Dean v. McLean

The opinion of the court was delivered by Barrett, J. The burden of the debate in this case is, whether this action on the cause ex delicto can be maintained upon the cause of action shown by the facts stated. The defendant caused the damage through faulty negligence in [419] doing what he was entitled to do under his contract with the plaintiff, viz., to open the bulkhead and run the logs through the dam to float them down the stream. As a part of that contract he had expressly agreed to pay a stipulated sum for leave so to do, and also “to repair and pay all damage'in consequence of opening the bulkhead and running the logs through.” Does the contract preclude the plaintiff- from maintaining this action ? It is shown by the books, and is conceded in the argument, that in some cases remedy may be had by action ex contractu or ex delicto, at the option of the plaintiff. In 1 Chit. Pl. 133, it is said- that the torts for which an action on the case may be maintained, “ are commonly the performance or omission of some act contrary to the general obligation of the law, or the particular rights or duties of the parties, or of some express or implied contract between them.” On page 135: “ If a common-law duty result from the facts, the party may be sued in tort for any negligence or misfeasance in the execution of the contract.” On page 140: “ Where the lessee even covenants not to do waste, the lessor has his election to bring either an action on the case or on the covenant against the lessee for wilful waste done by him during the term.” In Kenlyside v. Thornton, 2 Bl. 1111, De Grey, Ch. J., says: “Tenant for years commits waste and delivers up the place wasted to the landlord. Had there been no deed of covenant, an action of waste, or of case in the nature of waste, would have lain. Because the landlord, by the special covenant acquires, a new remedy, does he therefore lose his old ? ” 2 Saund. 252c note. In the present case, it is very plain that if nothing had been said by the defendant by way of agreeing “ to repair and pay all damage,” it would have been his duty to exercise reasonable care and prudence in acting under the leave obtained of the plaintiff for the stipulated compensation. Such duty would have arisen upon the facts — a duty imposed by law ; and for the violation of, or failure to perform, that duty, the defendant would have been liable by action on the case to respond for such damage as the plaintiff should have suffered by reason of such failure or violation. The duty in that respect is not different by reason of the promise [420] to repair and pay all damage. It would be absurd to construe the transaction between the parties as giving the defendant the right to destroy the plaintiff’s dam by the running of his logs through the bulkhead; absurd to infer that either party contemplated such a result from the running through of the logs ; and absurd to hold that the agreement to repair and pay all damage in consequence thei’eof, was intended -or thought of as covering such a consequence of the faulty negligence of the defendant in the manner of conducting the business. It is reasonable to suppose and to hold that that stipulation looked only to such natural and necessary damage as should result as a consequence of running through the logs in the exercise by the defendant of reasonable care, and by no means to the destruction of the dam in consequence of the culpable carelessness of the defendant. In this view, no reason, either substantial or technical, can be assigned against the right of the plaintiff to assert his claim for damage caused by defendant’s carelessness, in the present form of action. The terms, and the logical result of what has been cited and referred to, favor that right. The analogies of many decided cases favor it. For more than an hundred years it has been settled that assumpsit or case may bo maintained against common carriers. By stating that the defendant carried for hire, it would appear that the defendant was a common carrier, and then the law would raise the promise from the nature of the contract; and so an action of assumpsit may be maintained, or the gravamen may be alleged as consisting in a breach of duty arising put of ah employment for hire, and such breach of duty considered as a tortious negligence, and so an action on the case, ex delicto, may be maintained. Selw. N. P. 429. See Bank of Orange v. Brown, 3 Wend. 158. In Addison on Torts it is said, “A tort may be dependent upon, or independent of, contract. If a contract imposes a legal duty upon a person, the neglect of that duty is a tort founded on contract, so that an action ex contractu for the breach of contract, or an action ex delicto for the breach of duty, may be brought, at the option of the plaintiff. When there is a violation of any legal right existing independent of any contract between the parties, [421] such as invasion of a right of property, or of the right of personal security, or an injury to character and reputation, then the tort is not founded on contract, and an action ex delicto is alone maintainable. Whenever an action of tort is founded on contract, an action is maintainable for nominal damages, although no actual damage can be proved; but the plaintiff must be a party to the contract; for no person can sue in respect of a tort founded on contract who was not a party or privy to, and could not have sued upon, the contract.” We therefore hold that the declaration, and the evidence in behalf of the plaintiff, make a case in which the plaintiff would be entitled to recover. We make no suggestion of views, how the judgment in this case would affect the right to maintain another action for the liability of the defendant in other respects. A moment’s attention to the criticisms of the charge will show that they are not well founded. It is apparent that but a small part of what was said to the jury by way of charge is given. From our own experience and observation, we assume that what is given as the substance of the charge, is a memorandum, constituting the substratum of what was a full charge, developing that substratum into all needful detail of explanation, illustration, and application, having .reference to the cause of action set forth in the declaration and shown by plaintiff’s evidence. This answers the imputed fault, that “ the court told the jury in general terms,” &c , “ without vouchsafing any explanation,” &e., “ that the charge is silent as to the duty of plaintiff to prove his case,”— “ ordinary care ” and “ common care ” — and as to the 8th request. It is reasonably to be supposed, unless the contrary appears, that the charge when fully reported, would show that it was made with reference to the declaration'and the evidence. It is plain that what is stated as the “ substance,” is susceptible of being rendered into a just and legitimate charge in detail, and a full and proper answer to all the proper requests set forth in the bill of exceptions. The objection to the evidence is fully answered by Royce, J., in Clifford v. Richardson, 18 Vt. 620, 626-7. The cases cited by defendant are not at variance with that case, nor with [422] the admission of the evidence in the' case in hand. The running of the logs in that stream, and through that bulkhead, was not a matter of common knowledge, nor of adequate common judgment upon the facts shown by the other evidence. The experience and observation of the plaintiff gave him the grounds and faculty of an opinion peculiar to himself, and not common to men who had no such experience or observation. In a substantial sense he may be regarded as an expert, having peculiar knowledge and skill, which renders his opinion worthy of consideration as the ground of judgment and opinion in others who have not such knowledge and skill. Judgment affirmed.