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Wilson v. Newberry. into their consideration all the circumstances, to say whether or not it was intended to disparage the plaintiffs in the conduct of their business.
Judgment for the plaintiffs. Attorneys for the plaintiffs : Hughes f Son. Attorneys for defendant: Evans, Laing f Eagles.
Nov. 17, 1871.
Law Reports, 7 Queen's Bench, 31. Negligence — Action - Pleading - Insufficiency of Declaration. Declaration, that the defendant was possessed of yew trees, the clippings off which he knew to be poisonous, and that it was the duty of the defendant to prevent the clippings from being placed on land not occupied by him: that the defendant took so little care of the clippings that the same were placed upon land not occupied by him, whereby the horses of the plaintiff were poisoned :
Held, on demurrer, that the declaration disclosed no facts from which a duty could be inferred in the defendant to take care of the clippings.
Fletcher v. Rylands (Law Rep. 3 H. L., 330), distinguished.
DECLARATION, that the defendant was possessed of certain yew 31] trees, then being in and upon certain lands of the defendant, in his occupation, the clippings off which said yew trees were, to the knowledge of the defendant, poisonous to horses and cattle; whereupon it became and was the duty of the defendant to take due and proper care to prevent the said clippings off the said yew trees from being put or placed in and upon land other than land of the defendant, or in his occupation, where the horses and cattle of his neighbors and others might be enabled to eat them, and the plaintiff says that the defendant, disregarding his duty in that behalf, did not take due and proper care to prevent the said clippings off the said yew trees from being put and placed in and upon land other than land of the defendant or in his occupation, where the horses and cattle of his neighbors and others might be enabled to eat them, but, on the contrary, took so little, bad, and improper care of the said clippings off the said yew trees, that the
Wilson v. Newberry. same were put and placed in and upon land other than land of the defendant, or in his occupation, whereby the horses of the plaintiff being upon land where they lawfully might be, were enabled to eat the said clippings off the said yew trees, and did eat of the same, and were thereby poisoned and killed, whereby the plaintiff lost the value of the said horses, and has been otherwise damnified.
Demurrer, and joinder in demurrer.
Herschell, in support of the demurrer. The declaration is bad. The duty alleged does not follow from the facts stated in the *declaration. It does not charge that the defendant put the [32 yew tree clippings on the land of the plaintiff. It does not appear who clipped the yew trees. A trespasser may have clipped the trees, and by his act the clippings may have been placed at the spot where they were eaten by the plaintiff's cattle. This case is distinguishable from Fletcher v. Rylands ('). That case decided that the person who, for his own purposes, brings on his land and keeps there anything likely to do mischief, must take care of it at his peril, and is answerable for the natural consequence of its escape. That doctrine has no application here.
Quain, 2. C. (A. L. Smith with him), contra. The declaration is good. This is an action for negligence, and by the demurrer the negligence is admitted, and the admission of neg. ligence discloses a cause of action to be tried by a jury. The declaration charges not an absolute duty to take care of the clippings, but only a duty to prevent them from getting off the defendant's land. The plaintiff is entitled to succeed on the principle laid down in Fletcher v. Rylands (). The defendant had poisonous matter on his land, which he is bound to take care of, and he is liable to make compensation for the damage caused by its escape.
Herschell was not heard in reply.
MELLOR, J. I am of opinion that this declaration is bad. The duty alleged does not result from the facts stated. The facts upon which this duty is said to be founded are these: the defendant was possessed of certain yew trees then being in and
(') Law Rep. 3 H. L., 330.
Wilson v. Newberry. upon
certain lands of the defendant in his occupation, the clippings off which yew trees were, to the knowledge of the defendant, poisonous. These are the only facts from which the duty charged is to be inferred, and it is alleged in the following terms:-“Whereupon it became and was the duty of the defendant to take due and proper care to prevent the said clippings off the said yew trees from being put or placed in and upon land other than land of the defendant, or in his occupation, where the horses and cattle of his neighbors and others might be enabled to eat them.” Now, it is not alleged that the defendant clipped the yew trees; it is not alleged that he knew the yew trees were clipped ; and it is not alleged that he 33] had *anything to do with the escape of the yew clippings on to his neighbor's land. It is quite consistent with the averments of this declaration that the cutting may have been done by a stranger without the defendant's knowledge. I cannot think that the duty charged can be deduced from the facts stated; and therefore, in my opinion, the declaration is bad.
The case of Fletcher v. Rylands (') has no analogy to this case. The foundation of the doctrine there laid down is derived from an old case in Salkeld (), in which it was determined that it was the duty of a man to keep his own filth on his own ground. If a person brings on to his own land things which have a tendency to escape and to do mischief, he must take care that they do not get on to his neighbor's land. This is a very different proposition from that which has been contended for on behalf of the plaintiff; it is that where a person has yew trees growing on his land which are clipped by some means, he must prevent the clippings from escaping on to his neighbor's land, and from being placed there by a stranger. I do not think that the facts alleged cast any duty of this kind upon the defendant. Lush and HANNEN, JJ., concurred.
Judgment for the defendant.
(*) Tenant v. Goldwin, 1 Salk., 360. See Fisher v. Clark, 41 Barb., 329; and Colt., 332 ; 3 Pars. Cont., 223, citing Mills v. N. Y. etc., 2 Robertson, 326; Barnum v. Vandusen, 16 Conn., 200; 41 N. Y.,619; Cooke v. Waring, 2 Hurl. Moak’s notes to Clarke's Ch., 351, ed. 869.
Joyce v. Kennard.
Nov. 18, 1871.
Law Reports, 7 Queen's Bench, 78. Marine Insurance — Construction of Policy — Insurance of Liability as Carriers -
Mode of estimating Underwriters' Liability. The plaintiffs, J. & Son, were lightermen, and effected an insurance in the form of an ordinary Lloyd's policy, at and from all wharves on the Thames, from Wandsworth to the Victoria Docks, which contained the following clause : “ To cover and include all losses, damages, and accidents amounting to 201. or upwards in each craft, to goods carried by J. & Son as lightermen, or delivered to them to be waterborne, either in their own or other craft, and for which losses, damages, and accidents J. & Son may be liable or responsible to the owners thereof, or others interested.” The policy was subscribed by different underwriters for different sums amounting to 20001., and the defendants underwrote the policy for 1001. A loss happened to goods carried by the plaintiffs in a barge, for which the plaintiff's became liable to those interested in the goods to the amount of 11001. The total value of the risks of the plaintiffs in this and other barges at the time of the loss and covered by the policy amounted to 20,0001.:
Held, that, on the construction of the policy, the plaintiffs were entitled to be indemnified for the loss actually sustained, viz., 11001., and to recover from the defendant 551., his proportion; and that the sum to be recovered was not merely such a proportion of the plaintiffs' loss as the sum for which the defendant subscribed the policy, viz., 1001., bore to the value of all the goods afloat and covered by the policy at the time of the loss, viz., 20,0001.
CASE stated without pleadings.
The plaintiffs are lightermen, and the defendant is an underwriter. In the month of October, 1869, the plaintiffs [78 caused a policy of insurance to be effected on their behalf.
The policy in point of form was the ordinary Lloyd's policy, adapted to the particular risk. The words of the policy were “lost or not lost at and from all or any of the wharves, banks, quays, and places of arrival or departure in the river Thames, and any merchant or steam vessel of any description therein comprising the whole extent of the said river from Wandsworth downwards to *the Victoria Docks, including all or any [79 intermediate docks and wharves, and vice versa, until on board any merchant or steam-vessel, barge, or boat, or otherwise, landed at any wharf, &c. The risk to commence on the 25th of September, 1869, and to terminate on the 24th of September, 1870, including both days, upon any kind of goods and merchandise... in craft of any description ... the adventure begin
Joyce v. Kennard. ning upon the said goods and merchandise from the loading thereof aboard the ship as above,... and so continue and endure during her abode there upon the said ship, &c., and, further, until the said ship, with all her ordnance, tackle, apparel, &c., and goods and merchandise whatsoever, shall be arrived at as above upon the said ship, &c., until she hath moored at anchor twenty-four hours in good safety, and upon the goods and merchandise until the same be there discharged and safely landed; and it shall be lawful for the said ship, &c., in this voyage, to proceed and sail to and touch and stay at any ports and places whatsoever and wheresoever in the river Thames, from Wandsworth to the Victoria Docks and vice versa. The ships, &c., goods and merchandise, &c., for so much as concerns the assured by agreement between the assured and assurers in this policy are and shall be valued at on all goods and produce as interest may appear.” The sum stated in the margin was 20001. The premium was 70s. per cent. and at the bottom of the policy, in writing was the following clause:—“To cover and include all losses, damages, and accidents amounting to 201. and upwards, in each craft to goods carried by Messrs. Joyce, as lightermen, or delivered to them to be waterborne, either in their own or other craft, and from which losses, damages, and accidents, Messrs. Joyce may be liable or responsible to the owners thereof, or others interested. It is agreed that the amount of each underwriter's liability shall not exceed the amount of his subscription.”
This policy was subscribed by different underwriters for different sums, amounting in the whole to 20001.
The defendant underwrote the policy for 1001., and received by way of premium the sum of 31. 10s.
On the 7th of December, 1869, and during the continuance of the risk covered by the policy, a loss, damage, and accident, within the meaning of the policy, happened to goods carried by 80] the plaintiffs *as lightermen, in a craft called the Lord Cardigan, and for which loss the plaintiffs have become liable and responsible to the owners and others interested in the goods, to the sum of 11001., and have paid that amount.
It is agreed that the total value of the risks of the plaintiffs in this and other barges employed by the plaintiffs at the time of the loss, and which were covered by the policy, amounted to