Moore v. . Westervelt , 25 How. Pr. 277 ( 1863 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The witness, Hallenbeck, had had some experience in mooring vessels, and said he thought he understood it; he stated how the schooner, having the coal in question on board, was moored; and I am of the opinion he was competent to answer the question: "What was the condition of the fastenings of this schooner, as to safety." The business of mooring vessels required skill to do it properly; but Hallenbeck possessed enough to render his opinion, as to whether the schooner was safely moored, competent evidence, though it certainly was not entitled to much weight, and probably did not have much influence with the jury.

When the cause was in this court the first time, Judge SELDEN intimated an opinion that the sheriff was responsible for more than ordinary diligence in taking care of the coal; but the court did not so decide. According to section 209 of the Code, it was the duty of the sheriff to take the coal and retain it in his custody; and section 215 required him to keep it in a secure place and deliver it to the party entitled thereto, who was the plaintiff, after the expiration of three days, as Hoffman did not take any steps for its redelivery to him, pursuant to section 211. But the defendant, as sheriff, did not, under the circumstances, become an insurer of the coal. (21 N.Y., 103.) InJenner v. Jolliffe (6 Johns., 9), THOMPSON, J., in delivering the opinion of the court, said: "If the loss of the timber happened while it was held under the attachment, and without the negligence of the officer, the defendant ought not to be responsible for it." In Browning v. Hanford (5 Hill, 588), COWEN, J., was of the opinion Justice STORY was right in putting the general liability of officers having the charge of property on the same footing as that of bailees for hire. (Story on Bailments, 3d ed., § 130.) Edwards says: "A sheriff, levying upon goods, must use due diligence to keep them safely, to satisfy the execution. But he is not an insurer, and is not, like a common carrier, answerable for a loss of the goods by fire. His capacity as an officer is not considered as fixing a more rigorous measure of liability upon him than if he were a private person." It seems that the views of this learned author, in regard to the liability of sheriffs having charge of property, coincide with those of Justice STORY. (Edwards on Bailments, p. 59.)

When a sheriff takes goods in execution, or by attachment, or in an action where the plaintiff seeks to recover possession of them, he becomes a bailee for the benefit of all parties interested, certainly for the benefit of the party who sets him in motion; and "where the bailment is beneficial to both parties, as in case of pledging or letting to hire, the bailee must answer for ordinary neglect." (1 Cow. Tr., 2d ed., p. 56.) A bailee for hire, or where the bailment is beneficial to both parties, must exercise ordinary diligence in taking care of the property he has in trust, which is the care that every person of common prudence, and capable of governing a family, takes of his own concerns. The converse of this is, the omission of that care which such a person takes of his own concerns, and is termed ordinary neglect. (Edwards on Bailments, 44.) I am unable to see why a sheriff should be required to exercise any greater diligence in taking care of property in his custody, than a bailee for hire; and I am of the opinion, the degree of diligence each is bound to exercise is the same.

If I am right in this conclusion, the charge was as favorable to the plaintiff as it should have been. The charge was, that it was the duty of the sheriff to take such steps to insure the safety of the coal as a careful, prudent man of good sense and judgment, well acquainted with the condition of the schooner and her location with regard to exposure to storms, and having the power of the sheriff in the matter, might reasonably have been expected to take had the coal belonged to himself. The subsequent remarks of the judge, that if a prudent man, in a case of his own vessel, would not have removed her in the storm, the sheriff was not bound to, did not make the charge exceptionable. If the sheriff did as the judge charged it was his duty to do, he certainly exercised ordinary care in taking care of the coal; and his omission to remove the schooner, if a prudent man would not have done so in the storm, provided she had been his own, was not ordinary neglect. The jury had previously been instructed that the sheriff was bound to know the condition of the schooner, whether it leaked, whether it was seaworthy for the place in which it lay, how deeply laden, everything in regard to it; and that he was bound to put on board the schooner, if necessary, such men as would pump her out, and keep her in a condition to insure the safety of the coal. This is all a careful, prudent man could have known, or would have done, if he had owned the schooner. And, as I understand the charge, it made the sheriff responsible for the alleged negligence of the master and crew of the schooner after he took possession, so far at least as they had anything to do with the schooner or coal; and in this view of the charge, the refusal of the judge to repeat or state to the jury the second request of the plaintiff's counsel was not error, for he had already charged the same proposition, in legal effect.

The first request of the plaintiff's counsel to charge the jury was rightfully refused, because it was a proposition that the sheriff was bound to take more than ordinary care of the coal; and that if for the want of more than ordinary care the same was lost, he was responsible.

We have nothing to do with the question, whether the verdict of the jury was against evidence. The decision of the court below that it was not, is conclusive upon that point.

These views lead to the conclusion that the judgment of the Superior Court should be affirmed.