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Weller v. Eames.

Allis Gilfillan & Williams, for appellant.

C. K. Davis, for respondent.

BERRY, J. Plaintiff was captain of the steamboat "Ben Campbell," upon which he transported for defendant Bowers a quantity of apples, which he, plaintiff, had received from the steamboat "Centralia," subject to a lien upon the same in favor of the "Centralia for freight charges thereon. This claim of lien being disputed by Bowers, the plaintiff, without collecting said charges, delivered the apples to Bowers, upon receiving from him and his co-defendant Eames, a bond conditioned as follows: "Now, therefore, for the purpose of getting such apples from the possession of said John Weller, this bond is given to indemnify said Weller against any legal liability which he may have incurred to said steamboat "Centralia" by reason of having delivered said apples without having collected said back charges." Judgment for the amount of said charges, interest thereon and costs, was recovered by the owners of the "Centralia" against plaintiff, and one Deering, owner of the "Ben Campbell," in an action, of the commencement, pendency and object of which defendants had due notice. It does not appear that the judgment has been paid, nor that the plaintiff has suffered any actual damage in consequence of its rendition, or his liability for the charges aforesaid, or upon said judgment.

The plaintiff brings this action upon the bond, and we are of opinion that upon the facts stated it cannot be maintained.

"Indemnify" is defined by Webster to mean, "1. To save harmless; to secure against future loss or damage. 2. To make up for that which is past; to make good, to re-imburse." By Worcester it is defined to mean, "1. To secure against damage, loss, injury or penalty; to save harmless. 2. To compensate for loss or injury; to re-imburse; to remunerate." The word, then, appears to be used in two general senses: first, in the sense of giving security, which in a case like this at bar is done by the execution and delivery of a bond; and second, in the sense of compensating for actual damage. We think the latter sense is that in which the word "indemnify" must be held to have been used in the bond in this case. If, then, for the purpose of determining what obligation the defendants have assumed, we consult approved lexicographers, it would seem that, as the agreement to indemnify was an agreement to compensate for actual damage, this action cannot be maintained

Weller v. Eames.

without proof of actual damage. And were the question presented res nova, and to be answered solely by a consideration of the natural and ordinary signification of the language employed, we should hav had very little hesitation in arriving at the conclusion, that a covenant to indemnify against legal liability would be satisfied by compensation for all actual damage resulting from such liability. But there are not a few authorities having a bearing more or less direct upon the point in hand, and they are not all harmonious.

In a note to Cutter v. Southern, 1 Wms. Saund. 116, relied upon by counsel upon both sides in the case at bar, it is said: "In all cases of condition to indemnify and save harmless, the proper plea is non damnificatus, and if there be any damage the plaintiff must reply to it. This plea, however, cannot be entertained when the condition is to discharge or acquit the plaintiff from such a bond, or other particular thing, for then defendant must set forth affirmatively the special manner of performance. But it is otherwise where the condition is to discharge and acquit plaintiff from any damage by reason of such bond, or other particular thing, for that is in truth the same thing with a condition to indemnify and save harmless." And see Andrus v. Waring, 20 Johns. 161; McClure v. Erwin, 3 Cow. 332; Wicker v. Hoppock, 6 Wall. 94.

The rule thus laid down in the note of Serjeant Williams seems to us to be the true rule, and in harmony with the general principles and analogies of the law. No distinction is there taken between an agreement to indemnify against liability and an agreement to indemnify against damage. But the rule is laid down in general terms that where the agreement is to indemnify, non damnificatus is the proper plea; from which it follows that actual damage is necessary to support an action upon such agreement. It has been said (Carr v. Roberts, 5 Barn. & Adol. 78) that there is a distinction beween "indemnify" and "save harmless," the latter phrase possessing the more extensive meaning; and if this be so, the necessity of showing actual damage, where the covenant is to "indemnify" only, is so much the greater. In the case at bar, the agreement is not "to discharge or acquit the plaintiff from such a bond, or other particular thing. It is not to discharge or acquit him from liability, but to indemnify him against liability. If the agreement had been to pay the liability, it would have been altogether different from what it really is. Then, under the rule laid down by Serjeant Williams, a rule which is almost always cited and approved whenever

Weller v. Eames.

the subject comes before the courts, we think the plaintiff is not entitled to recover upon the facts appearing in this case. The principal difficulty presented by the question involved in the case at bar grows out of conflicting decisions in the state of New York. Chase v. Hinman, 8 Wend. 452, cited by appellant, is perhaps the strongest case in support of his position. It is there distinctly decided that "if the indemnity be not only against actual damage or expense, but also against any liability for damages or expenses, then the party need not wait until he has actually paid such damages, but his right of action is complete when he becomes liable for them." This decision seems to have been based, in a great degree, upon Rockfeller v. Donnelly, 8 Cow. 639, which is, however, admitted by the author of the opinion in Chase v. Hinman to go too far, and of which Justice BRONSON in Aberdeen v. Blackmer, 6 Hill, 326, remarks, that it is, "to say the least of it, a very questionable case." See also Webb v. Pond, 19 Wend. 423. And Mr. Sedgwick, in his work on damages (pp. 309–314), shows conclusively, as we think, that the rule laid down and followed in Rockfeller v. Donnelly is neither good law nor good sense. The case of Chase v. Hinman was followed by Churchill & Hays v. Hunt, 3 Den. 321, in which the opinion was delivered by Justice BEARDSLEY (Justices BRONSON and JEWETT concurring with him). Justice BEARDSLEY says: "This bond is a common-law obligation, and the part of the condition now in question is but an engagement to indemnify the plaintiffs against their liability as makers of the note. Notwithstanding what is said in the case of Chase v. Hinman, 8 Wend. 452, I must say that I am not aware of any distinction, at common law, between an indemnity against damage and one against liability, which warrants a recovery on the latter on simply showing the fact of liability. In both, as I think, there must be evidence of actual damage, by the payment of money or otherwise." Gilbert v. Wiman, 1 Com. 550, when carefully examined, will not be found to affirm the doctrine above referred to as enunciated in Chase v. Hinman, if the sound rule be applied that the authority of a decided case is only co-extensive with the facts appearing in it. In this condition of the New York authorities, we have no hesitation in following Churchill v. Hunt, as furnishing what seems to us to be the most sensible rule, that, upon an agreement to indemnify, actual compensation should only be allowed for actual loss. Warwick v. Richardson, 10 Mees. & Wels. 284, cited by appellant, is squarely contradicted by Aberdeen VOL. II.-20

Connolly v. Davidson.

v. Blackmer, 6 Hill, 325. See also Leber v. Kanffelt, 5 Watts & Serg. 442. Pope v. Hays, 19 Tex. 375, is based upon and follows Chase v. Hinman, while Irving v. Reilly, 34 Mo. 113, appears to follow Churchill v. Hunt. See also Jeffers v. Johnson, 1 Zab. 73. We also understand that our view of the question considered is sustained in 3 Parsons' Contracts, 186, 187, and by the reasoning in Sedgwick on Damages, 303-314, where the authorities are reviewed at considerable length. If we are right, the court below erred in refusing to charge the jury, at defendant's request, "that the plaintiff had proved no damage, and that they must find for defendant,” and a new trial was properly granted. In this view of the matter it is unnecessary for us to consider the other points argued. Order granting a new trial affirmed.

Affirmed.

CONNOLLY V. DAVIDSON, appellant.

(15 Minn. 519.)

Negligence - Partnership — Negligence of co-servant — Liability of Master.

The plaintiff, a deck hand on the steamboat A., was injured by the explosion of the boiler of the steamboat R., while the boats were near each other. The defendant was owner of the steamboat A., but had an agreement with the owner of the steamboat R. that each should employ the men and manage his own boat, and at the end of the season the profits of the boats should be divided between them. In an action to recover damages for such injury, held,

1. That the defendant and the owners of the R. were partners, and each responsible for the negligence of the officers and crew of each boat.

2. That the plaintiff and the crew of the R. were not fellow-servants within the rule exempting the master from liability for injuries sustained by a fel low-servant.

THIS was an action brought to recover damages for personal injuries sustained by the plaintiff, by reason of the explosion of the steamer "John Rumsey."

On the 4th of November, 1864, the plaintiff was employed as a deck hand on the steamboat "Albany," and while on board said boat and near the steamboat "John Rumsey," was personally injured by the explosion of the boiler of the latter. The evidence tended

Connolly v. Davidson.

to show that the explosion was the result of the negligence or misconduct of those engaged in running the "John Rumsey," and that the engineer having charge of the engine was not at the time duly licensed under the laws of the United States. Evidence was also introduced to show that the defendant was a partner with the owner of the "Rumsey" in the running of the boat. The deposition of H. T. Rumsey, owner of the "Rumsey," was introduced, which alleged, that at the time of the explosion, the steamer "John Rumsey" was owned by him and the defendant Davidson; that Davidson's interest was one-half interest in the boat, and one-half her earnings; that both had the management of the boat; and that they accounted together for her earnings. Other evidence of like effect was also introduced.

The defendant introduced evidence tending to show that the "John Rumsey" was, at the time of the explosion, properly enrolled under the laws of the United States; that her boiler was duly inspected and certified in 1864; that the engineer was skillful and competent, and that the explosion was the result neither of any defect in her machinery, nor of negligence on the part of her officers. and crew; and, further, that Harvey T. Rumsey was, at the time, sole owner of the "John Rumsey," and had the exclusive contro and management of her. Defendant, in his own behalf, testified, in addition to the above, that he had an arrangement with Harvey T. Rumsey, by which it was agreed that the earnings, during the summer, of the "Albany" and the "John Rumsey," among other boats, were to be divided in the fall, and that by such arrangement "each should have the exclusive control and management of his own boats and business, without any right on the part of the other to interfere with the same in any way," etc.

The court, at the request of the plaintiff, charged the jury as follows:

I. "If the boiler of the 'John Rumsey' exploded through the fault of the officers of the boat, as alleged in the complaint, and injured the plaintiff without his fault, and the defendants Davidson and Rumsey were at the time jointly interested in the navigation of the boat, as owners of her earnings and profits, they are both and each equally responsible to the plaintiff for the acts of the officers of the boat in causing the explosion; and it is immaterial, as regards such liability, whether or not the boat itself was the sole property of one of them, and controlled, and the officers and men employed,

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