Gregory v. Brooks

35 Conn. 437

Opinion

Butler, J.

The first error assigned upon the record, is that the city court erred in not arresting the judgment for the insufficiency of the declaration. We do not think the error manifest.

It is undoubtedly true that where one is injured by the wrongful act of another, and others are indirectly and consequentially injured, but not by reason of any natural or legal relation, the injuries of the latter are deemed too remote to constitute a cause of action. The doctrine was fully discussed and settled in the case of The Connecticut Mutual Life Insurance Co. v. The New York and New Haven Railroad Co., 25 Conn., 265. We have no desire or intention to weaken the force of that decision. The consequences which would result, if the rule were different, are too momentous to permit the doctrine to be questioned.

But it was admitted by the distinguished counsel who argued that case, and by the eminent judge who gave the opinion of the court, that the rule might be different where an injury is done to one with a malicious or fraudulent design to injure another through a contract relation. And the cases are numerous where injuries have been holden .actionable although not directly committed upon the plaintiff in the case, if they were intended to affect and did injuriously affect him in his contract or business relations. Several of the early English cases are cited in Swift’s Digest, page.5.62, and there are modern cases in this country of a similar character.

Referring to the declaration, we find that in some or all tire counts the defendant is charged with having falsely claimed and represented himself to be a superintendent of wharves and harbor-master, and as such to have issued an order, directing the captain of a vessel which was moored at the wharf of the plaintiff to remove therefrom*- We find it further averred that the captain was in the act of discharging and the plaintiff of receiving a cargo of coal from the vessel; that the plaintiff owned and kept such wharf for the purpose of letting the same and receiving wharfage therefor, as a source of profit and gain to him; that by means of such representations and order the captain of the vessel was caused and induced to remove from said wharf to the wharf of another person and there discharge his cargo; and that by reason of such removal the plaintiff lost the wharfage which he otherwise would have received and was damnified thereby. It is further alleged that the representations and acts of the defendant were made and done with a fraudulent and malicious purpose and design to injure the plaintiff and prevent him from making the gain and profit which he would have made from the occupation of his wharf by the vessel.

. Now this case differs essentially, as presented by the declaration, from the case cited from the 25th Conn. R. and another cited from the 11th Met. R., in which the opinion was given by Judge Shaw. There is here averred not only the essential element of a fraudulent and malicious design to injure the plaintiff, as the governing motive of the defendant’s conduct, but that the fraudulent representations and acts were made and done to one sustaining a business relation with the plaintiff, with a view of disturbing and breaking up that business relation, and an averment that ‘the relation was disturbed and that the plaintiff lost a gain and profit by reason of that disturbance. And although the representations and order are alleged to have been made to the captain of the vessel as occupant of the wharf, they arc not alleged to have been made with any design to injure him, or any other design than to injure the plaintiff. It is not easy to see how this case can be distinguished in principle from the case where a tenant at will was frightened out of his occupation with intent to injure the landlord, or the customer fraudulently prevented from taking his horse to a market to prevent the owner from obtaining his toll, or children prevented by fright from attending a school to the injury of the school-master, or from many other cases where men have been fraudulently and maliciously injured indirectly through their business relations.

For these reasons we think the motion in arrest was properly overruled.

But we are satisfied that the case was not properly presented to the jury. It appears from the bill of exceptions that the defendant was in fact superintendent of wharves ; that, as such he had authority upon the application of any owner óf a wharf to remove a vessel therefrom; that the vessel in question which lay at the wharf of the plaintiff extended some distance in front of the wharf of Miller & Co. who were adjoining owners; that Miller & Co. had a vessel in the stream which was prevented from coming to the wharf by the obstruction ; that they applied to the defendant as superintendent of wharves to order the vessel which was lying at the plaintiff’s wharf to be removed ; and that thereupon the defendant issued the order set out in the declaration. The parties were at issue in relation to the extent of the defendant’s powers, and the construction of the order, and as to whether the order was or was not a legal one. That question was submitted to the jury as a mixed question of law and fact, but in relation to that submission no complaint is made. The defendant also claimed and offered evidence to prove, that in the matters in dispute between the parties he acted in good faith, without any malice or fraudulent intent toward the plaintiff, but in the belief that he was doing his duty as a public officer of the city. This claim presented the pivotal fact in the case, for if there was no fraudulent or malicious design in what he did or said to injure the plaintiff and prevent him from acquiring the gain and profit which he expected to acquire, and would have acquired, then there was no actiona ble injury to the plaintiff, and the defendant was entitled to a verdict. On this point the defendant made four claims to the court, and requested a corresponding charge to the jury. The import of the first two of those requests was, that the allegations that the acts complained of were done fraudulently and maliciously with intent to defraud the plaintiff, must be proved as laid to entitle the plaintiff to a verdict; and the import of the third and fourth requests was, that if the jury found that the acts were done without any intent to injure the plaintiff or deprive him of any profits or pecuniary benefits, or if the defendant believed that he was acting in the line of his duty as an officer, and did the acts in good faith, without any fraudulent intent or malice toward the plaintiff, he was not liable, although not in law or fact such an officer. The court charged in conformity with the first two requests but notin conformity with the last two, and further charged them that it was not enough for the defendant simply to have believed that he had authority to make the order complained of and that he made the saíne in good faith; he was bound to act with reasonable caution. Here there was manifest error. The turning question in the case was whether the defendant was acting with the fraudulent and malicious design to injure the plaintiff and deprive him of his wharfage, or whether he was acting as a public officer in good faith, in the belief that he was doing his duty, without such malicious and fraudulent design. The whole case then turned upon the question of the existence of such a design. If that existed, the action lay, and the plaintiff was entitled to recover. If that did not exist the injury to the plaiutiff was remote and he could not recover. The defendant asked the .court in the second and third requests to charge and they did charge the jury that the allegations in the declaration .averring such a design were essential allegations and must be proved. The defendant asked the court in the fourth and fifth requests to charge the jury that if they found the acts were done without any such design, but in good faith, believing that he was a public officer and had a right to do them, then the plaintiff could not recover, and the court did not so charge. But the fourth and fifth requests contain a repetition, in a different form, of the same proposition which was contained in the other two and which the court recognized, and the defendant was entitled, in such a peculiar case, to have the proposition repeated to the jury in the manner requested. And when the court not only declined to charge as requested, but added what imported, substantially, that the plaintiff might recover notwithstanding the defendant acted in good faith as a public officer, believing that he had authority so to act, and without any such design, “ if he did not act with reasonable caution, ” they misled the jury and did injustice to the defendant. They ignored the only rule on which the case could be sustained and applied a rule in favor of the plaintiff which might have been proper in a suit brought by the captain of the brig, but which had no just application to the case.

For these reasons the Superior Court is advised to reverse the judgment.

In this opinion the other judges concurred.