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risen, if I must spend time and be put to travelling expense to obtain them, he is held also for these things. But the loss of my cattle has prevented my cultivating my ground. That is one step further removed from the setting of the fire of which I have been the victim. The loss of my crop and the cost of the other cattle I have purchased have placed it out of my power to pay my debts. My creditors have seized and sold my goods at a sacrifice. Is the incendiary liable for that ?
According to the doctrine of Pothier, that loss which results from the seizure and sale of my goods should not be comprised in the damages, for this loss is but an indirect and remote consequence of the burning. It has no necessary relation with it, although the loss of my buildings and of my cattle have had an influence upon the disorder of my affairs. That disorder may nevertheless have had other causes. It may have existed before, and my losses may have but hastened my insolvency. As to the loss I have suffered from my fields lying fallow, that is a less remote and more direct consequence of the tort. Nevertheless, according to Pothier, we should decide that the wrong-doer should not be held for this, at least in its entirety; for my omission to cultivate is not a necessary consequence of the death of my cattle. I might buy other cattle, have my land cultivated by hired labor, lease it, &c. But it is evident that all these things depend upon various circumstances, and the circumstances may be such that the omission to cultivate may be truly the consequence of the tort. Now it is not necessary that the loss should be a necessary consequence of the tort in such sense that the loss could be in no manner avoided. It is only necessary that it should be an immediate and direct consequence, that is to say, that it should have its efficient and principal cause in the tort, so that it could not be avoided except by the employment of means so out of the common course that the omission to employ them by the person injured would not amount to negligence.
It is to be borne in mind that when the claim for damages is founded upon an intentional wrong, rigor is to be shown toward the wrong-doer, and the loss which has resulted to the sufferer is to be judged by a less rigorous rule. When one has made a contract, he has reason to suppose that it may be violated; he can guard against the bad faith of the other party. He can, to a certain extent, provide beforehand against the consequences to follow
from its infraction. But when there is a tort done intentionally, when the wrong is committed outside of a contract, the damage may fall in an unforeseen manner, and may cause a much greater disarrangement in the affairs of the sufferer. The act also which causes the injury is commonly infected with grosser moral taint than when it is but a simple breach of contract. The indemnity, then, should be exacted with more rigor.
If any negligence, and, above all, if any graver fault on the part of the person injured has increased the damage, the wrong-doer is not liable for the increase. At least the tribunal will determine up to what point the fault of each has contributed as an element, and will make each bear that proportion of the loss which is attributable to him.
Suppose a wall has been broken burglariously. The breach should have been closed at the expense of the delinquent. But the owner has delayed his action, and in the mean time the storm has entered and caused damage. Negligence is imputable to him; he should have acted sooner, and the damage is in part his own work. It is sufficiently indirect and remote from the first wrong to absolve the wrong-doer from any part of the damage caused by the storm.
But the law on this point is shown to be in its application severe upon the wrong-doer. A decree of the Court of Appeal of Paris, affirmed by the Court of Cassation, has decided that if the cause of a damage with all its consequences has its origin in a tort, the negligence of the party injured, who by subsequent action might have averted such and such consequences of the tort, but who has not done so, cannot diminish the responsibility of the wrong-doer.
This question, upon which the author and the Court of Cassation appear to be somewhat at variance, viz., whether damages, which are said to flow naturally and directly from the injury, can be held to embrace damage which could have been avoided by the reasonable exertions of the party injured, has been considered in a Massachusetts case. The defendant had removed some rods of the plaintiff's fence in November; in the following May cattle entered and destroyed the crop. Shaw, C. J., says: “In assessing damages, the direct and immediate consequences of the injurious
1 Loker v. Damon, 17 Pick. 284.
act are to be regarded, and not remote, speculative, and contingent consequences, which the party injured might easily have avoided by his own act. Suppose a man should enter his neighbor's field unlawfully, and leave the gate open, if before the owner knows it cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open, and passes it frequently, and wilfully and obstinately, or through gross negligence, leaves it open all summer, and cattle get in, it is his own folly. So if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of damage. But if the owner suffers the window to remain without repairing a great length of time after notice of the fact, and his furniture, or pictures, or other valuable articles sustain damage, or the rain beats in and rots the window, this damage would be too remote. We think the jury were rightly instructed, that, as the trespass consisted in removing a few rods of fence, the proper measure of damage was the cost of repairing it, and not the loss of a subsequent year's crop, arising from the want of such fence." So it has been held in Missouri,1 that if, in case of tort, the injured party can protect himself from damage at a trifling expense, or by any reasonable exertions, he is bound to do so.
The question is but a branch of the more general one, - what is meant by direct damage? In Greenland v. Chaplin,2 Pollock, C. B., says: “I entirely concur with the rest of the court, that a person who is guilty of negligence, and thereby produces injury to another, has no right to say, 'part of that mischief would not have arisen if you yourself had not been guilty of some negligence.' I think that where the negligence of the party injured did not in any degree contribute to the immediate cause of the accident, such negligence ought not to be set up as an answer to the action; and certainly I am not aware that, according to any decision that has ever occurred, the jury are to take the consequences, and divide them in proportion, according to the negligence of the one or the other party. But here I may again state that it occurs to me there is considerable doubt, and at present I guard myself against being supposed to decide with reference to any case which may hereafter arise ; but, at the same time, I am desirous that it may be understood that I entertain considerable doubt whether a
i Douglass v. Stephens, 18 Mo. 362.
3 6 Ex. 247.
person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated. Whenever that case shall arise I shall certainly desire to hear it argued, and to consider whether the rule of law be not this, that a person is expected to anticipate and guard against all reasonable consequences; but that he is not, by the law of England, expected to anticipate and guard against that which no reasonable man would expect to occur. I beg to say that, in expressing this doubt, whether the responsibility for consequential damage extends to the extreme case to which I have adverted, I am expressing my own opinion only, and not that of the rest of the court.”
In a very late case in New Hampshire, there is a large collection of extreme cases of remoteness of damage, in some of which the remoteness has been held a reason, and in others of which it has not been held a reason, for defeating an action. In that case the plaintiff and defendant owned adjoining farms ; the plaintiff's cow escaped into defendant's land through a defect of a fence which the latter was bound to repair, and was there bitten by a dog. It did not appear who owned the dog, or whether he was habitually there, or whether he was or was not accustomed to bite. Here the damage was held too remote. But in Powell v. Salisbury, where the plaintiff's horse escaped into the defendant's land through a defect in the fence, which the defendant was bound to repair, and was killed by the fall of a hay-stack, it was held that the damages were not too remote, and that the defendant was liable. A case is referred to by Willes, J.,3 as having been decided about two centuries and a half ago, where a man going to be married to an heiress, his horse having cast a shoe upon the journey, employed a blacksmith to replace it, who did the work so unskilfully that the horse was lamed, and the rider not arriving in time the lady married another, and the blacksmith was held liable for the loss of the marriage. Mr. Justice Willes considered this decision as absurd.
It is said that a recovery can be had for “certain but not for uncertain damage;" for the proximate and natural consequences 1 Cate v. Cate, 50 N. H. 144.
? 2 Y. & J. 391. 3 British Columbia Saw Mill Co. v. Nettleship, L. R. 3 C. P. 499, 508.
of the act complained of, but not for remote or consequential loss ;” that “the damage must arise naturally;” that “it must be the fair, legal, and natural result of the act;” or, as Mr. Greenleaf expresses it,1 « the damage to be recovered must always be the natural and proximate consequence of the act complained of.” Now all these expressions are vague ; they mean little ; and in the majority of instances in which they are employed they probably mean nothing. No person who uses one of them, if asked what he means by it, can give a well-defined explanation. Such sentences are not a solution of a difficulty; they are stereotyped forms for gliding over a difficulty without explaining it. When a court say this damage is remote, it does not flow naturally, it is not proximate; all they mean, and all they can mean, is, that under all the circumstances they think the plaintiff should not recover. They did not arrive at that conclusion themselves by reasoning with those phrases, and by making use of them in their decision they do not render that decision clearer to others. The employment of such phrases has never solved one single difficulty, from the case of the disappointed lover and the blacksmith, two hundred and fifty years ago, to the last case decided (with a most singular diversity of opinion on the part of the various judges) in the Exchequer Chamber last year.
In that case the question was apparently a simple one, viz., what damage can be recovered against a common carrier for a breach of a contract to deliver? The plaintiffs, being shoe manufacturers in a town upon the line of the defendants' road, had entered into a contract with a London firm to furnish them with twenty thousand pairs of military shoes, for the use of the French army, at four shillings a pair, which was an exceptionally high price. All shoes that were not delivered by the third of February were to be thrown back upon the plaintiffs' hands. The shoes were sent to the defendants' station for carriage to London, in time to be delivered there in the usual course in the evening of the third of February, when they would have been accepted and paid for by the consignees. Notice was given to the stationmaster (which for the purposes of the case was assumed to be notice to the company), when the shoes were put into his custody, that the plaintiffs were under a contract to deliver the shoes by
1 2 Greenl. Ev. 210. 2 Horne v. Midland Railway Co., L. R. 8 C. P. 131.