Du Hadaway v. Commissioners of Townsend

Superior Court of Delaware

Du Hadaway v. Commissioners of Townsend

82 A. 35, 23 Del. 217, 7 Penne. 217, 1904 Del. LEXIS 7

CourtSuperior Court of Delaware

DecidedNovember 12, 1904

DocketNo. 86

StatusPublished

This text of 82 A. 35 (Du Hadaway v. Commissioners of Townsend) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Du Hadaway v. Commissioners of Townsend, 82 A. 35, 23 Del. 217, 7 Penne. 217, 1904 Del. LEXIS 7 (Del. Ct. App. 1904).

Pincite

Opinion

Lore, C. J.,

charging the jury:

Gentlemen of the jury:—The case you are empanelled to try is an action brought by William E. Du Hada way against the Commissioners of the town of Townsend, in this State. The plaintiff claims that on the eleventh day of September, 1901, certain parties authorized by the Commissioners of the town of Townsend, cut down trees near his dwelling house, one of which fell upon other trees belonging to him in his yard and did damage to two of his trees. He claims damages to the extent of $350.00 for each tree, making $500.00; also damage to his front fence, to the extent of $10.00; and to his curb, to the amount of $5.00; and to a certain rustic seat, for which he claims $18; making his total claim $533.00.

This case turns largely upon whether or not the persons cutting down the trees were authorized to do so, by the Commissioners of Townsend, in such a way as to bind the corporation. We will say to you, gentlemen, upon the point of authority, that if the town Commissioners of Townsend, acting as such, either in a body or a majority of them so acting, employed this man to cut down the tree,.-it would be sufficient authority for so doing. We will say further, that if a majority, or even less than a majority, so contracted, and the remaining commissioners, or all of them, approved or assented to, or acquiesced in that act, then it would be done with authority. We will say to you further that if Mr. Daniels made the application to cut down the tree for his own benefit, and the Commissioners properly gave him authority to do so for his own benefit, that would authorize him to cut it down in a proper way, and not improperly; and the town Commissioners, even if authority was given, would not be liable for an improper exercise of that authority, for Daniels’ own benefit and not for the benefit of the town.

You must be satisfied by a preponderance of- the evidence that Mr. Daniels had the authority, properly given him by the Commissioners of Townsend, to do that act, in order to make the town of Townsend liable for such act. If he had the author[219]*219ity so to do, the town would be liable for such damages as were actually sustained.

As to the question of damages, if, after an examination of the evidence in this case, you determine that he is entitled to damages, he would be entitled to actual damages. But to entitle him to recover at all, you must be satisfied that the man who cut the tree had the authority of the town Commissioners so to do, and that it was in the interests of the town. If it was not, the town could not be bound or mulcted in damages for any injury that may have been sustained by such act. The damage could only be, as I have said before, actual damages.

It is proper to say to you that in no event can recovery be had by the plaintiff, unless the injury was the result of negligence on the part of the person who, you must be satisfied, was authorized by the Commissioners of Townsend.

You have all the evidence in this case before you, and it is for you to say upon the evidence, whether any injury was done for which the defendant is liable, and if so, to what amount.

Verdict, for plaintiff for $105.00.

Free access — add to your briefcase to read the full text and ask questions with AI

Lore, C. J.,

charging the jury:

Gentlemen of the jury:—The case you are empanelled to try is an action brought by William E. Du Hada way against the Commissioners of the town of Townsend, in this State. The plaintiff claims that on the eleventh day of September, 1901, certain parties authorized by the Commissioners of the town of Townsend, cut down trees near his dwelling house, one of which fell upon other trees belonging to him in his yard and did damage to two of his trees. He claims damages to the extent of $350.00 for each tree, making $500.00; also damage to his front fence, to the extent of $10.00; and to his curb, to the amount of $5.00; and to a certain rustic seat, for which he claims $18; making his total claim $533.00.

This case turns largely upon whether or not the persons cutting down the trees were authorized to do so, by the Commissioners of Townsend, in such a way as to bind the corporation. We will say to you, gentlemen, upon the point of authority, that if the town Commissioners of Townsend, acting as such, either in a body or a majority of them so acting, employed this man to cut down the tree,.-it would be sufficient authority for so doing. We will say further, that if a majority, or even less than a majority, so contracted, and the remaining commissioners, or all of them, approved or assented to, or acquiesced in that act, then it would be done with authority. We will say to you further that if Mr. Daniels made the application to cut down the tree for his own benefit, and the Commissioners properly gave him authority to do so for his own benefit, that would authorize him to cut it down in a proper way, and not improperly; and the town Commissioners, even if authority was given, would not be liable for an improper exercise of that authority, for Daniels’ own benefit and not for the benefit of the town.

You must be satisfied by a preponderance of- the evidence that Mr. Daniels had the authority, properly given him by the Commissioners of Townsend, to do that act, in order to make the town of Townsend liable for such act. If he had the author[219]*219ity so to do, the town would be liable for such damages as were actually sustained.

As to the question of damages, if, after an examination of the evidence in this case, you determine that he is entitled to damages, he would be entitled to actual damages. But to entitle him to recover at all, you must be satisfied that the man who cut the tree had the authority of the town Commissioners so to do, and that it was in the interests of the town. If it was not, the town could not be bound or mulcted in damages for any injury that may have been sustained by such act. The damage could only be, as I have said before, actual damages.

It is proper to say to you that in no event can recovery be had by the plaintiff, unless the injury was the result of negligence on the part of the person who, you must be satisfied, was authorized by the Commissioners of Townsend.

You have all the evidence in this case before you, and it is for you to say upon the evidence, whether any injury was done for which the defendant is liable, and if so, to what amount.

Verdict, for plaintiff for $105.00.

Cite This Page — Counsel Stack

Bluebook (online)

82 A. 35, 23 Del. 217, 7 Penne. 217, 1904 Del. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/du-hadaway-v-commissioners-of-townsend-delsuperct-1904.