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Commissioners v. Sellew/Opinion of the Court

In the State of Kansas counties are bodies corporate and politic, capable of suing and being sued. Their powers are exercised by boards of county commissioners chosen by the electors. The name by which they can sue or be sued is the 'Board of County Commissioners of the County of _____.' In legal proceedings against a county, process is served on the clerk of the board. 1 Dassler's Kans. Stat. 217-221, sects. 1, 3, 5, 6, 9.

The boards of county commissioners are authorized 'to apportion and order the levying of taxes as provided by law' (1 id. 224, sect. 16, sub. 4), and they are required to meet on the first Monday in August of each year to 'estimate and determine the amount of money to be raised by tax for all county purposes, and all other taxes they may be required by law to levy.' 2 id. 1024, sect. 83.

Whenever a judgment is rendered against the board of county commissioners of a county, no execution shall issue, but the judgment 'shall be levied and collected by tax, as other county charges, and, when so collected, shall be paid by the county treasurer to the person to whom the same shall be adjudged, upon the delivery of the proper voucher therefor.' 1 id. 221, sect. 8.

By an act of the legislature of the State, approved Feb. 10, 1865, and proceedings thereunder, the board of county commissioners of the county of Leavenworth were authorized to subscribe to the capital stock of the Leavenworth and Missouri Pacific Railroad Company, and to issue bonds in payment of the subscription. Under this authority a subscription was made and bonds issued, bearing date July 1, 1865, and falling due July 1, 1875.

On the 29th of November, 1875, Sellew, the defendant in error, recovered judgment in the Circuit Court of the United States for the District of Kansas against the board of county commissioners of the county of Leavenworth upon part of the bonds so issued for $19,923.40 and costs of suit. On the 9th of October, 1877, he made known to the court, by affidavit, that on the 6th of August previous he had demanded of the board of county commissioners that they should levy a tax to pay his judgment, and that they had failed to do so. He then obtained from the court an alternative mandamus directed to the board of county commissioners, and to John S. Van Winkle, Ebenezer W. Lucas, and William S. Richards, individual members of the board, directing that they levy the tax immediately, or show cause, on the 26th of November, 1877, why it had not been done. Copies of this writ were in due form served on the clerk of the board and upon each of the individual members. On the return-day the board, appearing for the purpose of the motion only, moved to quash the alternative writ because it did not state facts sufficient to authorize the issue of a peremptory writ, and the several individual members answered, stating that the board met on the first Monday in August, 1877, and estimated and determined the amount of money to be raised by taxation for all purposes for the year 1877; that having completed their labor, they adjourned sine die; that in due time afterwards the tax lists were made out, and on the 1st of November put in the hands of the treasurer for collection; that a part of the taxes so levied and collected had already been paid; that the judgment mentioned in the alternative writ was not rendered on any of the kinds of indebtedness mentioned in the proviso of sect. 1, c. 90, of the Session Laws of 1876; and that on the 6th of November, at the general election of county officers, Van Winkle and Lucas were not re-elected as members of the board, but that other persons were elected in their places, and that by reason thereof they would not be members of the board after their present term expired.

Chapter 90 of the Session Laws of 1876 was an act relating to taxation in Leavenworth County, and did not specially authorize a levy of taxes to pay this judgment, but it declared that no more taxes than were therein provided for should be levied.

On the 6th of December, 1877, a peremptory writ of mandamus was ordered 'to and against the board of county commissioners of the county of Leavenworth,. . . commanding it to levy, on or before the first Monday in the month of August next, and collect at the same time and in the same manner that general taxes are levied and collected,. . . a tax on all taxable property. . . in said county of Leavenworth. . . sufficient in amount to pay the judgment,' &c.

To reverse this judgment this writ of error has been sued out.

In United States v. Boutwell (17 Wall. 604), it was decided that as a mandamus was used 'to compel the performance of a duty resting upon the person to whom the writ is sent,' if directed to a public officer, it abated on his death or his retirement from office, because it could not reach the office. That principle does not, as we think, apply to this case. There the officer proceeded against was the Secretary of the Treasury of the United States, and the writ was 'aimed exclusively against him as a person.' Here the writ is sent against the board of county commissioners, a corporation created and organized for the express purpose of performing the duty, among others, which the relator seeks to have enforced. The alternative writ was directed both to the board in its corporate capacity and to the individual members by name, but the peremptory writ was ordered against the corporation alone. As the corporation can only act through its agents, the courts will operate upon the agents through the corporation. When a copy of the writ which has been ordered is served upon the clerk of the board, it will be served on the corporation, and be equivalent to a command that the persons who may be members of the board shall do what is required. If the members fail to obey, those guilty of disobedience may, if necessary, be punished for the contempt. Although the command is in form to the board, it may be enforced against those through whom alone it can be obeyed. One of the objects in creating such corporations, capable of suing and being sued, and having perpetual succession, is that the very inconvenience which manifested itself in Boutwell's case may be avoided. In this way the office can be reached and the officer compelled to perform its duties, no matter what changes are made in the agents by whom the officer acts. The board is in effect the officer, and the members of the board are but the agents who perform its duties. While the board is proceeded against in its corporate capacity, the individual members are punished in their natural capacities for failure to do what the law requires of them as the representatives of the corporation.

We think, therefore, that the peremptory writ was properly directed to the board in its corporate capacity. In this way the power of the writ is retained until the thing is done which is commanded, and it may at all times be enforced, through those who are for the time being charged with the obligation of acting for the corporation. If, in the course of the proceedings, it appears that a part of the members have done all they could to obey the writ, the court will take care that only those who are actually guilty of disobedience are made to suffer for the wrong that is done. Those who are members of the board at the time when the board is required to act will be the parties to whom the court will look for the performance of what is demanded. As the corporation cannot die or retire from the office it holds, the writ cannot abate as it did in Boutwell's case. The decisions in the State courts in which this practice is sustained are numerous. Maddox v. Graham, 2 Metc. (Ky.) 56; Soutter v. The City of Madison, 15 Wis. 30; Pegram v. Commissioners of Cleaveland County, 65 N. C. 114; The People v. Collins, 19 Wend. (N. Y.) 56.

This disposes of the only question which has been argued here. It is not contended that the law of 1876 presented any valid objection to the levy of the tax. Von Hoffman v. City of Quincy (4 Wall. 535) and Butz v. City of Muscatine (8 id. 575) are decisive of this point.

The judgment of the Circuit Court will be affirmed, but as during the pendency of this writ the time has gone by when by the terms of the order for the peremptory writ the board was directed to levy the tax in question, the cause will be remanded with authority, if necessary, to so modify the order which has been entered, in respect to the time for the levy and collection of the tax, as to make the writ effective for the end to be accomplished; and it is

So ordered.


text: Talk:Commissioners v. Sellew/Opinion of the Court

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National Bank v. Case

APPEAL from the Circuit Court of the United States for the District of Louisiana.

This is a bill brought by Frank F. Case, receiver of the Crescent City National Bank of New Orleans, against the stockholders of that institution, to pay him seventy per cent of the par value of the stock owned by them severally at the time when their respective liabilities were fixed by its insolvency, without regard to any pretended transfers of such stock as they may have attempted to make after the insolvency occurred. As to some of the defendants the bill was dismissed; as to others, a decree was rendered conformably to the prayer of the bill, and a writ of execution awarded against them and their property to enforce the payment of the sums adjudged to be due by them respectively. Among the defendants against whom the decree was rendered was the Germania National Bank of New Orleans, Alcus, Scherck, & Autey, The Crescent Mutual Insurance Company, and Benjamin J. West. They thereupon appealed here.

The facts are stated in the opinion of the court.

The case was argued by Mr. Thomas J. Durant for the appellants, and by Mr. Charles Case for the appellee.

MR. JUSTICE STRONG delivered the opinion of the court.

title: National Bank v. Case


text: Talk:National Bank v. Case

title: Talk:National Bank v. Case


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National Bank v. Case/Opinion of the Court

The Crescent City National Bank of New Orleans was organized under the national banking law in 1871. On the 13th of February, 1873, its London correspondents failed, and the bank lost heavily by the failure,-nearly the entire amount of its capital. This loss was almost immediately known in the community where the institution was located, and necessarily affected its credit. On the 14th of March, 1873, payment of checks drawn upon it by its depositors was suspended, and on the 17th of the same month its circulating notes went to protest.

In reference to the alleged ownership by the Germania Bank (one of the appellants) of shares in the Crescent City Bank, the facts appear to be as follows: On the fourteenth day of December, 1872, it loaned to Phelps, McCullough, & Co. $14,000 on a note of the firm dated Dec. 7, 1872, payable in ninety days, and to secure the payment of the loan the borrowers pledged to the bank one hundred shares of the stock of the Crescent City Bank, with power, on non-payment of the note, to dispose of the stock for cash, at public or private sale, without recourse to legal proceedings, and to this end to make transfers on the books of the corporation whose stock it was. At the same time a power of attorney was given to Mr. Roehl, empowering him to transfer the stock to the Germania Bank, of which he was cashier. The note fell due on the 10th of March, 1873, and was not paid, and on that day a transfer of the one hundred shares to the Germania Bank was made on the transfer books of the Crescent City Bank. The Germania then caused seventy-six of the shares to be transferred to William A. Waldo, one of its clerks, and on the next day transferred to him the remainder. It has ever since stood in his name. Waldo acquired by the transfer no beneficial interest in the stock, and there was an understanding between him and the officers of the bank that he should retransfer it at their request. The cashier has testified, in answer to the question, 'Was not the transfer made (to Waldo) with the view to avoid the liability under the National Bank Act in case of suspension of the Crescent City Bank?' that it was not exactly in that way. 'We simply transferred,' says he, 'because we are not in the habit of holding any bank stock. We did not want to have any bank stock in our name. That was the object.' When further asked whether he was well aware of the fact that the stockholders of national banks were liable to contribute to the payment of their debts in case of insolvency, he replied in the affirmative. When asked whether he did not have that in contemplation at the time of this transfer, he answered, 'That may be one of the reasons why we did not want to own any stock.' And when further asked, 'Was not that one of the principal motives of this transfer to Waldo?' his reply was, 'Yes.'

From this testimony, as well as from other in the record, it is evident that Waldo held the stock as a cover for the Germania Bank; that notwithstanding the transfer to him, it remained subject to the bank's control, and that the transfer to him was made to evade the liability of the true owners. It was not a sale. The bank continued after it was made a pledgee with the legal title in itself or in its representative, and Phelps, McCullough, & Co. were no longer the owners.

Such being the facts of the case, there can be no serious controversy respecting the principles of law applicable to them. It is thoroughly established that one to whom stock has been transferred in pledge or as collateral security for money loaned, and who appears on the books of the corporation as the owner of the stock, is liable as a stockholder for the benefit of creditors. We so held in Pullman v. Upton (96 U.S. 328); and like decisions abound in the English courts, and in numerous American cases, to some of which we refer: Adderly v. Storm, 6 Hill (N. Y.), 624; Roosevelt v. Brown, 11 N. Y. 148; Holyke Bank v. Burnham, 11 Cush. (Mass.) 183; Magruder v. Colston, 44 Md. 349; Crease v. Babcock, 10 Metc. (Mass.) 525; Wheelock v. Kost, 77 Ill. 296; Empire City Bank, 18 N. Y. 199; Hale v. Walker, 31 Iowa, 344. For this several reasons are given. One is, that he is estopped from denying his liability by voluntarily holding himself out to the public as the owner of the stock, and his denial of ownership is inconsistent with the representations he has made; another is, that by taking the legal title he has released the former owner; and a third is, that after having taken the apparent ownership and thus become entitled to receive dividends, vote at elections, and enjoy all the privileges of ownership, it would be inequitable to allow him to refuse the responsibilities of a stockholder. This subject is well treated in Mr. Thompson's recently published work on 'The Liability of Stockholders,' where may be found not only a full collection of authorities, but a careful analysis of what the authorities contain. Vide c. 13.

When, therefore, the stock was transferred to the Germania Bank, though it continued to be held merely as a collateral security, the bank became subject to the liabilities of a stockholder, and the liability accrued the instant the transfer was made. At that instant the liability of Phelps, McCullough, & Co. ceased. We have, then, only to inquire whether the bank succeeded in throwing off that liability by its transfer to its clerk, Waldo. It certainly did not thereby divest itself of its substantial ownership. It is not every transfer that releases a stockholder from his responsibility as such. While it is true that shareholders of the stock of a corporation generally have a right to transfer their shares, and thus disconnect themselves from the corporation and from any responsibility on account of it, it is equally true that there are some limits to this right. A transfer for the mere purpose of avoiding his liability to the company or its creditors is fraudulent and void, and he remains still liable. The English cases, it is admitted, give effect to such transfers, if they are made (as it is called) 'out and out;' that is, completely, so as to divest the transferrer of all interest in the stock. But even in them it is held that if the transfer is merely colorable, or, as sometimes coarsely denominated, a sham,-if, in fact, the transferee is a mere tool or nominee of the transferrer, so that, as between themselves, there has been no real transfer, 'but in the event of the company becoming prosperous the transferrer would become interested in the profits, the transfer will be held for nought, and the transferrer will be put upon the list of contributories.' Williams's Case, Law Rep. 9 Eq. 225, note, where the transfer was, as in the present case, made to a clerk of the transferrer without consideration; Payne's Case, id. 223; Kintrea's Case, Law Rep. 5 Ch. 95. See also Lindley on Partnership (2d ed.), p. 1352; Chinnock's Case, 1 Johns. (Eng.) Ch. 714; Hyam's Case, 1 De G., F. & J. 75; Budd's Case, 3 id. 296. The American doctrine is even more stringent. Mr. Thompson states it thus, and he is supported by the adjudicated cases: 'A transfer of shares in a failing corporation, made by the transferrer with the purpose of escaping his liability as a shareholder, to a person who, from any cause, is incapable of responding in respect to such liability, is void as to the creditors of the company and as to other shareholders, although as between the transferrer and the transferee it was out and out.' Nathan v. Whitlock, 9 Paige (N. Y.), 152; McClaren v. Franciscus, 43 Mo. 452; Marcy v. Clark, 17 Mass. 329; Johnson v. Laflin, by Dillon, J., 6 Cent. Law Jour. 131.

The case in hand does not need the application of so rigorous a doctrine. While the evidence establishes that the Crescent City was in a failing condition when the transfer to Waldo was made, and leaves no reasonable doubt that the Germania Bank knew it and made the transfer to escape responsibility, it establishes much more. The transfer was not an out and out transfer. The stock remained the property of the transferrer. Waldo was bound to retransfer it when requested, and all the privileges and possible benefits of ownership continued to belong to the bank. No case holds that such a transfer relieves the transferrer from his liability as a stockholder. We are, therefore, compelled to rule that the decree of the Circuit Court against the Germania Bank was correct. Its case, no doubt, is a hard one; but it is not in our power to give relief, without a sacrifice of the well-established rules of law and equity both in this country and in England.

There is nothing in the argument on behalf of the appellant that the bank was not authorized to make a loan with the stock of another bank pledged as collateral security. That is an ordinary mode of loaning, and there is nothing in the letter or spirit of the National Banking Act that prohibits it. But if there were, the lender could not set up its own violation of law to escape the responsibility resulting from its illegal action.

In support of the other appeals which were taken from the decree of the court below, no argument has been submitted, and they require only brief remarks.

Alcus, Scherck, & Autey in their first answer to the bill, after setting forth several matters perfectly immaterial, admit that they were at one time the owners of seventy shares of the stock of the Crescent City National Bank, but aver that on the [blank] day of [blank], 1873, they sold them all to one Julius Fox, a white person, about twenty-one years old, and a clerk by occupation; that the price paid to them by Fox for the stock was five dollars, and that they never offered to Fox any money or other valuable consideration or promise to induce him to accept the stock. The utter worthlessness of this as a defence sufficiently appears in what we have said respecting the appeal of the Germania Bank. Subsequently what is called a supplemental and amended answer was filed, quite inconsistent with the one first made. It admits the ownership of the stock by the respondents at the time of the bank's insolvency and suspension, and merely denies any unlawful confederacy. That no defence was shown by this supplemental answer we need spend no time to prove.

The only material averment in the answer of the Crescent Mutual Insurance Company was, in substance, that they had owned shares of the stock of the Crescent City Bank before it became a national bank, and that though the State bank had become a national bank with their consent, and they had received dividends, they had not received new certificates. The stock ledgers of the bank, however, show that one hundred and thirty shares stood in their name when the bank failed, and, therefore, taking their averment to be true, it is impossible to find any reason why they are not subject to the liabilities of stockholders.

The appeal of Benjamin J. West is equally without merit. It was admitted by his answer and proved by his own testimony that on the 13th of March, 1873, the day before the bank ceased paying its depositors, he was the owner of fifty-eight shares of its stock. On that day he transferred it to one Vincent, whom he describes as a white man, about thirty-five years old, a salesman by trade, for the price of about ten dollars a share. Nothing more than the testimony of Mr. West himself is needed to show that this is what is called in the English books a sham sale, made to conceal his liability. Vincent was West's clerk at the time, and, so far as it appears, without any pecuniary responsibility. No certificate of the stock was issued to him. He paid nothing at the time of the alleged transfer, and never has paid any thing since. He gave no note or other written acknowledgment of indebtedness, and West continued to pay his salary as a clerk six or eight months after the transfer, without deducting any thing for the price of the stock. Indeed, the price of the stock was never charged against Vincent in West's books. Add to this the fact plainly visible in his testimony, that the alleged transfer was made when Mr. West had become alarmed about the condition of the bank, and nothing more is needed to show that it was inoperative, as against the creditors of the bank, according to the doctrine of the cases hereinbefore cited.

There are some other averments in the answer of the appellants of which it is hardly necessary to say any thing. Former decisions of this court have ruled that the determination of the Comptroller of the Currency and his order to the receiver are conclusive of the extent to which the liability of stockholders of insolvent banks may be enforced in suits against such stockholders.

Decree affirmed.


text: Talk:National Bank v. Case/Opinion of the Court


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Transportation Company v. Chicago

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

This is an action of trespass on the case by the Northern Transportation Company of Ohio against Chicago, Ill., to recover damages sustained by reason of the construction by that city of a tunnel under the Chicago River along the line of La Salle Street. The company offered evidence tending to prove that it possessed a certain lot in Chicago, with dock and wharfing rights and privileges; that it owned a line of steamers running between Ogdensburgh, New York, and Chicago, and touching at intermediate points; that during 1869 and 1870 it had thirteen or fourteen of them employed, five of them arriving and departing each week from its dock on said lot, where it had, at an expense of $17,000, constructed a warehouse and shed used in loading and unloading them, and where its office was located; that its dock extended eighty feet on the south side of the lot which abutted on the Chicago River, a navigable stream; that the city commenced, Nov. 1, 1869, building a tunnel under the river on the east line of the lot at its intersection with the river and La Salle Street, and erected a coffer-dam in front of the dock; that said dam remained until some time in August, 1870; that about Nov. 1, 1869, the city commenced excavating La Salle Street, and excavated it for some distance, blocking up the doors of the warehouse on that street, and leaving free only the entrance on Water Street; that by reason of the construction of said dam plaintiff was unable to bring its boats up to the dock or to land freight and passengers thereat, and was compelled to rent and remove to other docks and sheds; and that the negligent and improper manner in which the work, especially the excavating, was done, greatly damaged and injured the warehouse, and caused the walls to crack, settle, and in several places to fall.

The city offered testimony tending to prove that the work was, without unnecessary delay, well and carefully done; that the coffer-dam as constructed was required for the construction of the tunnel; that the company could during the time have had access with its boats to a portion of the lot; and that the obstructions complained of were unavoidable in the proper construction of the tunnel.

To the following portions of the charge of the court to the jury the plaintiff excepted:--

'The defendant had the right under the law to enter upon La Salle Street and make such public improvements as in the judgment of the city authorities were necessary, and to construct the tunnel in question; and for that purpose to enter upon the portion of the river in front of the plaintiff's lot and construct the coffer-dam there, if it was necessary to enable them to construct the tunnel.'

'The plaintiff took its lot subject to the right of the city to make these necessary public improvements in the streets. The method of crossing the river at this point, whether by a ferry, a bridge, or a tunnel, was one to be determined by the city authorities; and when they had determined to effect the crossing by a tunnel, they had a right to use and occupy so much of the street as was necessary to construct the tunnel, using due skill and care and despatch always in doing it, so as not unnecessarily to interfere with private property.'

'Although the plaintiff may for the time being have been deprived of the beneficial use of its property by such entry upon the street, and access to the property through the street practically prevented by the occupation of the street for the purposes of constructing the tunnel, and although access to the lot from the river may have been partially prevented during this time, yet these were incidental inconveniences, to which the plaintiff, as the owner of this lot, must submit in order that the public may be accommodated by the construction of this tunnel. The city had the same right to enter upon the river for the purpose of erecting works there to facilitate the construction of the tunnel that it had to enter upon the street and construct the tunnel itself, always, however, subject to the condition that they should not unnecessarily or negligently injure the plaintiff.'

'There is left, however, the question to be considered by you in the light of the evidence as to whether this work in La Salle Street was so unskilfully or negligently done as to cause any part of the walls to fall or the building to be impaired. You have heard all the testimony bearing upon this question. It shows that the southeast corner of the warehouse, where the office and vault were situated, became so impaired by the cracking or leaning of the wall outwardly that it was deemed necessary to take it down; and it was taken down and rebuilt. Although there was no apparent settling of the ground in the immediate vicinity, nor any caving in, yet the wall seemed to fall from some cause from that point, and the claim is that it fell from the construction of this tunnel by some displacement of the surface, which was, perhaps, not apparent to the eye. You will also bear in mind that the evidence shows that further along, near the north end of the plaintiff's building, there was a caving in of the bank, so that the earth near, or perhaps immediately under, the wall was to some extent displaced. The wall fell down there and was subsequently rebuilt, and the building repaired to some extent. You have heard all the testimony in regard to the extent of the repairs, and to the manner in which the building was left, and it is for you to say whether the building was substantially restored to its original condition by the repairs which were made, so that the plaintiff, on the removal of the coffer-dam, and the other obstructions to the access to the property, could again enter into the enjoyment of his property as fully as before. If you are satisfied that the building was not so far repaired as to make it as useful for the plaintiff's purposes as it was before these injuries occurred, then the plaintiff will be entitled to recover such damages as would make it as useful for his purposes.'

The plaintiff asked the court to instruct the jury 'that even if the city be entitled to lay a coffer-dam along across the river, they had no right to lay it in front of the company's lot and dock, and for any damages which it may have suffered by the coffer-dam being in front of its dock it is entitled to recover in this action;' but the court refused; the presiding judge stating, 'I refuse the instruction, always assuming that the proof shows that the coffer-dam was a necessity. I look upon the river just as I do the street. The city had the same right to go into the river and construct a coffer-dam, in order to complete this work, that it had to go into a street and put down a track or any other work necessary in order to carry on improvements.' To which the plaintiff duly excepted.

The court, on motion of the defendant, further charged the jury, 'If you are satisfied from the evidence that the sinking or rather the cracking of the wall was due to the weight of the walls upon the selvage or portion of the earth which was left, and not to the removal of the material taken out of the street, that is, from the pit, then the defendant would not be liable. If you are satisfied that if the wall had not stood upon the plaintiff's lot at the place where it did, there would have been no change in the level of the ground there, but that the change in the level which caused the deflection of the wall was caused by the weight of the wall resting upon the earth after the excavation was made, then the defendant is not liable. The principle is precisely like two adjacent owners, one man building a building and sinking his foundation four feet into the ground, the adjoining owner may think it is necessary for him to set his six or ten feet into the ground, and he excavates for that purpose. Now, if the first wall built, by reason of its own weight, causes the earth to crush or cave away after the excavation below there has been made upon the adjoining lot, the owner of the adjoining lot making the deeper excavation is not liable. Each man, in other words, must look out for his own foundation.' To all of which the plaintiff excepted.

There was a verdict for the defendant. Judgment was rendered thereon, and the company sued out this writ of error.

Mr. R. P. Spalding for the plaintiff in error.

Mr. Joseph F. Bonfield, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Transportation Company v. Chicago


text: Talk:Transportation Company v. Chicago

title: Talk:Transportation Company v. Chicago


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Transportation Company v. Chicago/Opinion of the Court

We are of opinion that no error has been shown in this record, though the assignments are very numerous. The action was case to recover damages for injuries alleged to have been sustained by the plaintiffs in consequence of the action of the city authorities in constructing a tunnel or passageway along the line of La Salle Street and under the Chicago River, where it crosses that street. The plaintiffs were the lessees of a lot bounded on the east by the street, and on the south by the river, and the principal injury of which they complain is, that by the operations of the city they were deprived of access to their premises, both on the side of the river and on that of the street, during the prosecution of the work. It is not claimed that the obstruction was a permanent one, or that it was continued during a longer time than was necessary to complete the improvement. Nor is it contended that there was unreasonable delay in pushing the work to completion, or that the coffer-dam constructed in the river, extending some twenty-five or thirty feet in front of the plaintiff's lot, was not necessary, indeed indispensable, for the construction of the tunnel.

The case has been argued on the assumption that the erection of the coffer-dam, and the necessary excavations in the street, constituted a public nuisance, causing special damage to the plaintiffs, beyond those incident to the public at large, and hence, it is inferred, the city is responsible to them for the injurious consequences resulting therefrom. The answer to this is that the assumption is unwarranted. That cannot be a nuisance, such as to give a common-law right of action, which the law authorizes. We refer to an action at common law such as this is. A legislature may and often does authorize and even direct acts to be done which are harmful to individuals, and which without the authority would be nuisances; but in such a case, if the statute be such as the legislature has power to pass, the acts are lawful, and are not nuisances, unless the power has been exceeded. In such grants of power a right to compensation for consequential injuries caused by the authorized erections may be given to those who suffer, but then the right is a creature of the statute. It has no existence without it. If this were not so, the suffering party would be entitled to repeated actions until an abatement of the erections would be enforced, or perhaps he might restrain them by injunction.

Here the tunnel of which the plaintiffs complain, or rather its construction, was authorized by an act of the legislature of the State, and directed by an ordinance of the city councils. This we do not understand to be denied, and it certainly cannot be. The State, and the city councils, as its agents, had full power over the highways of the city, to improve them for the uses for which they were made highways, and the construction of the tunnel was an exercise of that power. Since La Salle Street was extended across the river, the city not only had the power, but it was its duty, to provide for convenience of passage. This it could do either by the erection of a bridge, or by the construction of a tunnel under the river and along the line of the street. And the grant of power by the legislature to build a bridge or construct a tunnel carried with it, of course, all that was necessary for the exercise of the power. We do not understand this to be controverted by the plaintiffs in error. Their argument is, that though the city had the legal right to construct the tunnel, and to do what was necessary for its construction, subject to the condition that in doing the work there should be no unnecessary interference with private property, yet it was liable to make compensation for the consequential damages caused to persons specially injured. To this we cannot assent.

It is immaterial whether the fee of the street was in the State or in the city or in the adjoining lot-holders. If in the latter, the State had an easement to repair and improve the street over its entire length and breadth, to adapt it to easy and safe passage.

It is undeniable that in making the improvement of which the plaintiffs complain the city was the agent of the State, and performing a public duty imposed upon it by the legislature; and that persons appointed or authorized by law to make or improve a highway are not answerable for consequential damages, if they act within their jurisdiction and with care and skill, is a doctrine almost universally accepted alike in England and in this country. It was asserted unqualifiedly in The Governor and Company of the British Cast-Plate Manufacturers v. Meredith, 4 Durnf. & E. 794; in Sutton v. Clarke, 6 Taun. 28; and in Boulton v. Crowther, 2 Barn. & Cres. 703. It was asserted in Green v. The Borough of Reading, 9 Watts (Pa.), 382; O'Connor v. Pittsburg, 18 Pa. St. 187; in Callendar v. Marsh, 1 Pick. (Mass.) 418; as well as by the courts of numerous other States. It was asserted in Smith v. The Corporation of Washington (20 How. 135), in this court; and it has been held by the Supreme Court of Illinois. The decisions in Ohio, so far as we know, are the solitary exceptions. The doctrine, however it may at times appear to be at variance with natural justice, rests upon the soundest legal reason. The State holds its highways in trust for the public. Improvements made by its direction or by its authority are its acts, and the ultimate responsibility, of course, should rest upon it. But it is the prerogative of the State to be exempt from coercion by suit, except by its own consent. This prerogative would amount to nothing if it does not protect the agents for improving highways which the State is compelled to employ. The remedy, therefore, for a consequential injury resulting from the State's action through its agents, if there be any, must be that, and that only, which the legislature shall give. It does not exist at common law. The decisions to which we have referred were made in view of Magna Charta and the restriction to be found in the constitution of every State, that private property shall not be taken for public use without just compensation being made. But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the State or its agents, or give him any right of action. This is supported by an immense weight of authority. Those who are curious to see the decisions will find them collected in Cooley on Constitutional Limitations, page 542 and notes. The extremest qualification of the doctrine is to be found, perhaps, in Pumpelly v. Green Bay Company, 13 Wall. 166, and in Eaton v. Boston, Concord, & Montreal Railroad Co., 51 N. H. 504. In those cases it was held that permanent flooding of private property may be regarded as a 'taking.' In those cases there was a physical invasion of the real estate of the private owner, and a practical ouster of his possession. But in the present case there was no such invasion. No entry was made upon the plaintiffs' lot. All that was done was to render for a time its use more inconvenient.

The present Constitution of Illinois took effect on the 8th of August, 1870, after the work of constructing the tunnel had been substantially completed. It ordains that private property shall not be 'taken or damaged' for public use without just compensation. This is an extension of the common provision for the protection of private property. But it has no application to this case, as was decided by the Supreme Court of the State in Chicago v. Rumsey, recently decided, and reported in Chicago Legal News, vol. x. p. 333. That case also decides that the city is not liable for consequential damages resulting from an improvement made in the street, the fee of which is in the city, provided the improvement had the sanction of the legislature. It also decides that La Salle Street is such a street, and declares that a recovery of such damages by an adjacent lot-holder has been denied by the settled law of the State up to the adoption of the present Constitution. There would appear, therefore, to be little left in this case for controversy.

It is insisted, however, that the plaintiffs may recover for the obstruction to the access of their lot, caused by the coffer-dam in the river. It is admitted that the dam was necessary to enable the city to construct the tunnel under the river; and it is not complained that it was unskilfully built, or that it was kept in the stream longer than the necessities of the work required, but it is contended that neither the State nor the city had any right to obstruct passage on the river at all. Yet the river is a highway, a State highway as well as a national. It has long been held that navigable rivers wholly within a State are not outside of State jurisdiction so long as Congress does not interfere. An abridgment of the rights of those who have been accustomed to use them, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of the State and its citizens, of which this court can take no cognizance. Wilson v. The Black Bird Creek Marsh Co., 2 Pet. 250. In numerous instances, States have authorized obstructions in navigable streams. They have authorized the erection of bridges, the piers of which have been more or less impediments to navigation. In this case the coffer-dam was only a temporary obstruction. It was no physical encroachment upon the plaintiffs' property, and it was maintained only so long as it was needed for the public improvement. The tunnel could not have been constructed without it. We cannot doubt that it was lawfully placed where it was, and having thus been, that the city is not responsible in damages for having erected and maintained it while discharging the duty imposed by the legislature, the obstruction not having been permanent or unreasonably prolonged.

We have examined the decisions of the courts of Illinois, and others to which we have been referred by the plaintiffs in error, but in none of them was it decided that a riparian owner on a navigable stream, or that an adjoiner on a public highway, can maintain a suit at common law against public agents to recover consequential damages resulting from obstructing a stream or highway in pursuance of legislative authority, unless that authority has been transcended, or unless there was a wanton injury inflicted, or carelessness, negligence, or want of skill in causing the obstruction.

Very many of the decisions relied upon were cases in which it appeared that the acts complained of as having wrought injurious consequences were done by private individuals, for their own benefit, and without sufficient legislative authority. The distinction between cases of that kind and such as the present is very obvious. It was well stated by Gibbs, C. J., in Sutton v. Clarke (supra), which, as we have seen, was decided on the ground that the defendant was acting under the authority of an act of Parliament, deriving no advantage to himself personally, and acting to the best of his skill and within the scope of his authority, and so was not liable for consequential damages. 'This case,' said the Chief Justice, 'is totally unlike that of the individual who for his own benefit makes an improvement on his own land according to his best skill and diligence, not foreseeing it will produce injury to his neighbor; if he thereby, though unwittingly, injure his neighbor, he is liable. The resemblance fails in this most important point, that his act is not done for a public purpose but for private emolument. Here the defendant is not a volunteer: he executes a duty imposed upon him by the legislature, which he is bound to execute.'

The observations we have made cover the whole case as made for the plaintiffs in error, except the point presented by the sixteenth assignment. That was not mentioned in the argument, but we will not overlook it.

There was evidence at the trial that during the progress of the necessary excavation of La Salle Street a portion of the walls of the plaintiffs' buildings on the lot cracked and sunk. This was caused by the caving in of the excavation in the street, the timbers used for bracing the sides having given way. In reference to this testimony the court instructed the jury that if they were satisfied from the evidence that the sinking of the wall, or rather the cracking of the wall, was due to the weight of the wall upon the selvage or portion of the earth which was left, and not to the removal of the material which was taken out of the street, that is, from the pit, the defendants were not liable. If they were satisfied that if the wall had not stood upon the plaintiffs' lot where it did there would have been no change in the level of the ground there, but that the change in the level which caused the deflection of the wall was due to the weight of the wall resting upon the earth after the excavation was made, then the defendant was not liable for that.

We think this instruction was entirely right. The general rule may be admitted that every land-owner has a right to have his land preserved unbroken, and that an adjoining owner excavating on his own land is subject to this restriction, that he must not remove the earth so near to the land of his neighbor that his neighbor's soil will crumble away under its own weight and fall upon his land. But this right of lateral support extends only to the soil in its natural condition. It does not protect whatever is placed upon the soil increasing the downward and lateral pressure. If it did, it would put it in the power of a lot-owner, by erecting heavy buildings on his lot, to greatly abridge the right of his neighbor to use his lot. It would make the rights of the prior occupant greatly superior to those of the latter. Wyatt v. Harrison, 3 Barn. & Adol. 871; Lasala v. Holbrook, 4 Paige (N. Y.), 169; Washburn, Easements, c. 4, sect. 1.

Judgment affirmed.


text: Talk:Transportation Company v. Chicago/Opinion of the Court


text:
Spring Company v. Edgar

ERROR to the Circuit Court of the United States for the Northern District of New York.

This is an action by Ann P. Edgar to recover from the Congress and Empire Spring Company $20,000 for personal injuries inflicted on her by a buck deer, the property of that company, in the Congress Spring Park at Saratoga Springs, New York.

The declaration charges that on and for a long time prior to Oct. 20, 1870, the defendant had been and was the owner and proprietor of 'Congress Spring,' from which the defendant has realized, and does realize, great gains and profits; that said spring has for a long time been kept open and accessible to the public generally, and all people have been invited to patronize its waters, in various forms, by the defendant; that, to make it more inviting and attractive, the defendant opened in connection therewith an extensive park, ornamented with fountains, trees, shrubbery, and flowers, through which extensive gravelled walks are made for the comfort of those who indulge in the use of the mineral waters and enjoy the landscape; that further to enhance the attractions of said park, the defendant obtained and in some degree domesticated several wild deer, among them a large and powerful buck, with large and dangerous horns, but of vicious character and habits, known as the 'Ugly Buck;' that the defendant, its officers and agents, well knowing that the said buck was vicious, and dangerous to be permitted to run at large in said park, did permit him to run at large in said park, and while the plaintiff had on that day visited said springs to partake of the waters, and was in the day time peaceably proceeding along one of the walks in said park, constructed by the defendant for the comfort of visitors, he did fiercely attack the plaintiff with his horns, head, and feet, and did bite, bruise, and greatly lacerate her in various parts of her person.

The company, in addition to the general issue, interposed a plea that the damage and injury complained of by the plaintiff was occasioned by her own fault and negligence, and by her refusal to obey the reasonable rules and regulations of the company, and by her voluntary disregard of the express notice given her to keep off the grass in the grounds, and not to interfere with or molest the buck.

At the trial, the plaintiff testified that on the morning in question, after drinking at the spring, she walked through the grounds, and met a deer which attacked her, goring and striking her with his head and horns, and greatly injuring her. On her cross-examination, she testified, in substance, that before the occurrence she had frequently been in the habit of going to Congress Spring Park to enjoy the water and the pleasure of a walk; that she noticed the deer in the park as early as 1866, and had often seen them running about on the lawn; that she had seen persons fondling the deer and playing with them on different occasions; and that she had noticed signboards through the park containing the notice, 'Beware of the buck.'

A witness for the plaintiff, introduced as an expert, testified that he was a dentist, and resided in Albany; that he was to some extent acquainted with the habits and nature of the deer, and had hunted them; that in his opinion the buck deer are not generally considered as dangerous, but that in the fall they are more dangerous than at other seasons. Another expert testified that he was a taxidermist, and had made natural history a study, and had read the standard authors in regard to the general characteristice of deer; that from his reading he was of opinion that the male deer, after they have attained their growth and become matured, are dangerous, and that during the rutting season-from the middle of September to the middle of December-the buck deer are generally vicious. The defendant objecte to all the testimony of the experts, on the ground that the witnesses had not shown themselves competent as experts, and that it was improper, immaterial, and incompetent; but the court overruled the objection, and the defendant excepted. Another witness for the plaintiff testified that the park contained about eleven acres; that in 1870 there were nine deer in the park, among them three bucks, the oldest of which was four years old; that he first learned that this buck was ugly when the plaintiff was knocked down; that in 1868 notices were put up in the park cautioning visitors not to tease or worry the deer; that such notices were posted at different places in the park; that the park was frequented by a great number of people, with the consent of the defendant, all through the season; that the object of keeping deer in the park was their beauty; that up to the time of the accident he had no knowledge, information, or belief that a deer or buck, or this buck in the rutting season, or any other, ever attacked a person that was not disturbing or interfering with him.

The testimony having closed, the defendant moved that the action be dismissed, the plaintiff nonsuited, and that a verdict be directed in favor of the defendant, on the following grounds:

1. The evidence does not establish a cause of action.

2. It appears that the place where the accident happened was the privated grounds of the defendant; that the plaintiff knew that the defendant kept in those grounds this buck and other deer, and went there with full knowledge of all the circumstances.

3. That the plaintiff is chargeable with the same knowledge of the character of the buck as the defendant.

4. That no knowledge by the defendant of the vicious character of the buck has been shown.

5. That if any negligence existed, the plaintiff was guilty of negligence equally with the defendant.

The court denied the motion, and the defendant duly excepted.

The court thereupon charged the jury, and among other things stated as follows: 'Some testimony has been produced here by witnesses who have stated to you the result of their reading in natural history, and the result of the opinion expressed by hunters and sportsmen, as to the general characteristics of the deer; and it is for you to say how much is proved by that evidence. The plaintiff claims to show by that evidence that the deer at a certain season of the year is a dangerous animal. It is for you to say whether, after the cross-examination of the witnesses, you can arrive at that conclusion.'

Upon the question of damages, the court, among other things, charged as follows: 'In these cases, while, upon the one hand, a jury should guard themselves against the exaggeration which so frequently, and I may say generally, characterizes the statements of the parties in regard to their injuries, and in regard to the damages they have sustained, upon the other hand, when you make up your mind as to the amount really sustained, you are not to be nice in the award of compensation. It should be liberal.' To the concluding portion of the charge the defendant excepted.

There was a verdict for the plaintiff for $6,500; and judgment having been rendered thereon, the defendant sued out this writ of error.

Mr. Charles S. Lester for the plaintiff in error.

The liability of the owner of an animal of any description for an injury committed by it is founded upon his negligence, actual or presumed. Earl v. Van Alstyne, 8 Barb. (N. Y.) 630; Wharton, Negligence, sects. 918-926; Earhart v. Youngblood, 27 Pa. St. 327; Shearman & Redfield, Negligence, sect. 185; Munn v. Reed, 4 Allen (Mass.), 431; Ilott v. Wilkes, 3 Barn. & Ald. 304.

The owner of a domestic animal is not liable for injuries committed by it, unless he had notice that it was accustomed to do mischief. Buller's Nisi Prius, 77; 3 Bla. Com. 153; Vrooman v. Sawyer, 13 Johns. (N. Y.) 339; Van Leuven v. Lyke, 1 N. Y. 515.

The distinction in the liability of the owner of different classes of animals does not always depend upon their being ferae naturae or mansuetae naturae. Deer, when reclaimed and domesticated, cease to be ferae naturae. 2 Kent, Com. 348, 349.

It follows, therefore, that if the deer was a domesticated animal, there was no cause of action made out, because there was no evidence that it had ever before committed any injury, or exhibited any disposition to commit one, nor that the defendant had any knowledge that it possessed a dangerous disposition. The court should have directed a verdict for the defendant.

But if it be claimed that a deer belongs to the same class as lions, bears, and tigers, then, as the plaintiff is chargeable with the same knowledge of its dangerous character as is the defendant, her negligence in going into the enclosure where she knew this deer was confined was such contributory negligence as barred her from recovering. Wharton, Negligence, sect. 926; Earhart v. Youngblood, supra; Brock v. Copeland, 1 Esp. 203; Ilott v. Wilkes, supra.

The evidence of so-called experts admitted to prove the general character of deer was either inadmissible, because the plaintiff was presumed to have knowledge of such character, or it was incompetent.

The character and disposition of a wild or domestic animal is a fact to be ascertained by experience.

It is only upon questions of science, skill, or trade that opinions of experts are admissible. 1 Greenl. Evid., sect. 440; Dewitt v. Bailey, 9 N. Y. 375; Hewlet v. Wood, 55 id. 634; Bristow v. Sequeville, 5 Exch. 275; Nelson v. Sun Mutual Insurance Co., 71 N. Y. 453.

The books of natural history which a witness has read are not of themselves competent evidence. Commonwealth v. Wilson, 1 Gray (Mass.), 337; Morris v. Lessee of Harmer's Heirs, 7 Pet. 554; McKinnon v. Bliss, 21 N. Y. 206; Collier v. Simpson, 5 C. & P. 73.

The statements of what a witness has read in relation to living animals well known to many people is the merest hearsay.

The court below, in charging the jury that when they make up their minds as to the amount of damages really sustained, they were not to be nice in the award of compensation, but that it should be liberal, in effect told them that the plaintiff was entitled to something more than actual compensation,-that she was, in fact, entitled to exemplary or punitive damages. The word 'liberal' means profuse, generous, ample, something more than strict and just compensation, and it was so understood by the jury. That the word is frequently used by courts and in text-books as synonymous with exemplary, see Tullidge v. Wade, 3 Wils. 18; Whipple v. Walpole, 10 N. H. 130; Tillotson v. Cheetham, 3 Johns. (N. Y.) 64; Taylor v. Church, 8 N. Y. 463; Sedgwick, Damages, p. 40.

Exemplary damages are only awarded where there has been wilful misconduct, or a positive intention to injure. Milwaukie & St. Paul Railway Co. v. Arms, 91 U.S. 489; Cleghorn v. New York Central & Hudson River Railroad Co., 56 N. Y. 44; Hamilton v. Third Avenue Railroad Co., 53 id. 25; Wallace v. Mayor of New York, 18 How. (N. Y.) Pr. 169. They are never recoverable against the owner of an animal for injuries done by it. Keightlinger v. Egan, 65 Ill. 235.

Mr. George W. Miller, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Spring Company v. Edgar


text: Talk:Spring Company v. Edgar

title: Talk:Spring Company v. Edgar


text:
Spring Company v. Edgar/Opinion of the Court

Animals ferae naturae, as a class, are known to be mischievous; and the rule is well settled, that whoever undertakes to keep such an animal in places of public resort is or may be liable for the injuries inflicted by it on a party who is not guilty of negligence, and is otherwise without fault.

Compensation in such a case may be claimed of the owner or keeper for the injury; and it is an established rule of pleading that it is not necessary to aver negligence in the owner or keeper, as the burden is upon the defendant to disprove that implied imputaion. Cases have often arisen where no such averment was contained in the declaration, and the uniform ruling has been that the omission constitutes no valid objection to the right of recovery. May v. Burdett, Law Rep. 9 Q. B. 99.

Negligence was not alleged in that case. Trial was had, and the verdict being for the plaintiff, the defendant moved in arrest of judgment that the declaration was bad for not alleging negligence or some default of the defendant in not properly or securely keeping the animal. Attempt was made by a very able counsel to support the motion, upon the ground that even if the declaration was true, still the injury might have been occasioned entirely by the carelessness and want of caution on the part of the plaintiff; but Lord Denman and his associates overruled the motion in arrest, and decided that whoever keeps an animal accustomed to attack and injure mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of the person attacked and injured, without any averment of negligence or default in securing or taking care of the animal; and the Chief Justice added, what it is important to observe, that the gist of the action is the keeping of the animal after knowledge of its mischievous propensities.

Precedents both ancient and modern, it seems, were cited in the argument and were examined by the court, and the learned Chief Justice remarked, that with scarcely an exception they merely state the ferocity of the animal and the knowledge of the defendant, without any allegation of negligence or want of care. Jackson v. Smithson, 15 Mee. & W. 563; Popplewell v. Pierce, 10 Cush. (Mass.) 509.

Injuries of a serious character inflicted by a mischievous deer, which the defendant company kept in their park, were received by the plaintiff at the time and place alleged, for which she claims compensation of the company. By the declaration it appears that the company is the owner and proprietor of the Congress Spring at Saratoga in the State of New York, whose waters have become celebrated for their medicinal qualities and the source of great gains and profits to the company. Among other things the plaintiff alleges that the spring had for a long time been kept open and accessible to visitors, the public being invited in various forms to patronize its waters, and that to make it more inviting and attractive the company had opened in connection therewith an extensive park, ornamented with fountains, trees, shrubbery, and flowers, through which extensive gravelled walks have been constructed for the use and comfort of those who resort there to use the mineral waters and to enjoy the landscape; that the company, in order further to enhance the attractions of the park, had obtained and in some degree domesticated several wild deer, and among them a large and powerful buck, with large horns and of vicious character and habits, which were well known to the defendant company, their officers and agents, and the residents of the village.

Actual knowledge by the company of the mischievous character of the animal is alleged by the plaintiff, and she avers that the vicious animal on the day named, to wit, the 18th of October, 1870, was permitted to run at large in the park, and that she on that day visited the spring to partake of its waters, and that while she was peaceably proceeding along one of the walks in the park she was fiercely attacked by the mischievous buck and greatly injured, bruised, and lacerated, as more fully set forth in the declaration.

Service was made; and the defendant company appeared and pleaded: 1. The general issue. 2. That the damage and injury suffered by the plaintiff were occasioned by her own fault in neglecting to obey the rules and regulations of the company. On motion of the plaintiff a jury was impanelled, and the parties went to trial, which resulted in a verdict and judgment in favor of the plaintiff. Exceptions were filed by the defendant company, and they sued out the pending writ of error.

Since the cause was entered here the defendant company has filed the following assignments of error: 1. That the court, in view of the evidence, should have directed a verdict for the defendant. 2. That the court erred in admitting the questions to the two witnesses called by the plaintiff as experts. 3. That the court erred in the instructions given to the jury in respect to the question of damages.

Certain animals ferae naturae may doubtless be domesticated to such an extent as to be classed, in respect to the liability of the owner for injuries they commit, with the class known as tame or domestic animals; but inasmuch as they are liable to relapse into their wild habits and to become mischievous, the rule is that if they do so, and the owner becomes notified of their vicious habit, they are included in the same rule as if they had never been domesticated, the gist of the action in such a case, as in the case of untamed wild animals, being not merely the negligent keeping of the animal, but the keeping of the same with knowledge of the vicious and mischievous propensity of the animal. Wharton, Negligence, sect. 922; Decker v. Gammon, 44 Me. 322.

Three or more classes of cases exist in which it is held that the owners of animals are liable for injuries done by the same to the persons or property of others, the required allegations and proofs varying in each case. 2 Bla. Com., per Cooley, 390.

Owners of wild beasts or beasts that are in their nature vicious are liable under all or most all circumstances for injuries done by them; and in actions for injuries by such beasts it is not necessary to allege that the owner knew them to be mischievous, for he is presumed to have such knowledge, from which it follows that he is guilty of negligence in permitting the same to be at large.

Though the owner have no particular notice that the animal ever did any such mischief before, yet if the animal be of the class that is ferae naturae the owner is liable to an action of damage if it get loose and do harm. 1 Hale P. C. 430; Worth v. Gilling, Law Rep. 2 C. P. 3.

Owners are liable for the hurt done by the animal even without notice of the propensity, if the animal is naturally mischievous, but if it is of a tame nature, there must be notice of the vicious habit. Mason v. Keeling, 12 Mod. Rep. 332; Rex v. Huggins, 2 Ld. Raym. 1574.

Damage may be done by a domestic animal kept for use or convenience, but the rule is that the owner is not liable to an action on the ground of negligence, without proof that he knew that the animal was accustomed to do mischief. Vrooman v. Sawyer, 13 Johns. (N. Y.) 339; Buxendin v. Sharp, 2 Salk. 662; Cockerham v. Nixon, 11 Ired. (N. C.) L. 269.

Domestic animals, such as oxen or horses, may injure the person or property of another, but courts of justice invariably hold that if they are rightfully in the place where the injury is inflicted the owner of the animal is not liable for such an injury, unless he knew that the animal was accustomed to be vicious; and in suits for such injuries such knowledge msut be alleged and proved, as the cause of action arises from the keeping of the animal after the knowledge of its vicious propensity. Jackson v. Smithson, 15 Mee. & W. 563; Van Leuven v. Lyke, 1 N. Y. 515; Card v. Case, 5 C. B. 632; Hudson v. Roberts, 6 Exch. 697; Dearth v. Baker, 22 Wis. 73; Cox v. Burbridge, 13 C. B. N. S. 430.

It appears by the bill of exceptions that the plaintiff on the morning of the day of the injury entered the park belonging to the defendant company; that after drinking of the water of the spring she walked through the grounds and that she met the mischievous deer; that he attacked her, goring and striking her with his head and horns, whereby she was thrown down and greatly injured and put to great suffering and expense, as more fully set forth in her testimony. On her cross-examination she testified that she had been in the habit of visiting the park to enjoy the water and the pleasure of the walk; that she had noticed the deer at an earlier period and had often seen them running about on the lawn; that she had seen persons playing with them on different occasions; and that she had noticed the signboard posted in the park containing the notice, 'Beware of the buck.' Another witness called by the plaintiff testified that the park contains about eleven acres; that there were nine deer in the park, among which were three bucks, the oldest being four years old; that he first heard that the buck was ugly when the plaintiff was attacked and knocked down; that notices were put up at different places in the park a year or two before, cautioning visitors not to tease or worry the deer; and that he had no knowledge or belief prior to the accident that the buck or any other of the herd would attack any person if they were not disturbed. Expert witnesses were called by the plaintiff, and they gave it as their opinion that the male deer in the fall of the year is a dangerous animal.

Five witnesses were examined in behalf of the plaintiff; but the bill of exceptions does not show that the defendant company gave any evidence in reply, nor is it stated that the whole testimony introduced by the plaintiff is reported. When the evidence was closed, the defendant moved that the action be dismissed, that the plaintiff be nonsuited, and that the court direct the jury to return a verdict in favor of the defendant.

Discussion of the first two propositions involved in the motion is wholly unnecessary, for two reasons: 1. Because the jurisdiction of the court was beyond doubt, and the record shows that the suit was well brought. 2. Because it is not competent for the Circuit Court to order a peremptory nonsuit in any case.

Circuit courts cannot grant a nonsuit, but the defendant at the close of the plaintiff's case may move the court to instruct the jury that the evidence introduced by the plaintiff is not sufficient to maintain the action, and to direct a verdict for the defendant. In considering the motion the court proceeds upon the ground that all the facts stated by the plaintiff's witnesses are true, and the rule is that the motion will be denied unless the court is of the opinion that in view of the whole evidence, and of every inference the law allows to be drawn from it, the plaintiff has not made out a case which would warrant the jury to find a verdict in his favor. Merchants' National Bank v. State National Bank, 3 Cliff. 205; Same v. Same, 10 Wall. 655.

Tested by that rule, which is everywhere admitted to be correct, it is clear that the motion of the defendant was properly denied, for several reasons: 1. Because the proof of injury was overwhelming. 2. Because the allegation that the animal was vicious and mischievous was satisfactorily proved. 3. Because the evidence to prove that the defendant company had knowledge of the vicious and mischievous propensity of the animal was properly left to the jury, and it appearing that the Circuit Court overruled the motion for a new trial, the court here cannot disturb the verdict except for error of law. 4. Because the cause of action in the case arises not merely from the keeping of the animal, but from the keeping of the same after knowledge of its vicious and mischievous propensities. 5. Because the evidence is plenary that the plaintiff was rightfully in the place where she was injured, and that the owners of the vicious animal, inasmuch as the evidence tended to show that they had knowledge of its mischievous propensities, are justly held liable for the consequences. Stiles v. Navigation Company, 33 L. J. N. S. 311; Oakes v. Spaulding, 40 Vt. 347; Sarch v. Blackburn, 4 C. & P. 297; Same v. Same, 1 Moo. & M. 505; Besozzi v. Harris, 1 Fos. & Fin. 92.

Whoever keeps an animal accustomed to attack or injure mankind, with the knowledge of its dangerous propensities, says Addison, is prima facie liable to an action for damages at the suit of any person attacked or injured by the animal, without proof of any negligence or default in the securing or taking care of the animal, the gist of the action being the keeping of the animal after knowledge of its mischievous disposition. Addison, Torts (ed. 1876), 283; Dickson v. McCoy, 39 N. Y. 400; Applebee v. Percy, Law Rep. 9 C. P. 647; Lead. Cas. Torts, 489.

Witnesses are not ordinarily allowed to give opinions as to conclusions dependent upon facts not necessarily involved in the controversy; but an exception to that rule is recognized in the case of experts, who are entitled to give their opinions as to conclusions from facts within the range of their specialties, which are too recondite to be properly comprehended and weighed by ordinary reasoners. 1 Wharton, Evid., sect. 440.

Men who have made questions of skill or science the object of their particular study, says Phillips, are competent to give their opinions in evidence. Such opinions ought, in general, to be deduced from facts that are not disputed, or from facts given in evidence; but the author proceeds to say that they need not be founded upon their own personal knowledge of such facts, but may be founded upon the statement of facts proved in the case. Medical men, for example, may give their opinions not only as to the state of a patient they may have visited, or as to the cause of the death of a person whose body they have examined, or as to the nature of the instruments which caused the wounds they have examined, but also in cases where they have not themselves seen the patient, and have only heard the symptoms and particulars of his state detailed by other witnesses at the trial. Judicial tribunals have in many instances held that medical works are not admissible, but they everywhere hold that men skilled in science, art, or particular trades may give their opinions as witnesses in matters pertaining to their professional calling. 1 Phil. Evid. (ed. 1868) 778.

It must appear, of course, that the witness is qualified to speak to the point of inquiry, whether it respects a patented invention, a question in chemistry, insurance, shipping, seamanship, foreign law, or of the habits of animals, whether ferae naturae or domestic.

On questions of science, skill, or trade, or others of like kind, says Greenleaf, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence. 1 Greenl. Evid., sect. 400; Buster v. Newkirk, 20 Johns. (N. Y.) 75.

Whether a witness is shown to be qualified or not as an expert is a preliminary question to be determined in the first place by the court; and the rule is, that if the court admits the testimony, then it is for the jury to decide whether any, and if any what, weight is to be given to the testimony. Cases arise where it is very much a matter of discretion with the court whether to receive or exclude the evidence; but the appellate court will not reverse in such a case, unless the ruling is manifestly erroneous. D. & C. Steam Towboat Co. v. Starrs, 69 Pa. St 30 Page v. Parker, 40 N. H. 48; Tucker v. Massachusetts Central Railroad, 118 Mass. 546.

Experts may be examined, says Justice Grier, to explain the terms of art, and the state of the art at any given time. Speaking of controversies between a patentee and an infringer, he says that experts may explain to the court and jury the machines, models, or drawings exhibited in the case. They may point out the difference or identity of the mechanical devices involved in their construction, and adds, that the maxim cuique in sua arte credendum permits them to be examined in questions of art or science peculiar to their trade or profession. Winans v. New York & Erie Railroad Co., 21 How. 88; Ogden v. Parsons et al., 23 id. 167.

Even if the witnesses are not properly to be regarded as experts, the court is of the opinion that the testimony was properly admitted as a matter of common knowledge.

Well-guarded instructions were given to the jury on the subject, as appears from the transcript. Their attention was directed to the testimony, and they were told that it was for them to determine its weight, which shows that the defendant has no just ground of complaint.

Complaint is also made by the defendant that one sentence of the charge of the court in respect to the damages is erroneous. When you have made up your mind, said the judge, as to the amount really sustained, you are not to be nice in the award of compensation. It should be liberal.

Exception was taken to that remark without request for a different instruction, or that it should be qualified or explained in any way. Before that remark was made the judge cautioned the jury against giving credence to any extravagant statement of the injuries received, and then told them that when they had made up their minds as to the amount, meaning the amount of the injury really sustained, they should not be nice in the award of compensation, adding, as if to qualify the antecedent caution given in favor of the defendant, that it should be liberal.

In examining the charge of the court for the purpose of ascertaining its correctness in point of law, the whole scope and bearing of it must be taken together. It is wholly inadmissible to take up single and detached passages, and to decide upon them without attending to the context, or without incorporating such qualifications and explanations as naturally flow from other parts of the instructions. Magniac and Others v. Thompson, 7 Pet. 348.

Instructions given by the court at the trial are entitled to a reasonable interpretation, and if the proposition as stated is not erroneous, they are not as a general rule to be regarded as incorrect on account of omissions or deficiencies not pointed out by the excepting party. Castle v. Bullard, 23 How. 172.

Appellate courts are not inclined to grant a new trial on account of an ambiguity in the charge to the jury, where it appears that the complaining party made no effort at the trial to have the matter explained. Locke v. United States, 2 Cliff. 574; Smith v. McNamara, 4 Lans. (N. Y.) 169.

Requests for such a purpose may be made at the close of the charge, to call the attention of the judge to the supposed error, inaccuracy, or ambiguity of expression; and where nothing of the kind is done, the judgment will not be reversed, unless the court is of the opinion that the jury were misled or wrongly directed. Carver v. ''Jackson, ex dem. Astor et al.'', 4 Pet. 1; White v. McLean, 57 N. Y. 670.

None of the exceptions can be sustained, and there is no error in the record.

Judgment affirmed.


text: Talk:Spring Company v. Edgar/Opinion of the Court


text:
Evanston v. Gunn

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

This was an action of trespass on the case brought by Jessie Gunn against the village of Evanston, Ill., to recover damages which she had sustained April 22, 1873, by reason of the alleged neglect of duty on the part of the defendant.

The old town of Evanston was in 1863 incorporated under the General Laws of 1845, and the defendant, its successor, became incorporated as a municipal corporation, and assumed its present name, Oct. 15, 1872, under an act of the General Assembly, entitled 'An Act to provide for the incorporation of cities and villages,' approved April 10, 1872.

The laws of 1845 authorized the corporation, among other things, to keep open and in repair its streets and alleys by making pavements or sidewalks as to it might seem needful, and to levy and collect a tax for the purpose, and provided that it should be its duty to cause all its streets and alleys, and all the public roads passing from and through it for one mile from the centre thereof, to be kept in good repair.

The corporation, to fulfil these duties, was authorized to require male residents to work on the roads, and it could make appropriations from the annual tax levy. The duties of a street commissioner were to be prescribed by ordinance. An ordinance of the town of Evanston declared them to be 'to keep in repair streets, ditches, drains, crosswalks, and sidewalks, under the direction of the board of trustees.'

The act of April 10, 1872, under which the new organization was effected, confers the following among other powers: 'To lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and public grounds, and vacate the same; to prevent and remove encroachments or obstructions upon the same; to construct and keep in repair culverts, drains, sewers, and cesspools, and regulate the use thereof; to construct and keep in repair bridges, viaducts, and tunnels, and regulate the use thereof.'

The act also authorizes the assessment and levy of taxes for corporate purposes; the making of annual appropriations to defray all necessary expenses and liabilities; and the borrowing of money under certain contingencies, for the same general purposes. It further provides that when a majority of the votes of the town cast at an election to be held for that purpose shall be for a village organization, 'such town shall, from and henceforth, be deemed to be duly incorporated as a village under this act; but the town officers then in office shall continue as like officers of such village until their successors shall be elected or appointed under the provisions of this act.'

The election for village officers is held on the third Tuesday in April of each year, and the fiscal year commences at that date.

It is further provided that 'from the time of such change of organization, the provisions of this act shall be applicable to such cities and villages, and all laws in conflict therewith shall no longer be applicable. But all laws or parts of laws, not inconsistent with the provisions of this act, shall continue in force and be applicable to any such city or village, the same as if such change of organization had not taken place. All ordinances, resolutions, and by-laws in force in any city or town when it shall organize under this act shall continue in full force and effect until repealed or amended, notwithstanding such change of organization; and the making of such change of organization shall not be construed to effect a change in the legal identity, as a corporation, of such city or town.'

Sect. 12 provides: 'All rights and property of every kind and description, which were vested in any municipal corporation under its former organization, shall be deemed and held to be vested in the same municipal corporation upon its becoming incorporated under the provisions of this act; but no rights or liabilities, either in favor of or against such corporation, existing at the time of so becoming incorporated under this act, and no suit or prosecution of any kind, shall be affected by such change.'

It is further provided that the board of trustees 'shall, within the first quarter of each fiscal year, pass an ordinance, to be termed the annual appropriation bill, in which such corporate authorities may appropriate such sum or sums of money as may be deemed necessary to pay all necessary expenses and liabilities of such corporation. . . . No further appropriations shall be made at any other time within such fiscal year, unless the proposition to make such has been first sanctioned by a majority of the legal voters of such village, either by a petition signed by them, or at a general or special election duly called therefor.' 'Neither the board of trustees, nor any department or officer of the corporation, shall add to the corporation expenditures in any one year any thing over and above the amount provided for in the annual appropriation bill of that year, except as is herein otherwise specially provided; and no expenditures for an improvement to be paid for out of the general fund of the corporation shall exceed in any one year the amount provided for such improvement in the annual appropriation bill: Provided, however, that nothing herein contained shall prevent the board of trustees from adding, by a two-thirds vote, any improvement, the necessity of which is caused by any casualty or accident happening after such annual appropriation is made. The board of trustees may, by a like vote, order the president of the board of trustees and finance committee to borrow a sufficient amount to provide for the expense necessary to be incurred in making any improvements, the necessity of which has arisen as is last above mentioned, for a space of time not exceeding the close of the next fiscal year, which sum, and the interest, shall be added to the amount authorized to be raised in the next general tax levy, and embraced therein.'. ..

The plaintiff was a teacher in the public schools of the village of Evanston, and resided within its corporate limits on the west side of Sherman Avenue, where there was no sidewalk on the usual line. In the avenue, which is one hundred feet wide, and at a distance of some twenty feet from its west side, there was a ditch or drain running north and south through the entire limits of the village, and which the street commissioner, after the organization of the old town, had, by authority of its trustees, deepened and sided up with planks, and constructed, at the public expense, street-crossings so as to pass over it. Without objection on his part, property holders, in the summer of 1871, had covered it with planks for a sidewalk, and it was subsequently used as such. As the plaintiff was passing along the avenue in the morning, on her way to school, she fell with her right leg into a hole in the cover of the drain, which was from six to eight inches in width and from two to four feet in length. She sustained severe injuries to her spine and hip-joint, which will probably disable her for life. She was aware of the existence of the hole, but its exact location could not, by reason of the snow which covered it, be distinguished, and she was endeavoring to avoid it when the accident occurred.

The hole was made by a runaway team in the fall of 1872, and was then insufficiently covered by the owner of a lot in the neighborhood. The planks were again broken at that place, and so remained for several weeks before the plaintiff was injured. In the mistaken impression that an ex-street-commissioner was still in office, parties had notified him of its condition, and there was evidence tending to show that the village officers were also aware of it.

The plaintiff, for the purpose of showing the direction and velocity of the wind and the falling of snow in the morning in question and the previous evening, offered in evidence the record made by a person employed at Chicago by the United States Signal Service. The defendant objected, because there was no law authorizing the record to be used in evidence, and because the same was not competent testimony. The court overruled the objection, and the defendant excepted. The record was then read, from which it appeared that a snow-storm occurred on the evening of April 21, 1873, and the wind blew at the rate of twenty miles an hour; that the storm continued until the following morning, when the wind blew at the rate of twenty-four miles an hour; that snow fell at that time sufficient to make 17/100 of an inch in melted snow. It was also proved that Evanston was located ten miles north of Chicago, and that the snow-storm was as severe there as in that city.

The defendant introduced evidence tending to prove that from the organization of the village up to June, 1873, no appropriations had been made by it under said act of April 10, 1872; that the ditch was originally dug in the year 1855 by the drainage commissioners incorporated as such under the laws of the State; that by actual measurement the distance was thirty feet and five inches from the gate in front of the plaintiff's residence to the covered drain, and that the latter was six feet five inches wide; that the distance from the west line of the ditch to the railing of the park between the ditch and her house was three feet; that the passage left for a sidewalk between the park and her house was nine feet; that the ground there was hard, dry, and sodded, and that there was at the time of the accident no obstacle to prevent her from passing along that passage to the school where she taught; that the hole in the covered drain was six inches from the east side thereof; that the distance from the top of the cover to the bottom of the drain was four feet; that the trustees of the old town had never by any recorded proceedings authorized said sewer to be covered over nor a sidewalk to be laid on the top thereof; that no street commissioner had ever by any direct act consented that the cover to said sewer should be built or used for the purposes of a sidewalk, although at the time the work was done the then commissioner was aware that the lot-owners doing it expected that the cover would be used as a sidewalk, and that he planked it at the intersecting streets and alleys at the public expense.

The court charged the jury, that if the defendant, when it came into corporate existence, found the ditch as a part of the drainage system of that locality running along one of the streets, it was bound in some way to protect the public against danger from said ditch, and that it made no difference for the purpose of the case whether the ditch was a drain formed by nature and existing from time immemorial, or had been created by artificial means only a few years prior to the formation of the corporation; that if it was rightfully there when the corporation came into existence, then it was bound to accept it, and provide for the safety of its citizens against it, and to keep it in repair; that the fact that the corporation had changed its organic law but a few months prior to the accident, and had not yet run the term of its municipal year when it could make an appropriation under the law under which it was then existing, did not relieve it from liability to keep the street in repair. The court also instructed the jury at large as to any contributory negligence on the part of the plaintiff.

There was a verdict for the plaintiff for $6,500, and judgment having been rendered thereon, the defendant sued out this writ of error.

Mr. George O. Ide for the plaintiff in error.

Mr. Wirt Dexter, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Evanston v. Gunn


text: Talk:Evanston v. Gunn

title: Talk:Evanston v. Gunn


text:
Evanston v. Gunn/Opinion of the Court

The admission in evidence of a record kept by a person employed by the United States Signal Service at Chicago was objected to at the trial, not because it had not been properly made, identified, and proved, but for the alleged reason that 'there was no law authorizing such records to be used in evidence, and because it was not competent testimony.' The defendants having thus specified their objection, it must be considered that all others were waived, or that there was no ground upon which others could stand. Berks & Dauphin Turnpike Co. v. Myers, 6 Serg. & R. (Pa.) 12; Chicago & Alton Railroad Co. v. Morgan, 69 Ill. 492. We have then only to consider the objections that were made,-the only ones that appear in the bill of exceptions,-and they present the question whether the record, conceding it to be properly proved, was competent evidence. It may be admitted there is no statute expressly authorizing the admission of such a record, as proof of the facts stated in it, but many records are properly admitted without the aid of any statute. The inquiry to be made is, what is the character of the instrument? The record admitted in this case was not a private entry or memorandum. It had been kept by a person whose public duty it was to record truly the facts stated in it. Sects. 221 and 222 of the Revised Statutes require meteorological observations to be taken at the military stations in the interior of the continent and at other points in the States and Territories, for giving notice of the approach and force of storms. The Secretary of War is also required to provide, in the system of observations and reports in charge of the chief signal officer of the army, for such stations, reports, and signals as may be found necessary for the benefit of agriculture and commercial interests. Under these acts a system has been established, and records are kept at the stations designated, of which Chicago is one. Extreme accuracy in all such observations and in recording them is demanded by the rules of the Signal Service, and it is indispensable, in order that they may answer the purposes for which they are required. They are, as we have seen, of a public character, kept for public purposes, and so immediately before the eyes of the community that inaccuracies, if they should exist, could hardly escape exposure. They come, therefore, within the rule which admits in evidence 'official registers or records kept by persons in public office in which they required, either by statute or by the nature of their office, to write down particular transactions occurring in the course of their public duties or under their personal observation.' Taylor, Evid., sect. 1429; 1 Greenl. Evid., sect. 483. To entitle them to admission it is not necessary that a statute requires them to be kept. It is sufficient that they are kept in the discharge of a public duty. 1 Greenl. Evid., sect. 496. Nor need they be kept by a public officer himself, if the entries are made under his direction by a person authorized by him. Galt v. Galloway, 4 Pet. 332. It is hardly necessary to refer to judicial decisions illustrating the rule. They are numerous. A few may be mentioned. De Armond v. Nesmith, 32 Mich. 231; Gurney v. House, 9 Gray (Mass.), 404; The Catharine Maria, Law Rep. 1 Ad. & Ec. 53; Clicquot's Champagne, 3 Wall. 114. We think, therefore, that there was no error in admitting the record kept by the person employed for the purpose by the United States Signal Service.

The exceptions to the charge, though numerous, in our opinion point to no error. Without going through in detail the statute under which the village was organized and the powers conferred upon it, it is enough to say that it had ample authority to keep the streets and walks in a safe condition at all times for passage. And the power carried with it the duty of exercising it. Nothing could have been a more palpable violation of that duty than permitting the continuance of such a trap as that into which the plaintiff below fell. And this duty was not suspended during the changes from a township to a village organization. The identity of the corporation was not destroyed by the change, and its obligations in regard to the streets, avenues, sidewalks, drains, &c., continued in full force. The fact that the board of trustees of the village were not authorized to make their annual appropriation for the year in which the plaintiff's injury occurred, if it was a fact, and that they, as well as every department and officer of the corporation, were prohibited by law from adding to the corporate expenditures in any one year any thing above the amount provided for in the annual appropriation bill for that year, is quite immaterial. The power to borrow money sufficient to provide for making any improvements, the necessity for which was caused by any casualty or accident happening after the annual appropriation, was expressly given. Besides, the village succeeded to all the property and funds of the township, as well as to its liabilities. It was organized in October, 1872, and the accident to the plaintiff occurred on the 22d of April, 1873, six months afterwards.

We see no error in the instruction given to the jury respecting contributory negligence of the plaintiff. It was full, all the case demanded,-and strictly accurate. Sentences may, it is true, be extracted from the charge, which if read apart from their connection, need qualification. But the qualifications were given in the context, and the jury could not possibly have been misled. Upon the whole, we think that the case was submitted in a manner of which there is no just cause of complaint.

Judgment affirmed.

title: Evanston v. Gunn/Opinion of the Court


text: Talk:Evanston v. Gunn/Opinion of the Court