Stockton v. Frey , 4 Gill 406 ( 1846 )

Spence, J.,

delivered the opinion of this court.

This was an action instituted in Baltimore county court, by Ira Frey, for the recovery of damages against Lmcíus W. Stockton, the owner of a line of stage coaches, for carrying passengers from Hagerstown to Wheeling. The declaration alleges, that Mr. Frey was a passenger in the stage coach on the fifth day of October 1839, when, bjr the negligence, carelessness, unskilfulness and default of the defendant, his agents, and servants, the stage coach was upset; by reason of which, the plaintiff had his skull bone fractured and broken, and was otherwise greatly cut, bruised and wounded, insomuch that the said plaintiff became very ill, and his life was endangered.

The first question presented for our review in this case, arises on the first exception.

At the trial, the plaintiff offered to prove by a witness, that he, the plaintiff, had a family, consisting of a wife and several small children. To the admissibility of which evidence, the defendant, by his counsel, objected; but the court overruled the objection, and allowed the evidence to go to the jury, and the defendant excepted. If, in an action of this character, it be legal to offer evidence of the relations of husband and wife, and father and child, by way of augmenting the damages, it would be difficult to determine, what relations in civil and social life might not be offered for the same purpose.

If the argument be, that the party injured is thereby rendered unable to discharge the obligations which he owes as husband and father, why may not the same argument apply to the relation of debtor and creditor, guardian and ward, and many others? In all of these relations, there is both a legal and moral obligation, and to sanction such a distinction in this case, would be to establish an uncertain and dangerous doctrine. Instead of meting out to the plaintiff, the measure of damage which he has sustained from the injury, it would be compensating the wife and children for that injury.

Gh-eenlcaf, in his work on evidence, at page 220, vol. 2, slates it to be law, (‘that injuries to the person or reputation, consist in the pain inflicted, whether bodily or mental, and in the expenses and loss of property which they occasion. (The jury therefore, in the estimation of damages, are to consider not only the direct expenses incurred by the plaintiff, but the loss of his time, his bodily sufferings, and, if the injury was wilful, his mental agony also.” The same author, in the same work, at page 210, uses this expression: “The damage to be recovered, must always be the natural and proximate consequence of the act complained of. This rule is laid down in regard to special damages, but applies to all damage.” We therefore think the court erred in overruling the defendant’s objection to this evidence.

In the further trial of this cause, the plaintiff offered three prayers, and the defendant six; the court gave the instructions asked by the plaintiff’s three prayers, and refused all of the defendant’s; tlie defendant excepted, and the judgment of the court on these nine prayers, form the second exception.

The plaintiff’s first prayer presented the law of the case correctly to the jury. Vide the cases of Curtis and wife, against Drinkwater, 22 Eng. Com. Law Rep., 51, and 23 Eng. Com. Law Rep., 331, Sharp vs. Grey. This prayer raises no question upon the pleadings in the cause, but asks the court to instruct the jury, that the hypothesis of the prayer, is the law of the case, if supported by the evidence. With a view to conform to the manifest intent of the act of 1825, ch. 117, this court have on more than one occasion determined, that neither appellant nor appellee can here be permitted to urge or insist upon any point or question, which shall not affirmatively appear to have been raised and decided by the court below.

In granting or refusing any prayer asking an instruction to the jury, that if they believe certain facts, the plaintiff is or is not entitled to recover, this court will not assume, that the county court inspected the pleadings in the cause, and adjudged their sufficiency to sustain the prayer.

If the party seeking the court’s instruction designed to obtain the judgment of the court upon the pleadings in reference to his prayer, he should have framed it accordingly; as for example, that the plaintiff is, or is not, entitled to recover under the pleadings in the cause. Then the court below must have decided, upon the sufficiency of the pleadings to support the prayer, and their decision on the question would have formed a fit subject for review, on an appeal to this court. But where, without any direct reference to the pleadings, a prayer is made for an instruction to the jury, that if they find certain facts, the plaintiff is entitled to recover; all that the court decides since the passage of the act of 1825, in granting the prayer, is, that the facts enumerated constitute a good cause of action, wherever it is competent for the plaintiff to recover. Upon the pleadings, as no exceptions are taken to them, the court expresses no opinion, and grants the prayer, as if their sufficiency and accordance with the case made by the prayer, were admitted by the parties.

To give a contrary construction to this act of Assembly, would be to open the door to many of the evils, which it was prominently designed to shut out. By its passage, the legislative intent was, that all objections to pleadings should be raised and determined in the county courts, where, by amendments, if necessary, such objections might be obviated, and in accordance with these views, was decided in the case of Leopard vs. The Ches. & Ohio Canal Co., 1 Gill, 222, where this court, in determining a question similar to that now before us, say:

‘‘ Whether the declaration states facts sufficient, if proved, to enable the appellant, the plaintiff below, to maintain his action, or whether the facts proved, sustain the allegations in the declaration, are questions which, in the case before us, under the act. of 1825, ch. 117, we are not called on to decide.”

The court erred in giving the instruction asked for by the plaintiff’s second prayer. Notwithstanding this prayer did not state all of the terms of the accord; yet inasmuch as there was evidence in the cause to sustain, (if believed by the jury,) all the terms of the agreement or accord, the court, by instructing the jury that the plaintiff was entitled to recover, may have misled them.

There was no error in the instruction given under the plaintiff’s third prayer.

The court properly refused to give the instruction, asked by the defendant’s first, second, and third prayers. There was no variance: — the members of a firm are individually liable in actions of tort, for the acts of the firm, their agents and servants, and for such acts may be sued individually. 1 Chit. Pl., 74.

The defendant’s fourth prayer should have been granted by the court.

We cannot sanction the conclusion of the plaintiff’s counsel, that this prayer is, in principle, identical with the plaintiff’s first prayer; it contains a very important qualification, not found jn the plaintiff’s first prayer, to wit, “ That if the jury shall find from all the evidence in the cause, that the overturning of the coach was an accident, against which human care and foresight could not guard; and was not the result of negligence, in any degree, then the plaintiff is not entitled to recover in this case.”

The law makes proprietors of stage coaches responsible for carelessness and negligence, in the conveyance of passengers, but not at all events; as in the case of common carriers. In the case of Christee vs. Griggs, 2 Camp. Rep., 81, which seems to be a leading case on this point, Sir James Mansfield, C. J., says : “ There is a difference, between a contract to carry goods, and a contract to carry passengers. For the goods, the carrier was answerable at all events; but he did not warrant the safety of the passengers. His undertaking, as to them, went no further than this, that, as far as human care and foresight could go, he would provide for their safe conveyance. Therefore, if the breaking down of the coach was purely accidenta), the plaintiff had no rembdy for the misfortune' he had encountered.”

This doctrine is sanctioned in the case of Stockton vs. Saltonstall, 13 Peters' S. P. C. R., 181. So, also, in 2 Kent's Commentaries, 466. “ The proprietors of a stage coach do not warrant the safety of passengers, in the character of common carriers; and they are not responsible for mere accidents to the persons of the passengers, but only for the want of due care.”

The court erred in refusing the defendant’s fifth prayer. The agreement set out in this prayer, contained all the legal requisites of an accord, with satisfaction. It was in full satisfaction; it was certain; and it was executed.

“ In an action on the case, under the plea of not guilty, the defendant may not only put the plaintiff upon proof of the whole charge contained in the declaration, but may give in evidence any justification or excuse of it, or show a former recovery, release or satisfaction.” 1 Chitty's Pleadings, 432.3 Burr, 1353.

It was very much pressed in the argument of counsel, upon this prayer, that this agreement was defective, because it was not a full satisfaction for the damage sustained; and many cases were cited, where the agreement contained no consideration, or not a full consideration, in which the courts had held such agreements void; but these are cases either of contract, ascertained damages, or tainted by fraud or unfairness: as in the case of Thomas against McDaniel, 14 Johns. Rep., 185. It seems at this day to be settled law, that in actions for general and unliquidated damages, the payment, and acceptance of a sum of money,- as a satisfaction, is a good bar. And we are entirely at fault to' discover, by what rule, or in what mode, in such actions, the sufficiency or insufficiency of the consideration, is to be determined, if we reject the'judgment of the party aggrieved. Shall the court assume the pVovinbe of the jury, and ascertain the amount of dam’age. inflicted on the plaintiff, to obtain a measure by which they may determine the adequacy of the consideration 1 Or is it to be presumed, that any tribunal is more competent to determine the point, than the party damnified? We think not.

We think the court erred in refusing the defendant’s sixth prayer, for the reasons given in our opinion on the fifth.

The court,- in refusing to strike out the answers of Frey and French, to the interrogatories stated in the third exception, committed no error. The motion came too late, and we concur with the county court in the reasons assigned, for rejecting the defendant’s motion.

The judgment is reversed; — and as it is the'opinion of this court, that the plaintiff cannot recover upon the evidence in this case, no procedendo is awarded.

JUDGMENT REVERSED.