Samuel v. Grand Trunk Railway Co. of Canada

42 Vt. 449

• Court: Supreme Court of Vermont
• Decided: August 15, 1869
• Status: Published

Opinion

The opinion of the court was delivered by

Barrett, J.

The plaintiffs claimed, and their evidence tended to prove, that the fire by which their property was destroyed originated by fire communicated by an engine of the defendants. The plaintiffs were not bound to prove any thing further in the first instance. The burden then, under General Statutes, ch. 28, § 78, was cast on the defendants, in order to exonerate themselves from liability for the plaintiffs’ loss, of showing “ that they had used all due caution and diligence, and employed suitable expedients to prevent such injury.” It would seem, however, from the structure of the bill of exceptions, that the plaintiffs went further and introduced evidence tending to show that the defendants were guilty of actual negligence. This could not vitiate the effect of the evidence previously given, even though it should have failed to prove such negligence. It was not necessary that the plaintiffs should give such evidence at all, except to meet evidence of the defendants tending to show that they had used the caution, diligence and expedients named in the statute. Such evidence the defendants did give, and to the effect “ that an engine was never suffered to go on a trip or journey when not in good condition, or when defective in the ash or fire-pan and dampers, or in the screen or smoke-stack, which are the only places where the fire can escape.” If this had been found to be so, it would have left the defendants acquit of liability, so far as it was depending on their caution and diligence in that respect. It will be noticed that this evidence extended to and embraced every engine of the defendants going on a trip or journey, and of course embraced the engine by which the plaintiffs’ evidence tended to show the fire was communicated. Was the evidence which was objected to pertinent to meet that evidence given by the defendants ?

It is to be noticed that the plaintiffs, in addition to the evidence tending to show that the fire was set by an engine of the defendants, gave further evidence that was not objected to, tending to show “that engines of proper construction and suitable repair would not scatter fire so as to endanger property.” The logical result of these two pieces of evidence would seem to be in the direction of the fact that the engine from which the fire was set was not of proper construction and suitable repair. In connection with the testimony on the part of the plaintiffs already referred to, it would seem legitimate for the plaintiffs further to give evidence, as they did, “ that on or about the time of the fire the engines used by the defendants, running past the plaintiffs’ mills, generally and habitually scattered fire-from the ash-pans and smoke-stacks,” etc., as stated "in the exceptions, and objected to, — it appearing that the defendants had a large number of engines, which they were using indiscriminately over that part of their road. Eor the inference would be from this evidence, in connection- with that tending to show that engines, which so scatter fire as that it kindles along the roadside, are not of proper construction and suitable repair, that the fire in question was caused by' one of those defective engines. It does not present the case of undertaking to argue from proof of general negligence to the fact of a particular act of alleged negligence, or from the fact that one thing was defective to the alleged fact that another thing of the same kind and use was also defective. The argument is this, the evidence tended to show, and the fact was not denied, that the fire was set from an engine of the defendants. Other of the evidence tended to show that engines of proper construction and suitable repair would not scatter fire so as to endanger property. Other evidence tended to show that about the time, and on the day of the fire, and before it occurred, the defendants were running engines by the place in question that did scatter fire to such an extent that fires were set by it.

The inference is, that, of the defendants’ engines, the one by which the fire was set was one that scattered fire. But it is already in evidence that an engine that will do that to such an extent is not of proper construction and suitable repair. The reasoning is direct to the condition of the defendants’ engine by which the fire was set. Without discussing this aspect further, we think the case of Sheldon v. Hud. R. R. Co., 14 N. Y., 218; Field v. N. Y. Central R. R., 32 N. Y., 339, and 54 Penn., 345, are full authority for the admission of the evidence.

But there is another view in which the evidence was pertinent. The defendants gave evidence that an engine was never suffered to go on a trip or journey when not in good condition, or when defective in any of the places where fire can escape. The evi-. dence objected to in connection with the other evidence of the plaintiffs tended to contradict that evidence of the defendants and show it was not true, and it was only coextensive with that evidence of the defendants either in subject matter or in time.

As to the other question made in the argument, we assume without discussion, that, in order to entitle parties to maintain a joint suit, they must have a joint interest in the subject matter in respect to which the injury has been wrought, or in the damage for which they seek to enforce compensation. See Croyton et al. v. Lithebye, 2 Saunders, 114, and notes ; 2 Greenl. Ev. § 227 ; 1 Chit. Pl., 62, 64. In this case the plaintiffs claim to recover damages for buildings, saw-mill machinery, and other personal property. No papers but the bill of exceptions and a copy of the bond named therein have been furnished to the court. It appeared that Samuel Cleaveland and the other plaintiff were in joint possession of the property at the time of the lire, and had been so, and so carrying them on continuously from the date of the bond. So far as injury to joint rights involved in, and growing out of, such joint occupancy and use is concerned, the propriety of a joint action is not questioned ; nor so far as injury by the destruction of personal property owned in common is concerned. The objection in this suit rests mainly upon the ground that, as Samuel had not a legal title to the real estate, but it was wholly in the other plaintiff, this suit can not be maintained to recover damage for the burning of the buildings. This would be so if the plaintiffs could not have a joint interest in the buildings, or in the damage caused by their destruction, without having jointly the legal title to the real estate including the buildings. It is to be borne in mind that this action does not necessarily involve the question of legal title, but only the fact and relation of interest in the property, such as to make the plaintiffs in common or jointly subject to loss by the destruction of the property that was burned. Ashby et al. v. Eastern R. R. Co., 5 Met., 368 ; George v. Fish et al., 32 N. H., 32. In Hammond’s Parties to Actions, § 2, p. 42, it is said: “ Where two or more suffer by an injurious act, and the damage to one is the same as to the other, they are entitled jointly to repair it. One loss only has been sustained, and therefore only one satisfaction is due ; to this, one has not a better claim than the other; of necessity these both are jointly concerned in demanding it. * * * It is not the injurious act of which they complain, but only its consequences.”

In the bond Samuel binds himself, his heirs, executors and administrators, absolutely, and without condition, to pay the specilied notes. This could be enforced against him, whether the other plaintiff should perform his covenant or not. That obligation rested on him from the execution and delivery of the bond, and will continue till it shall have been discharged by his'performing-it, or by the act of the other party. On the other hand, when said notes shall have been so paid, then said John B. Oleaveland is bound by absolute obligation to convey an equal undivided half of the certain £< tracts or parcels of land.”

Now it is plain that he would perform that obligation by conveying such undivided half of said “ tracts or parcels of land,” by the description called for by the bond, notwithstanding the buildings had been burned off. He would be under no obligation to replace them, in order effectually to make the conveyance and assurance of title required by the bond. In such condition of things, the said Samuel would have paid the purchase price of the undivided half of the property, including the buildings, and would be compelled to take such undivided half, with the buildings gone, in satisfaction and discharge of the legal obligation of John B. created by the bond. John B., in pecuniary result, stands virtually in the same condition as Samuel: for he was bound to pay to Adams and Thornton for the property, with the buildings included, but would find it on his hands with the buildings gone ; yet, with Samuel’s obligation in force, out of and by virtue of which he could reimburse himself for one half the value of the buildings, and stand in for the loss of ’the other half himself. Thus, then, the fire operated a common and equal loss to the two plaintiffs, as the result of the relation they sustained to each other in reference to the property destroyed.

It was of equal and common- interest to both that the burnt property should be replaced, in order that they might continue to stand in the same condition, in respect to the entire property, under the relation created by the bond, that they were respectively in when the bond was executed, and continued to be in up to the time the fire occurred, and are entitled to be in as against the defendants, when the time shall arrive for the. fulfilment of the respective obligations of the bond, by paying the specified notes on the one part, and by making the conveyance of title according to the covenant, on ■ the other. This equal and common interest can be secured to them only by yielding to them, in common, by the defendants, the value of the property destroyed, as a substitute for the property itself, the plaintiffs being entitled to have and hold the money, as between themselves, just as they were holding, and, but for the faulty negligence of the defendants, they would have continued to possess, and carry on the burnt property. Indeed, this would seem to be the only proper way in which their respective rights against the defendants could be wrought out. Eor, as between John B. and Samuel, John B. is entitled to only one half of the damages recoverable for the burning of the buildings, and Samuel is entitled to the other half, and yet the defendants are liable for the whole. The burning was the one entire act which fixed that liability — the injury was entire ; but it was equally and in common shared by the two plaintiffs. In other words, they have a common and equal interest in the loss, and ought not to subject the defendants to two suits to recover severally for that loss.' Then again, assuming what is clearly true, as before stated, that John B. could discharge his covenant by conveying the land, with the buildings gone, and supposing that he should recover in his own name the entire damages for the property destroyed, whose would the money be in his hands ? By the defendant’s theory it would be his, and in no part Samuel’s ; for it is as damages that he would be holding it, and by the very assumption Samuel would have no title to or interest in them ; for if he had, then it would give him the right to sue for and recover to the extent of such title and interest as he had in the damages. And so John B. would be able to hold the whole, and at the same time might compel Samuel, by virtue of the bond, to pay one half the value of the burned property, who would have no recourse to John B., nor right of redress as against the defendants. The same rule and reason that would preclude him joining in an action with John B. would equally preclude him from suing in his own name alone. The fact of the joint possession, and joint carrying on of the property, from the date of the legal title in John B., and of the bond between the plaintiffs, is significant of the relation that the parties themselves understood to exist between them in reference to the entire property. Though lacking the formality of conveyances required by law to vest the legal title in Samuel, the practical result of what was done, and such as a court of equity would be likely to effectuate, is much the same as if John B. had given Samuel a deed of warranty of the equal, undivided half, and Samuel, for the purchase money, had given his notes of the same character as those he covenanted to pay, and had given a mortgage on the same property to secure their payment, and thereupon they both had entered jointly into the possession of the property, and were carrying it on as equal partners, to use the expi’ession in the bond. The right of Samuel is not affected by the fact that he had paid nothing on the notes named in the bond, for nothing had become due on them when the property was destroyed, and the parties stand for their rights and liabilities on the state of facts as they existed at that time. He is absolutely bound by the bond to pay; and, as against anybody but John B., he is entitled to stand upon the relations, rights and interests thus created and mutually acted upon by him and John B. It is not to be assumed that he will not fulfil his obligation to John B., and so long as John B. is content in respect to the fulfilment of that obligation, the defendants have no footing or reason for claiming any immunity, on the assumption or the presumption that it will not be fulfilled.

It would not seem quite satisfactory, if, in the present case, the law should require the court to hold that the right of action was in John B. severally and solely, thus enabling him to recover double what he. would be equitably entitled to hold, as against Samuel, and yet, while holding it, he could discharge his legal obligations under the bond by conveying the tracts or parcels of land, as “ nominated in the bond,” naked of the buildings for which he already had the money in his pocket, leaving the ultimate adjustment between them, perhaps, exposed to the expense and perils “ of the law’s delays” and “ glorious uncertainties.”

The measure of the defendants’ liability, upon their theory of the objection to the joint action, is only the same in this suit that it would be in a suit by John B., as sole plaintiff. While, therefore, the joint action will work no injustice to the defendants, and will, at the same time, do exact right and justice as between the plaintiffs, and close the door against litigation between them, in reference to the damages recoverable of the defendants, it is satisfactory to find that the technical rules of the law not only do not interpose any obstacle to the maintaining of the suit as it was brought, but justify and warrant it. It is noticeable that neither of the learned counsel for the defendants cite any authority in support of the objection to the joint action, and one of them did not make the point in his very elaborate brief, nor in his argument.

The judgment of the county court is affirmed.