White v. Schnoebelen, 3201.
| Citation | 18 A.2d 185 |
| Decision Date | 04 February 1941 |
| Docket Number | No. 3201.,3201. |
| Parties | WHITE v. SCHNOEBELEN. |
| Court | Supreme Court of New Hampshire |
Transferred from Superior Court, Hillsborough County; Johnston, Judge.
Action on the case by Charles D. White against C. A. Schnoebelen for negligent installation of lightning rod equipment allegedly resulting in loss of plaintiff's property by fire. Verdict for the plaintiff and the defendant brings exceptions. Case transferred.
Judgment for the plaintiff.
Case, for negligent installation of lightning rod equipment claimed to have resulted in the loss of the plaintiff's property by fire. The defendant pleaded the statute of limitation, and the plaintiff filed a replication alleging fraudulent concealment of the cause of action. Trial by jury. The defendant seasonably moved for a nonsuit and a directed verdict. Both motions were denied subject to exceptions. Verdict for the plaintiff. The defendant moved to set the verdict aside, the motion was denied, and the defendant excepted. There were also exceptions to the admission of evidence of agency. The facts appear in the opinion. Transferred by Johnston, J.
Maurice A. Broderick, of Manchester, for plaintiff.
Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Eliot U. Wyman, of Manchester, orally), for defendant.
The equipment was installed in July, 1930. The fire occurred when the buildings were struck by lightning in September, 1937, more than six years later. The writ was dated April 2, 1938. The statutory limitation for actions of negligence is six years.
The defendant relies upon authorities which hold that a right of action for negligence accrues at the time of the negligent act and that the statute then begins to run. This court has never subscribed to that view. Rationalization has been sought on the theory that the mere possibility that injury will result from a negligent act or omission gives a right of action for nominal damages.
This court has recognized the difference between proximate cause and foreseeable result. Derosier v. Tel. & Telegraph Company, 81 N.H. 451, 130 A. 145; Tullgren v. Amoskeag Mfg. Company, 82 N.H. 268, 133 A. 4, 46 A.L.R. 380; Castonguay v. Needle Company, 83 N.H. 1, 8, 136 A. 702. The possibility that injury may result from an act or omission is sufficient to give the quality of negligence to the act or omission; but possibility is insufficient to impose any liability or give rise to a cause of action. Assuming only an act with that quality, there is nothing for judicial action. If, in a sense, there has been negligence, there is no cause of action unless and until there has been an injury. A jury in June, 1936, though cognizant of the possibility that the imprudent act of the defendant might result in harm to the plaintiff, could have had no evidential basis for a finding that at some future time the plaintiff's barn would more probably than not be struck by lightning with consequent damage. There being then no actual damages, there could have been no recovery, since the theory that there may be a right of action for negligence resulting in merely nominal damages is repudiated here. Trudeau v. Ice Company, 89 N.H. 83, 192 A. 491.
If twenty persons were endangered by an act having the possibility of injury, it would be absurd to say that rights of action accrued to all of them at the moment the defendant's act was completed, such rights of action to evaporate when it turned out that the harm was averted for some reason or other. Only if and when harm came to any one of the twenty would a right of action accrue, provided the harm was in no part caused by the injured party's fault. The duty of the actor is to use care for the avoidance of future injuries, whether they be immediate or deferred. There is an actionable breach of the duty only when the injury happens.
Where a sheriff is sued for negligence, the "very gist of [the action] is the damage". Sawyer v. Whittier, 2 N.H. 315, 316. "The injury must be proved. * *" Clough v. Monroe, 34 N.H. 381, 390. "It is elementary that no action can be maintained upon an act of negligence unless the breach of duty has been the cause of the damage." Deschenes v. Concord & M. Railroad, 69 N.H. 285, 288, 46 A. 467, 469. There must be a connection between the assumed wrong and an injury suffered, or there is no ground upon which the wrongdoer can be charged. Bennett v. Odell Mfg. Company, 76 N.H. 180, 80 A. 642. Though there be a negligent act, it will not be ground for action unless it produces injury. Collette v. Boston & M. Railroad 83 N.H. 210, 213, 140 A. 176.
Necessary elements of a cause of action based upon negligence are the causal negligence of the defendant, plus resulting harm to the plaintiff. Putting it another way, there must be negligence and harm, and they must have causal connection. Causation is thus more than a method of measuring damages; it is an element of the cause of action. It is like a connecting bridge between the negligence and the harm that gives rise to the cause of action. If the bridge be unbroken from negligence to harm, the right of action will accrue when the injury is suffered, provided the plaintiff's harm is not in part the result of his own fault.
Usually the bridge is so short as to be crossed in a matter of months or even of moments. But if the bridge be long and the passage slow, there seems to be no logical reason for saying that a right of action can accrue prior to the injury. A long lapse of time may make difficult or even impossible proof that the bridge of causation is unbroken, but if it appear on the balance of probabilities to be intact, it will bear the necessary weight of conveying negligence to harm, so that the two may merge into a cause of action.
This appears to be the reasonable view to which the authorities are now tending. Restatement, Torts, §§ 281, 430. Schmidt v. Transp. Company, 270 N.Y. 28 "Negligence, to be a7, 300, 200 N.E. 824, 827, 104 A.L.R. 450.ctionable, must be causal." Rouleau v. Blotner, 84 N.H. 539, 540, 152 A. 916. The conception of a legal duty the breach of which imposes no liability defies logic, "and carelessness as the cause is not a...
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