Bowditch v. Boston

Decision Date01 October 1879
PartiesBOWDITCH v. BOSTON
CourtU.S. Supreme Court

ERROR to the Circuit Court of the United States for the District of Massachusetts.

The facts are stated in the opinion of the court.

Mr. George W. Morse for the plaintiff in error.

Mr. J. P. Healy, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

The plaintiff in error, who is the assignee of the estate of Charles H. Hall, a bankrupt, alleges and relies upon the following case:——

A great fire occurred in the city of Boston on the night of the 9th and 10th of November, 1872. Hall was then the lessee and occupant of the premises described in the declaration. The fixtures, merchandise, and tools belonging to him in the part of the building covered by the lease were of the value of $60,000, and his leasehold estate was of the value of $10,000. The fire did not first break out in his premises, but that part of the building and the contents were in danger from its progress. Three fire-engineers, then at a place of danger in the immediate vicinity, directed the building including his premises to be demolished, to arrest the spreading of the fire. The building was blown up and destroyed accordingly. This measure stopped the progress of the fire. The premises were left unfit for occupation, and his personal effects, before mentioned, were destroyed by the catastrophe. This action is brought by his assignee to recover what was thus lost to the bankrupt.

The claim is founded upon certain statutes of the State of Massachusetts, and an ordinance of the city of Boston. A brief reference to their provisions, material to be considered in this case, will be sufficient.

In cases of fire, any three of certain designated officers 'may direct any house or building to be pulled down or demolished when they may judge the same to be necessary in order to prevent the spreading of the fire.' Mass. Gen. Stat., c. 24, sect. 4.

'If such pulling down or demolishing of a house or building is the means of stopping the fire, or if the fire stops before it comes to the same, the owner shall be entitled to recover a reasonable compensation from the city or town; but when such building is that in which the fire first broke out, the owner shall receive no compensation.' Id., sect. 5.

The city of Boston was authorized to establish a fire department, to consist of so many engineers, &c., 'as the city council, by ordinance, shall from time to time prescribe.' Mass. Special Stats., 1850, c. 22.

Pursuant to the authority thus conferred, the city council, in the manner prescribed, created such a department, and declared that it should 'consist of a chief engineer and thirteen assistant engineers,' &c. Ordinances of Boston, ed. 1869, sect. 1.

It was provided that 'the chief engineer shall have the sole command at fires over all other engineers and officers and members of the fire department, and other persons who may be present at such fires,' &c. Id., sect. 6.

'Whenever it is adjudged at any fire, by any three or more of the engineers present, of whom the chief engineer, if present, shall be one, to be necessary, in order to prevent the spreading of the fire, to pull down or otherwise demolish any building, the same may be done by their joint order.' Id., sect. 11.

It appears that at the fire here in question the chief engineer and a number of the assistant engineers were present. Upon that subject there is no controversy.

The case was first tried in the District Court of the United States for that district.

The learned judge who presided at the trial directed the jury to render a verdict for the defendant, which was accordingly done.

The plaintiff in error excepted, and having embodied in the record all the evidence given on the trial, sued out a writ of error and removed the case to the Circuit Court.

There the judgment of the District Court was affirmed. A further writ of error has brought the case here for review.

It is now a settled rule in the courts of the United States that whenever, in the trial of a civil case, it is clear that the state of the evidence is such as not to warrant a verdict for a party, and that if such a verdict were rendered the other party would be entitled to a new trial, it is the right and duty of the judge to direct the jury to find according to the views of the court. Such is the constant practice, and it is a convenient one. It saves time and expense. It gives scientific certainty to the law in its application to the facts and promotes the ends of justice. Merchants' Bank v. State Bank, 10 Wall. 604, 637; Improvement Company v. Munson, 14 id. 442; Pleasants v. Fant, 22 id. 116.

The rule in the English courts is substantially the same. Ryder v. Wombwell, Law Rep. 4 Ex. 32; Giblin v. McMullin, Law Rep. 2 P. C. 335. In the latter case it was said: 'In every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party introducing it, upon whom the onus of proof is imposed.

At the common law every one had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of such destroyer, and no remedy for the owner. In the case of the Prerogative, 12 Rep. 13, it is said: 'For the Commonwealth a man shall suffer damage, as for saving a city or town a house shall be plucked down if the next one be on fire; and a thing for the Commonwealth every man may do without being liable to an action.' There are many other cases besides that of fire,—some of them involving the destruction of life itself,—where the same rule is applied. 'The rights of necessity are a part of the law.' Respublica v. Sparhawk, 1 Dall 357, 362. See also Mouse's Case, 12 Rep. 63; 15 Vin., tit. Necessity, sect. 8; 4 T. R. 794; 1 Zab. (N. J.) 248; 3 id. 591; 25 Wend. (N. Y.) 173; 2 Den. (N. Y.) 461.

In these cases the common law adopts the principle of the natural law, and finds the right and the justification in the same imperative necessity. Burlem. 145, sect. 6; id. 159, c. 5, sects. 24-29; Puffendorf, B. 2, c. 6.

The statute of Massachusetts, as far as it goes, gives as a bounty that which could not have been claimed before. How far the statute trenches upon the legal and natural right which every one possessed prior to its enactment, is a subject we need not consider.

All the questions arising in this case are questions of local law. It is our duty to consider the controversy as if we were a court of the State, and sitting there to apply her jurisprudence.

The subject was within her police power, and it was competent for her to legislate upon it as she might deem proper. It is wholly beyond the sphere of Federal authority.

Whether the statute is to be construed strictly, as being in derogation of the common law, or liberally, as being remedial in its character, are points within the exclusive cognizance of her tribunals. The jurisdiction of the District Court arose from the incidental fact that a claim in behalf of a bankrupt's estate was involved, and that his assignee was the plaintiff.

In order to charge the city, 'the remedy being given by statute only, the case must be clearly within the statute.' . . . 'The city is responsible by force of the statute only, and such responsibility is limited to the cases specially contemplated.'...

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