Gregory v. Brooks , 37 Conn. 365 ( 1870 )

Butler, C. J.

This case comes before us irregularly, by motion in error and motion for a new trial combined. It is one of the many irregularities which have crept into our practice in relation to the-manner of bringing cases before this court, and which constrained us, during the present circuit, to promulgate anew the rules by which that practice should be governed. The case must not be deemed a precedent in that respect, for hereafter no case coming before us in the same manner, will be heard as on a motion for a new trial.

We are all satisfied that the non-suit was properly granted as the evidence stood. The question in the case is not simply whether the defendant acted improperly, or without strict legal right, or even maliciously, but whether he was actuated in making and enforcing the orders complained of by a design and intention to break up the contract relation existing between the plaintiff and the captain of the brig Brilliant, and thereby injure the plaintiff by preventing him from acquiring his expected wharfage. The case turns on the proof of that design, and the evidence in the case does not furnish any such proof on which a jury could properly find a verdict, nor in our opinion would the evidence have been sufficient if the plaintiff had shown that the relations between him and the defendant were unfriendly. Every positive, energetic and independent man is liable to have enemies, and to have an unfriendly state of feeling .existing between him and other individuals. When such a man accepts an office whose duties, properly exercised, will necessarily bring him in conflict with the interests and prejudices of others, and those with whom his relations are not friendly, his motives will naturally be suspected and impugned; but he will be protected by the presumptions of the law in- the performance' of the duties required of him, unless it is clearly shown that his motives are private and malicious, and that he has wantonly and unnecessarily used the power incident to his official station to gratify a personal spirit of revenge. We discover nothing in this case which rebuts the presumption that the defendant was acting under a sense of official responsibility and with a view to an honest discharge of public duty.

The brig Brilliant had lain at the wharf of the plaintiff from the 21st to the 26th of September, covering part of the wharf of Miller & Go. Miller & Co. had a grain elevator upon their wharf, and there was a canal boat lying 'in the stream loaded with grain consigned to them which could not come to their wharf and elevator because it was in part occupied, as well as the wharf of the plaintiff, by the brig. The defendant was superintendent of wharves, or supposed himself to be, and had in his possession the certificate of the mayor that he was, and it is to be presumed was acting rightfully in ordering the brig to be hauled astern. It is immaterial whether he was harbor master or not, for the duty of a harbor master is to regulate the location of vessels in the stream. It is sufficient that he was the superintendent of wharves, de jure or de facto, or honestly supposed himself to be. such, and believed it to be his duty to order the brig astern and permit the barge to haul in, so that both might be accommodated, and acted accordingly and did not act with the design imputed to him. The object and purpose of his order appeared upon its face. It was a reasonable and proper order under the circumstances and one which it appertained to his office to give. The brig had already covered the wharf of Miller & Co. and excluded the barge for five days, and but half her cargo was discharged, and five days more would have been required to complete the discharge. That would have been an unreasonable time to have kept the barge lying in the stream waiting the convenience of the plaintiff and probably subjecting Miller & Co. to heavy demurrage. Under such circumstances it was the right of Miller & Co. to have the brig hauled astern far enough to permit the barge to come to their wharf, and the clear and imperative duty of the defendant to give the order that he gave, and enforce it energetically and determinedly. If for any good reason the brig could not be hauled astern safely, and the plaintiff had another wharf where the brig could be unloaded, as it appears he had, the defendant would have been justified in ordering the captain of the brig to remove his vessel to the other wharf, where he did move it, to com-, píete her discharge, for the barge could be unloaded at no other place than at the wharf and elevator of Miller & Co. Such an order would have been nothing more than enforcing good neighborhood, and a just regard for their mutual rights and accommodation, between those adjoining wharf owners.

The presumption alluded to, and the inference arising from this state of facts, that the defendant was governed in his conduct by a sense of official duty, and not' by a design to injure the plaintiff through his contract relation as wharfinger with the captain of the Brilliant, is exceedingly strong ; and the fact, however clearly proved, that the personal relations of the plaintiff and defendant were unfriendly, would be entitled to little, if any, weight to rebut the presumption or negative the inference, and if that was all the plaintiff sought to prove we should affirm the judgment without hesitation.

But it appears from the motion for a new trial that the plaintiff proposed to go beyond the mere state of unfriendliness in his proof, and how far and with what effect he would have done so if permitted we are unable to see. We think he should have been permitted to prove any acts of hostility and the circumstances under which they occurred, from which an inference could be drawn, consistently with the rules of law in other respects, that the plaintiff was governed in his conduct by the design imputed to him and which constitutes the gist of the action. Because such evidence was excluded we feel constrained to grant a new trial. But we deem it our duty to say.that, unless the plaintiff can produce evidence, other than that of mere unfriendliness, to rebut the presumption that the defendant as an officer was acting from right motives, and the supporting inference arising from the fact • that a case existed calling imperatively for his official interference in some way for the protection of Miller & Go., the non-suit should be promptly renewed.

In this opinion the other judges concurred; except Carpenter, J., who did not sit.