Martin, Admx. v. N. York N. England R. R. Co.

25 A. 239, 62 Conn. 331, 1892 Conn. LEXIS 64

• Court: Supreme Court of Connecticut
• Decided: November 1, 1892
• Status: Published

Opinion

Carpenter, J.

This is an action on the statute, Gen. Statutes, § 3581, to recover the value of property destroyed by fire. The defendant suffered a default and was heard on the question of damages. The court rendered judgment for the plaintiff for substantial damages, and the defendant appealed.

The first error assigned is as follows :—“ The court erred in not holding.and ruling that, upon a hearing in damages after a default, the burden was upon the plaintiff to prove .that the fire was' communicated to the property by a locomotive to entitle hér to recover more than nominal damages.”

The sole cause of. action stated in the complaint is as follows:—“5. On said, day and without contributory negligence bn the part.-of the plaintiff, a fire was communicated to said property by a locomotive engine owned and operated by the defendant, whereby said property was consumed and destroyed.”

The statute on which the action is brought is as follows : —“ When any injury is done to a building or other property of any person, by a fire communicated by a locomotive engine of any railroad company, without contributory negligence on the part of the person entitled to the care and possession of the property injured, the railroad company shall be held responsible in damages to the extent of such injury.to the person injured; and every railroad company shall have an insurable interest in the property for which it may be so held responsible in damages along its route, and may procure insurance thereon in its own behalf.”

The cause of action as alleged is admitted by the default. The cause of action is simply that the defendant’s locomotive communicated fire to the plaintiff’s property and destroyed it. If that is not admitted nothing is, and the plaintiff cannot recover at all; but the defendant does not claim that. There is no error in this ruling. *

• The second error assigned is that “the court erred in holding and ruling, from the facts found, that the fire was communicated to the plaintiffs property by a locomotive, inasmuch as the finding shows that the fire was communicated to the plaintiff’s property by the fire, heat and sparks from the burning station on the land of the defendant.”

In substance it is claimed that this statute is somewhat harsh and arbitrary, imposing a liability where the common law imposes none, a liabilty that cannot be avoided by any degree of care, and therefore that it should be strictly construed, and not extended to cases not within its letter; that when it says that the railroad company shall be liable for property destroyed by fire communicated to it by its locomotive, it cannot be held to embrace property destroyed by fire communicated to it by the burning of other property, although such other property may have been set on fire by the locomotive.

There are two views that may be taken of this statute. The first is that suggested by the defendant’s counsel, rather than distinctly claimed, that it is to he construed in connection with section 1096, which provides that in actions to recover for any injury occasioned .by fire communicated by any locomotive, the fact that the fire was so communicated shall be primé facie evidence of negligence, and therefore that negligence is the ground of recovery under this statute. On that basis the defense cites two cases, Pennsylvania R. R. Co. v. Ker, 62 Penn. St., 353, and Ryan v. N. York Central R. R. Co., 35 N. York, 210, both of which seem to hold that the negligence cannot pass over the burning of the station to the burning of the plaintiff’s property; in other words that the injury to the plaintiff is not the proximate effect of the negligence, but is too remote. Both these cases are criticised by text writers as being too narrow and not giving a correct view of the law as it exists elsewhere. Each in its own jurisdiction has been qualified and explained by later cases, so as to .take from its weight as an authority. Oil Creek & Allegheny R. R. Co. v. Keighron, 74 Penn. St., 316; Penn. R. R. Co. v. Hope, 80 id., 373; Webb v. Rome etc., R. R. Co., 49 N. York, 420; Pollett v. Long, 56 id., 200. In Penn. R. R. Co. v. Whitlock, 99 Ind., 16, and in Dillman v. Indianapolis etc., R. R. Co., 76 Ind., 166, the cases of Penn. R. R. Co. v. Ker, and Ryan v. N. York Central R. R. Co., are disapproved.

The authority of those cases is so much shaken that we are not inclined to follow them, but to adhere to thé rule adopted in this-state in Simmonds v. New York & New England R. R. Co., 52 Conn., 264, that when the fire is continuous, reaching the property of the different owners without the aid of any other intervening cause, the injury to each person is equally the result of the negligence which started the fire; in other words, where the injury to each successive property is directly traceable to the first fire, it results from the negligence;, and cannot be regarded as too remote, but is direct and proximate. Applying that rule to this case, we cannot doubt that this point was correctly decided in the court below. The heat, flames and sparks from the burning station were directly applied to the plaintiff’s property and caused its destruction. There is no room for any other intervening agency.

In many of the cases referred to, also in the case of Milwaukee & St. Paul R. R. Co. v. Kellogg, 94 U. S. R., 469, the question whether the injury is proximate or remote is regarded mainly as a question of fact. In that view of the case also we should be unable to disturb the judgment, for it will be presumed that the court below found as a fact that the injury was direct, and we cannot review that finding.

The other view of the statute is that it eliminates the matter of negligence entirely, and makes the railroad company liable on other grounds. Experience demonstrated that in all cases of fire set by the operation of railroads, it was extremely difficult, and in some cases impossible, to prove negligence even where it existed. That fact led the legislature in 1875 to enact what is now section 1096, making the fact of the fire so communicated primd facie evidence of negligence. Even then the difficulty wa3 but partially removed, for in most cases the defendant could easily prove due care, and the plaintiff would be illy prepared to meet it. So in 1881 the legislature took the broad equitable ground that upon proof of the fact that the locor motive; communicated fire to and destroyed property, tji.e company should be liable irrespective of the' question - of .negligence.

:’.The reasons underlying this legislation are not hard to find. The railroad companies were in possession of gr.eal .pqwers and privileges granted'by the state. The use, of s.ueh. powers was necessarily attended with danger to property along the line of the road, and fires were of frequent occurrence. The legislature rightly judged that it was hard for individuals to bear all these losses, and that the railroad .companies might weil be required to make them good. Nor is .s.ueh a requirement unjust. On the contrary it is substantially right and just. ' Railroad companies possess .¡extensive powers and valuable franchises, by means of which they are able to collect large sums of money from the public., In using such powers and franchises they necessarily expose private property. They have a license from the public to carry on extensively a dangerous business from which they receive large profits.' Why should they not be required to assume the risk rather than individuals ?

But in reality the risk is not wholly nor largely on them. They have the means of protecting themselves by insurance. That is a privilege expressly conferred by statute.. But more than that, they have the means of indemnifying themselves, to some extent at least, by increased rates for passengers and freight.' Presumptively they adjust their tariff of charges in view of this liability. If they do ,sq,. the loss falls ultimately upon the public. We are told that railroads are of incalculable benefit to the public. True. And the public is willing to tax itself in this indirect method for the purpose'of paying these losses. Why should-the railroad companies complain ?

In this view of the case the statute rests upon broad grounds of justice and equity. It is designed to do justice Where before there was a partial failure of justice. ' It -is therefore a remedial statute in the best sense, and we must so-¡construe it as- to suppress the mischief and advance the;, réínedy.

Now what did the legislature intend? Clearly it was: that when railroad companies destroyed “ buildings or other property,” they should pay for it.- The-question--that preti sents itself for solution is, did the company cause the dep struction of the plaintiff’s property? There can be but one-answer to that question. We áre not required to be astute • to.throw the loss upon the plaintiff upon a technicality.

The third reason of appeal is that the court erred in admitting evidence to prove the loss of personal property, etc. The. claim is that under the. rule of ejusdem generis, the phrase in the statute, “or other property,” can only.embrace property of the same kind as .buildings, that is, real estáte. We do not think that the rule applies, unless we can gather from the language used in connection with the subject matter that • such was ' the intention of the legislarture. The language is certainly broad enough-to include personal property,-and if it is to be gathered from the reáson of the act and the object the legislature had in view-, that such wás the intention, we must give effect to it. We entertain no. doubt -that the legislature intended to include personal' property. The object was to Compel railroads to' níaké good the loss to others sustained by fire occasioned by locomotive1 engines; 1 Personal property is as much within, the reason of the act as buildings. The loss is the same whether it, is one or the other, and being within the letter'we do hot feel at liberty to exclude -it by the application of. á¡ somewhat artificial rule of construction. It is believed that the rule of ejusdem generis is only applied to statutes when it is necessary to give effect to the presumed intention; of1 the legislature. There is no call for its application here;

There áre other considerations which lead ns-to .the saíne conclusion. If the effect of the statute is to conclusiv'ely-imlpute negligence to the railroad company, then certainly, iit'-is liáble for personal property. If the statute assumés that the act of the company in causing the destruction, of property is in somé.sense wrongful, so thatit'is to.be treated aS a tort-feasor, or if the liability rests upon equitable principles, it would seem to be equally clear that it extends to personal property. In the case of Regan v. N. York & New England R. R. Co., 60 Conn., 124, a recovery was had under the statute for the loss of personal property. True, the question now before us was not then made. The. counsel and the court assumed that the defendant was liable. The reasoning of the court, that the. defendant was primarily and j ustly liable for the loss, is inconsistent with the distinction now contended for. . The suggestion, as to the difficulty of insuring personal property is entitled to,little or no weight. The object of that provision was to give railroad companies the means of securing partial indemnity, and not to define the kinds of property ,for which they were made liable. Had it been intended to limit the operation of the statute to real estate, the appropriate language to express that intention and to remove all doubt would have been “buildings and other real estate.” As other language is used we think we ought to give that language its ordinary meaning.

The plaintiff’s intestate died in the latter part of March. A store of goods came into her hands as administratrix. Having obtained authority from the court of probate she arranged with one Elliott to carry on the business, and replace goods sold with new goods of like character, so: as to keep the stock good until the appraisal should be completed and the same could be disposed of. It was intended by both parties that after the appraisal was completed Elliott would purchase the goods and business, but no agreement of purchase had been made. He conducted the business under that arrangement until the fire. Goods were sold from the store, the money was deposited in the bank in his name, with the money he purchased other goods to replace those sold, the goods being billed to him, and in this manner the stock was kept substantially as it was at the death, of Mr: Martin. There had been no settlement between Elliott and the plaintiff. The defendant claimed, and asked .the court to rule, that the goods purchased as aforesaid by Elliott were his goods and not the plaintiff’s, and that she was not entitled to recover therefor. The court did not so rule. This ruling is assigned as the fourth reason of appeal.

No question of law is here presented. This seems to be an ingenious attempt,-by the use of the word “rule,” to turn a question of fact upon evidence into a question of law. There may be an implied claim that it is legally impossible for • the plaintiff under the circumstances to be the owner of the goods- purchased by Elliott. That claim requires no answer.

The questions hitherto considered are common to both cases. The case of Martin against the same railroad company is an action to recover the value of certain buildings belonging to Mrs. Martin, which were destroyed by the same fire.

The plaintiff testified that the value of the buildings destroyed was $3,500. The defendant offered in evidence a copy of the tax list for the year 1890, signed by the plaintiff’s husband, Charles F. Martin, agent, and sworn to by him, in which this real estate was entered at a valuation of $800, for the’ purpose of proving that the value of the property was less than $3,500, and to contradict the plaintiff’s testimony. This evidence was objected to and excluded by the court. This, ruling is assigned as the fourth reason of appeal.

That the valuation put upon property by the assessors for the purposes of taxation is not admissible in a suit between other parties, for. the purpose of proving the actual value of the same property, has been repeatedly decided in Massachusetts. Brown v. Providence, Warren & Bristol R. R. Co., 5 Gray, 40; Flint v. Flint, 6 Allen, 34; Kenerson v. Henry, 101 Mass., 152. The defendant was neither party nor privy to the tax list. The evidence offered could, under no circumstances, have been used against the railroad company ; how then Could it be admissible in its favor ?

The valuation of property by assessors is solely for the purpose of determining the amount it shall pay as taxes. The evidence offered did not tend to contradict the plaint iff:' The husband was not her agent -to put a valuation upon the property, but simply to'give a list of the'property. • He w,as required to make oath tó the list but' not to the .valuation.

There is no error in the judgment appealed from..

In .this opinion Andrews, C. J., and Torrance and Prentice, Js., concurred; Seymour,. J., concurred in the result, but died before the opinion was written.

* As the opinion does not state the exact ruling of the court below upon the point in question, it is here given. The finding states it as follows:—

“ The defendant claimed that to entitle the plaintiff to recover more than nominal damages upon the default the burden was upon her to prove that the fire was communicated to her building by a locomotive of the defendant.' The court did not so rule, but held that the plaintiff was prima facie entitled on the default to recover damages to the full extent proved to have been sustained by her from the fire, and that the defendant to reduce fhe damages to nominal might show that the fire was not communicated by its locomotive.” ... B.