Cook v. Champlain Transportation Co.

By the Court, Beardsley, J.

It was urged on the argument that the defendants, being a foreign corporation, were not amenable to the laws of this state, nor subject to the jurisdiction of its courts.

Such corporations are legal persons, and are by no means strangers in our courts. They may sue, as is often done, and by appearing and pleading in chief, to an action brought against them, jurisdiction over the parties who defend, as in other cases, is conceded. We need not stop to inquire whether an appearance could be compelled, for here, as' far as we know, it was voluntary. The general issue was pleaded and the cause has been tried. As this court has an undoubted jurisdiction over the subject matter of the action, it is now quite too late to raise the question of its authority finally to dispose of the case.

When the plaintiffs had gone through with their evidence and rested, a nonsuit was asked for on various grounds, one of which was an alleged variance between the plaintiffs’ right as set out in the declaration and that proved on the trial.

The declaration alleges that the plaintiffs were owners and possessors of the mill with the appurtenances, fixtures and machinery. thereto belonging. The testimony showed that they were assignees bf an unexpired lease for a term of years of the mill, with a right of renewal, and absolute owners of the machinery therein; but at the time of the fire, one of the plaintiffs (William W. Cook) and a third person {Palmer Coos) were in the possession and occupancy of the mill. Upon these facts the precise objection made was, that if the plaintiffs had proved themselves to be owners of the mill, still as Calvin Cook, one of the plaintiffs, had but a reversionary interest therein, his right should have been so stated in the declaration.

*99 I think this ground for a nonsuit was properly overruled. The plaintiffs had an unexpired lease of the mill, and for the purpose of this action were its owners. That was enough to enable them to maintain the action without proof of possession, although that was alleged in the declaration. (Stephens’ N P. 1023.) Nor, upon the evidence in the case, was it necessary to set up a reversionary and not a present interest in Calvin Cook. He was one of the owners of the mill; and until it appeared that some other person had a present and certain estate therein, to the exclusion of such owner, it was sufficient to set up the right of a general owner, as was done in this declaration.

Another ground for a nonsuit was urged; the injury done was said to be in part at least attributable to the negligence of the. plaintiffs themselves, in voluntarily placing their property in an exposed position, and therefore the law would afford them no redress. On the argument at bar, this was strenuously insisted on as a fatal obstacle to any recovery in the case.

The general principle is certainly well established, that if the plaintiff’s wrongful act or negligence concurs with that of the defendant in producing the injury, the law will not aid him in obtaining any redress. (Rathbun v. Payne, 19 Wend. 399 ; Bradley v. Waterhouse, 3 Carr. & Payne, 318; Lack v. Seward, 4 id. 106; Plucknell v. Wilson, 5 id. 375; Boss v. Litton, id. 407; Williams v. Holland, 6 id. 23; Woolf v. Beard, 8 id. 373; Brown v. Maxwell, 6 Hill, 592 ; Vanderplank v. Miller, 1 Moo. & Malk. 169.) This principle has a broad and extended application^ but nevertheless admits of exceptions and qualifications. (Lynch v. Nurdin, 1 Adol. & Ellis, (N. S.) 29 ; Bird v. Holbrook, 4 Bing. 628; Ilott v. Wilkes, 3 Barn. & Ald. 308; Smith v. Dobson, 3 Mann. & Gr. 59; Walters v. Pfeil, 1 Moo. & Malk. 362.) It is unnecessary,, however, to state the exceptions, for the general principle does not, as I think, reach this case. The property destroyed was in an exposed and hazardous position, and therefore in more than ordinary danger from mere accidental fires. This risk the plaintiffs assumed, but not the risk of another’s negligence. They were on their own land, and free to use it in any manner and for any purpose which was law *100 ful. As was correctly observed by the circuit judge, “ the plaintiffs had as good a right to erect their mill on the shore of the lake as the defendants had to sail on its bosom.” It would be a startling principle indeed, that a building placed in an ex posed position, on one’s own land, is beyond the protection oí the law; and yet it comes to this result upon the argument urged in this case. A landowner builds immediately on the line of a rail-road, as he has an unquestionable right to do; it may be an act of great imprudence, but in no sense is it illegal. Is he remediless if his house is set on fire by the sheer negligence of an engineer in conducting his engine over the railway? There must be some wrongful act or culpable negligence on the part of the plaintiff to bar him on this principle ; and neither can be affirmed of any one for simply occupying a position of more or less exposure on his own premises.

If the principle urged on the argument is correct, it must be applied in all cases of the same character. The owner of a lot builds upon it, although in close proximity to the shop of a smith. The house is more exposed than it would be at a greater distance from the shop; but is this to exempt the smith from the obligation of care, and to screen him from the consequences of his own negligence ? I certainly think not. A horse or carriage on the open ground of the owner may be more exposed to injury than they would be in a yard or a barn. But if damaged by the carelessness of a passer by, is the owner remediless because he chose to leave them in a place of comparative exposure and hazard ? No one, I think, can doubt what the answer to this question should be. I refer to no authorities on this part of the case, for in my opinion none are requisite. It is but clearly to comprehend the principle on which this species of defence must rest, to see that it has no application to such a case as this. By what criterion, let me ask, are we to determine the hazards of a particular position, and on that ground say that the owner by his own folly has deprived himself of all protection ? In this respect every thing is comparative, but where is the true standard to be found ? A house forty feet from a steamboat landing is in more hazard than one at *101 the distance of forty rods, but it is less exposed than one immediately on the wharf. Goods at the window of a shop are less safe than they would be on a shelf at the rear of the room; but is the owner remediless if they are carelessly soiled or broken by some one in the street? We may run through every imaginable variety of position, some of more and some of less exposure and hazard; and we must at last, I think, come to the conclusion that, while a person' confines himself to a lawful employment on his own premises, his position, however injudicious and imprudent it may be, is not therefore wrongful; and that his want of due care or judgment in its selection can never amount to negligence, so as thereby to deprive him of redress for wrongs done to him by others.

There was no material variance between the manner in which the injury was done, as alleged in the declaration, and the evidence given on that point. The gravamen of the first count is, that while the boat was lying and sailing opposite and near the mill, the fires on board were so carelessly managed and conducted that the mill was thereby set on fire. This is amplified in the second count by the further allegation that proper care was not taken of the smoke-pipes, by which said negligence and want of care the mill was destroyed.

The rule in these cases is, that the proof of the injury must conform in substance to the statements in the declaration. (1 Saund. on Pl. and Ev, 343, .344.) This rule has not been violated. If the defendants were proved to be liable, it was for negligence in the management of the fires or smoke-pipes, and this occurred, if at all, while the boat was opposite or near to the mill. The declaration does not aver that every careless act on board the boat which tended to produce, and finally resulted in the ■ destruction of the mill, took place while the boat was near the mill. The negligence which immediately produced the injury ¡ occurred after the boat got under way; but it was entirely competent and proper, in order to establish such negligence, to show the condition of the fires while the boat was at the wharf preparing to depart, and when she actually took hex departure from that place.

*102 The word custom was used in making inquiry of one or two witnesses as to the manner in which fires were managed in steamboats on the Hudson river, with a view to guard against accidents, and they were allowed to speak of their own experience and knowledge on the subject. This testimony obviously was not gone into for the purpose of proving any local law or usage on the Hudson, which was binding as such, on 1 that river; and much less to show that such custom, if established, could bind those who might navigate Lake Champlain. But its scope and object were to show the various modes by which these fires might be checked or controlled, and which were resorted to for that purpose by persons of skill and experience ; and in this point of view, the testimony seems to me unobjectionable.

The charge of the learned judge was, in my view, correct throughout, and placed the cause in all its bearings and aspects fairly before the jury. I also think the eighteen written points submitted to the judge at the close of his charge, were properly disposed of by him. (The Camden and Amboy Co. v. Belknap, 21 Wend. 354 .) The jury were instructed that if the plaintiffs recovered at all, they were entitled to the full value of all the property destroyed, and this is the only point which remains to be particularly noticed. / As to ordinary personal chattels there can be no difficulty; | the value of the things destroyed is the just measure of damages. I And although the engines and machinery by which the mill I was moved, may have been firmly affixed to the building, yet, ' having been so affixed for the purpose of carrying on a business . • of a personal nature, they were still the personal property of the tenants, and as such removable at their will. (Elwes v. Maw, 3 East, 38; Heermans v. Vernoy, 6 John. 5 .) The plaintiffs were therefore entitled to recover the full value of this description of property, if they established a right to recover for any part of it.

Then as to the mill: the building, exclusive of engines and machinery. The mill was erected by the lessees of a term for years with a right to renew for a farther term at their option. They *103 were to pay an annual rent, and they covenanted that all buildings which might be put up or erected on the demised premises, should, “ without damages of -any kind other than the natural wear of the same, revert to and become the property of the” lessors, whenever by the terms of said lease, they should come into possession of the demised premises. This lease and all the right, title and interest of the lessees therein, and in the land demised, had been assigned to the plaintiffs, with authority tó do and perform any and every act or thing, which the lessees might or could have done. -In terms, the land was demised to the lessees alone, no mention being made of their assigns; and the covenants on the part of the lessees were in the same form. There was no express covenant by the lessees to keep the premises in repair, nor to rebuild in any event whatever. The covenant was that all buildings which might be erected on the premises, should.revert to the lessors when they might come into possession. The Unexpired term and all the interest of the lessees had been assigned to the plaintiffs, and they had taken possession: but no express covenant or" agreement on their part, to pay rent or do any thing else, was shown. The first term of years had not expired; and it did not appear that the lessees or the plaintiffs had indicated an intention to hold the premises for the second term, as was authorized by the lease. Upon this state of facts it was argued that the plaintiffs were bound to rebuild the mill for the benefit of the lessors, and therefore were entitled to recover its full value from the defendants ; and if such was the liability of the plaintiffs, the consequence stated would seem to follow.

This liability of the plaintiffs was placed on two distinct grounds:

1. It was said the lessees were bound by their covenant to rebuild; that the covenant ran with the land and bound their assignees, and therefore the plaintiffs were liable.

2. That the destruction of the mill by tortious negligence was waste, for which the plaintiffs, being tenants for a term of years, were answerable to the reversioner, wholly irresjwctive *104 of any express agreement, and therefore they were entitled to a corresponding redress from the defendants.

I pass by the first ground stated, for the last seems decisive of the question. The plaintiffs claim that the mill was destroyed by the wrongful act of the defendants; and if so it was waste, for which the plaintiffs being tenants for years, were responsible. “ It is common learning,” said Heath, J. in Attersol l v. Stevens, (1 Taunt. 198,) “ that every lessee of land, whether for life or years, is liable in an action of waste to his lessor, for all waste done on the land in lease, by whomsoever it may be committed.” Chambre, J. in the same case, p. 196, said: “ The situation of the tenant is extremely analogous to that of a common carrier; to prevent collusion, (and not on the presumption of actual collusion,) both are charged with the protection of the property entrusted to them against all but the acts of God and the king’s enemies; and as the tenant in the one case is charged with the actual' commission of the waste done by others, so in the other case the carrier is charged with actual default and negligence, though he loses the goods by a force that was irresistible, or by fraud, against which no ordinary degree of care and caution could have protected him.” Lord Coke is not less explicit, for he says: “ Tenant by the curtesy, tenant in dower, tenant for life, years, &c. shall answer for the waste done by a stranger, and shall take their remedy over.” (1 Inst. 54, a ; see also 2 id. 145, 303 ; 1 Chit. Gen. Pr. 388; 4 Kent’s Com. 77; 2 R. S. 334, § 1; 1 Inst. 57, a, note 377; 2 Roll. Abr. 821; 3 Black. Com. 2284 Comyn's Land. and Ten. 188.)

The plaintiffs thus being bound to answer to their landloi for the .full value of the building which was destroyed, wer entitled to recover a like amount from the defendants.

All the legal questions appear to me to have been correctly determined, and upon the whole case, I see no reason to disturb 1 the verdict. >

New trial denied. .