Brightman v. Inhabitants of Bristol.

found, and likewise to prevent their being put in circulation, but the court held the action was not maintainable. "Such property," remarks REDFIELD, J., "so to speak is outlawed, and is common plunder." Counterfeit money is per se unlawful, but porgy oil is an article of commerce, and its manufacture an honest and lucrative industry. In Meeker v. Van Rensselaer, 15 Wend. 397, the destruction by individuals of a dwelling-house, during the prevalence of the Asiatic cholera, which was cut up into small apartments, inhabited by poor people in a filthy condition and calculated to breed disease, was sanctioned on the ground that it was a nuisance and that there was no other way to correct the evil but by pulling down the building." But this case has been doubted in Welch v. Stowell, 2 Mich. 332, and in a subsequent case in New York, the court say that it can only be sustained on the ground that in no other way could the safety of the public be preserved. In Lord v. Chadbourne, 42 Me. 429, a suit was brought for the value of liquors kept for sale in violation of the statutes of the State, and it was held not maintainable, among other reasons, because it was provided by statute that "no action of uny kind shall be maintained in any court in this State either in whole or in part for intoxicating or spirituous liquors," etc. The status of the liquors was illegal. They were held for illegal purposes, and with the design of violating the statute. Not so in this case. The plaintiff was engaged in lawful business. If the place of his manufacturing was improper, that was to be determined by a jury, not by a mob of men in disguise. In Sherman v. Fall River Iron Works Co., 5 Allen, 213, it was decided that an unlicensed keeper of a livery stable could not recover for damages to his business by the escape of gas through the ground and into a well of water upon his premises, though he might for the nuisance to his real estate. To be legally recognized as keeper of a livery stable he must have a license, but no license is required for manufacturing porgy oil. True, the municipal officers of a town or city by chapter 17, section 6, may assign a place for the exercise of any trade or employment specified in section 5, "when they judge it necessary," but it nowhere appears that there has been any adjudication of such necessity. [The court then passed upon some minor points.]

a

The defendants offered to show that the plaintiffs' factory was public nuisance, and a nuisance to the people residing in the vicinity, but all evidence to show the factory a nuisance was excluded."

It is urged that this evidence should have been received as tending to show contributory negligence on the part of the plaintiffs. In Moody v. Supervisors of Niagara County, 46 Barb. 659, evidence was offered that the house destroyed was one of ill fame, and that its destruction was

Brightman v. Inhabitants of Bristol.

caused by excitement arising from the murder of one of the police in it, but the court excluded the evidence because it would constitute no defense. In Ey v. Supervisors of Niagara County, 36 N. Y. 297, a house of ill fame was destroyed by a mob, and the point was taken and the evidence offered to show the character of the house was excluded, and the exclusion was sustained. "She" (the plaintiff), observes SCRUGHAM J., "was not to assume that the officers would or could not perform their duty effectually, and, therefore, having no reason to fear the injury or destruction of her property by a riot or mob, she was not careless or negligent in not anticipating that such would be the result of the evil use to which she applied the property. . . The conduct of the plaintiff was not such a cause as would naturally produce or aid in producing the destruction of her property; and its influence in that direction is too remote and uncertain to prevent its being considered such carelessness or negligence as would bar her recovery. All that her conduct can strictly be claimed to have produced was local public indignation; and this, lawfully manifested, would not have occasioned or in any manner aided in the destruction of her property." Much more then, cannot the plaintiffs be regarded as guilty of contributory negli gence when engaged in a lawful business, if those engaged in an infamous violation of law are not so regarded. To hold that these plaintiffs are guilty of contributory negligence because they were engaged in a manufacture which was or might be a nuisance, would be to declare judicially that all persons engaged in a "trade, employment or manufacture" referred to in chapter 17, section 5, were guilty, by the very fact of being engaged in such trade, employment or manufacture, of such contributory negligence, that they are without the protection of the law, and that by being engaged in such business they were laying the foundation of and contributing to its destruction.

The evidence offered was not admissible to show contributory negli gence on the part of the plaintiffs.

The defendant's counsel requested the court to instruct the jury that "if plaintiffs were maintaining their factory with their stationary steam engine without license therefor, they were without legal right so to do; and if they were entitled to recover at all, the measure of damages is three-fourths of the actual value of the property, and not three-fourths of what it might be worth for such use at that place, if they had a right to use it."

This instruction was not given, but the jury were instructed "that if they found for the plaintiffs, the measure of damages was three-fourths of the actual value of the property at the time it was destroyed." The

Somes v. White.

indemnity given by the statute (ch. 123, § 8), is three-fourths of the value of such injury to his property as the plaintiff may have sustained. Here the injury arose from the destruction of property. The persons by whom the property was destroyed would be responsible for its actual value. They are wrong-doers and the possibility of an indictment of the owner is neither excuse nor palliation for them. Abatement by destruction of the plaintiffs' factory and engine would not have been ordered by the judgment of the court; its use might have been prohibited and a fine imposed, but purification by fire is not one of the statutory penalties. The abatement could only be legally made by the judgment of the court upon an indictment in which the parties interested would have a right to appear and defend. The possibility of an indictment is not a contingency, as affecting value, of which a mob could avail itself in reduction of damages. Neither can the defendants, whom the statute has made responsible for the action of such mob.

Exceptions overruled. WALTON, DICKERSON, BARROWS, DANFORTH and VIRGIN, JJ., concurred.

The general owners of a vessel are not liable for damages occasioned by a collision, happening through the fault or negligence of the master of the vessel who controls her pro hac vice and is sailing her" on shares."

A

CTION on the case against the defendants as general owners of the schooner" Midnight," by the plaintiffs as general owners of the schooner" Thames."

It is agreed that both vessels were sailed on shares by their respective masters, and under their control, as is customary in such cases in this State; and the question submitted is whether, under such circumstances, an action for collision by the general owners of the "Thames," against the general owners of the "Midnight," can be maintained in this court. If maintainable, the action to stand for trial; if not, plaintiffs to be nonsuit.

Somes v. White.

A. Wiswell & A. P. Wiswell, for defendants.

E. Hale & L. A. Emery, for plaintiffs.

PETERS, J. The case finds that the master had the control of the defendants' vessel, sailing her on shares.

Nothing else appearing, this

would constitute him an owner thereof, pro hac vice. This has ever been the doctrine of this court. For recent adjudications affirming the principle, see Bonzey v. Hodgkins, 55 Me. 98; Tucker v. Stimson, 12 Gray, 487.

The plaintiffs admit it to be well settled, that in such a case the general owners are not, ordinarily, liable for the contracts made by the master concerning the sailing and management of the vessel. But they contend that in case of collision they are liable for the master's fault or negligence. They argue that there is a reasonable distinction between claims against owners for the acts of a master arising from his contracts and such as are founded strictly in tort.

We do not assent to the correctness of the position of the plaintiffs. We do not perceive by what principle or rule of law it can be maintained. A personal liability of owners for the master's defaults, certainly must depend upon the fact, whether the relation of master and servant (or principal and agent) exists between themselves and the master or not. The liability must arise under the maxim respondeat superior if at all But where the master is owner pro hac vice, no such relation exists. That is the very point established in the cases before referred to. Those cases turn upon the exact finding, that the master is not the agent or servant of the owner. Claims against the owner for the obligations of the master, whether arising ex contractu or ex delicto, stand upon the same foundation; when this is removed there can be no liability at all.

The plaintiffs seek to avoid the effect of this reasoning, by attempting to draw a distinction between the liabilities attaching to the possession and control of ponderous property like a ship and articles of ordinary consequence like a carriage or coach. The argument is, that the general owners can be easily ascertained; that their names are upon the papers of the ship; that third persons can protect themselves, in dealing with the captain, by caution and inquiry, as far as contracts are concerned; but cannot protect themselves against the negligence and fault of the master in the conduct of the vessel, and that upon the grounds of public convenience and policy the apparent owner should be liable therefor.

But the argument is more plausible than sound. There was formerly an inclination in the courts to apply such a rule to the owners of real estate occupied and controlled by tenants, and for the same reasons that

Somes v. White.

are urged for its application in the case of vessels. But, as applied to real estate, the doctrine has been rejected of late years by most courts, and emphatically so by our own court in Eaton v. E. & N. A. R. R. Co., 59 Me. 520. Still, there is more reason for adopting the policy contended for, in the matter of real estate than in that of vessels. We do not see why the owners of the vessel, who are out of the possession and control of her, should be liable for injuries caused by collision, any more than the owners of the cargo should be liable therefor. And it is always conceded, even in the courts of admiralty, that the owners of cargo are not liable to any extent in such a case, notwithstanding the vessel at the time of the collision is pursuing a voyage under a charter-party with the owners of the cargo and carrying their property alone. But the master, while owner pro hac vice, is no more the agent of the general owners of the vessel, than of the owners of the cargo. Both the vessel and the cargó are under his possession and control for the time being. By the maritime law, the vessel is made a surety for the protection of all persons against the negligence of the master while conducting the vessel, when he is the charterer thereof, and that would seem to be protection enough. The exigencies of trade and commerce require no more.

The present statutes of this State and of the United States, affecting the rights and remedies pertaining to ownership in vessels (which we have no space for here), strongly militate in their force and effect against the argument of the plaintiffs. See R. S. of Me., ch. 36, §§ 5 and 6; R. S. of U. S., § 4282 and five succeeding sections.

Nor is the plaintiffs' position sustained by the decided cases to any extent. The exact question presented here arose in Thorp v. Hammond, 12 Wall. 408, but no decision was reached, as the court were evenly divided. There may be found some dicta, favorable to the plaintiffs' view, in some of the early English cases, but mostly before the doctrine of pro hac vice ownership was fully accepted by the English courts. See Ab. Sh. 57, and notes.

There are many analogous cases where the principle under discussion may be regarded as affirmed adversely to the plaintiffs in this case. Thus, it is decided, that general owners out of possession are not liable for supplies purchased by the master for the vessel; nor for repairs ordered by him without their authority; nor for his neglects in the performance or non-performance of his charter parties; nor for his embezzlements of the cargo of shippers. In Sproat v. Donnell, 26 Me. 185, it was held that, when a vessel was sailed on shares, the general owner was not liable to the owners of a cargo of lumber shipped on board for a