on the Lord’s day, and, as both parties knew, for pleasure only, and therefore illegal and void. This case expressly overrules that of Gregg v. Wyman, 4 Cush., 822, which held the opposite doctrine.
No mention was made in the oral argument of the counsel for the defendant, and we find none in their written arguments since submitted, to the objection, taken at the trial, that the plaintiff can not maintain an action in his own name for the damages occasioned by the detention of the tug. The objection not being pressed, we conclude that it is waived, in order that the whole matter may be disposed of in this action. Hence we have not considered it.
By the Court. — The judgment of the circuit court is affirmed.
Rehearing
A motion by the appellant for a rehearing was denied, and the following opinion filed, at the January term, 1874.
"We have carefully considered the very earnest argument of the learned counsel for the defendant in support of the motion for a rehearing, and have endeavored fully to review the grounds of our former decision of the case, but we are entirely unable to perceive anything in the case which forces upon us the alternative of receding from our former views and reversing the judgment of the circuit court, or giving up (to use the language of the learned counsel, and their italics also) “ the pretense of administering impartial justice.” Neither
The question whether the claim for damages for the detention of the tug is assignable, so that the plaintiff, who is the assignee of such claim, may maintain an action thereon in his own name, has not been determined, for reasons stated in the former opinion. The learned counsel for the defendant now inform us that they did not intend to waive their objection to the right of the plaintiff to recover such damages, and call upon us to determine the question on this motion; but, unfortunately for us, they have not favored us with any argument or citation of authorities on the question. Still it is our duty to determine it.
The action is to recover damages for injuries to personal property, caused by the negligence of the defendant. It does not arise out of a contract, but sounds in tort. Beyond all question, a right of action for injuries to, or the conversion of, personal property, while not assignable at the common law, is assignable in equity, unless that quality is taken away by sec. 12, ch. 122, R. S., which isas follows: “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section fourteen; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of a contract.” (Tay. Stats., 1418, § 12). The exception mentioned has no relation to this action. The above provision is contained in the New York code of pro cedure; and it has been held by the courts of that state in sev
Some of the cases hold, or strongly intimate, that survivor-ship is the test of assignability — that is to say, that every chose in action which survives to the personal representative of the party, is assignable in equity, and may be sued upon in the name of the assignee. But whether this be the true test or not, we think the New York courts have given the statute a sound interpretation in respect to the assignability of claims for damages for injuries to property.
The following are some of the authorities which sustain the principles above stated: The People ex rel. Stanton v. Tioga C. P., 19 Wend., 73; McKee v. Judd, 12 N. Y., 622; Waldron v. Willard, 17 id., 466; Merrill v. Grinnell, 30 id., 594; Fulton Fire Ins. Co. v. Baldwin, 37 id., 648; Butler v. New York and Erie R. R. Co., 22 Barb., 110; Dininny v. Fay, 38 id., 18; 1 Chitty’s Pl., 69. These authorities are cited in the brief of counsel for the plaintiff. See also R. S., ch. 135., sec. 2, as to survival of actions, and Noonan v. Orton, decided at the present term.
It must be held that the action to recover damages for the detention of the tug was properly brought in the name of the plaintiff. '
It is further urged as ground for granting a rehearing, that the court erred in the charge to the jury concerning interest. The charge was as follows: “ You may allow interest from the day this action was commenced — the 31st day of December, 1869.” We" see no error in this instruction, and were it erro
By the Court. — Motion denied.