Frazer v. Bigelow Carpet Co.

This is an action for the negligent destruction of property by the same disaster which was discussed in Bryant v. Bigelow Carpet Co. 131 Mass. 491. The defendants’ liability is admitted, and the only question is whether the tribunal assessing the damages had power, in its discretion, to add interest to the sum which it found to represent the plaintiff’s loss on the day it took place.

Interest was allowed, without discussion, in Bryant v. Bigelow Carpet Co. ubi supra. It is allowed as of right in traver and other like actions; and although it is suggested that, in such cases, the defendant may be presumed to have had the use of the goods since the conversion, this is not necessarily the fact, *128and, if it were, would have no bearing on the indemnity due the plaintiff. Interest is allowed in the admiralty upon damages for collision, and other courts have adopted the admiralty doctrine. Straker v. Hartland, 2 H. & M. 570. The Amalia, 34 L. J. Adm. 21. The Dundee, 2 Hagg. Adm. 137. The Mary J. Vaughan, 2 Ben. 47. Parrott v. Knickerbocker Ice Co. 46 N. Y. 361. Mailler v. Express Propeller Line, 61 N. Y. 312. The same principle has been applied in other cases of the negligent destruction of property. Chapman v. Chicago & Northwestern Railway, 26 Wis. 295, 304. Sanborn v. Webster, 2 Minn. 323. See also Lawrence Railroad v. Cobb, 35 Ohio St. 94.

Notwithstanding the language of Wood, V. C., in Straker v. Hartland, ubi supra, it may be conceded, for the purposes of this decision, that a mere liability to pay such a sum, if any, as a jury may hereafter determine, cannot properly be called a debt. Read v. Nash, 1 Wils. 305. Lewkner v. Freeman, Prec. Ch. 105; S. C. 1 Eq. Cas. Abr. 149, pl. 5; Freem. Ch. 236. Compare Kay v. Pennsylvania Railroad, 65 Penn. St. 269, 277. And we will assume that the sum ultimately found by the jury cannot be said to have been wrongfully detained before the finding, in such a sense that interest is due eo nomine. Blogg v. Johnson, L. R. 2 Ch. 225, 230. Chicago v. Allcock, 86 Ill. 384.

But we have heard no reason suggested why, if a plaintiff has been prevented from having his damages ascertained, and, in that sense, has been kept out of the sum that would have made him whole at the time, so long that that sum is no longer an indemnity, the jury, in their discretion, and as incident to determining the amount of the original loss, may not consider the delay caused by the defendant. In our opinion they may do so ; and, if they do, we do not see how they can do it more justly than by taking interest on the original damage as a measure. See further Lincoln v. Claflin, 7 Wall. 132, 139; and the often cited language of Shaw, C. J., in Parks v. Boston, 15 Pick. 198, 208; Burt v. Merchants' Ins. Co. 115 Mass. 1, 14; Old Colony Railroad v. Miller, 125 Mass. 1, 4.

It is argued that the discretion was exercised wrongly, because the delay was due to the plaintiff’s not bringing his action. But he presented his claim, and was informed that the defendants denied their liability. Under such circumstances, the most *129prudent and economical thing for both parties was for the plaintiff to postpone his suit until a test case had settled the question. The delay for that purpose was caused by the defendants as truly as if a suit had been begun and continued to await the decision in Bryant v. Bigelow Carpet Co.

Judgment for the plaintiff for $4000, and interest.