Page:Harvard Law Review Volume 1.djvu/161

 Admitting, however, that there is no room in this case for a remedy in equity by way of subrogation, is not this a case which is covered by the common-law action on the case? The action on the case is extremely elastic. It is said in Com. Dig., Act. on Case A,—“In all cases, where a man has a temporal loss or damage by the wrong of another, he may have an action on the case to be repaired in damages.”

A principle as broad as this is certainly required to explain the following cases: (1.) X frightens away boys who are going to Y’s school, and their parents keep them at home. Y has an action against X. (2.) M has a market with toll for horses sold; N is bringing a horse to market when R drives him away. M has an action against R (cited by Ld. Holt in Keeble v. Hickeringill, 11 East, 573, note).

In Tarleton v. McGawley, Peake, 205, the master of a vessel had an action against X for firing a cannon at negroes and preventing them from trading with the plaintiff’s vessel. Tarleton v. McGawley is cited with approval in Walker v. Cronin, 107 Mass. 555. [Cf. also Rice v. Manley, 66 N. Y. 82.] The principle stated in Comyns, however, requires this qualification: the damage to the plaintiff must be the natural consequence of the defendant’s act. The principle is very well stated in Cunnington v. Great N. W. R. R. Co., 49 L. T. R. 392. The defendant was employed to deliver X’s casks to the plaintiff, who was accustomed to fill them with ketchup. The defendant carelessly delivered other casks, which had been filled with turpentine. The plaintiff did not discover the mistake, and lost all the ketchup which he put into them. The court says: “Wherever the circumstances disclosed are such that if the person charged with negligence thought of what he was about to do, he must see that unless he used reasonable care there must be at least a great probability of injury to the person charging negligence against him, either as to his person or property, then there is a duty shown to use reasonable care.”

In Riding v. Smith, 1 Ex. D. 91, A was held liable to B for maliciously injuring his business by slandering B’s wife, C.

In the ''Conn. Mut. Life Ins. Co. v. N. Y. & N. H. R. R. Co.'', 25 Conn. 265, it is intimated that, if the company had caused an accident which would result in the death of X, for the purpose of injuring Y, who had insured X’s life, Y would have a right of action against the company.

As a logical result of the cases cited, it would seem to follow that if C wilfully or negligently destroyed a house owned by B, and insured by A, C would be liable to both B and A. This, however, is not the law. C is liable to B only, though A, after paying the insurance, has an equitable claim to any amount which B may collect as damages from C. It seems that the true reason for this decision is that the contract of insurance is a contract of indemnity, and by means of subrogation the insurance company is generally fully protected: hence, there is usually no need of resorting to an action on the case. But in the present case, owing to the peculiar relations between B and C, the insurance company is not protected by subrogation. It is conceived, therefore, that a strict application of the principles at the foundation of the common-law action on the case will permit the company, in place of its ordinary remedy, to proceed directly against the wrong-doer. The language of the court in ''Conn. Mut. Life Ins. Co. v. N. Y. & N. H. R. R. Co.'', as far as it goes, is authority for this position.