Inhabitants of Lowell v. Boston & Lowell Rail Road

Wilde J. delivered the opinion of the Court. Several important and interesting questions are involved in the decision of this case, which have been ably argued by counsel, and which we have taken time to consider with the attention and deliberation that their importance and difficulty seemed to require. Our first impressions as to one of the questions, on which the decision of the case depends, were not free from doubt. No adjudged case has been found in all respects similar; but reasoning from analogy, taking into consideration the principles of law, and the decided cases which have the closest application to the question in dispute, we have been brought to a conclusion which appears to us satisfactory, and which will enable us to administer justice between the parties without violating any known rule of law. The facts on which the plaintiffs rest their claim, have not been disputed except in one particular, which has been ascertained by the jury in favor of the plaintiffs. By the report of the case it appears, that the defendants, .being authorized by law to construct a rail road from Boston to Lowell, had occasion, in so doing, to cut across and through one of the highways situated in Lowell, and which the plaintiffs were* bound by law to keep in repair, whereby it became necessary to place barriers across the highway to prevent travellers from falling into the chasm or deep cut made by the defendants. Barriers were accordingly so placed by them. After-wards it became necessary for the defendants to make use of the highway for the purpose of removing stone and rubbish from the deep cut, and the barriers were removed by persons in the defendants’ employ, who neglected to replace them; in consequence whereof, two persons driving along the highway in the night time, were precipitated into the deep cut, and were greatly injured, and, on account thereof, recovered large damages against the plaintiffs, which the plaintiffs have been compelled to pay. The amount thus paid they claim the right to recover of the defendants in this action, they having become — 30 — liable by law to pay, and this liability having been incurred, in consequence of the negligence of the defendants’ agents. The defendants resist this claim on several grounds. 1. The principles, or most of the principles, on which the defendants rely, as the first ground of defence, may well be admitted; but they furnish no criterion by which we can be guided to a legal and just decision. It is undoubtedly true, that the defendants had a right to make the excavation in the highway. And they were not bound to erect barriers across the way, provided they had given seasonable notice to the officers of the town of their intended operations. So, after barriers were erected, the defendants might take them down from time to time, if necessary, for the purpose of removing rocks and rubbish, which could not be otherwise removed. These acts the defendants were authorized to do, and cannot be responsible to any one for consequential damages. But the plaintiffs’ claim of indemnity is not for damages arising from these acts ; they do not controvert the defendants’ right to make the excavation in the highway, or to take down the barriers when necessary. The action is founded on the negligence of the defendants’ agents and servants, in not replacing the barriers when the works were left, the day before the accident happened. These barriers, although voluntarily erected by the defendants, were approved and adopted by the selectmen of the town ; and if the defendants were under the necessity of removing them for the purpose of making use of the road, they were bound to replace them when the necessity of using the road ceased, or, at least, every evening when their agents or laborers left the works. This was imperatively required by a due regard to public safety ; otherwise an accident might happen before the town had notice, actual or constructive, and no one would be responsible for the damages. It is not true, as has been contended by the defendants’ counsel, that all the defendants’ duties and liabilities are created and prescribed by their act of incorporation. Corporations as well as individuals, by the principles of the common law, are bound so to exercise their rights as not to injure others. The principle, sic utere tuo ut alienum non laidas, is of universal application. — 31 — 2. But the defendants deny their responsibility for the negligence of the persons employed in the construction of that part of the rail road where the accident happened, because this section /hereof had been let out to one Noonan, who had contracted to make the same for a stipulated sum,, and who employed the workmen. We do not, however, think that this circumstance relieves the defendants from their responsibility. The work was done for their benefit, under their authority, and by their direction. They are therefore to be regarded as the principals, and it is immaterial, whether the work was done under contract for a stipulated sum, or by workmen employed directly by the defendants at day wages. This question was very fully discussed and settled in the case of Bush v. Stein-man, 1 Bos. & Pul. 403. In that case it appeared, that the defendants had contracted with A. to repair his house for a stipulated sum A. contracted with B. to do the work; and B. contracted with C. to furnish the materials. The servant of C. brought a quantity of lime to the house and placed it in the road, by which the plaintiff’s carriage was overturned. And it was held, that the defendant was answerable for the damage. This decision is fully supported by the authorities cited and by well-established principles. 3. Another objection to the plaintiffs’ claim was made in argument, which cannot be sustained. It is objected, that the defendants are not answerable for the tortious acts of their agents or servants. And this is true, if the acts were accompanied with force, for which an action of trespass vi et armis would lie, or were wilfully done. But the acts complained of were not so done. The defendants’ workmen had a right to remove the barriers for a necessary purpose. Their only fault was their neglect in not replacing them at night when they left their work. For this negligence or non-feasance the defendants were clearly answerable. Thus far then the case is free from all difficulty. The defendants were answerable to the parties injured for all damages. But the doubt is, whether they are responsible to the plaintiffs. 4. It has been urged that the plaintiffs or their officers have been guilty of neglect, as well as the agents of the defendants; that't was their especial duty to see to it that their roads and — 32 — streets were kept in good repair and safe for travellers ; and that they, therefore, being culpable, and participes criminis, are not, by the policy of the law, allowed to recover damages, as an indemnity, against their co-delinquents. This objection is certainly entitled to much consideration. The general rule of law is, that where two parties participate in the commission of a criminal act, and one party suffers damage thereby, he is not entitled to indemnity, or contribution, from the other party. So also is the rule of the civil law. Nemo ex delicto consequi potest actionem,. The French law is more indulgent, and allows a trespasser, who has paid the whole damage, to maintain an action for contribution against his co-trespasser. Pothier on Oblig. 282. Whether the latter rule be or be not founded on a wiser policy and more equal justice, is a question which we are not called upon to decide. This case, like all others, must be decided by the law as it is, whether it be consonant with sound policy or not. Our law, however, does not in every case disallow an action, by one wrong- doer against another, to recover damages incurred in consequence of their joint offence. The rule is, in pari delicto potior est conditio defendentis. If the parties are not equally criminal, the principal delinquent may be held responsible to his co-delinquent for damages incurred by their joint offence. In respect to offences, in which is involved any moral delinquency or turpitude, all parties are deemed equally guilty, and courts will not inquire into their relative guilt. But where the offence is merely malum prohibitum, and is in no respect immoral, it is not against the policy of the law to inquire into the relative delinquency of the parties, and to administer justice between them, although both parties are wrongdoers. This distinction was very fully considered in a case recently decided by this Court. White v. Franklin Bank, 22 Pick. 181. In that case the plaintiff had deposited in the bank a large sum of money payable at a future day, in violation of a provision in the Revised Statutes, which prohibits any such deposit or loan. Both parties were culpable, but as the defendants were deemed the principal offenders, it was held, that the plaintiff was entitled to recover back his deposit. — 33 — No one will question the manifest justice of that decision ; and it is fully sustained by the authorities. The cases, for instance, where persons who had paid more than lawful interest on usurious contracts, have been allowed to recover back the surplus, although they were parties in illegal transactions, were decided on the same distinction. So, in Smith v. Bromley, 2 Dough 696, which is a leading case on this point. The plaintiff, who was the sister of a bankrupt, was persuaded to pay the defendant a certain sum of money, which he exacted as the condition upon which he would consent to sign the bankrupt’s certificate ; and it was held, that although the transaction was illegal, the plaintiff was entitled to recover back the money paid, she not being in pari delicto with the defendant. So money paid to a plaintiff in a qui tarn action, in order to compromise the action contrary to the prohibition of the St. 18 Eliz. c. 5, was recovered back in the case of Williams v. Hedley, 8 East, 378. So in Jacques v. Golightly, 2 Wm. Bl. 1073, it was held, that money paid to a lottery office keeper, as a premium for an illegal insurance, might be recovered back in an action for money had and received. In all these instances, the defendants were deemed the principal offenders, and the cases were decided on the distinction already stated. This distinction, Chief Justice Parker says, “ is founded in sound principle, and is worthy of adoption as a principle of common law in this country.” Worcester v. Eaton, 11 Mass. R. 377. The principle established by these cases arising from illegal contracts, has long been admitted in certain cases of torts, where the parties were not in pari delicto. If a servant, in obedience to the command of his master, commits a trespass upon the property of another, not knowing that he is doing any injury, he is nevertheless answerable for the tort as well as his master, to the party injured ; yet he is entitled to an action against his master for the damages he may suffer, although the master also was ignorant, that the act commanded was unlawful; because he is deemed the principal offender. So, if a sheriff’s deputy takes the property of A. on a writ or execution against B. and A. recovers damages of the sheriff for the trespass, he may maintain an action for indemnity against his deputy; — 34 — and, in a like case, if the property be taken by the command of the plaintiff in the writ or execution against B. under a promise of indemnity, the deputy may maintain an action against the creditor on his promise, although the deputy be himself a trespasser. So, also, if A., with a forged warrant, should arrest B., and command C., to whom he shows his warrant, to confine B. a reasonable time, until he could carry him to prison, and C., being ignorant of the forgery, confines him accordingly, an action for indemnity by C. against A. would lie, notwithstanding both parties were trespassers. Fletcher v. Harcot, Hutt. 55 ; 1 Roll. Abr. 95, 98. The distinction in all these cases is the same. The parties are not in pari delicto, and the principal offender is held responsible. This distinction is manifest in the case under consideration. The defendants’ agent, who had the superintendence of their works, was the first and principal wrong-doer. It was his duty to see to it that the barriers were put up when the works were left at night; his omission to do it was gross negligence ; and for this, the defendants were clearly responsible to the parties injured. In this negligence of the defendants’ agent, the plaintiffs had no participation. Their subsequent negligence was rather constructive than actual. The most that can be said of it is, that one of their selectmen confided in the promise of the defendants’ agent to keep up the barriers ; and by this misplaced con fidence the plaintiffs have been held responsible for damages to the injured parties. If the defendants had been prosecuted instead of the town, they must have been held liable for damages, and from this liability they have been relieved by the plaintiffs. It cannot therefore be controverted, that the plaintiffs’ claim is founded in manifest equity. The defendants are bound in justice to indemnify them so far as they have beer, relieved from a legal liability ; and the policy of the law does not in the present instance interfere with the claim of justice. The circumstances of the case distinguish it from those cases, where both parties are in pari delicto, and one of them, having paid the whole damages, sues the other for contribution. From a view of the evidence reported, and the finding of the jury, we are to consider, that the defendants’ agents or ser — 35 — rants were, while employed in the construction of the railroad, the principal, if not the only, actual delinquents, and that for their delinquency the defendants are responsible to all persons suffering damage thereby; and they, in their turn, may maintain an action for indemnity against their negligent agents or servants. Unless, therefore, the plaintiffs are estopped by some, inflexible principle of law, they are entitled to indemnity, so far as they have suffered a loss by the fault of the defendants’ servants ; and holding as we do, for the reasons stated, that they are not so estopped, we are of opinion, that they are entitled to recover. They are not, however, entitled to a full indemnity, but only to the extent of single damages. To this extent only were the defendants liable to the parties injured ; and so far as the plaintiffs have been held liable beyond that extent, they have suffered from their own neglect; and whether it was actual or constructive, is immaterial. The damages were doubled by reason of the neglect of the town ; and although there was, in fact, no actual negligence, yet constructive negligence was sufficient to maintain the action against them ; and they must be responsible for the increased amount of damages, and cannot throw the burden on the defendants. The only remaining question relates to the costs of the former action against the town. And we are of opinion, that the plaintiffs are not entitled to recover any part of those costs. The ground of defence in that action, on the part of the town, was, that they had no sufficient notice of the defect in the road, and that the remedy for the injured party was against the present defendants. The suit therefore was not defended at the request of the defendants or for their benefit; at least, no such request has been proved ; and the ground of defence taken by the town in the former action, is well remembered, although it does not appear in the present report. If the claim of the injured parties had been made on the defendants, or if they had had notice that the town defended the suit against them in behalf of the defendants, they might have compromised the claim. But however this may be, we think there is no' ground on which the defendants can be held liable for the costs and expense s of the suit against the town. Judgment for the plaintiff's.