State v. Bacon

| Vt. | Nov 15, 1867

The opinion of.the court was delivered by

Peck, J.

The questions in this case are, many of them, the same that were made in State v. Soragan, just decided at this term, and are disposed of, in this case, in the same way, and for reasons there assigned. Some' other questions, however, are presented in this case. The police court decided the complaint sufficient on demurrer, to which the respondent excepted. It was then tried on an agreed statement of facts; judgment against the respondent, to which he also excepted. The case shows, that it is agreed that all the questions presented, both by the demurrer and on the facts, are to be heard and decided.

First, as to the demurrer. Only the questions not already decided in the other case need be noticed.

The first count is, that Nelson Bacon, of Burlington, on the 30th day of July, 1867, at Burlington, in the county of Chittenden aforesaid, did permit a horse, under his care, to go upon the side-walk on the east side of Church street, in said city. This count makes no reference to the other count; it must, therefore, stand or fall, by its own strength. It concludes neither against the statute, nor against any city ordinance, nor against the peace; and is clearly bad for want of a proper conclusion. The fact that the other count concludes against the form, force and effect of the city ordinance, even if such conclusion were proper, cannot help it. But aside from matter of form, it is bad in substance, or rather, for want of substance. If the simple fact, that the respondent “ did permit a horse, under his care, to go upon the side-walk,” is a breach of a city ordinance, it would be difficult to maintain the validity of such ordinance. It is not alleged that he unnecessarily or unreasonably permitted it, or that he suffered or permitted the horse to remain there an unnecessary or unreasonable time. If what is alleged in the first count, is a breach of„the ordinance, no one could lead or drive a horse from the street to his own premises, where there is a side-walk along the street. If the ordinance is in such absolute terms as this count imports, it should be qualified by construction in the manner indicated in the second count; and thus it may be held valid. The ordinance is referred to in another part of the case, and by fair construction, it is so qualified.

It is insisted that the city has no power to pass such an ordinance. The charter, section 11, to which we are referred, provides that the city may regulate the erection of buildings, and prevent encumbering the streets, side-walks and public alleys with firewood, lumber, carriages, boxes or other things. It is insisted that the word “ things ” applies only to inanimate objects, and cannot be construed to include live animals. But whatever may be the construction of this section in this respect, the 24th section, which provides that the city council may make any other by-laws or ordinances which they may deem necessary for the well being of the city, not repugnant to the constitution or laws of this State, gives this power. This ordinance as set out in the exceptions, and as above construed, is not contrary to any law, and not unreasonable ; and therefore cannot be said to be invalid. To the second count, so far as the validity of the ordinance, or the alleged act of the defendant, is concerned, we see no objection. But for reasons assigned in State v. Soragan, both counts are insufficient.

The next question is whether the respondent, on the facts stated, can be made liable criminally, for the act of Rabidon who was in his employ. It appears that the respondent, a dealer in coal, sent Rabidon to deliver coal to a customer, and Rabidon for convenience of unloading, to lessen the distance he would have to carry the coal, drove on to the side-walk. The facts entirely exclude the idea of any fault on the part of the respondent, either intentional or otherwise. He was in no fault in entrusting an improper person to transact the business ; for it appears Rabidon was about 21 years old, and had always been used to teaming. It expressly appears that the respondent had no knowledge that Rabidon intended to, or did, drive upon the side-walk, and that it was done without the authority, knowledge or consent of the respondent. It is evident that the respondent had no reason to suppose that any such act would be done. If he is liable it must be from the legal relation of master and servant; and this, when the faets exculpate him from all fault and negligence. Under such circumstances there is no rule of law that can make the respondent responsible criminally for the act of his agent. Whatever may be the prima facie liability of a principal for the acts of his agent under other circumstances, or in his business about his own premises, it is clear he cannot be liable on the faets stated in this case.

Judgment ^reversed, and judgment that the complaint is insufficient, the respondent acquitted, both for the insufficiency of the eomplaiafe and upon the agreed statement of facts.