Derry v. Flitner

• Decision Date: 25 June 1875
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles T. Derry & others v. J. Henry Flitner & others

118 Mass. 131

Charles T. Derry & others v. J. Henry Flitner & others

Supreme Court of Massachusetts

June 25, 1875

Suffolk. Tort against the owners, and S. A. Dutch, the master, of the schooner Dione, for "laying the defendants' vessel at the wharf of the Boston Gas Light Company, on November 23, 1873, without the permission of said company, and in violation of the rights of the plaintiffs;" and for "refusing to remove said vessel therefrom, though requested to do so, until the 25th of said November, by reason of which tortious acts of the defendants the plaintiffs were unable to lay two vessels belonging to them, and employed by them in the carriage of stone to said wharf,--the sloop Jenny Lind and the sloop General Grant,--at said wharf, as they were entitled to do by virtue of a contract between them and said Gas Light Company and were obliged to maintain them in an unsafe and exposed position, whereby said vessels were sunk and greatly damaged." As special damages, besides the necessary expense of raising and repairing the vessels, the sum of twenty dollars per day for loss of the use and services of said vessels, under a contract between the plaintiffs and said Gas Light Company, was claimed, for fourteen days, being the time for which said use and services were lost. The answer admitted that the Dione was laid at said wharf on the day alleged, but denied that it was done in violation of the rights of the plaintiffs, or that there was any refusal to remove her, and it denied any liability for special damages or otherwise.

Trial in the Superior Court, before Aldrich, J., without a jury who ordered judgment for the plaintiffs against the defendant Dutch, and allowed a bill of exceptions, the substance of which appears in the opinion of the court.

Exceptions overruled.

F. Dodge, for the defendant Dutch.

C. P. Greenough, for the plaintiffs.

Morton, J. Ames & Endicott, JJ., absent.

OPINION

Morton, J.

The plaintiffs were engaged in building a sea wall for the Boston Gas Light Company, around and in front of their wharf at Commercial Point. There was evidence tending to show that the Gas Light Company had given to the plaintiffs the exclusive right to use the wall to lay their vessels at as a place of safety in case of storms.

The judge, who tried the case without a jury, has found that the plaintiffs had such exclusive right, and it is not our province to revise his findings upon any questions of fact. The defendant Dutch, therefore, had no right to use the wall to the exclusion of the plaintiffs' vessels, and having done so, and having refused to remove his vessel when requested, he is guilty of a violation of the plaintiffs' rights, for which they may recover, in this action of tort, whatever damages they sustained by reason of the tortious acts of the defendant. The ruling of the Superior Court to this effect was correct.

The defendant contended, and asked the court to rule, "that the damage alleged and proved is too remote from the act complained of, and is not the proximate consequence of the same sufficiently in law to render the defendants or any of them liable therefor."

The facts bearing upon this question are as follows: At the time of the accident, the plaintiffs had several vessels engaged in bringing and laying stone for the construction of the sea wall. Most of the wall had been built only up to low water mark, but the plaintiffs, in the beginning of the work, had built about two hundred feet of the wall to a height of thirteen feet above low water mark, for the purpose of furnishing a safer place to lay their vessels at in case of easterly winds or heavy seas. They could lay two of their vessels behind this high part of the wall. On the night of the accident this part of the wall was...