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had been compelled to pay. Many of the | 478, 59 N. E. 657), it was held that a mancases were reviewed in the opinion of the ufacturer of an iron boiler known as a vulcourt, and the general principle was recog- canizer, which had been furnished upon an nized that, notwithstanding the negligence order which required a boiler which would of one, for which he has been held to re- stand a pressure of 100 pounds to the spond, he may recover against the principal square inch, which order was accordingly delinquent where the offense did not involve accepted, the manufacturer undertaking to moral turpitude, in which case there could make the boiler in a good and workmanlike be no recovery, but was merely malum pro- manner, but which, because of a defect, in hibitum, and the law would inquire into that the hinge of the door was constructed the real delinquency of the parties, and in such a way that it did not press tight place the ultimate liability upon him whose enough against the face of the boiler to fault had been the primary cause of the stand a pressure of 75 pounds, at which injury. The same principle has been recog-pressure the packing blew out and allowed nized in the court of appeals of the state of New York in Oceanic Steam Nav. Co. v. Compañia Transatlantica Española, 134 N. Y. 461, 30 Am. St. Rep. 685, 31 N. E. 897, the second proposition of the syllabus of the case being:
"Where, therefore, a person has been compelled, by the judgment of a court having jurisdiction, to pay damages caused by the negligence of another, which ought to have been paid by the wrongdoer, he may recover of the latter the amount so paid, unless he was a party to the wrong which caused the damage."
In a case cited and much relied upon at the bar (Gray v. Boston Gaslight Co., 114 Mass. 149, 19 Am. Rep. 324), a telegraph wire was fastened to the plaintiff's chimney without his consent, and, the weight of the wire having pulled the chimney over into the street, to the injury of a passing traveler, an action was brought against the property owner for damages, and notice was duly given to the gas company, which refused to defend. Having settled the damages at a figure which the court thought reasonable, the property owner brought suit against the gas company, and it was held liable. In the opinion the court said:
"When two parties, acting together, commit an illegal or wrongful act, the party who is held responsible in damages for the act cannot have indemnity or contribution from the other, because both are equally culpable or participes criminis, and the damage results from their joint offense. This rule does not apply when one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability and suffers damage. He may recover from the party whose wrongful act has thus exposed him. In such case the parties are not in pari delicto as to each other, though, as to third persons, either may be held liable."
In a later case in Massachusetts (Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 51 L. R. A. 781, 86 Am. St. Rep.
the naphtha vapor to escape, was liable for the damages which the hose company had been compelled to pay to one of its employees, injured by the accident, although the defect might have been discovered upon reasonable inspection by the hose company. In that case the boiler was sold upon a warranty. As was said by Mr. Chief Justice Holmes, delivering the opinion of the court:
"The very purpose of the warranty was that the boiler should be used in the plaintiff's works with reliance upon the defendant's judgment in a matter as to which the defendants were experts and the plaintiff presumably was not. Whether the false warranty be called a tort or a breach of contract, the consequences which ensued must be taken to have been contemplated and were not too remote. The fact that the reliance was not justified as toward the men does not do away with the fact that the defendants invited it, with notice of what might be the consequences if it should be misplaced, and there is no policy of the law opposed to their being held to make their representations good."
Other cases might be cited which are applications of the exception engrafted upon the general rule of noncontribution among wrongdoers, holding that the law will inquire into the facts of a case of the character shown, with a view to fastening the ultimate liability upon the one whose wrong has been primarily responsible for the injury sustained. In the present case there is nothing in the facts as stated to show that any negligence or misconduct of the railroad company caused the defect in the car which resulted in the injury to the brakeman. That company received the car from its owner, the Hammond Packing Company, whether in good order or not the record does not disclose. It is true that a railroad company owes a duty of inspection to its employees as to cars received from other companies as well as to those which it may own. Baltimore & P. R. Co. v. Mackey,
157 U. S. 73, 39 L. ed. 624, 15 Sup. Ct. Rep. 491. But in the present case the omission of duty for which the railroad company was sought to be held was the failure to inspect the car with such reasonable diligence as would have discovered the defect in it. It may be conceded that, the railroad company having a contract with the terminal company to receive and transport the cars furnished, it was bound to use reasonable diligence to see that the cars were turned over in good order, and a discharge of this duty required an inspection of the cars by the railroad company upon delivery to the terminal company. But that the terminal company owed a similar duty to its employees, and neglected to perform the same, to the injury of an employee has been established by the decision of the supreme court of Nebraska, already referred to.
(196 U. S. 229) LUTHER CLAY SLAVENS, Appt.,
Postoffice-mail contracts-right of Postmaster General to terminate-extra services.
1. The Postmaster General may cancel a mail contract, the service under which has been materially decreased by using street cars to carry mail, in the exercise of his authority under the contract and U. S. Postal Laws and Regulations, § 817, to increase, decrease, or extend the service contracted for without change of pay, and to discontinue the entire service whenever the public interests, in his judgment, require it.
2. A change of service under a mail contract by directing the carrying of the mails to and from street cars at certain street crossings is fairly within the power reserved by the contract in the Postmaster General to order, without additional compensation, any additional service caused by change of location of postoffice, stations, or landings, or by the establishment of others than those existing at the time of the contract, or rendered necessary, in his judgment, from any cause, and to change the schedule, vary the routes, increase, decrease, or extend the service without change of pay.
The case then stands in this wise: The railroad company and the terminal company have been guilty of a like neglect of duty in failing to properly inspect the car before putting it in use by those who might be injured thereby. We do not perceive that, because the duty of inspection was first required from the railroad company, that the case is thereby brought within the class which hold the one primarily responsible, as the real cause of the injury, liable to another less culpable, who may have been held to respond for damages for the injury, inflicted. It is not like the case of the one who creates a nuisance in the public streets; or who furnishes a defective dock; or the case of the gas company, where it created the condition of unsafety by its own wrongful act; or the case of the defective boiler, which blew out because it would not stand Argued December 7, 8, 1904. Decided Janthe pressure warranted by the manufacturer. In all these cases the wrongful act of the one held finally liable created the
A contractor for carrying the mails is not entitled to extra compensation for services outside the terms of his contract which were performed in compliance with the unauthorized demand of the local postmaster, where, upon protest to the Postmaster General, the contractor was promptly relieved from such services, and another contract was made for their performance.
uary 9, 1905.
unsafe or dangerous condition from which APPEAL from the Court of Claims to re
the injury resulted. The principal and moving cause, resulting in the injury sustained, was the act of the first wrongdoer, and the other has been held liable to third persons for failing to discover or correct the defect caused by the positive act of the other.
In the present case the negligence of the parties has been of the same character. Both the railroad company and the terminal company failed, by proper inspection, to discover the defective brake. The terminal company, because of its fault, has been held liable to one sustaining an injury thereby. We do not think the case comes within that exceptional class which permits one wrongdoer who has been mulcted in damages to recover indemnity or contribution from another.
For the reasons stated, the question propounded will be answered in the negative.
view a judgment dismissing a petition to recover for the alleged wrongful termination of certain mail contracts and for extra services performed in connection therewith. 4ffirmed.
See same case below, 38 Court of Claims, 574.
Statement by Mr. Justice Day:
The appellant filed his petition in the court of claims to recover for the alleged wrongful termination of certain mail contracts in the cities of Boston, Brooklyn, and Omaha; and, also, for extra services performed in connection therewith. The court of claims, in disposing of the case, made separate findings of fact and conclusions of law. The findings of fact may be abridged for the purpose of this case, reference being made for fuller details to the findings in the court of claims. 38 Ct. Cl. 574. In pursuance of
or any officer of the Postoffice Department until August 14, 1894. Whereupon the Postmaster General dispensed with the service by the appellant, and entered into a contract with another contractor to perform the service.
Under the Brooklyn contract, which contained specifications as to the places between which the mail had to be carried during the term of the contract, the contractor was required to perform service between the Brooklyn postoffice and the mail routes established on the street-car lines, and between the motor routes and the mail stations. Under the Omaha contract appellant was required, in addition to the places specifically named in the contract, to carry the mail to and from street cars of the Omaha Street Railway at its crossings. It also appears that under the three contracts the new service required, in lieu of the service specified in the contract, was much less in mileage required than was the service stip
an advertisement for proposals for trans- | Boston, against his protest. The contractor porting the mails,-"covered regulation wa- did not protest to the Postmaster General gon, mail, messenger, and mail station service," the appellant entered into contracts for four years each for the cities of Boston and Brooklyn, and two years for the city of Omaha. The Boston and Brooklyn contracts began on July 1, 1893, and the Omaha contract on July 1, 1894. Compensation for the Boston contract was at the rate of $49,516 per annum; for the Brooklyn contract, $18,934 per annum; and for the Omaha contract at $3,780 per annum. During the terms of the Boston and Brooklyn contracts the Postmaster General determined to carry certain of the mails within the district contracted for on electric streetrailway lines. In both cases the appellant was offered the privilege of continuing the contract for the reduced service, but refused to do so in each case. The Postmaster General terminated the Boston and Brooklyn contracts, above referred to, the former on February 1, 1896, the latter on March 1, 1896, acting, as he avers, under the authority vested in him by law and the contractulated by the original contract. The court between the parties, but not because of any negligence or default on the part of the contractor. He afterwards relet the same service, as thus reduced, to another contractor, for the remaining period of the contract of the seventeen months of the Boston contract, at the compensation of $37,000 per annum. The difference between The difference between the contract price and the amount it would cost the appellant to furnish the service in Boston during said seventeen months would be $18,884.14. The service of the Brooklyn contract for the remaining period of sixteen months was let to another contractor at a compensation of $9,720 per annum. The court did not find the amount of the loss to the appellant by reason of the termination of this contract. The contracts contained certain stipulations, as set forth in the opinion.
The contracts covered certain specified stations, landings, and mail stations from which the contractor was required to carry the mail, and during the terms of such contracts he was required to perform certain services, which he alleges to be extra services, and for which he was entitled to extra compensation,-in the Boston contract, carrying the mails from the general postoffice, in the city of Boston, to the stopping places of the street-car lines of the railway company from May 1, 1895, until February 1, 1896. Also, carrying the mails between the Back Bay postoffice and the Brookline office, a distance of from 2 to 3 miles, which services were not included in the terms of the contract, but which he was required to perform by the postmaster of the city of
of claims dismissed the petition (38 Ct. Cl. 574), and the claimant appeals to this court.
Mr. A. A. Hoehling, Jr., for appellant. Mr. Joseph Stewart and Assistant Attorney General Pradt for appellee.
Mr. Justice Day delivered the opinion of the court:
From the foregoing statement of facts it is evident that the case resolves itself into three propositions: (1) Can the appellant recover for the alleged wrongful termination of his contracts by the Postmaster General? (2) Under the contracts were the services performed in carrying mails from street cars, at the places designated, extra services, for which compensation outside of the contract should be awarded? (3) Under the Boston contract did the service required in carrying the mails to and from Brookline constitute extra service, for which compensation should be awarded?
To determine the first proposition it is essential to have in mind certain provisions of the statute, the preliminary notice to bidders, and, most important of all, the terms of the contract itself. In the notice to bidders it is said:
"There will be no diminution of compensation for partial discontinuance of service or increase of compensation for new, additional, or changed service that may be ordered during the contract term; but the Postmaster General may discontinue the entire service on any route whenever the
public interest, in his judgment, shall re- | character of service for a part of the field quire such discontinuance, he allowing, as full indemnity to the contractor, contractor, one month's extra pay."
In the contract it is stipulated:
theretofore covered by the contract. In other words, it is contended that the total discontinuance of service, which only can terminate the contract, must not leave any service to be performed in the district covered.
We cannot accede to this narrow construction of the powers given the Postmaster General by the terms of this contract. He is given general power to increase, decrease, or extend the service contracted for, without change of pay. Furthermore, whenever the public interests in his judgment require it, he may discontinue the entire service. We think the advertisement and the regulations under which this contract was made and the contract, as entered into, were
"It is hereby stipulated and agreed by the said contractor and his sureties that the Postmaster General may change the schedule and termini of the route, vary the routes, increase, decrease, or extend the service thereon, without change of pay; and that the Postmaster General may discontinue the entire service whenever the public interest, in his judgment, shall require such discontinuance; but for a total discontinuance of service the contractor shall be allowed one month's extra pay as full indemnity." Section 817, Postal Laws and Regula- intended to permit the Postmaster General, tions, 1887, provides:
"The Postmaster General may discontinue or curtail the service on any route, in whole or in part, in order to place on the route superior service, or whenever the public interests, in his judgment, shall require such discontinuance or curtailment for any other cause, he allowing as full indemnity to the contractor one month's extra pay on the amount or service dispensed with, and a pro rata compensation for the amount of service retained and continued."
when, in his judgment, the public interest
The authority given to the Postmaster General is broad and comprehensive, requiring him to exercise his judgment to end the
Under the power supposed to be conferred upon him by the terms of the contract, made in pursuance of the preliminary advertisement and the authority vested in him by the Postal Laws and Regulations, above cited, the Postmaster General, having decreased the service under the contract, by reason of the introduction of the method of carrying the mails on the street railways, until the service required originally would be much more than paid for by the compensation agreed upon, discontinued the original service, and, the contractor declining to perform the work remaining at the lower compensation, put an end to the contract by an order of discontinuance, allowing the contractor one month's extra pay as full in-service, and thereby terminate the contract, demnity. It is contended by the appellant that this contract, properly construed, while it permits the Postmaster General to make changes in the schedule and termini of the route, to reduce the same, to increase, decrease, or extend the service, without change of pay, does not confer the right to cancel the contract except upon abandoning the entire service, which may be done with the allowance of one month's extra pay to the contractor. But, it is insisted, so long as any part of the service remains to be performed, it is not within the power of the Postmaster General to put an end to the service of the contractor, and relet a part of it to another, substituting a different
whenever the public interest shall demand such a change. In that event the contractor takes the risk that the exercise of this authority might leave him only the indemnity stipulated for,-one month's extra pay. we are not called upon to say in this case that the Postmaster General, merely for the purpose of reletting the contract at a lower rate, may advertise and relet precisely the same service for the purpose of making a more favorable contract for the government, no change having arisen in the situation except the desire for a better bargain. And it may readily be conceived that, in some instances, there may be such a diminution of the service contracted for in the district, by
route and steamboat service, but the provisions of the law are broad and comprehensive, and not limited by the terms of the act to such specific service, but the power is given the Postmaster General whenever, in his judgment, the public interest shall require, to discontinue or curtail the same, giving the contractor as indemnity month's extra pay. Speaking of the action authorized under § 263 of the former rules and regulations, this court, in Garfielde v. United States, 93 U. S. 242-246, 23 L. ed. 779, said:
"There was reserved to the Postmaster General the power to annul the contract when his judgment advised that it should be done, and the compensation to the contractor was specified. An indemnity agreed upon as the amount to be paid for canceling a contract must, we think, afford the measure of damages for illegally refusing to award it."
And upon similar contract stipulations this court, in Chicago & N. W. R. Co. v. United States, 104 U. S. 680, 684, 26 L. ed. 891, 892, said:
reason of the substitution of new and im- | section applies more particularly to star proved methods, as will render the compensation agreed upon altogether disproportionate to the services left to be rendered, and thereby invoking the authority of the Postmaster General to exercise the power reserved to him to terminate the contract. In the present case the findings of fact do not disclose a case of the arbitrary exercise of power. A new means of service within the district by means of the street railway was deemed by the Postmaster General to be required in the public interest. This necessitated the cutting down of the former service to make way for the new, and the Postmaster General exercised the power given him under the contract, and put an end to the service and the contract. If the contention of the appellant is to be sustained, while in the present case the street-railway service was not a large proportion of the total service required, the same argument, carried to its legitimate conclusion, would prevent the Postmaster General from taking advantage of this stipulation, although it was manifest that a large proportion, maybe practically all, of the service could be better rendered to the public by substi- "It is true that, under this reservation, tuting the new method, leaving only a small the Postmaster General would be authorized part of the old service to be rendered. In to discontinue the entire service contemplatthis contingency, as construed by the ap-ed by the contract, and the practical effect pellant, the contract price must still be paid, notwithstanding the changed conditions. These contracts were made for a term of years,-two for four years and one for two years. It is insisted that the construction contended for by the government practically puts the contractor into the power of the Postmaster General, and makes the stipulation, in substance, an agreement upon his part to do whatever that officer may require. The obvious answer to this contention is that the contractor is not obliged to carry on the contract when the Postmaster General elects to cancel it. Such action puts an end to the obligations of the contractor as well as the government. Under the postal regulations, it appears that the contractor is given the opportunity to perform the reduced service at a lower rate. This he was not obliged to do, and, in the present case, declined to undertake. Our conclusion is that, acting in good faith, of which there is every presumption in favor of the conduct of so important a department of the government, the Postmaster General may, as was done in this case, discontinue the service, and thereby put an end to the contract, when the public interest, of which he is the sole judge, authorizes such action. This view of the contract renders it unnecessary to consider at length the provisions of § 817 of the Postal Laws and Regulations, above quoted. It is urged that this
of that would be to terminate the contract itself on making the indemnity specified."
As to the other claim for extra services: In the stipulation of the contracts, it appears that the contractor was required to perform all new or additional or changed covered wagon mail station service that the Postmaster General should order, without additional compensation, whether caused by change of location of postoffice, stations, or landings, or by the establishment of others than those existing at the time of the contract, or rendered necessary in the judg ment of the Postmaster General from any cause, and that officer has the right to change the schedule, vary the routes, increase, decrease, or extend the service without change of pay. It is insisted that these stipulations, properly construed, permit the Postmaster General to require only additional service of the same kind as that stipulated for, and that the carrying of the mails from street cars, where the same might be ordered to be met at crossings, was a new and different kind of service, and was not a change caused by a different location of a postoffice, station, or landing within the meaning of the contract. this is too narrow a construction of the terms of the agreement. Strictly speaking, the carrying of the mails from the street cars at the crossings is not taking them from the stations, but it it practically