Gray v. Boston Gas Light Co.

114 Mass. 149

Opinion

Endicott, J.

*

The defendant, without the permission of the plaintiff, attached to the plaintiff’s chimney a telegraph wire. In a gale of wind, some time afterwards, the chimney was blown down, and fell into the street, injuring a horse and a wagon then passing which belonged to Brown and Chick. They brought an action against the plaintiff, as owner of the building, for the injury caused by the defective condition of the chimney. The plaintiff gave notice of the suit to the defendant, stating that the injury was caused by the wire pulling down the chimney, and that he should look to the company for indemnity, and requested it to come in and defend the action. The defendant declined to defend, or to advise a settlement. The plaintiff settled the suit with Brown and Chick, and brought this action to recover the sum so paid, the legal expenses thereby incurred, and the damage done to the plaintiff’s building by the fall of the chimney. The jury have found that the telegraph wire pulled down the chimney. The defendant admits its liability to pay for the damages done to the building, but denies that it is liable for the sum paid Brown and Chick, or for the expenses of the plaintiff.

The first position taken by the defendant is, that the plaintiff was not liable in the action brought by Brown and Chick, because the owner of a building is not answerable for acts of negligence or wrong-doing committed on his land or building by a stranger.

It is undoubtedly true that when a stranger does a negligent or unlawful act on the land or building of another, and in doing that act occasions injury to a third party, the owner of the land or building is not liable. Such a case would have been presented if the injury had been caused by the fall of the chimney while the defendant, without the knowledge or permission of the plaintiff, was putting the wire upon the chimney. The injury so resulting would have arisen, not from the unsafe condition of the chimney as part of the building, but from a negligent act committed without permission, and not under the authority of the owner. But the facts show a very different state of things. The wrongful act of the defendant caused the chimney, which was adjacent to the highway, to become unsafe and liable to fall by reason of the strain of the wire, and this condition was continued for a considerable period, and existed at the time of the injury. The owner of a building, under his control and in his occupation, is bound, as between himself and the public, to keep it in such proper and safe condition, that travellers on the highway shall not suffer injury. Milford v. Holbrook, 9 Allen, 17. Shipley v. Fifty Associates, 101 Mass. 251, and cases cited. Hadley v. Taylor, L. R. 1 C. P. 53. Kearney v. London, Brighton, &c. Railway Co. L. R. 6 Q. B. 759. Welfare v. London & Brighton Railway Co. L. R. 4 Q. B. 693. It is the duty of the owner to guard against the danger to which the public is thus exposed, and he is liable for the consequences of having neglected to do bo, whether the unsafe condition was caused by himself or another. Coupland v. Hardingham, 3 Camp. 398. Nor can the owner protect himself from liability, because he did not in fact know that the building was unsafe; he is bound to exercise the proper care required under the circumstances of the case. The liability of the plaintiff, therefore, to Brown and Chick did not depend upon, and was not based upon, the particular act of the defendant, but upon the determination of the question, whether the chimney was unsafe and dangerous to travellers under such cíin cumstances that the owner was responsible for the injury suffered, xt cannot be said, as matter of law, upon these facts, that the plaintiff was not bable to Brown and Chick, and that he could have successfully defended the action.

The second objection taken by the defendant is that the injury was caused by the negligence of the plaintiff and defendant; that they were joint tortfeasors, and that there cannot be indemnity or contribution between them.

When two parties, acting together, commit an illegal or wrongful act, the party who is held responsible in damages for the act cannot have indemnity or contribution from the other, because both are equally culpable, or participes criminis, and the damage results from their joint offence. This rule does not apply when one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability and suffers damage. He may recover from the party whose wrongful act has thus exposed him. In such case the parties are not in pari delicto as to each other, though as to third persons either may be held liable. The numerous cases in our own reports are analogous, where towns, having been held liable for an unsafe condition of the highway, have recovered from the persons whose acts caused the unsafe condition. The reasons given in these cases are conclusive on this point. In Lowell v. Boston & Lowell Railroad Co. 23 Pick. 24, the authorities were fully considered, and upon general principles it was held the town could recover, the parties not being in pari delicto. No distinction is there made, that the liability is cast upon the town by statute and not by the common law, and no such distinction is noticed in any of the cases which follow it. Lowell v. Short, 4 Cush. 275. Swansey v. Chace, 16 Gray, 303. Milford v. Holbrook, 9 Allen, 17. West Boylston v. Mason, 102 Mass. 341. In the last case, it was said the only fault of the town was the failure to remedy a nuisance which the defendant had created. Nor can there be any such distinction in principle. The ground of the action is that the defendant has, by his own unauthorized act, exposed the plaintiff to a liability, and it is immaterial whether the liability is imposed by force of a statute or by the rules of the common law. In either case the plaintiff is held liable by inference of law, and not by reason of his active participation in the act which was the occasion of the injury. Pearson v. Skelton, 1 M. & W. 504. See also Chicago City v. Robbins, 2 Black. 418; Bailey v. Bussing 28 Conn. 455. We are therefore of opinion that the defendant is responsible over to the plaintiff in this action, the jury having found that the wrongful act of the defendant caused the unsafe condition of the building, and exposed the plaintiff to the liability.

The plaintiff gave notice to the defendant of the action brought by Brown and Chick, and the defendant refused to come in and defend; the jury have found that the sum paid in settlement was reasonable, and that the plaintiff acted prudently in paying it; and he is entitled to recover that sum and his expenses, together with the damages to his building. No question was made by the defendant as to the items of the plaintiff’-s expenses. Swansey v. Chace, 16 Gray, 303. Blanchard v. Equitable Safety Ins. Co. 12 Allen, 386. Smith v. Compton, 3 B. & Ad. 407. Tindall v. Bell, 11 M. & W. 228.

Exceptions overruled.

Gray, C. J., did not sit in this case.