City of Petersburg v. Applegarth's Adm'r

• Decision Date: 05 April 1877
• Citation: 69 Va. 321
• Parties: CITY OF PETERSBURG v. APPLEGARTH'S adm'r.
• Court: Virginia Supreme Court

69 Va. 321

CITY OF PETERSBURG v. APPLEGARTH'S adm'r.

Supreme Court of Appeals of Virginia.

April 5, 1877

1. According to the principles of the common law, the owner of a wharf who receives or is entitled to receive wharfage for vessels moored to said wharf, is bound to use at least ordinary care and diligence in keeping the water adjacent to such wharf in which vessels lie while moored thereto, free from obstructions, and is liable for any damage done to any such vessel by reason of the neglect of such duty; and the same principles apply, whether such owner be an individual or a corporation, whether such corporation be private or municipal.

2. The city of Petersburg owns a wharf in the Appomattox river, for the use of which the city is authorized to charge and does charge wharfage. In October 1872 the vessel of A not being able to get to the wharf at which she was to deliver her load on account of an obstruction in the stream by another vessel drew up to the city wharf and moored to it, and whilst waiting there she sunk on the next low water, from a pile going through her bottom. This pile was oak, being about two feet from the wharf, in the stream where a vessel at the wharf would probably lie, and was not visible at low water though it was some two feet or more above the bed of the river, and was firmly fixed there--HELD:

1. The allowing such an obstruction in the place where it was, was negligence; and the city of Petersburg being the owner of the wharf, is liable for the damages occasioned by it.

2. The fact that the city had appointed a port warden whose duty it was to attend to the removal of obstructions in the stream and to attend to the duties of the city in regard to the city wharf, does not exempt the city from liability for the damages. The port warden in this matter is but the agent of the city, and the principal is always bound for the acts and neglects of his agent. The same rule which applies to a private principal, applies to a corporation, whether ordinary or municipal, and a fortiori to a corporation which can only act by an agent.

3. The fact that it has been made by statute the duty of the Lower Appomattox company to dredge and remove obstructions from the river at and below Petersburg, cannot relieve the city from her liability. The city is in fact the company owning all the stock and appointing the officers of the company. But even if it was an independent organization, its obligation to perform a duty which the city is also bound to perform on common law principles, would not relieve the city from its common law liability for the non-performance of such a duty.

4. Nor can it make any difference that the United States have made appropriations to the improvement of the navigation of the river, and have occasionally dredged it. This does not relieve the city from its common law liability in regard to the city wharf.

5. Nor does it make any difference, that in this case no wharfage was actually received by the city, and that it does not usually charge wharfage in cases where the vessel mooring at her wharf is not to be unloaded there. It is sufficient that the city was entitled to charge wharfage.

This is a supersedeas to a judgment of the circuit court of the city of Petersburg, rendered on the 4th day of June 1873, in an action of trespass on the case brought by William Applegarth against the city of Petersburg.

The declaration contained four counts. The first was in substance as follows: that before and at the time of the committing of the grievances, hereinafter mentioned, the defendant was the owner, and was possessed of a certain wharf for the landing mooring, loading and unloading of vessels on the banks of the Appomattox river, within the corporate limits of the city of Petersburg, and known as the city wharf, near to which said wharf there was then a certain obstruction, to wit: a pile before then, by the defendant carelessly and negligently placed, and then being at and upon the bottom of said river, over which pile, at certain states of the tide of said river, the vessel of the plaintiff hereinafter mentioned would float, but at other states of said tide said vessel would not float, of all of which premises said defendant had notice at and before the time aforesaid; that at the time of the committing of said grievances, and while the defendant so owned and possessed the wharf aforesaid, the plaintiff owned and possessed a certain vessel called the North Carolina, of great value, to wit: of the value of $5,000, then being lawfully, by sufferance and permission of said defendant, at and along side said wharf for reward to said defendant in that behalf; and said defendant had the management and control of said wharf, and the mooring and stationing of vessels at and near the same, whilst such vessels were at such wharf for the purpose of using the same, and said defendant had the legal right to charge and demand of the said plaintiff wharfage therefor; yet the said defendant, at the place aforesaid, and on the 15th day of October 1872, unskilfully, negligently and improperly moored and stationed said vessel of said plaintiff in that part of said river near said wharf and over said obstruction, to wit: over said pile, and unskilfully, negligently and improperly detained said vessel for a long and improper time over said pile, and until said vessel on the day and year aforesaid, upon the natural and usual fall of the tide in said river, came, fell and lodged upon, and struck against, said pile at the bottom of said river, and there remained and continued upon, and striking against, said pile for a long time, and thereby became, and was greatly strained, bulged, broken, pierced and injured, and was sunk; in consequence and by reason of which injuries, done by said defendant, said plaintiff necessarily sustained great damage, to wit: a loss of $1,262.43, which said sum he avers he necessarily expended in raising said vessel and her cargo, and in repairing said vessel, and the further great sum, to wit: the sum of $650, special damage which said plaintiff necessarily sustained by being deprived of the use and enjoyment of said vessel, and her ordinary gains and profits to said plaintiff during the time that she was sunk, being raised and repaired.

The second, third and fourth counts are very nearly to the same effect with the first, and it is unnecessary to state the particulars in which they differ from each other.

The plaintiff having died shortly after the institution of the action, his death was suggested, and the action was revived in the name of his administrator, George S. Bernard.

Thereafter the defendant filed a demurrer to the third and fourth counts of the declaration, in which demurrer the plaintiff joined. The court sustained the demurrer to the third count, and overruled the demurrer to the fourth count; and thereupon the defendant pleaded not guilty to each count of the declaration, except the third, and issue was joined on the said plea. The issue was tried by a jury, which, on the 3d day of June 1873, found a verdict in these words: " We, the jury, find for the plaintiff, and assess his damages at eighteen hundred and eighty-five dollars and eighty-six cents, with legal interest thereon from December 16th, 1872, till paid." Whereupon the defendant moved the court to set aside the verdict and grant a new trial, upon the ground that the verdict was contrary to the law and the evidence in the cause; which motion was overruled, and judgment was thereupon rendered according to the verdict.

Two bills of exceptions were taken by the defendants to certain rulings of the court in the progress of the trial, and were made a part of the record. One related to the instructions which were given or refused by the court to the jury, and the other to the ruling of the court in regard to the motion to set aside the verdict and grant a new trial. In the former, so much of the evidence was set out as was deemed to be necessary or proper to show the relevancy of the instructions. In the latter, is contained a certificate purporting to be of all the facts which were proved on the trial. That certificate is in substance as follows:

" The court certifies that after the jury were sworn to try the issue joined in this cause, the following facts were proven before the jury on the part of the plaintiff, viz: That the vessel of the plaintiff's decedent, Wm. Applegarth, called the North Carolina, which was in thorough order and repair, and of the value of $3,500 or $4,000, arrived at Petersburg about two o'clock A. M. of 15th October 1872, with a cargo of 131 tons of coal, consigned to Marks & Friend, of that city. That she was not able to get to their wharf, in consequence of the river being blockaded by a dredging machine lying alongside the steamer Fanny Lehr, at the wharf rented by the Powhatan Steamboat Company from the city, and made fast to another wharf of the defendant, below, known as the city wharf. That next morning, 15th October 1872, the tide being low, she could not get up to Marks & Friend's wharf; and while waiting for the next high tide, Marks & Friend sold the coal to B. S. Burch, with the understanding that Burch was to send a tug at the next high water to tow her down the river; but Burch failing to do so, and the captain of the vessel, concluding not to wait, commenced, about three o'clock P. M. of 15th October 1872, to haul up to Marks & Friend's wharf, and had proceeded in that direction about twenty feet, perhaps half the length of the whole vessel, which is eighty-six feet long, when he received a message from Burch that he would tow her down on the next high water, which would be about two o'clock A. M. That the vessel was immediately made fast to the city wharf, where she

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