Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola

• Decision Date: 01 October 1892
• Citation: 31 N.E. 987,134 N.Y. 461
• Parties: OCEANIC STEAM NAV. CO., Limited, v. COMPANIA TRANSATLANTICA ESPANOLA.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 461

31 N.E. 987

OCEANIC STEAM NAV. CO., Limited,

v.COMPANIA TRANSATLANTICA ESPANOLA.

Court of Appeals of New York, Second Division.

Oct. 1, 1892.

Appeal from superior court of New York city, general term.

Action by the Oceanic Steam Navigation Company, Limited, against the Compania Transatlantica Espanola. Plaintiff was nonsuited at the circuit, and its exceptions were ordered heard at the general term in the first instance. From a judgment entered on an order of the general term, (11 N. Y. Supp. 728,) denying its motion for a new trial, overruling its exceptions, and dismissing the complaint, plaintiff appeals. Reversed.

Laurence Godkin, for appellant.

James S. Stearns, for respondent.

The other facts fully appear in the following statement by FOLLETT, C. J.:

The plaintiff is a British corporation, engaged in running the White Star Line of steamships, and the defendant is a Spanish corporation. The department of docks in the city of New York, by an instrument in writing, for convenience called a ‘lease,’ ‘granted’ for a period which included the years 1886 and 1887 to the Oceanic Steam Navigation Company ‘all and singular the wharfage which may arise, accrue, or become due for the use and occupationby vessels of more than five tons burden of all that certain wharf property situated on the North river, in the city of New York, and known as ‘Nos. 44 and 45,’ together with the bulkheads between them.' The instrument contains the following provisions: ‘And the said parties of the first part hereby authorize the said party of the second part to enter upon the said premises, and take possession of the same, at the time herein designated, and for the purpose herein set forth, and to hold and enjoy the same, subject however, to all ordinances of the mayor, aldermen, and commonalty of the city of New York now in force, or which may hereafter be adopted by the said mayor, aldermen, and commonalty of the city of New York, and all laws of the state of New York which are now in force or which may be hereafter enacted in any way appertaining or relating thereto. * * * And the said party of the second part, for itself, its successors and assigns, agrees to erect on each of said piers Nos. 44 and 45, under the supervision of the said department of docks, and in conformity with the fire laws of the city of New York, and in accordance with plans to be filed in and approved by said department, suitable sheds for the protection of merchandise and freight.’ It seems that pier 45 was used by, and was generally sufficient for, the White Star Line, and that No. 44 was from time to time let for the use of other lines and vessels. Pier 44 was about 500 feet long, and extended from the shore westerly into the river. It was covered by a shed used for the protection of freight received for outgoing and discharged from incoming vessels. On the sides of the shed were several sliding double doors, each being about six feet wide and about eight feet high, so that when they were opened a vessel lying alongside could be laden or unladen from the pier. During the season of river navigation in 1886, pier 44 was used by the Troy Steamboat Company, but at the close of the season for navigation on the Hudson river in December of that year the plaintiff sublet pier 44 for $250 per week to the defendant, until such date in the spring of 1887 as navigation on the Hudson river should be resumed. While in possession of this pier, the defendant permitted vessels owned by other persons to receive and discharge their cargoes thereat for such compensation as was agreed upon, not exceeding the rates fixed by statute. January 17, 1887, the Louis Baker was permitted by the defendant to receive its cargo at this pier. John Cleary was employed by the stevedore who was engaged in loading the vessel, and, while he was engaged in hoisting freight on board, a sliding door, which was about 200 feet out from the shore, fell upon him, and broke his right leg. Subsequently Cleary brought an action in the United States circuit court against the Oceanic Steam Navigation Company, alleging that it was the lessee of pier 44, had possession and control thereof on the 17th of January, 1887, and that the door fell upon the plaintiff, Cleary, ‘by reason of the carelessness and negligence of the defendant in failing and omitting to have said door properly secured, without any fault or carelessness on the plaintiff's part.’ Negligence was denied in the answer, and it was alleged that at the time of the accident the pier was in the possession of a sublessee. The Spanish corporation had notice of Cleary's action, but did not defend it. It was defended, however, by the British corporation, but a judgment was recovered against it for $2,084.05 damages and costs. A motion for a new trial was made, but was denied, and, as the amount of the judgment was not sufficient to authorize an appeal to the supreme court of the United States, it was final, and had to be paid. In conducting the defense, $784.12 was necessarily expended, and this action is brought to recover those two sums with interest.

FOLLETT, C. J., ( after stating the facts.)

Had Cleary's judgment been recovered in a court in this state, and affirmed by a court of last resort, the right of the Oceanic Steam Navigation Company (assuming that its negligence did not contribute to the accident) to recover the sums it had been compelled to pay by the judgment would hardly be questioned. There are many reported cases of recoveries of sums which persons have been compelled by judgments to pay for the neglects of others, and the general rule is that there may be a recovery had in such cases unless the parties were alike in the wrong which caused the damages. Rochester v. Montgomery, 72 N. Y. 67;Village of Port Jervis v. Bank, 96 N. Y. 550;Chicago City v. Robbins, 2 Black, 418, 4 Wall. 657;Lowell v. Railroad Corp., 23 Pick. 24. The foregoing cases were brought by cities to recover sums which they had been compelled to pay to travelers on the streets for injuries caused by the negligent conduct of the defendants. The liability of the defendants to indemnify the municipalities is not placed, in the cases above cited, on the ground that persons causing injuries in high ways owe a higher or different duty to the public or to a city than to individuals, nor upon the ground that the liability over is peculiar to neglects to use due care in public streets. The same duty to exercise care for the safety of the public and all having occasion to use piers would seem to be due from those in control of public piers as from those using a public street, for both are public ways. Radway v. Briggs, 37 N. Y. 256; Taylor v. Insurance Co., Id. 275; In re New York C. &. H. R. R. Co., 77 N. Y. 257; Taylor v. Mayor, 4 E. D. Smith, 559; Mayor v. Rice, Id. 604; People v. Railroad Co., (Sup.) 3 N. Y. Supp. 29,117 N. Y. 150-156, 22 N. E. Rep. 1026; People v. Mallory, 46 How. Pr. 281-283, 2 Thomp. & C. 76;People v. Macy, 62 How. Pr. 65;Gluck v. Ice Co., (Sup.) 9 N. Y. Supp. 254.

In Gray v. Gas-Light Co., 114 Mass. 149, the defendant fastened a telegraph wire to the plaintiff's chimney, without having obtained permission. The weight of the wire pulled the chimney into the street, injuring a traveler, who began an action to recover his damages against the owner of the building. Notice of the suit was given to the gaslight company, but it refused to defend. Subsequently, Gray, the owner of the building, paid the traveler $335 for his damages and in settlement of the action, and then sued the gaslightcompany to recover that sum and the expenses of the litigation. It was held, the sum paid in settlement having been found to be reasonable, that it and the expenses of the action could be recovered. The court, in discussing the question, said: ‘When two parties, acting together, commit an illegal or wrongful act, the party who is held responsible for the act cannot have indemnity or contribution from the other, because both are equally culpable, or particeps criminis, and the damage results from their joint offense. This rule does not apply when one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability, and suffers damage. He may recover from the party whose wrongful act has thus exposed him. In such cases the parties are not in pari delicto as to each other, though, as to third persons, either may be held liable.’

In Churchill v. Holt, 127 Mass. 165, a judgment had been recovered against the occupant of a building for damages sustained by a traveler who had fallen through a hatchway in a sidewalk. The owner paid the judgment, and sought to recover the amount of it from Holt, alleging that his servant, in the course of his business, opened and negligently left the hatchway uncovered, and so caused the accident. On the trial the evidence to prove this allegation was rejected, but it was held on review that it was competent. It was said:...