Hawkes v. Locke

• Decision Date: 31 May 1885
• Citation: 1 N.E. 543,139 Mass. 205
• Parties: HAWKES v. LOCKE, Manager, etc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 205

1 N.E. 543

HAWKES

v.LOCKE, Manager, etc.

Supreme Judicial Court of Massachusetts.

Filed May, 1885.

H. Winn and S.T. Field, for plaintiff.

David Aikin, for defendant.

HOLMES, J.

An accident to a freight train let loose about 170 swine, and they were scattered about, and upon, the track of the Troy & Greenfield Railroad. The defendant, who is manager of said road, took charge of clearing up the wreck, and ordered the swine to be collected and put in a safe place. A part of the swine were thereupon driven to the plaintiff's barn-yard, at about half past 5, and later in the afternoon, the plaintiff being absent from home and having given no license to put them there. At about 7 the plaintiff returned home, heard what was being done, and saw the men driving some of the swine towards his yard, but neither assented nor objected; and he made no objection at any time to the swine remaining in his yard. Two hours later he was asked to feed the swine the next morning, which he agreed to do and did. He also collected and placed a few of the swine in his yard, and later assisted in taking the swine away for shipment. Soon after he sent a bill for food, service, and the damage done to his grass, to a person understood to be an agent of the defendant. It afterwards turned out that the swine were diseased, and the disease was communicated to the plaintiff's swine within a few minutes after the diseased animals were put into the yard. The plaintiff has suffered great loss, and now sues in trespass qu. cl. The case was tried without a jury.

The defendant asked the court to rule, among other things, that “if the plaintiff, upon learning that the swine were upon his premises, made no objection to their remaining there, or consented to their remaining there, and afterwards, for a consideration, fed and cared for them while they remained there, such conduct on his part would amount to a waiver of the trespass in putting them there, or be equivalent to a prior license to put them there, unless there was some concealment or fraud on the part of the defendant.” The court refused to rule as requested, and ruled “that the defendant was acting in the general scope of his employment as manager when he gave his said order to his section-master, and that his employes were acting in the general scope of their employment by him as manager when they placed the western swine on the premises of the plaintiff; that they committed a trespass in doing so; and that the manager, as master, is liable for the damages accruing to the plaintiff in consequence of this trespass as a proximate cause, including the particulars of damage above assessed; and that the plaintiff did not in any way waive or lose his claim against the defendant for such damages.”

Taking this ruling with the request, we must construe it as laying down as a matter of law that nothing in the evidence would take the case out of the category of trespass. We are of opinion that this was erroneous. We think that, at least, a possible view of the defendant's acts is that they were done under an implied offer to pay for the accommodation furnished, and that, when that offer was subsequently accepted, which there is ample ground for saying that it was, the contract then made applied to everthing that had been done upon the defendant's land. We do not mean that this contract operates by way of accord and satisfaction for the trespass, although we should be slow to deny that an executory contract might do so in these days, if so intended. But we should rather say that the legal character of the acts remained doubtful, until the question of contract or no contract was settled; the law neglecting the short interval, as it sometimes does, to avoid an intolerable technicality, and treating the contract as if made from the beginning. See Cartwright v. Wilmerding, 24 N.Y. 521, 533, 534.

Take the case of a teamster driving along the highway, who, seeing that his horse and himself need rest and food, drives into a stable, gives it some hay, and then walks into the neighboring house and waits the return of the owner, intending to ask him for a meal, and expecting to pay for all that he receives. If the owner returns and...