Gilman v. Noyes

• Decision Date: 11 August 1876
• Citation: 57 N.H. 627
• Parties: Gilman v. Noyes.
• Court: New Hampshire Supreme Court

57 N.H. 627

Gilman v. Noyes.

Supreme Court of New Hampshire

August 11, 1876

Accord and satisfaction---Proximate and remote damages.

In an action on the case, the evidence tended to show that the defendant, by whose negligence it was alleged the plaintiff's cattle had escaped from his pasture, said that if the plaintiff would look up the cattle he would pay him for the damage and trouble. Held, that this, if proved would not amount to an accord and satisfaction.

The evidence tended to show that the plaintiff's sheep escaped from his pasture through the defendant's negligence, and wandered away and were killed by bears. Held that it was a question for the jury whether the plaintiff's negligence was the proximate cause of the damage, which would depend upon whether it was natural and reasonable to expect that if the sheep escaped they would be destroyed in that way

FROM COÖS CIRCUIT COURT.

CASE for carelessly leaving the plaintiff's bars down, whereby his cattle and sheep escaped, and he was compelled to expend and did

expend, time and money in hunting for the same, and his sheep were wholly lost.

The evidence tended to show that the defendant, in looking after his own cattle, left the plaintiff's bars down, and that his cattle, and three sheep belonging to one Marshall, and which the plaintiff was pasturing, were wholly lost. The defendant denied that said cattle and sheep escaped through the bars, and introduced evidence tending to show that they escaped through other fence of the plaintiff, and without fault on the part of the defendant. As tending to show that the defendant was liable, the plaintiff, without objection, testified that he called on the defendant, soon after he ascertained that his cattle and sheep had escaped, and claimed that they had escaped through his fault, and requested him to go and look them up; to which the defendant replied, that he could not then go, but that the plaintiff must look them up himself, and he would pay him what was right for the damage and for his trouble. The defendant did not admit that he made these statements, as testified to by the plaintiff, and claimed that whatever he did say was under a misapprehension. The evidence tended to show that the sheep were destroyed by bears after they had escaped from the plaintiff's pasture. They defendant claimed that the damages were too remote, and that they were not the natural consequences of the alleged careless acts of the defendant. The defendant requested the following instructions:

1. If the jury find to be true the statement of the plaintiff, that, when he went and first called on the defendant, the defendant told him that he was in for the damage, and he wanted him, the plaintiff, to hunt up the cattle, and he would pay the plaintiff what was right for the damage, and that the plaintiff assented to this, he cannot recover in this form of action.

2. That if the jury find that the plaintiff and the defendant agreed that the plaintiff should hunt up the cattle, and that the defendant should pay him what was right for the damages, this action cannot be maintained.

3. If the jury find that it was agreed by the parties that the plaintiff was to hunt up the cattle, and the defendant was to pay the plaintiff the expense and trouble of hunting, the plaintiff cannot recover for such trouble and expense so incurred at the request of the defendant in this form of action. His remedy would be assumpsit.

4. That, the sheep being the property of Marshall, the plaintiff cannot in this action recover the value of the same.

5. That if the jury find that the sheep were killed by bears after their escape from the pasture, the plaintiff cannot recover, as the damages would be too remote.

These requests the court denied, but did instruct the jury, among other things, that if the defendant left the plaintiff's bars down, and his cattle thereby escaped, he was entitled to recover for the time and money expended in hunting for them; that if the sheep were in his possession and care, and they escaped in consequence of the bars being left down by the defendant, and would not have been killed but for the

act of the defendant, he was liable for their value, whether the plaintiff was the absolute owner or not; that the statements made by the defendant were proper to be considered by the jury upon the question whether or not the damages to the plaintiff were occasioned by the acts of the defendant. To all of which refusals and instructions the defendant excepted.

The jury returned a verdict for the plaintiff, and assessed the damages for hunting for the cattle at $13.16, and for the sheep at $9. The defendant moved to set the verdict aside, and for a new trial.

The questions of law arising on the foregoing case were transferred by STANLEY, J., C. C.

Dudley and Ray & Drew, for the plaintiff. Aldrich & Shurtleff and Bingham, for the defendant

CUSHING C. J

The objection to the requests for instructions in regard to the compromise is, that they are not based upon the evidence. The evidence was to the effect that the defendant admitted his liability, and said that he would pay the damage. But there was noting said or done by the parties from which the jury could infer an accord and satisfaction if it had been pleaded, and that defence could not be taken at all without a plea to that effect.

As to the objection that the plaintiff could not recover because the sheep were the property of Marshall, it seems enough to say that it is very well settled in this state that a bailee has sufficient interest in the property bailed to sustain an action for damage done to it.

It should have been left to the jury to determine whether the injury was one for which the defendant's fault was the proximate cause. The court rightly refused to instruct the jury that the damage was to^remote, because that was a matter for the jury to determine. I am not prepared, however, to hold, that the criterion, for determining whether the plaintiff's fault was the proximate cause of the damage, is whether the damage would or would not have happened without the defendant's fault.

This matter of remote and proximate cause has been recently a go^ deal discussed in the case of fires occasioned by the negligent management of locomotives. Where the fire has spread from point to ^ and from building to building, the question to what extent the negligence was the proximate cause has been held to be for the jury to determine. But in no one of those cases, whether the damage was ^ to be proximate or remote, could it have happened at all except for ^ negligence complained of.

I think the doctrine of the cases now is, that the question ^ the damage is remote or proximate is a question of fact for the ^ and that the jury have to determine whether the damage is the ^ consequence of the negligence, and such as might have been ^ by the exercise of reasonable prudence. If the damage would ^

happened without the intervention of some new cause, the operation of which could not have been reasonably anticipated, it would then be too remote. 2 Parsons on Contracts 179; State v. Manchester & Lawrence Railroad, 52 N.H. 552, and cases there cited; Fent v. Toledo, Peoria & Warsaw Railway Co., 59 III. 349---S. C. 14 Am. R. 13.

In the present case it appears that the evidence tended to show the intervention of such new cause,---viz., bears,---and it would have been for the jury to say whether it was natural and reasonable to expect that if the sheep were suffered to escape they would be destroyed in that way.

If these views are correct, the verdict must be set aside, and a new trial granted. SMITH, J

I concur in the foregoing conclusion of the chief-justice, and for the reasons given by him. The principal question in this case has been much discussed in the English and American courts, though but little in this state. The rule, that the plaintiff can recover only when the defendant's act or negligence was the proximate cause of the injury, is one of universal application; but the difficulty lies in determining when the cause is proximate and when remote. It is a mixed question of law and of fact, to be submitted to the jury under proper instructions. We have recently held that it is always for the jury to say whether the damage sustained is what the defendant ought to have expected, in the exercise of reasonable care and discretion. Stark

v.

Lancaster, ante 88, and authorities cited; McIntyre

v.

Plaisted, ante 606;---see, also, State

v.

M. & L. R. R., 52 N.H. 552; Cate

v.

Cate, 50 N.H. 144; Underhill

v.

Manchester, 45 N.H. 218.

The rule, as thus laid down, is also given in substance in 2 Parsons on Contracts 456, 2 Gr. Ev., sec. 256, and Sedgwick on Damages 88. The numerous cases in which this question has been discussed are cited by the above authors. It would be an unnecessary labor to review them in detail.

In this case the evidence tended to show the intervention of a new cause of the destruction of the plaintiff's sheep after their escape from this pasture, which could not reasonably have been anticipated. The ^ practicable rule to be drawn from all the cases, for determining this case, it seems to me, is, to inquire whether the loss of the plaintiff's sheep by bears was an event which might reasonably have been not anticipated from the defendant's act in leaving his bars down, under all ^ circumstances of this case. If it was a natural consequence which their reasonable person could have anticipated, then the defendant's act ages the proximate cause. If, on the other hand, the bears were a new ^, which could not reasonably have been anticipated, the loss of ^ sheep must be set down as a remote consequence, for which the defendant is not responsible.

The jury were...