Stearns v. Atlantic & St. Lawrence Railroad , 46 Me. 95 ( 1858 )

The opinion of the Court was delivered by

May, J.

At the trial of this action several grounds of defence were urged, which, in consequence of subsequent decisions, are now abandoned. Such'as remain, and have been presented to our consideration in argument, we will consider, and such only; regarding all other grounds, as waived by the learned counsel who has so ably conducted the defence.

The first objection now raised, is, that this action cannot be maintained because no remedy is given by the statute creating the liability; nor by any other statute; nor by the common law. That the statute, upon which the plaintiffs base their right to recover, gives to them a right to compensation for the injury they have sustained, is not denied, stat. of 1842, c. 9, § 5; but, it is insisted, that the creation of such a right is wholly unavailing to the party injured, unless the same statute, or some other, also provide some form of remedy. But such is not the law. Some form of action may always be maintained for a violation of a common law right; and, it is often said to be the pride of the common law, that it furnishes a remedy for every wrong. In the absence of any authority to the contrary, it is not perceived why a legal right to compensation for actual damages sustained, even though such right depend wholly upon a statute, is not as worthy of protection in a court of law, as any common law right. The common law is said to be, in fact, nothing but the expression of ancient statutes; but, whether this be so or not, the injury for a violation of a statute right, is as real as are injuries-which exist only by the common law.

If a man has a right, he must, as has been observed in a celebrated case, have a means to vindicate and maintain it, and a remedy, if he is injured in the exercise and enjoyment of it; and, indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. Ashby v. White, 2 Lord Raym. 953; Westmore v. Greenbank, Willes, 577, cited in Broom’s Maxims, 147. To deny the remedy is therefore, in substance, to deny the right. And it makes no difference, whether the right exists at common law or by statute. Hence the familiar maxim quoted by the counsel in defence, that “ wherever the statute gives a right the party shall, by consequence, have an action to recover it.” The authorities cited in defence will be found to be in harmony with this maxim. The rule is now understood to be well settled, that when a statute gives a right, or forbids the doing of an injury to another, and no action be given therefor in express terms, still the party shall have an action therefor. Broom’s Maxims, 149, 150, and cases there cited. The cases cited for the plaintiffs not only sustain the same position but also show, that where no other remedy is provided, the proper remedy is a special action on the case.

It is said, however, that in all these cases the fact that a wrong had been done, is recognized by the Court, while, in the case at bar, the defendants are without fault. This may be true; if the defendants, or their lessees, are required in the running of their engines, to exercise only that degree of care which is required by the common law. But something more than ordinary care, at least by a strong implication, is made necessary by the statute on which this action is founded. In the rightful exercise of its powers, the Legislature has determined, that if the locomotive engines of any railroad corporation are driven by them, or their agents, in such a manner, or under such circumstances, that fire shall be communicated thereby to the property of any person or corporation along its route, such railroad corporation shall be held responsible in damages to the person or corporation injured. The degree of care, therefore, which is required to protect such railroad corporation against liability for damages, occasioned by fire so communicated, is such as will prevent all such injury. If they exercise such care they are safe, otherwise they are not. We cannot say, considering the dangerous nature of this element, and the vast amount of property along our railroad routes which is exposed to its devouring flames, that such a rule is not required for the public good, or that when a less degree is exercised, even though it be all which ordinary prudence might require, the corporation is without legal fault. There is at least a statute wrong. The foundation, therefore, for the alleged distinction between this case, and those referred to in the cases cited, does not exist; and the exception to the ruling of the presiding Judge on this point, is not sustained.

It is further said that the declaration in the plaintiff’s writ alleges no wrong. If it be defective in this particular, the omission is of such a character that it can be set right upon a motion to amend. We do not decide, however, that it is insufficient as it is, especially after verdict.

It is next contended that this action cannot be maintained, for want of notice and demand previous to the suit. No such preliminary acts are required 'by the terms of the statute. The liability in this case is likened to that on contracts of insurance, and it is insisted that the same rules as to notice and demand, should apply. But in cases of insurance, these preliminaries to a suit are provided for by the express terms of the contract. In the absence of such a provision, we are aware of no case in which it has been held that an action might not be instituted at the moment the loss occurred and the liability attached. This case falls within the rule stated by the counsel in defence, that “ generally, where there has been a breach of contract, or any tort-feasance or neglect with injury, an action lies at once.” As we have already seen, the defendants are not to be regarded as wholly without fault. The ruling, therefore, which was requested upon this point, was properly withheld.

The third, and only other point argued in defence, is, that upon the facts in this case, these defendants are not liable, and that, if any liability exists, it is against their lessees. The correctness of the decision in the case of Whitney v. these defendants, 44 Maine, 362, is not controverted; but it is urged that there is such a marked distinction between the facts in that case, and the facts in this, that it does not necessarily follow, that the question determined in that case is decisive of this. The principal difference between the cases consists in this, that in the former, the liability arose from a neglect to perform a duty enjoined upon the defendants by their charter, relating to the structure and fencing of their road; while, in this case, it is imposed by a subsequent statute, upon any railroad corporation, by whose engine the fire causing the injury was communicated. It appears, also, that the engine, by which the fire now complained of, was set, was not among the property contained upon the schedule annexed to the lease, and so was not then and thereby transferred by the defendants to the use and possession of their lessees. It appears to have been purchased by said lessees long after the making of said lease.

The liability of the defendants, if liable at all, was created by the statute of 1842, c. 9, § 5, before cited, which provides that “ when any injury is done to a building or other property of any person or corporation, by fire communicated by a locomotive engine of any railroad corporation, the said corporation shall be held responsible in damages to the person or corporation so injured.” It also contains other provisions not now necessary to mention.

The statute imposing this liability upon the defendants was passed long before the transfer of the use and possession of their road to their lessees; and, by the express provisions of the statute of 1853, c. 150, § 1, authorizing the defendants to lease their road, it was enacted, that nothing contained in said Act, or in any lease or contract entered into under the authority of the same, should exonorate the said company, or the stockholders thereof from any duties or liabilities then imposed upon them hy the charter of said company or by the general laws of the State ; nor does it appear from the lease, in fact, executed, that any such exonoration was attempted.

Whatever duties or liabilities, therefore, were assumed by the defendants, by the acceptance of their charter, or after-wards rightfully imposed upon them by the laws of the State, were, at least for the purposes of a remedy, to remain and continue to be obligatory upon them in the same manner, and to the same extent, as if the lease had not been executed, and the use, possession, and management of their property had not been transferred to their lessees. To meet such liabilities, and to indemnify themselves against loss, from any neglect on the part of their lessees to perform all such duties, and to pay all such indebtedness as had arisen, or might subsequently arise, out of such liabilities, the defendants were careful to secure themselves, by appropriate covenants in the indenture or lease between them and their lessees. Such, therefore, must have been their understanding of the statute, and of the extent of their liability. It cannot be material whether the duty or liability to be enforced arises out of the provisions of the charter, or, as in this case, out of a subsequent general law.

Nor do we see any ground upon which to restrict the liability of the defendants, contemplated by the statute authorizing the lease, to such claims as arise from the duties in relation to the structure of the road, or from any neglect properly to construct and fence it. The statute clearly extends, not only to such liabilities, but to all others arising from the violation of any corporate duty which was imposed upon the defendants, either by their charter or by some general law. “ The comprehensive dicta,” therefore, of Justice Cutting, as contained in the opinion drawn by him, in the case of Whitney v. these defendants, before cited, is fully warranted by the language of the statute. To limit the liability of the defendants, in the manner which is contended for in defence, would be doing violence to the manifest intention of the Legislature, and would, in effect, be to turn all parties having valid claims, arising from the mismanagement of the road, or from the omission or commission of acts by their lessees, which are required or prohibited by the charter of the defendants or the statutes of the State, over to a foreign' corporation and a foreign jurisdiction, for the adjustment of their rights and satisfaction of their claims. It would be doing the very thing which the statute was designed to prevent. The lessees may “ maintain and operate” the line of the road. They may have the whole control and management of it, but the lessors cannot thereby be exonorated from answering for any neglect of duty or liability imposed upon them by law.

Nor does the fact, that the locomotive engine, from which the fire was communicated to the property of the plaintiffs, was not among the specific property originally leased, relieve the defendants from liability. It is apparent from the terms of the lease, that the defendants, not only still retain a reversionary interest in all the property, the use and management of which was transferred to their lessees, but in all such property as should subsequently be substituted therefor, or added thereunto by the lessees during the continuance of the lease; and, by the covenants in the lease, the lessees are expressly bound, not only to keep the said railroad in repair, but constantly equipped with all necessary apparatus, and other moveable property of every kind, and from, time to time to make such additions thereto and renewals thereof, as shall be necessary for the transportation of the largest practicable number of passengers, and amount of freight. All such property, whether purchased or renewed in pursuance of the lease, immediately becomes subject to, and is held for the lessors, subject to its provisions; and, according to the contract, is as much a part of the leased estate as that which was referred to in the schedule annexed to the lease. The engine therefore, by which the fire complained of was set, was the engine of the defendants, within the meaning of the statute upon which the liability of the defendants depends. It was not the engine of any connecting road. Had it been such, whether the defendants would, or would not have been liable, we are not now called upon to decide. Nothing, therefore, is found in the facts of this case to take it out of the rule which was established in the case of Whitney v. these defendants, before referred to. Exceptions overruled, and Judgment on the verdict.

Tenney, C. J., and Appleton, Cutting, Goodenow, and Kent, J. J., concurred. Davis, J., concurred in the result.

CASES IN THE SUPREME JUDICIAL COURT, POE THE MIDDLE DISTRICT. 1858. COUNTY OF KENNEBEC.