Lawton v. Waite

79 N.W. 321, 103 Wis. 244, 1899 Wisc. LEXIS 188

Opinion

Dodge, J.

1. The complaint is very long, and somewhat ambiguous, as to whether it is founded on contract or tort. 'While many acts which might constitute negligence are •alleged, they are not characterized expressly as either wrongful or negligent, and they are all asserted to constitute breaches of one or the other of the two contracts, which are not set out m extenso. Again, the sureties are joined as defendants, and judgment demanded against them jointly with their principal. Such demand can, of course, be supported •only on the ground that their principal has breached some requirement of the contract, performance of which the sureties have guaranteed. They have no other connection either ■with the plaintiff or with the acts and events out of which his claim arises. Their liability must arise, if at all, from the strict words of the written contract which they have signed. Considering, then, first, whether a cause of action ■ex eontraetu is set forth against these demurring defendants, it must be observed that many of the contractual undertakings alleged in the complaint have no application to them, but only to the other defendants, who executed the original ■contract with the United States. The demurrants’ duty and liability must be found in the subcontract, which it will be noted is much narrower than the original. Its undertaking is at a considerably less price, and to perform only a part of the duties assumed by the original contractor. He agreed to carry the mails; to account for and pay over any moneys of the United States coining into his possession; to carry post-office blanks, mail bags, and all other postal supplies; to convey on driver’s seat of each wagon a postal employee; that his contract might be extended additional six months, in discretion of Postmaster General; and that he would be answerable to the United States or any person aggrieved for performance of all the duties cmd dbligat/ions therein assumed. The subcontractor only agreed to carry the mails, and that for failure therein he should be liable to the original contractor for certain liquidated damages.

Nowhere in this subcontract is there assumption of any liability to any one except the other party, nor any duty save to him and to the United States. If the original contractor assumed liability for damages to others than the United States, he has not by the subcontract required the subcontractor to do so. He has adopted another method of securing indemnity to himself for any liability that may fall on him by reason of failure of the subcontractor. The plaintiff urges that, because certain of the terms of the original ■contract are notified to the subcontractor by printing them on the back of his contract, the latter is deemed to have assumed them. This position is not tenable. They are not printed as a part of the subcontract, but merely as information of the terms of the original, and they are assumed by the subcontractor only to the extent specified over his signature, and that is only so far as they regulate his undertaking to carry the mails. Indeed, the very notification with reference to Chilton’s liability to persons aggrieved limits it to damages for failure in the care, transportation, or custody of the mails. We think it plain, therefore, that no privity of contract between the demurrants and the plaint iff is shown. They contracted alone with E. A. Chilton, and not with the plaintiff, nor even with the United States, and only contracted for transportation of the mails, in which contract the government primarily, and individuals only indirectly, have any interest.

The situation is closely analogous to that presented in Britton v. Green Bay & Ft. H. W. W. Co. 81 Wis. 48, where the defendant failed in its duty by contract with the city to furnish water for extinguishment of fires, whereby great loss fell on plaintiff. In that case it was held that no privity of contract existed, notwithstanding the fact that plaintiff might be greatly benefited by its performance or injured by breach, but that to recover he must point to a duty resting on defendaoit by layo, breach of which would constitute a tort.

Most of the authorities cited by respondent to support recovery, under similar circumstances, repudiate the contract liability, or rest on a duty imposed by law as a result of tho situation. Sawyer v. Corse, 17 Grat. 230; Hale v. G. T. R. Co. 1 L. R. A. 187, 60 Vt. 605; Collett v. L. & N. W. R. Co. 16 Q. B. 984; Mellor v. M. P. R. Co. 105 Mo. 455; Hutchins v. Brackett, 22 N. H. 252; Seybolt v. N. Y., L. E. & W. R. Co. 95 N. Y. 562.

We conclude, therefore, that the complaint fails to set forth any right of action in the plaintiff upon the contract, made by the demurring defendants. As no other connection of the sureties, Alexander McWhorter and J. A. Waite, existed, their demurrer should have been sustained.

2. As to the subcontractor, Bobert A. Waite, however, a different question arises. JBy reason of the fact that the plaintiff was a lawful passenger upon the vehicle owned by such defendant, and driven by his servant within the scope of the latter’s employment, there existed a duty, not needing* to be based upon any contract, but which the law imposes, upon every person when another is lawfully in a position to be affected by his acts or conduct. lie owed to the plaint iff the duty of ordinary care, and was liable for any injury of which his negligence might be the proximate cause. The case of Collett v. L. & N. W. R. Co. 16 Q. B. 984, is extremely analogous to this. There the injury was to a postal employee whom the defendant, as a carrier of mails, was obliged to carry, and liability to him for an injury resulting from negligence was contested on the ground that there was no privity of contract with him. The court held the contrary, and repudiated the idea that only the Postmaster General, with whom the contract was made, could bring the suit as for breach of it, saying: “ Lord Campbell, C. J. The allegation that it was the duty of the company to use due and proper care and skill in conveying is admitted [by demurrer]. That duty does not arise in respect to any contract between the company and the persons conveyed by them, but is one which the law imposes.” “ Patteson, J. The plaintiff’s right to sue arises, not from any particular contract with the defendants, but from their general duty to carry the mails and officers. Such injury is properly the subject of an action on the case by the plaintiff.”

In Sawyer v. Corse, supra, plaintiff sued a mail contractor for loss of a letter through negligence of the defendant’s employee carrying mail bags, the contract being set out somewhat as in the present case. The court held that it was an action on the case; that it could only be sustained by proof: first, of defendant’s own negligence in carrying the letter; second, his negligence in employing a known incompetent person; or, third, negligence of his agent in the scope of his employment.

In Seybolt v. N. Y., L. E. & W. R. Co. 95 N. Y. 562, a railway postal employee, traveling on defendant’s road in care of the mails in pursuance of the usual statute, was held entitled to recover in tort for an injury from negligence. The court held that the action did not depend on the contract relation^ further than that established the lawfulness of his presence on the train; whereupon the common-law duties of the defendant to him as to any other passenger arose.

In Brewer v. N. Y, L. E. & W. R. Co. 124 N. Y. 59, plaintiff’s intestate was being carried by the defendant as an express messenger under a contract with the express company whereby the express company assumed all responsibility for risks of transportation. The defendant was held liable, the court saying: “ The negligence of the defendant was the violation of its duty. It was the want of the care to which the plaintiff’s intestate was entitled for his protection. This duty and such right did not depend or rest upon the contract, but upon the relation as carrier of the plaintiff, and the care that the defendant, as such, was required to exercise. It is violated duty that furnishes ground for an action of negligence.”

To the same view may be cited H. & T. C. R. Co. v. Hampton, 64 Tex. 427; Mellor v. M. P. R. Co. 105 Mo. 455; Robinson v. Bohr, 73 Wis. 436; Britton v. Green Bay & Ft. H. W. W. Co. 81 Wis. 48.

The rule of liability for negligence resulting in injury to another lawfully in a situation to be dependent on the defendant’s conduct is, however, too elementary to need extended citation of authority.

Upon a careful examination of the complaint, in the light of the command of sec. 2668, E. S. 1878, that the allegations of a pleading shall be liberally construed with a view to substantial justice between the parties, we may read all of the extended narrative with reference to these two contracts as but alleging the ultimate fact that plaintiff was lawfully and rightfully a passenger on. defendant’s wagon, although something more than thirty printed pages are used to accomplish such allegation. Nelson v. Harrington, 72 Wis. 591, 597. The complaint, then, alleges a series of acts of the defendant and his employee which undoubtedly constitute negligence, although no such conclusion is stated: the knowingly supplying a vicious, kicking, and runaway horse, unsuitable for the service, defective harness and wagon, and incompetent driver, are alleged; also that the vice of the horse, the defects of the vehicle and harness, and the incompetence and negligence of the driver, caused the plaintiff’s injury, without fault or negligence on his part. Thus construed, the complaint contains all the essential elem'ents to set forth a cause of action in tort for damages to the plaintiff from the negligence of the defendant Robert A. Waite, independently of the consideration whether he had contracted with the plaintiff for any particular line of conduct.

3. It is contended on behalf of the appellants that no liability can exist, for the reason that the plaintiff, the defendant Robert A. Waite, subcontractor, and his employee, the driver of the wagon, were all co-employees of the "United States, and therefore liability cannot exist. This position involves a strange confusion of ideas as to the doctrine of nonliability for negligence of co-employees. That doctrine applies only to protect the employer, and exempt him, under certain circumstances, from liability for injuries resulting to one employee from the negligence of another. "When it is said that an employee assumes the risk from the negligence of his co-employee, it means only that he assumes it quo ad his employer, but not as against his co-employee. If one by his negligence injures another, it is no defense, in a suit against him, to assert that they are both employed under one master, but such is the substance of the contention here. The suit is not against the United States, but by the plaintiff, an employee thereof, against the defendant, who, according to this contention, is another employee. Nor can any such relation be urged to exempt defendant Waite from liability to plaintiff for negligence of the former’s servant, for the plaintiff was not an employee of the defendant.

4. It is further objected to the maintenance of this action that cb. 304, Laws of 1897, prohibits it, for the reason that no notice was served upon the defendants, as therein required. That statute was an amendment to sec. 4222, R. S. 1878, prescribing the limitation of time for bringing various actions, and added thereto the provision that no action to recover damages for an injury to the person shall be maintained unless, within one year after the happening of the event causing such damages, notice in writing, etc., shall be served upon the person or corporation by whom it is claimed such damage is caused. That act was approved April 23d, and took effect, by publication, April 28, 1897. It was followed by ch. 380, enacted August 20, 1897, at the special session of the same legislature, being entitled “ An act to provide for the immediate taking effect of certain sections of the Statutes of 1898 as reported by the revisers and the joint committee on revision, and to amend chapter 288, Laws of 1897, relating to the establishment of garbage reducing works,” etc. The latter act comprehended a large number of the new provisions included in the revision enacted at the same session, amongst others sec. 4222, as amended by ch. 304, Laws of 1897, to-which, however, the following proviso was added: “ Provided, that the provision herein requiring notice of one year shall not apply to any event causing damage which happened before the 28th day of April, 1897, nor shall that part of section 5 of chapter 304 of the Laws of 1897 relating to such notice apply to any such, event.” The appellants contend that this later legislation was ineffective, and that the requirements of ch. 304, Laws of 1897, are still in force, and have not been complied with.

This legislation has very recently received consideration in Relyea v. Tomahawk P. & P. Co. 102 Wis. 301. It was there substantially held that ch. 304, Laws of 1897, was one limiting the time of bringing actions. It is therefore subject to the power of the legislature to change or repeal stat utes of limitation with respect to existing causes of action before the right of action is wholly barred and destroyed. Oberreich v. Fond du Lao Co. 63 Wis. 216, 221; Relyea v. Tomahawk P. & P. Co., supra.

Obviously, the present cause of action, which is alleged to have accrued April 1,1897, was not barred at the time of the passage of the latter act in August of that year.

Appellants, however, contend that such an enactment, being entirely foreign to the title of ch. 380, is not valid. We are at a loss to understand upon what appellants predicate such conclusion. Acts of legislature are not to be held void unless clearly in violation of some direct prohibition of the constitution. Northwestern Nat. Bank v. Superior, ante, p. 43. No such prohibition is pointed out, and we know of none, unless, indeed, appellants’ counsel have in mind sec. 18 of article IV of the constitution, which, however, is confined •by its terms to private and local bills. The very existence of that express requirement, with reference to such bills, implies the absence of any similar restriction upon public and general acts.

Our conclusion is therefore that no cause of action is stated against the demurring sureties, but that the complaint states facts sufficient to constitute a cause of action in tort, for negligence, against their principal.

By the Court.— On the appeal of Robert A. Waite, the order overruling his demurrer is affirmed. On the appeal of Alexo/nder McWhorter and J. A. Waite, the order overruling their demurrer is reversed, and the cause remanded, with directions to sustain their demurrer.