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Campbell v. Portland Sugar Co.

all having lawful business on board the boat, METCALF, J., remarking as follows: "Access over the wharf to the boat and from the boat over the wharf, for the purpose of lading or unlading the boat, was the undoubted right of all persons who had occasion for such access." The same argument was adduced there as here that the defendants could only be bound to keep the wharf in repair in favor of those with whom they as owners contracted or dealt, and that they had no contract with the plaintiff. And the same accurate and careful judge remarks thereupon: "But the plaintiff's right of action accrues from the duty which the law imposed on the defendant, to keep their wharf safe so long as they should permit it to be open and used, and not from any contract between them and him."

In Smith v. London & St. Katharine's Dock Co., L. R., 3 C. P. 326, the question was raised under circumstances even less favorable for the plaintiff than those in the case at bar. The plaintiff there was an optician, and had gone on board a vessel lying in defendants' dock, at the request of an officer of the vessel, to exhibit some nautical instruments, presumably with an eye to trading in his own wares. It was argued, in defense, that he was not on board on the ship's business, or any business in which the proprietors of the dock were interested; that the contract for supplying access to the ship was with third parties, and did not affect the plaintiff's rights; but the court held defendants liable, maintaining in full the doctrine that all persons coming to the vessel upon any lawful business would have the same right to safe access and egress as the passengers and crew of the vessel itself; and the chief justice remarked that "it is not one person in ten who goes on board a ship in a dock for the purpose of transacting business in which the dock company are interested, in any other sense than that he goes upon the business of the vessel or of those on board," and that "the dock company were paid for the use of the access to the ship, not necessarily by every person who goes there, but by the owners of the ships in behalf of all who use it."

This is not a question of privity of contract, but of obligation under which the owners of real estate lie to all who are induced by the use which such owners make of their property to enter upon it for the transaction of business. And we fail to find any case where the owner has been exonerated from the consequences of neglect tc

Campbell v. Portland Sugar Co.

make and keep the access to a place of business reasonably safe, because the property may be in possession of his tenant.

Certainly there can be no ground for claiming such exemption, where, as here, by express stipulation between the lessors and lessees, the former were to make all necessary repairs. To suffer such an exemption, even in the absence of such evidence as this case affords, we think would be contrary to public policy and substantial justice, for it would not unfrequently operate to deprive the injured party of all remedy except against an irresponsible tenant through whom a negligent landlord would reap the profits, without bearing the responsibilities of his proprietorship. Like all who are engaged in business which involves the personal safety of large numbers, proprietors of wharves should be held to the exercise of the strictest care. Pittsburg v. Grier, 22 Penn. St. 54.

A wharf used for the loading and discharge of the cargoes of vessels is in its very nature a passage way over which, in all directions, the exigencies of business may take those people who have business to transact in connection with the vessels and those on board of them. To suffer a man-trap like this hole into which the plaintiff stepped, to remain as this had done for months, until an accident had demonstrated the necessity of replacing the worn-out covering, might well be deemed a want even of ordinary care. The opening a way through the shed, when other access to the vessel lying there was prevented by piles of lumber, was no such unusual use of the property by the tenant, as would in any manner affect the liability of the owner. Had the accident occurred in the shed itself (which was not the case), it would still have been in a passage to which the plaintiff had been impliedly invited in the prosecution of the common business. The wharfinger of the sugar company spent most of his time upon the wharf. He must have been cognizant of the uses which Phinney & Jackson were making of the parts appropriated to their business; and such uses must have been contemplated by the lessors when they rented those parts.

The business to be done was the loading and unloading of vessels, including, necessarily, the transportation to and from them, not only of seamen's chests, but of all such articles as make up their multiform outfit for sea voyages. A covering to the wharf that would be secure in any and all parts of it for the varying exigencies of such business, was an imperative necessity, and the wharf proprietors, so long as they kept the wharf open, and occupied or

Campbell v. Portland Sugar Co.

rented it for such business, were bound as to all whom the proffered facilities should bring there, to use due care to furnish it.

Vessels frequently change their position at a wharf for their own convenience, or that of others, and all parts of the wharf where they are allowed to lie, which are not actually covered by closed structures, are liable to come in use as ways of access, and due care should be used by the owners for the security of those having business there accordingly.

Apparently the request that the jury should be instructed that this action could not be maintained, was based upon the positions taken by the defendants (which we have been considering) with regard to the effect of the occupation of that part of the wharf where the accident happened by Phinney & Jackson, and the holding out of the particular spot as a way of access to vessels. The instruction was rightly refused. The renting of the property by the defendants for the purposes for which it was rented and used, imposed a duty upon them as to all who were induced to come upon the wharf upon lawful business connected with the purposes and uses for which it was let. That the occupier, as well as the owner, the tenant as well as the landlord, who directly, or by impli cation, induces persons to enter upon and pass over his premises, might also be subject to the action of a person injured by reason of his neglect to use due precautions for their safety, cannot better the position of the defendants. So long as the owner will receive his rents for the use of his wharf for such business, he must see to it that no neglect brings mischief to those who are thereby induced to go there.

The corporation is answerable for its constructive negligence, or perhaps (to speak more exactly) on the principle of respondeat superior, and must be held, as Lord KENYON remarked, 1 East, 108, "to make a compensation for the damage consequential from the employing of an unskillful or negligent servant."

The other defendants, who were the general agents of the corporation, and had the care of this wharf, and who, through their senior partner, had agreed with the lessees to make all needful repairs, are certainly in no better position than their principal.

It is the actual personal negligence of the agents which constitutes the constructive negligence of the corporation. The corporation ats through and by them, and they act for the corporation, and

Campbell v. Portland Sugar Co.

when their acts or neglects result in injury to third parties, they are equally responsible with their principals.

But it does not thence follow that they are jointly responsible. The question whether they may be so held is a somewhat nice one, but we think there are substantial reasons assigned in Parsons v. Winchell, 5 Cush. 592, why the principal and agent should not be charged jointly in such a case. It is not, properly speaking, their joint act or neglect which causes the injury.

The proper adjustment of the final responsibility as between themselves cannot well be effected if one who has distinct grounds of action against them against the agents for their own negligence against the principals because the law makes them responsible for the negligence of their servants—is permitted to recover against both in one suit. The distinction between actions on the case arising from negligence, and actions of trespass, where the wrong is inflicted at the command of the superior, in this respect is well marked, and goes somewhat deeper than mere form.

But if it were found that there was no other cause of complaint by this misjoinder, the objection might ordinarily be obviated, as it was in the case of Hewett v. Swift et al., 3 Allen, 420, by entering a discontinuance as to the corporation before taking judgment against the agents, or vice versa, as the plaintiff should elect.

In the present case, however, it is thought by some members of the court, that the proof of certain declarations made by one of the firm of J. B. Brown & Sons, may have tended to enhance the damages, and that, therefore, the plaintiff should be required to discontinue against the corporation, which might otherwise be injuriously affected by evidence which was admissible only against the codefendant. When this has been done at nisi prius, the substantial ground of objection and exception, so far as the other defendants are concerned, will have been removed.

The plaintiff's right to maintain his suit severally against the corporation which owned the wharf, and against their agents, is established, unless the verdict ought to be set aside as against the evidence, on one or other of the grounds relied on in argument by the defendants' counsel.

They insist that the plaintiff did not exercise due care that he might and should have seen the hole into which he stepped. But it does not seem to us very decisive evidence of a want of ordinary care that, engaged in such a business, and loaded as he was, in the

Emery v. Hobson.

waning twilight of a November day, he failed to observe a hole no larger than this, in a place where he had a right to expect, and where, but for the dereliction of the defendants, he would have found secure footing.

Again, they urge that the damages are excessive. It is difficult co measure excessive pain against money. The two juries have passed upon the question in this case with substantially the same result. We are not prepared to say, upon the evidence before us, that the estimate thus reached by different men, acting impartially under oath, is so clearly unjust as to warrant us in setting aside the verdict, and sending the plaintiff to a third trial. When he shall have discontinued against the sugar company in the court below, he will be entitled to judgment on the verdict against the remaining defendants. Upon the removal of that objection, the entry will be,

Motions and exceptions overruled.

APPLETON, C. J., WALTON, DICKERSON, DANFORTH and VIRGIN, JJ., concurred.

EMERY V. HOBSON.

(68 Me. 578.)

Action for money paid — when indorser of check liable.

Plaintiff loaned Hobson money and received therefor the check of Hobson with defendant as indorser, the indorsement containing the words, " waiving demand and notice." Defendant had no interest in the transaction, but knew what the check was given for. Plaintiff did not present the check at the bank for payment until a year had elapsed and Hobson had become insolvent. Held, that an action for money paid to defendant's use would lie; and that defendant was not entitled to any demand on the maker, or notice of non-payment.

A

CTION for money paid to defendant's use. The facts are these: Plaintiff made a loan of $6,000 to Joseph Hobson, receiving therefor the latter's check, which, at plaintiff's request, was made payable to the order of defendant. After obtaining the loan, Joseph Hobson requested defendant to go to plaintiff's office and indorse

VOL. XVI.— 65

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