Spencer v. Watkinson , 11 Conn. 1 ( 1835 )

Church, J.

No opinion was expressed, at the trial, upon the objection which now forms the ground of this motion for a new trial; but the jury was directed, if the facts alleged in the replication were proved, to assess the plaintiff’s damages and return a verdict in his favour, subject to the opinion of this Court upon the question suggested by the motion.

This question is now to be considered ; and it is, whether in an action upon the bond in suit, in favour of the treasurer of the state, the damages sustained by individuals, passengers across the ferry at Middletown, and occasioned by a neglect of the Colchester & Chatham Turnpike Company to keep said ferry in good order, as averred in the replication, can be recovered?

The bond is given to the treasurer, in his public, official character and capacity; and no intimation is any where expressed in it, that the treasurer, as obligee, is to stand as trustee for private individuals, as claimed by the plaintiffi We are to look, then, to the statute requiring this bond, or to the common law, to determine whether the plaintiff’ is such trustee ; and whether the persons named in the replication can resort to this bond, in his name, to enforce a remedy for the recovery of damages sustained by them ?

That the injury complained of can be redressed and the damages sustained be recovered, is unquestionable: the common law has provided an adequate remedy, by action against Che turnpike corporation, the owners of the ferry or franchise. But the statute requiring this betid, we think, has furnished no new or additional remedy for this injury.

The question arises upon the construction of the statute entitled “ An Act relating to ferries,” the first section of which provides, that towns within whose limits ferries are or shall be established, or towns adjoining to ferries, shall keep the same in good order, according to various regulations in subsequent sections prescribed. And it is here to be remarked, that this duty is imposed upon such towns, whether they be owners of the franchise or not. The second and third sections direct the manner in which all ferries shall be kept, furnished and attended; this ferry across Connecticut river, at Middletown, as well as all others. The fourth, fifth and sixth sections contain some general directions applicable to all ferries, but not material to the present enquiry. The seventh section provides for the appointment of commissioners of ferries, and prescribes their duties. These duties are to enquire into the management of ferries, to inspect the boats, scows, oars, wharves, causeways and landing-places, and to see if suitable ferry-men are employed ; and if, upon such inspection, they shall find any ferry deficient, in any respect required by law, it becomes then their duty to notify the select-men of the town or towns whose duty It is to keep such deficient ferry in good order, and to order such defects to be repaired ; and upon the neglect of the select-men to comply with such order, it is made the further duty of the commissioners to repair such defects and make report of the expense to the county court; which court shall liquidate such expense and issue execution therefor against such negligent town. The same section provides, that all commissioners of ferries shall be appointed by the senate, except commissioners on this Middleton ferry, for whose appointment a different provision is subsequently made.

We cannot fail to discover, that in these various regulations, the legislature had one great object in view; which was, to provide for the safety of passengers, to guard against exposure to danger;&emdash;indeed, to prevent injuries, and not to redress them. The purpose was general, and intended to extend to every ferry in the state : no exception is intimated, and no discoverable reason existed for exceptions.

By the tenth section of the same statute, this ferry was transferred to the Colchester & Chatham Turnpike Company, and the duty of keeping and maintaining it was imposed upon that corporation; and the commissioners upon that turnpike were constituted commissioners upon this ferry. In these respects only, this ferry was made to differ from others: and as the town of Middletown was discharged from the obligation of keeping it in good order, a corresponding difference in the mode of enforcing the orders of the commissioners became necessary. Instead of an execution against the town, there must be a remedy against the turnpike company ; and therefore, this section, by virtue of which the bond now in suit was required and executed, requires that the Colchester & Chatham Turnpike Company “shall become bound, in the sum of two thousand dollars, with surety, to the acceptance of the treasurer of this state, to keep and maintain said ferry, us is in this act provided." It was as necessary that this ferry should be placed under the supervision of commissioners, as any other; and that here, as well as elsewhere, they should perform the same duties, and exercise the same powers. We cannot discover, thus far, any intention expressed in this statute of imposing burdens upon the Middletown ferry, not common to all others; or of conferring privileges upon passengers here; nor of extending to them remedies not enjoyed by others.

If we could see no other necessity for the bond in question, than that it should, as the plaintiff claims, remain as a fund to which individual sufferers might resort, we might be induced te sustain the plaintiff’s claim. But other and very different reasons, not only required the bond, but rendered it indispensable, The commissioners upon this ferry, upon neglect of the turnpike company, whose primary duty--it is, are, by the general provisions of the law, obliged " to cause its deficiences and defects to be repaired, and furnished, and supplied, as soon as possible, to answer the law.” In the discharge of this duty, as public officers, and for the public benefit, they must, necessarily, incur expense, which the state from its public treasury is bound to refund, and which the negligent corporation, by means of this bond, is bound to restore. And the expense thus incurred, by reason of the non-performance of the condition of the bond, constitutes a proper subject of recovery, in an action upon it. Thus entire harmony and unity of purpose are seen in the various legislative enactments on this subject. All ferries are placed under the same general regulations and supervision, subjected to the same duties, and responsible, though necessarily in different forms, essentially to the same extent. The public convenience and safety, so far as legislation could affect them, have been secured ; and passengers have been left to resort to the ample remedies furnished by the common law, for the redress of their private in juries.

Other considerations confirm us in this opinion. The bond is required, that the Colchester & Chatham Turnpike Company shall “ keep and maintain said ferry as is in this act provided." The various regulations referred to, as has been seen, were made only to prevent injury ; such, therefore, must have been the purpose of the bond.

If the claim of the plaintiff be recognised, and the damages, as claimed in the replication be recovered, and paid into the , treasury of the state, we know not how the claimants can even then recover them, without the aid of legislative interference. Let it be supposed, that several passengers are injured, in their persons or property, by the same deficiency of a ferry or negligence of ferry-men, at the same time ; and in an action upon this bond, a sum is recovered equal to the entire damage sustained by them all. How shall it be apportioned ? And how can the General Assembly apportion it, upon application, without instituting a new enquiry, which may result in a very different estimate from that made by the court and jury ?

It has been suggested, that although the bond was intended to furnish the means of reimbursing the expense incurred by the commissioners, in the performance of their duties; yet this object is not inconsistent with the additional one of providing the means of redressing private injuries. In reply to this suggestion, it may be said, that the statute under consideration , intimates no such double purpose, and a presumption of a contrary character is very strong. The penalty of the bond, as required, is, only two thousand dollars ; and there is no provision for its renewal or increase; and it would be strange, indeed, if the legislature intended this small amount should be divided between public and private demands upon it, when it must have been anticipated, that claims like the present would probably soon exhaust it, and leave the public remediless.

An argument much relied upon, in support of the claim of the plaintiff, was, that the Colchester and Chatham Turnpike Company was insolvent, and unable to respond in damages to individuals; and therefore, the bond was required as an indemnity for them. It is sufficient to say, in answer, that the fact of such insolvency does not appear, and is not to be presumed. Indeed, it would be too much to presume, that the legislature bestowed this franchise upon that corporation, and entrusted it with the performance of duties so interesting to the public, knowing that it was, and would continue to be, insolvent.

From the view of the statute thus taken, we are persuaded, that the treasurer of the state, in accepting the bond in question, did not become the trustee for individuals situated as are the claimants in the present case ; but we believe the bond was required for important public objects alone.

A consideration of such adjudged cases as we have seen, bearing upon this question, strengthens the opinion now expressed.

The case of Crocker, treas. v. Fales & al. 13 Mass. Rep. 260. was an action of debt on bond, made by the defendants, to the plaintiff, as treasurer of the county of Bristol. The bond was given, by Foies, the principal, as clerk of the court of common pleas for that county, by virtue of a statute of the Commonwealth of Massachusetts : and the condition of it was, that the said Fales should “ well and truly discharge and perform all the duties of the same office, and keep up the records of the same seasonably, and in good order, &c,” The defendant pleaded performance. And the plaintiff, in his replication, averred, that one Soper was crier of said court of common pleas, and that the defendant, as clerk, &c,, had received certain fees to which said Soper was entitled, and had refused to pay them over. To this replication there was a demurrer. The replication was adjudged bad; and Parker, Ch. J., in delivering the opinion of the Court, says : “ There is nothing in the act which shows a design to protect individual sufferers, &c. The bond is given to the treasurer of the county, as the representative, in this respect, of the inhabitants. There is no mode prescribed, by which an individual is to maintain an action upon the bond. Nor is there any authority given to the treasurer to deliver over the bond, or to pay over the proceeds of a judgment to him who shall cause the suit. Nor is the person for whose use the action may be brought, made liable for the costs. The damages recovered by any one might consume the whole penalty, and the public be left without any security.” This reasoning is sound, and is as applicable to the present as to the case in which it was used. The judge, as an additional argument, alludes to the special purpose of the statute in requiring the bond, and which is not applicable to the present, case.

In the case of The Corporation of Washington v. Young, 10 Wheat. 406. the defendant was manager of a lottery, drawn in pursuance of an ordinance of the corporation, and had given his bond to the corporation, as required by the ordinance, in the penalty of 10.000 dollars, with a condition truly and impartially to execute the duty and authority vested in him. It did not appear, either from the ordinance or the bond, that the bond was taken for the benefit of the fortunate adventurers in the lottery, or that they had a right to avail themselves of it. The tction was prosecuted upon the bond so given, in the name of the corporation of Washington, by a person entitled to a prize ticket; and it was holden, by the supreme court of the United States, that without the consent of the corporation, the action could not be sustained. Marshall, Ch. J,, in giving the opinion of the court, says; “ No person who is not the proprietor of an obligation, can have legal right to put it in suit, unless such right be given by the legislature.”

The bond in suit, cannot be assimilated to sheriff’s bonds, or bonds taken by judges of probate. In the case of sheriff’s bonds, the condition prescribed by statute, is, “to answer all damage, which any person or persons may sustain, by any unfaithfulness or neglect, in the discharge of the duties of bis office"-a condition at least unnecessary, if the claim of the - plaintiff, in the present case, can be supported.

Bonds given to judges of probate, are of a peculiar character; and although individuals may he indirectly entitled to the money recovered upon them, yet it is only through the exercise of the jurisdiction of the court of probate, that they are so entitled. Every thing done by a court of probate, within its usual and ordinary jurisdiction, is for the benefit of private indE viduals ; and such is the object of almost every order and decree of that court; and probate bonds are required chiefly, if not entirely, to enable such courts, by means of them to enforce their decrees. And when a recovery is had upon such bonds, the courts of probate have jurisdiction of the moneys recovered, to distribute or appropriate them according to law.

A majority of the court is, therefore, of opinion, that, inasmuch as the judge, at the trial, did not instruct the jury, that the plaintiff on the record was not entitled to recover for the damages claimed to have been sustained, by Henry Strong and others, as set forth in the replication, a new trial should be granted. But we are all of opinion, that the declaration is sufficient, and that a breach of the condition of the bond is sufficiently averred, in the replication, to enable the plaintiff to recover nominal damages. And the superior court is to be advised, that the motion in arrest of judgment should be overruled,

Bissell and Waite, Js. were of the same opinion. Williams, Ch. J. and Huntington, J. dissented.

Motion in arrest overruled ; New trial to be granted.