Spalding v. Oakes , 42 Vt. 343 ( 1869 )

The opinion of the court was delivered by

Pierpoint, C. J.

The first question that arises upon the bill of exceptions, is whether the plaintiff, upon the facts stated, could maintain this action against the said Wiliam E. Oakes in his lifetime ?

The general proposition, that there can be no contribution nor indemnity between wrong doers, is perfectly well settled by a long and uniform course of decisions, many of which have been referred to by the counsel on the one side or the other in this case. The guie is conceded; it is also conceded that there are exceptions to the rule, and it is in respect to such exceptions that the controversy in this case, as in most of the cases on the subject in the books, has arisen.

It is insisted on the part of the plaintiff, that his connection with the transactions that resulted in the injury to the wife of Henry Oakes, for which the plaintiff and this defendant were made jointly liable, in an action brought by the said Oakes and wife against them for such injury, was not of such a character as to make him a wrong doer within the meaning of the above rule, but that he comes within the exceptions to that rule. This leads us to inquire as to what constitutes an exception to the rule. I think the principle applicable to the exceptions is well stated in a general way by Lord Denman, C. J., in Bells v. Gibbins, 2 Adv. & Ellis, 55, where he says : “ That where one party induces another to do an act which is not legally supportable, and yet is not clearly in itself a breach of law, the party so inducing shall be answerable to the other for the consequences.” This however still leaves the question open as to what shall constitute a sufficient inducement to produce such result. We think the inducement must consist of an express undertaking to indemnify against the consequences of such act, or omission to act, or the circumstances attending the transaction, as between the parties, must b.e such that the law will therefore imply an undertaking, or raise an obligation on the part of the one to indemnify the other, and thus take the case out of the general rule; then circumstances will vary with each particular case. This principle seems to pervade all the cases to be found in the books.

What then are the facts in this case ? The plantiff and defendant were the owners in common of a vicious ram. The vicious propensities of the animal were known to both parties. The animal was kept for the separate use of both, each having the immediate charge of him from time to time as occasion required. At the time the injury occurred the animal was being kept by the defendant, Oakes, on his farm. This was known and assented to by the plaintiff, although he did not know of Oakes’ taking him at the time when he was taken. While being so kept by Oakes, in consequence of not being properly restrained, the ram inflicted the injury for which these parties were made jointly liable.

The law is well settled that one who owns or keeps a vicious animal, knowing him to be vicious, is legally bound to restrain him at all hazards, that no injury shall result to others from his vicious propensities. The plaintiff and defendant being the joint owners of the ram, both were under obligation to restrain him, yet neither of them discharged their duty in this respect. It is apparent from the facts and the decision of the court thereon, in the case of Oakes and wife against these parties, as reported in the 40 Vt., that the defendants in that suit were not made liable in consequence of any act done by either, but in consequence of their neglect to perform the duty which the law imposed upon them as the owners of the ram. Barrett, J., in that case says : “ They sustained the relation of joint ownership voluntarily, and they thereby become chargeable with the correlative duty, and such duty rested on each personally. It was the incident result of the relation that, as between themselves, either might lawfully have the custody of the property, and such custody, as to third persons, was the cu'stody of both. Novr it is noticable that the case does not show that Oakes did anything to prevent Spaulding from having full co-operation, either by advice, direction, or acts, in the mode of keeping the ram. All that it shows, either by statement or inference, is that Spaulding did nothing about it after the sheep washing; not so much as to inquire, or interest himself to know when or in what manner his fellow owner was keeping the ram. Being an owner of it and knowing its propensities and habit of doing violence to persons, and being charged with the duty of effectually restraining it, and without protestation or counter effort permitting it to be in the pasture of his co-owner, and voluntarily remaining ignorant both of the place and manner in which it WRS kept, and under these circumstances it committed the alleged acts of violence and severe injury, he failed utterly to fulfil the duty resting upon him, and stands as nakedly chargeable with liability for the damage done, as if he alone had owned both the ram and the pasture in which the injury was done.” I have quoted thus at length from the opinion of the learned judge to show the precise ground on which this plaintiff was made chargeable in that suit; that he was not made chargeable by relation, for the acts of another, but by reason of his positive, wrongful neglect of á known duty.

There was no express undertaking on the part of Oakes that he would restrain the ram, or indemnify the plaintiff in case he did injury, and there are no facts developed in this case from which the law will raise an obligation to do so. The ram was in the actual possession of Oakes, but he was there with the consent of the plaintiff, and he was then subject to the right of restraint by the plaintiff, if he had seen fit to exercise it, and under such circumstances as imposed upon the plaintiff the duty of exercising that right, as is clearly shown by Barrett, J., in the opinion above referred to. The facts developed in that case were the same as in this. It may be said that the plaintiff had the right to presume that Oakes would ■ discharge his duty and restrain the ram, but this would not be sufficient in a case like this to compel Oakes to indemnify the plaintiff, or discharge the plaintiff from seeing to it that he was in fact restrained, and especially is this so when the plaintiff knew he was not being properly restrained, but was sometimes actually at large.

The majority of the court are of the opinion that the injury to Mrs. Oakes resulted from the wrongful neglect of the plaintiff, in connection with a like wrongful neglect on the part of the defendant, and that in such neglect they were co-wrong "doers, and come clearly within the rule that, as between parties standing in that relation to each other, there can be no contribution or indemnity. This view of the case renders it unnecessary to consider the other questions that have been discussed.

The proforma judgment of the county court is affirmed.