Lilley v. Fletcher

• Decision Date: 02 February 1887
• Citation: 81 Ala. 234,1 So. 273
• Parties: LILLEY v. FLETCHER.
• Court: Alabama Supreme Court

1 So. 273

81 Ala. 234

LILLEY v. FLETCHER.

Supreme Court of Alabama

February 2, 1887

Appeal from circuit court, Jackson county.

Action for damages for negligent use of boom.

This action was commenced on March 25, 1882, by the plaintiff below, George G. Lilley, suing out an attachment in the sum of $2,000, against the estate of the said John F. Fletcher who was a non-resident of the state. The said attachment was issued upon special affidavits by the circuit judge as provided by law, and returned executed according to its mandate. The complaint, which was filed June 4, 1884, claims $2,000 damages for that "on or about the sixth day of January, 1882, a boom belonging to the defendant was so carelessly, negligently, and wantonly managed, controlled and directed by his agents that a large number of telegraph poles *** were allowed to pass through, and to come upon and over plaintiff's mill-dam property, by reason of which careless, negligent, and wanton act plaintiff was damaged" as aforesaid. The defendant pleaded the general issue, contributory negligence, and several special pleas setting forth the circumstances as collated in the opinion. Upon the trial of said cause, on December 7, 1885, the defendant had judgment, from which this appeal is prosecuted.

R C. Brickell, R. C. Hunt, and Humes, Gordon & Sheffy, for appellant.

J. E. Brown and D. D. Shelby, contra.

STONE C.J.

It is clearly the law that the principal is liable for the acts of the agent done pursuant to his authority; and he is also liable, if, while the agent is doing such acts, he so negligently or unskillfully conducts himself that injury ensues to another. 1 Brick.

Dig. 61, 62, §§ 132, 143; Carter v. Chambers, (MSS.) He is not liable, however, for acts done outside of the scope of the agent's authority, unless he commanded, participated in, or with knowledge ratified the act complained of. 1 Brick. Dig. 62, §§ 134, 135, 142; 3 Brick. Dig. 24, §§ 90, 91; Gilliam v. South & N. A. R. Co., 70 Ala. 268; Whitfield v. Riddle, 78 Ala. 99.

Paint Rock is a small river flowing through Jackson county, useful and used for floating timber. It is crossed by the Memphis & Charleston Railroad. Above the railroad crossing, Fletcher was engaged in cutting and marketing timber, which he floated down the stream to a point near the railroad crossing, whence it was taken out of the water and shipped by the railroad. To catch his floating timber, and prevent its escape, he had constructed a boom across the river about one mile above the railroad crossing. In the obstruction caused by this boom the custom was to retain the timber until wanted for shipment, when the boom would be opened, the timber let out, and floated down the river to a point near the railroad, where it would be taken out and loaded on the cars. Fletcher resided in another state, and Earp was his agent, having charge of the timber business and of the boom.

Lilley erected a dam across the river near the line of the railroad, and constructed there a grist and saw-mill. The timber for his saw-mill's consumption was obtained from above, and was also floated down the stream. He contracted with Allen & Co. to supply him with timber of saw-logs, who, to facilitate their operations, constructed a boom of their own, lower down the stream than Fletcher's, and about one-fourth of a mile and in full view of the mill. Knowlton was the agent of Allen & Co., and had charge of this boom. Fletcher's point of debarkation for his timber was below Allen & Co.'s boom, and hence Fletcher, in shipping his timber, must pass it through their boom; and Allen & Co., in floating timber to their boom, must pass it through Fletcher's.

Earp and Knowlton were each required by their duties to be sometimes up the river, and away from their booms; and they had an understanding and a habit, when one was away, the other looked after his boom. On January 5, 1882, Knowlton was up the river, and Earp was at the booms. He was employed that day, with his hands, in releasing his timber from the Allen boom, and floating it down to the point of debarkation. He left the boom open, and during the night rain came, which flooded the river, and floated the timbers off, and over the dam; thus, as it is contended, causing the injury complained of. The questions are, was this negligence in Earp, and was it committed in and about the business of Fletcher, so as to fasten a liability on the latter for its consequences? And, if so, was Lilley guilty of proximate contributory negligence?

It is among the uncontroverted facts in this case that, on the day on which the alleged negligence was imputed, Lilley was at his mill the entire day, and until after night-fall. He knew the habits of the stream, and that it was subject to rapid rises. He saw and comprehended the threatening condition of the weather, and was extra diligent in fastening his own saw-logs that were in his pond immediately above his dam. He knew his logs were in no danger of being swept away unless there should come a flood in the river; and, by taking active measures to secure his own logs, he proved that he apprehended rain and a flood. He had unobstructed view of Allen & Co.'s boom, knew Earp was handling it, knew it was open during the day, and that timber was passing through it; for, at his request, Earp had let logs through for him. Earp was consequently somewhat in his employ that day, as well as that of Fletcher. All these facts were visible and known to him, and yet he took no steps to have the Allen & Co. boom closed.

Even if Earp was guilty of negligence in not closing the boom, Lilley was proximately culpable in not looking after it, and having it closed. He should not recover for that which common diligence would have averted. "The plaintiff cannot recover for damage which he might have avoided by the use of ordinary care and diligence." Shear. & R. Neg. § 598. If plaintiff, by the exercise of ordinary care, might have avoided the consequences of defendant's negligence, he is regarded as the author of his own wrong. Alabama Great Southern R. Co. v. Hawk, 72 Ala. 112. "It is well settled that a party cannot recover for injuries caused by negligence if he himself failed to exercise proper care, and his own negligence contributed [proximately?] to the result." Hickey v. Boston & L. R. Co., 14 Allen, 429; Montgomery & E. Ry. Co. v. Thompson, 77 Ala. 448; Railroad Co. v. Jones, 95 U.S. 439; Todd v. Old Colony & F. R. R. Co., 3 Allen, 18, 7 Allen, 207; Gavett v. Manchester, & L. R. Co., 16 Gray, 501. If it is objected that Earp was negligent, and Fletcher knew it, it is a sufficient reason that Lilley also knew it; for he had cautioned Fletcher in regard to it. If Fletcher's knowledge of Earp's careless habits is to weigh against him, should not the same rule be applied to Lilley, who had equal knowledge, was cognizant of the danger, and could so easily have averted it? He was on or near the premises, and knew of the danger, while Fletcher was in another state, and could not know it.

According to plaintiff's own testimony, if he had exercised ordinary diligence, the injury he complains of would not have occurred. Affirmed.

NOTE.

MASTER AND SERVANT-LIABILITY FOR ACTS OF SERVANT. The master is liable for the acts of the servant within the general scope of the employment, Philadelphia, W. & B. R. Co. v. Brannen, (Pa.) 2 A. Rep. 429; Rahn v. Singer Manuf'g Co., 26 F. 912; Heenrich v. Pullman Palace Car Co., 20 F. 100; Pressley v. Mobile & G. R. Co., 15 F. 199; Shattuck v. Bill, (Mass.) 7 N.E. Rep. 39; Pittsburg, C. & St. L. R. Co. v. Kirk, (Ind.) 1 N.E. Rep. 849, and note; Schaefer v. Osterbrink, (Wis.) 30 N.W. 922; Rosecranes v. Iowa & Minnesota Tel. Co., (Iowa,) 21 N.W. 769; Mullvehill v. Bates, (Minn.) 17 N.W. 959; Walker v. Johnson, (Minn.) 9 N.W. Rep. 632; Cleveland v. Newsom, (Mich.) 7 N.W. Rep. 222; French v. Cresswell, (Or.) 11 Pac. Rep.

62, and note; Maier v. Randolph, (Kan.) 6 Pac. Rep. 625; Denver, S. P. & P. R. Co. v. Conway, (Colo.) 5 Pac Rep. 142; Sacalaris v. Eureka & P. R. Co., (Nev.) 1 Pac. Rep. 835; Smith v. Memphis & A. C. Packet Co., (Tenn.) 1 S.W. Rep. 104, and note; although such...