Blodgett v. City of Syracuse , 36 Barb. 526 ( 1862 )

By the Court,

Bacon, J.

I am a little apprehensive that the learned justice who tried this cause, in his just indignation against the infamous trade of the plaintiff, and his laudable zeal for the promotion of good morals, has been led to affirm a proposition which can hardly be sustained. This action is to be treated as brought under the statute of 1855, and the defense rests entirely upon the provision of the 3d section of that act, which exempts a corporation from liabil-. ity for injury to, or destruction of, private property,- when such injury or destruction has been occasioned, or in any manner aided, sanctioned or permitted by the carelessness or negligence of the person whose property has been destroyed, and he shall not have used all reasonable diligence to prevent the injury complained of. And the simple question, I think, is, whether the keeping of a house of ill fame is “an act of carelessness or negligence,” within the statute.

The counsel for the defendant asked the judge to rule that it was not, and he refused to do so; and to this refusal there was an exception.

It must be admitted that the .statute is very loosely drawn, .and the words “carelessness or negligence” may perhaps admit of a pretty wide interpretation. ¡Normally, they mean heedlessness or inattention, and an omission to do something which operated proximately to bring about a result which would not have occurred if such carelessness or negligence had not existed. So that in respect to property which has been injured or destroyed by a mob, it seems to me the idea of the legislature was, that a party should not recover if he omitted some obvious precaution, or failed to exercise some care which, if it had been timely bestowed in view of a threatened or apprehended danger, would have averted the calamity.

It may perhaps be illustrated by supposing an individual to have a house filled with some combustible materials which, upon the approach of fire, he refuses to remove upon the application and urgent appeal of his surrounding neighbors. If, in such a case, a lawless mob should undertake to do the job for him, and in their hot haste and unregulated zeal should materially damage and despoil his premises, I do not suppose he could claim indemnity from the corporation.

This would be a case where it might very well be said that the destruction’ was occasioned by the negligence of the party who has suffered the damage, and which negligence operated as a proximate cause leading naturally to the result.

But can the keeping of a house of ill fame be called “an act of negligence or carelessness ?” It is an act detestable in morals, and criminal within the provisions of the law—■ something indeed much worse than negligence or carelessness. The law affords an ample protection to the community by proceedings for the suppression of the nuisance, and if the public authorities had performed their duty, there would very probably have been no occasion for an exhibition of the virtuous indignation of a promiscuous crowd, many of whom were probably more intent on mischief than on vindicating outraged morality. It is always unsafe to let loose a multitude without legal restraint, and better to sustain some inconveniences, and even endure some wrongs until they can be redressed in the regular and due administration of justice, than to live under the jurisdiction of Judge Lynch, however valuable in their results his services have sometimes been..

[Oneida General Term, January 7, 1862.

Mullin, Morgan and Bacon, Justices.]

It will be found difficult to put a limit to what may be deemed an act of carelessness or negligence, if so latitudinarian a construction is to be indulged. Suppose an individual should hold some opinion highly offensive to a large portion of the community, or indulge in practices deemed by many detrimental to the good order of society; would this be considered as conduct so careless or negligent that his house could by the aggrieved or offended parties be torn about his ears ? I think no one would contend for quite "so large a liberty as this would give to voluntary and unauthorized abators of what many might deem offensive and injurious.

The safety of community consists in the enforcement of legal remedies for proved or admitted wrongs; and it is better that indemnity should be provided for even worthless and unwholesome members of society, when they have suffered wrongfully, than to leave so large a discretion, and one so likely to be abused, in the hands of an irresponsible multitude.

My decided impression is, that an error was committed in the ruling on the trial, and that the judgment should be reversed, and a new trial granted, with costs to abide the event.

Hew trial granted.