Wiswall v. Brinson

• Decision Date: 31 December 1849
• Citation: 10 Ired. 554,32 N.C. 554
• Court: North Carolina Supreme Court
• Parties: HOWELL WISWALL v. HIRON BRINSON.

10 Ired. 554

32 N.C. 554

HOWELL WISWALL

v.HIRON BRINSON.

Supreme Court of North Carolina.

December Term, 1849.

Where A. made a contract with B. that the latter should, for a stipulated sum, remove a house belonging to the former from one side of a street to the other side, and B. performed his work so negligently, as to cause an injury to C., Held, by PEARSON and NASH, J., Chief Justice RUFFIN dissenting, that A. was liable to C. for the damage he had sustained.

Appeal from the Superior Court of Law of Beaufort County at the Spring Term 1847, his Honor Judge PEARSON presiding.

This was an action of trespass on the case.

The defendant, wishing to have a house moved from the lot, on which it stood in the town of Newbern, to a lot of his own across the street, about 200 yards distant, agreed to give one Gaskill $81 to move it, Gaskill to be at the expense of providing hands, &c. After the house was rolled into the street, Gaskill dug a hole in the ground, about the middle of the street, eighteen inches deep, to fix an anchor, for the purpose of turning the house, and neglected to fill it up. The night after, as the plaintiff was driving his stage, one of the horses stepped into the hole and was injured. The defendant had nothing to do with the operation of moving the house, and did not at all interfere. He resided in town and was present several times, but was a mere ““looker on.” It was admitted, that Gaskill was guilty of negligence, and the only question was, whether the action could be maintained against the defendant.

Under the instructions of the Court the jury found a verdict for the plaintiff, and from the judgment thereon, the defendant appealed.Stanly, for the plaintiff .

Donnell, for the defendant .

PEARSON, J.

The question is one of serious difficulty, and has been held under advisement. The cases upon the subject are numerous. Many of them turn upon very nice distinctions; and in some, the Judges were not able to agree. After the most anxious consideration, I have come to the conclusion, that the action can be maintained, both upon authority and principle.

“One should use his own, so as not to injure another;” “That, which you do by another, you do yourself,”--are two maxims, from which results the general rule, when one procures work to be done, if a third person is injured by the negligence or want of skill of the persons employed, the person, for whose benefit, and at whose instance the work is done, must make compensation. The party injured may sue the person, whose negligence or want of skill was the immediate cause of the injury. So may the employer, if he is compelled to pay the damage. But, if that person is innocent, the loss must fall either upon the party injured, or upon the party, who set the work in motion and for whose benefit it was done. Can there be a doubt, upon which of the two it ought to fall? The rule is founded upon justice, and exceptions to it should be allowed with caution, and only to the extent called for by public convenience.

The rule is not confined to domestic servants, but has a more extended operation. All such as act for--do the work of-- serve, another, are in contemplation of law his servants, and fall under the rule. The captain and crew of a vessel or steamboat, engineer and hands of a rail road, or of a factory, drivers of stages, cashier and officers of banks, the deputies and other officers of a sheriff, are familiar instances. It makes no difference, whether these servants are paid by the job, or by the year, or the day. A third person has no concern with the terms of their private agreement. The loss to him is the same, let the agreement be either way. Nor does it make any difference, whether the person, for whom the work is done, be present or absent: if he expects to be absent, the more care should be used in making the selection. Nor is any distinction taken, when the work is of such a nature, that the owner cannot be expected to do it himself and must necessarily employ others to do it. In all these cases, the person, for whom the work is done, is liable, if a third person be injured. There is, however, an exception to the generality of the rule, made necessary by public convenience and general usage and when the reason of the rule does not so fully apply. The question is, whether this case is within the exception.

When one enters a rail road car, the engineer and hands serve him--do work for him--carry him and his goods. But he is not liable for their negligence or want of skill. So far from it, the company is liable to him. This is an exception to the rule, for two reasons: he did not make the selection, and although in a large sense they are his servants, yet they are the servants of the company. It carries on a distinct, independent business, and is liable for their negligence or want of skill. The reason of the rule fails; and public convenience demands, that the party injured should be content with his remedy against the company or the individual whose fault caused the injury. If passengers were liable, no one would travel upon rail roads. This is the principle, upon which the exception is based. It extends to an infinite variety of cases. The one given is “ ex grege”--it includes all who carry on independent trades or callings recognised as such by law or by common usage. If one sends his horse to a smith's shop, and by negligence he is permitted to injure a third person, the owner of the shop is liable, but the owner of the horse is not. So, if one sends to a person, whose calling is to keep horses, carriages and drivers to hire, and a third person is injured by the negligence of the driver, viciousness of the horse, or insufficiency of the carriage, he must look to the person, who, in his calling, furnished the driver, horse, or carriage. The person who hired them did not have the selection; and public convenience requires, that he shall not be vexed for the fault of another, although the work was done for his benefit, as there is another, to whom the party injured may have recourse. So, if a vessel takes in a pilot, not being compelled to do so, the owner is liable, but if a vessel is compelled to take in a pilot, the owner is not liable to a third person for his fault, because there is no power of selection, and the party injured has a sufficient remedy against the pilot. This exception, however, was not yielded without much opposition. In England, it was not quite settled until the statute George 4th, excepting ship owners from liability in such cases; and, in this State, in the case of Harvey v. Pike, N. C. Term Rep. 82, it was held, that the owner of a ship is liable upon the bill of lading to the shipper, whose goods are damaged by the unskilfulness of the pilot. But it is left open, whether a ship owner be liable to third persons. This shows the caution and reluctance of the Courts in admitting exceptions to a rule, so obviously founded upon justice. Such is the rule, and such the exception as now settled, but the exception was not permitted to be as large, as I have laid it down, until after many and severe struggles. One of the most memorable occurred in the case of Laugher v. Pointer, 5 B. & C. 547. The Judges of the King's bench were equally divided. The case was then argued before the twelve Judges. They could not agree, and the judgment was then delivered by the four Judges of the King's bench. LITTLEDALE and ABBOTT, C. J., being with the defendant, HOLROYD and BAILEY, with the plaintiff. The argument, as may well be supposed, was exhausted on both sides, and it was left as an unsettled question. The case was, the defendant, having a carriage in London, sent to a job-man, who kept horses carriages and drivers to hire, in the usual way, for a pair of horses. The job-man sent the horses and a driver. The plaintiff was injured by the negligence of the driver, and the question was, whether the defendant was liable. LITTLEDALE held, that he was not, and argued, that the case fell under the exception to the general rule, because the defendant did not select the driver, and because the plaintiff had his remedy against the job man, “who carried on a separate, independent calling, recognised by common usage.” HOLROYD and BAILEY held, that the case fell under the general rule, that the defendant had made the selection; for, he allowed the job-man, as his agent, to select the driver, which was the the same as if he had made the selection himself, and if the plaintiff had a remedy against the job-man, it was no reason why he should not also have a remedy against the defendant, for whom the work was done, and let him look to the job man. They assume, that, if the job man had been the driver, instead of the person sent by him, the case would have been clear for the plaintiff; for, then, there would have been no other person to sue, save the person whose fault caused the injury, and the defendant, for whose benefit the work was done, and insist, that his sending a driver, instead of coming himself, made no difference. ABBOTT concludes the argument, contending, that the case was the same, as if the job man had also furnished the carriage, which would be the ordinary case of one, riding in a stage or back. He insists, that the job man exercised a separate calling and was liable for the negligence of his servant, the driver; that he was as able to pay the damage and as easily found out as the hirer, and there was no reason, why the hirer should also be liable. Public convenience was against it. He does not answer the supposed case, had the job man been the driver; and it is worthy of remark, that in all the cases where an exception is made, the agent was the servant of the person with whom the contract was made, and not that person himself; and there is no intimation, how the Judges thought that circumstance would alter the case. I do not lay stress upon it, as it does not seem to me to make much difference, whether the...