Althof v. Wolf

By the Court, Brady, J. This action was brought to recover — 350 — five thousand dollars damages, alleged to have been sustained by the negligence of the defendant’s servant, which resulted in the death of William H. Warner, the plaintiff’s intestate. On the trial it appeared that the defendant, on the day of the death of Mr. Warner, directed his servant, Michael Fagan, to take the snow off the roof of his (defendant’s) house; and that Michael, having gone for the doctor for the defendant’s wife, on his return stopped for a man named Cashan, and asked him to go and lielp him. That Cashan did so, and that they commenced shoveling the snow from the roof, throwing it into the street from the house top. Some of the snow, or snow and ice thus removed, fell upon the head of Mr. Warner, as he was passing along on the sidewalk. It also appeared that Cashan went upon the roof at the re-' quest of Fagan, to oblige him, and that Fagan was unable to state either who threw the last shovelfull before Mr. Warner was killed, or who threw the snow. It also appeared that, at the time Mr. Warner received the injuries from which his death ensued, his life was insured in the Connecticut Mutual Life Insurance Company for the benefit of Jane C. Warner, one of the plaintiffs and the widow of the deceased, for the sum of $2,500, and that $2,400, that sum being the proceeds of the policy, had been paid to her by the insurance company. The cause having been submitted to the jury, the defendant’s counsel requested the court to charge: 1st. That if the jury should find for the plaintiff, then, in assessing'the damages, they should take into consideration the money received by the widow on the policy of life insurance. 2d. That if the jury should find that the witness Cashan was employed by Fagan without' authority from the defendant, and that the injury to Warner resulted from the act of Cashan, and not of Fagan, the defendant was not liable for the acts of Cashan, and the plaintiffs were not entitled to recover. 3d. That there was not sufficient evidence to justify the jury in finding that Cashan was the agent or servant of the defendant, and the defendant was not liable for his acts. — 351 — 4th. That the burden of proof was upon the plaintiffs to show that the injury resulted from the acts of the defendant or his servant, and if the jury were in doubt as to whether the injury resulted from the acts of Cashan or Fagan, the defendant was entitled to the benefit of that doubt. 5th. That the defendant was not liable in this action for the negligent act of his servant, unless the defendant was privy to that negligence, and directed or knowingly assented to the particular mode adopted by his servant of removing the snow from the roof. The presiding judge charged the jury that the first question for them to consider was, whether the death of Warner was produced by the wrongful act of the defendant, and that that question necessarily involved the inquiries, how was the death caused, and was it the result of throwing ice or snow from the defendant’s roof? The judge then stated that there could not be much question in the minds of the jury on that subject, that the defendant’s counsel seemed to have hardly contested it, but that it was for them to determine. To this part of the charge the defendant excepted. The judge also charged that, it appearing from the pleadings that the defendant had directed Fagan to remove the snow from the roof, and that the direction being general, without any specific instructions as to manner, the servant had a right to do it in the ordinary way, and to employ assistance if necessary; and that if, in the performance of that general direction, an injury to any one, or death as in this case, resulted, the defendant was liable to the extent of the injury produced, provided such injury was the result of negligence. The defendant excepted to the instruction, that it followed as a matter of law that the direction, being a general one, if any injury resulted from following it, the defendant was liable. Also to the direction, that there being no particular instruction as to manner, the servant was at liberty to do it in the ordinary way. The judge also charged that in this case there could be no doubt that the act itself was wrongful, because no person was entitled to throw any substance upon a public highway, which might in — 352 — any manner obstruct it or diminish its use. That it was negligent, because it was an easy matter to station some One on the sidewalk, or in some other way to notify and warn passers by of the danger. The defendant excepted to so much of this part of the charge as stated that the act was negligent, and also to the instruction that, there being no proof of warning to Mr. Warner against going where he was, it could not from such circumstances be presumed that he contributed to his death by any negligence on his part. The defendant also excepted to the instruction that there was but one limit to the damages which the jury might give, and that was that they could not give over $5,000 Also to the instruction that the wife would have been entitled to support from Warner during his life, and their child until she arrived at maturity. The court then refused to charge the requests of the defendant, hereinbefore mentioned, further than they were embraced in the charge made. To such refusal, as to each and every of the defendant’s propositions, the defendant excepted. We have thus presented for our consideration, and in a mode not well designed to facilitate the labors of review, an array of exceptions. It will be necessary to take them up in order, and to see either how far they are sustained by rules of law, or negatived by some feature, of the charge to which they relate. In Mason v. Sainsbury, &c., (3 Douglass, 61), the action was against the Hundred, under the statute, (1 Geo. I., ch. 5, § 6), to recover damages sustained by the demolition of a house in the riots of 1780. The plaintiff had been insured, and his "loss was paid by, and the action was brought for the benefit of, the insurance company. The plaintiff had a verdict, and the verdict was sustained. Lord Mansfield said: “ The case is clear; the act puts the Hundred, for civil purposes, in the place of trespassers ; and upon principles of policy, as in the case of other remedies against the Hundred, I am satisfied that it is to be considered as if the insurers had not paid a farthing.” In Clarke v. The Inhabitants of the Hundred of Blything, (2 B. & C. 254), the action was brought for satisfaction and amends for certain stacks — 353 — of hay and corn which had been wilfully burned in the Hundred by some person unknown. It appeared on the trial that the plaintiff had been insured, and had received the amount of his loss. He had a verdict, and the verdict was sustained. It will be observed that in this latter case the action was not brought by the insurance company or for their benefit. And so in Yates v. Whyte, (4 Bingham N. C. 272), the action was brought to recover damages sustained by the plaintiff by reason of the defendant’s vessel having run foul of the plaintiff’s vessel, by and through the carelessness and mismanagement of the defendant. The plaintiff had a verdict. The underwriters had paid the plaintiff the sum expended in repairs, and that sum was de ducted by the arbitrator to whom the matter was left, from the damages sustained by the plaintiff. This was held to be erroneous. Tindal, Ch. J., said: If the plaintiff cannot recover, the wrongdoer pays nothing, and takes the benefit of a policy of insurance without paying the premium. BosaaíQUET, J., said: “How could the trespassers have availed themselves of this satisfaction ? Could they have pleaded it by way of accord and satisfaction ? It was not paid as a satisfaction for a trespass, and the facts of the case would not have supported such a plea.” On principle and authority, then, the jury should not take into consideration the money received by the plaintiff, Jane C. Warner, from the insurance company. But, without reference to any adjudicated case, there are principles springing from the relations of the parties, and the statute creating the right of • action in favor of the plaintiffs, which forbid the consideration of any benefit elsewhere received. Jane G. Warner was entitled to the whole amount of the policy of insurance. It was for her-benefit alone; and it was secured by the payment of a premium to which the defendant did not contribute. The benefits growing out of the right of action here sought to be enforced, are not given to her by the statute, but are given to the widow and next-of kin, and do not arise upon any common law liability. They are, therefore, res inter alios acta. The case is very different from that which would be presented for an injury to a chattel, and — 354 — it rests upon a statute, the object of which was to punish the wrongdoer who by his carelessness destroyed life. There is no privity between him and the insurance company, and the insurance company cannot repair the injuries done by the defendant. They cannot restore to the widow and next of kin of the deceased, the society, advice and protection which he could have afforded them, aside from the pecuniary losses incident to the deprivation which his death occasioned, and thus, either by analogy, or on principle even, the doctrine that an insurance company could be substituted for the deceased in this action, as in the case of Mason v. Salisbury, could not apply to this action. But, however that may be, the judge Was clearly right in refusing to charge the first of the defendant’s requests. The second request was not authorized by law. Fagan was engaged in removing the snow from the defendant’s house and by his express direction, when Mr. Warner was killed. It is. true that Fagan had askedCashan to help him, but this does not change the defendant’s responsibility. It is said, by Blackstone, (Yol. 1, p. 431, marginal paging), that “ a master is chargeable if any of his family layeth or casteth anything out of his house into the street or common highway, to the damage of any individual, or the common nuisance of his majesty’s liege people: for the master hath the superintendence and charge of all his householdand the following cases illustrate the doctrine that where the master has intrusted a servant with the performance of a service, it is no answer, in an action brought to recover damages resulting from the manner in which the service is performed, that the servant .acted amproperly in the discharge or performance of it. 'The -master must respond, because he has put it in the power • of the servant to do the injury. Bush v. Steinman, 1 Bos. & Pull. 404; Randleson v. Murray, 8 A. & E. 109; Stone v. Cartwright, 6 T. R. 411; Sleath v. Wilson, 9 Carr. & P. 607; Booth v. Mista, 7 Carr. & P. 66. In the last case the defendant was held liable for injuries to -,the plaintiff’s cabriolet, resulting from the negligent manner in which -defendant’s cart was driven, although it appeared that the — 355 — defendant’s servant was not driving at the time, but had intrusted the reins to a stranger who was riding with the. servant, and not in the service of the defendant. This is not the case of an independent employment, like that in Blake v. Ferris, (1 Seld. 48). The defendant did not part with the control of the work. Fagan was his coachman, and was directed to remove the snow.. He was intrusted with the duty and the manner of doing it; no specific directions having been given. He sought the aid of another, with whom he acted in concert, both being engaged at the same time, and acting in the same manner, in removing the snow.' Aside from this, the evidence ot Cashan, if true, and the defendant cannot gainsay it, shows that the injury was not caused by any act of his; but however that may be, upon the principle established by the cases referred to, it was wholly immaterial whether the death of Mr. Warner-was occasioned by either Fagan or Cashan, and therefore the second request was not well made. This also embraces the third and fourth requests, because they relate to and are a part of the theory presented by the second request—that Cashan may have caused the death of Mr. Warner, and was not the servant, or in the service of the defendant. It also embraces the second and third exceptions to the charge, which were taken independently of those founded on the requests. The fifth request is also embraced in the legal rule which has been stated. The employment and direction was general, and it has never been held necessary to show that the master was privy to the negligence of his servant, nor has it ever been engrafted as one of the principles of law, by which the relation of master and servant are governed, that the manner in whieh a service is performed on a general direction, must be shown to have been assented to by him, in order to charge the master for injuries occasioned by such mode or manner. The counsel for the defendant has not presented any authority bearing upon such a proposition. The fifth request was, therefore, properly refused. The sixth exception to the charge was not well taken. The jury having determined that the deceased died of the inju — 356 — lies received through the negligence of the defendant or his servants, the only limit to their award of damages was the sum of $5,000. The statute has, in effect, so declared. It declares that the jury in every 'such action may give such damages as they may deem a fair and just compensation, not exceeding $5,000. Laws 1849, p. 388. The first, fourth, and fifth exceptions to the charge were not well taken. The judge said there could not be much question in the minds of the jury as to the cause of the death of Warner, but left that fact to the jury to determine. This was not a misdirection, or erroneous. Whatever may have been the opinion of the judge, the fact was left to the determination of the jury. The first exception was to this part of the charge. The judge also said that the act was negligent, because it was an easy matter to station some one on the sidewalk, or in some other way notify and warn passers by of the danger; and further, that no doubt could be entertained as to the right of the deceased to travel on the sidewalk, and there being no proof of any notice or warning to him against going there, it could not, under such circumstances, be presumed that he contributed to his death by any negligence on his part. The act complained of was done by the defendant or his servant, and was negligent. There was no conflict on the subject, and the charge of the judge was warranted by law. Woodbeck v. Kelly, 6 Cow. 118; Dean v. Hewett, 5 Wend. 257; Graham on New Trials, 301, 317. The act complained of was dangerous to human life," and notice should have been given. Loomis v. Terry, 17 Wend. 498, 499. No such precautions were in fact taken. There was no evidence offered thereto, and nothing appears in the case justifying a pretence thereof. As stated, therefore, the first, fourth, and fifth exceptions were not well taken. I do not understand on what basis the defendant placed an exception to the instruction, that the wife of Mr. Warner and his child would be entitled to support from him, the former during his life, and the latter until she attained the age of 21 years. The judge, at the same — 357 — time, said that Mr. Warner would be entitled to their earnings, and this was a correct statement of the legal rights and liabilities growing out of the relations of husband and wife and parent and child, and was a proper consideration in reference to the question of damages. The exception was, therefore, not. well taken. I think it can be shown that some of the exceptions to the charge stated and considered, were not warranted, taking the whole charge together, but I deem it unnecessary, the exceptions having been disposed of standing alone. There remains one exception to be considered. The defendant offered to show that a former coachman of his, in 1854, under a similar direction to take snow from the roof, without instructions as to where it should be thrown, threw it into the defendant’s yard. The evidence of that incident would doubtless furnish an excellent recommendation to the former coachman; but nothing bearing upon the issue involved. Proving that a former servant did a similar service correctly, does not seem to be relevant to the question whether another servant did it carelessly. It is my opinion, therefore, that the offer was properly rejected. On a consideration of the whole case, and for the reasons assigned, I think it clearly appears that there is nothing in it which would justify us in disturbing the verdict rendered. The circumstances under which Mr. Warner was killed present, in legal contemplation, no mitigating features. In the full possession of his faculties, and while in the exercise of a lawful right, he was suddenly, and without fault on his part, stricken down by an act not only grossly careless, but exhibiting, in my judgment, a disregard of human life deserving severe condemnation. In traversing the highway, the deceased was under no obligation to anticipate or expect the act by which his death ensued. He was not bound to look aloft to see that no missile or substance cast from the housetops, or any other elevation, should do him bodily harm, and although the defendant did not cause the death by his own hand, this case may be said to illustrate the wisdom of the legislature in providing the redress granted. Whatever may be our sympathies for the man who — 358 — is unfortunate enough to suffer by the negligence of his servant, there are other and higher considerations which must control, and yield us pleasure when employed in vindicating the rights of society to perfect security in the enjoyment of life and property. Judgment affirmed.