Wyllie  v. Palmer

• Decision Date: 28 February 1893
• Citation: 33 N.E. 381,137 N.Y. 248
• Parties: WYLLIE et ux. v. PALMER et al.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 248

33 N.E. 381

WYLLIE et ux.

v.PALMER et al.

Court of Appeals of New York.

Feb. 28, 1893.

Appeal from supreme court, general term, fifth department.

Action by Robert Wyllie and wife, Jane Wyllie, against James Palmer, Jr., and Joseph W. Palmer, to recover damages for personal injuries to Jane Wyllie, caused by the negligence of defendants' servant in discharging fireworks. From a judgment of the general term (17 N. Y. Supp. 434) affirming a judgment of nonsuit, and an order denying a motion for a new trial, made on the minutes, plaintiffs appeal. Affirmed.

Finch, J., dissenting.

James R. Cox, for appellants.

Nathaniel Foote, for respondents.

O'BRIEN, J.

The plaintiffs in this case having been nonsuited at the trial, the general inquiry upon this appeal is whether they were entitled to have the case submitted to the jury. The plaintiffs are husband and wife, and they sought to recover damages for an injury to the wife by the discharge of a rocket while she was witnessing a display of fireworks at a Fourth of July celebration in Auburn, July 4, 1888. It is claimed that the defendants stood in such legal relations to the transaction as to become liable for the injury. They are partners in the business of manufacturing and selling fireworks at Rochester, and they furnished the rocket that injured the plaintiff. The theory upon which the plaintiffs claim to recover is that the defendants contracted with a committee to give an exhibition or display of fireworks, and in carrying out this contract the defendants or their servants so negligently handled or managed the fireworks that the rocket was discharged horizontally into a crowd of people, and struck Mrs. Wyllie, inflicting the injury complained of. The complaint is framed upon this theory alone, and it is proper to say that the learned counsel for the plaintiffs, in his brief and in his oral argument in this court, boldly rests his wholecase upon that principle. Neither by pleading, proof, norargument has he suggested or claimed that there was any other ground for a recovery. The defendants deny that they ever made such a contract, or that they ever gave, controlled, or directed any such exhibition. The controversy is thus reduced to the inquiry as to what the defendants legal relations were, upon the proofs given at the trial, to the transaction which was the cause of the injury. This is to be ascertained from the testimony of the plaintiffs, for the defendants gave none; and there is no conflict or doubt with respect to the facts. Some time prior to May 1, 1888, a public meeting was held at Auburn, which was attended by the mayor and principal citizens, who resolved to have a celebration on July 4th, and a committee was then and there appointed to have general charge of it, consisting of 30 persons. Out of this general committee various subcommittees were formed, and, among them, a committee of five on fireworks, of which George H. Battams was the chairman. He opened a correspondence with the defendants, which must determine the legal nature of the transaction. His first letter is dated May 1st, in which he wrote to the defendants: ‘Please send me your catalogue of your goods. I wish you would mark out a display for the Fourth of July that will cost $500.’ The natural and obvious construction of this language is that the chairman of the committee asked defendants for a catalogue of their goods, upon which should be indicated such articles as would be sold for $500. This letter does not appear to have been answered, and on May 18th the chairman wrote again, asking for the ‘catalogue of your goods, with a display you can give for $500; also a display for $400.’ Four days afterwards the defendants wrote to the chairman, in which they stated that ‘we inclose programme of exhibition which we have made up specially for you, and have taken pains to give you a very fine display, * * * to cost $500 net. * * * If you do not wish to expend this amount, let us know, and we can reduce it to any amount desired by taking out some pieces. We make no charge for boxing or cartage, but expect you to return us the empty boxes and frames. We inclose printed sheet, giving full instructions for firing the display.’ It seems quite clear that this was nothing more than a proposition on the part of the defendants to sell and delivercertain goods specified on what is called a ‘programme’ for $500. Nothing more was done till the 12th of June, when the following letters were exchanged, and which constitute the contract: ‘Auburn, June 12, 1888. Mr. J. Palmer's Sons-Dear Sirs: At last we have arrived at a conclusion in regard to the exhibition. I have been trying to get the whole thing, $500, but failed. At last we have decided to have a $400 display. Will you please inform me what you will give in that, including the steam engine and Mr. Wheeler's picture. We have had four others to buck against; three from New York, and one from Syracuse. Mr. Scott had one from New York. There is considerable kicking, but we are there. Please give us a fine display. We would like to have a man to take charge of the display. Please inform me how many posts you will need. I have the model of post,-the one we used last summer. Of course, the $500 is a fine display, and I think you can give a fine $400 out of that. Hoping to hear from you soon, I rem., yours truly, Geo. H. Battams.’ To which the defendants replied as follows: ‘Rochester, N. Y., June 14, 1888. Geo. H. Battams, Esq., Auburn, N. Y.-Dear Sir: Your favor of the 12 inst. at hand, with programme. We understand that we have your positive order for display to cost four hundred dollars net, including expense of man, and we inclose you programme, representing the goods we will send. We have included the steam fire engine and bust of Mr. Wheeler. You should have sixteen posts made like the model you have, one for each piece. The net price of the bust of Mr. Wheeler, with name and arch, is $50, and will be large, and got up fine as possible. This will give you the finest display that can be had for the money. We will put our very best work in it, and know you will be pleased. It is a pity you did not accept our other programme, and raise the whole $500; and, if there is any possibility of your raising the other $100, we would advise you to do so, and we will ship the goods. Yours, &c., James Palmer's Sons.’ The defendants, as a result of this correspondence, shipped the goods by rail to the chairman, and the latter took them from the station at Auburn, and paid the freight thereon. On the 3d of July defendants' man came to Auburn, called upon the chairman at his place of business, and was by him taken to a hotel, and the expenses were paid by the committee. There came with him a boy, about 17 years old, to assist in raising and handling the large pieces. The committee took charge of the display, fixed the time and place, which was an inclosed space about $200 feet from east to west in one of the principal streets of the city. It was arranged that the large set pieces were to be discharged at the west end of the space and the rockets and small pieces from the east end. All the arrangements were made by the committee, and the man and boy sent by the defendants acted under its directions. While the man was engaged setting and discharging the large pieces at the west end of the space, which was inclosed with ropes, the chairman of the committee on fireworks ordered another member of the committee and the boy to discharge the rockets at the other end, and this order they proceeded to carry out, and in doing so the boy so handled one of the rockets that it was discharged horizontally, and injured the plaintiff, who was one of the bystanders.

The contract of the defendants with the committee was in writing. The parties had no personal interview. It was either a contract for the sale and delivery of the goods, or a contract for services and materials. The language was not ambiguous or equivocal, and hence it was not competent to ask the jury to determine its construction, meaning, or legal effect. Insurance Co. v. Austin, 69 N. Y. 470;Kenyon v. Association, 122 N. Y. 247, 25 N. E. Rep. 299. Indeed, the learned counsel for the plaintiffs does not claim this. His position is that the contract is, as matter of law, one obligating the defendants to give a display or exhibition. Upon every test that can be applied to this contract, it seems to me that it is one for the sale and delivery of personal property. If the defendants failed to...