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THE DIGEST (OR PANDECTS) BOOK IX. TITLE III. CONCERNING THOSE WHO POUR ANYTHING OUT OR THROW ANYTHING DOWN. 1. Ulpianus, On the Edict, Book XXIII. The prætor says with reference to those who throw down or pour out anything: Where anything is thrown down or poured out from anywhere upon a place where persons are in the habit of passing or standing, I will grant an action against the party who lives there for twofold the amount of damage occasioned or done. If it is alleged that a freeman has been killed by a blow from anything that fell, I will grant an action for fifty aurei. If the party is living, and it is said that he is injured, I will grant an action for an amount which would seem to be just to the judge that the party against whom suit is brought should be directed to pay. If it is alleged that a slave committed the act without the knowledge of his master, I will add to the petition in the case the words, "Or surrender the slave by way of reparation". (1) No one will deny that this Edict of the Prætor is of the greatest advantage, as it is for the public welfare that persons should come and go over the roads without fear or danger. (2) It makes, however, very little difference whether the place is public or private, so long as persons ordinarily pass there; because the Prætor had in view persons who were going their way, and particular attention was not paid to highways; for those places through which people ordinarily pass should have the same security. If, however, there was a time when persons did not ordinarily pass that way, and anything is then thrown down or poured out while the place was enclosed, but only after that it began to be used for travel; the party will not be liable under this Edict. (3) Where something falls down while being hung up, the better opinion is that it should be held to have been thrown down; hence, where something is poured out of a vessel which is suspended, even without the agency of anyone, it must be said that the Edict is applicable. (4) This action in factum is granted against the party who lodged in the house at the time when something was thrown down or poured out, and not against the owner of the house, because the blame attaches to the former. Mention of negligence or that the defendant denies the fact is not made, in order to authorize an action for double damages, although both of these matters are stated to afford good ground for an action for wrongful damage. (5) Where a freeman is killed, the assessment of damages is not made for double the amount, because in the case of a freeman no valuation of his person is possible, but the judgment will be for the sum of fifty aurei. (6) There words "If he is living and it is said that he is injured," have no reference to the damage which has been committed against the property of a freeman; as, for instance, if his clothing or anything else should be torn or spoiled, but only to those injuries inflicted upon his body. (7) Where the son of a family has rented an upper chamber and something is thrown down or poured out from it, an action De peculio is not granted against his father, because no claim arising from contract exists, and therefore the action must be brought against the son himself. (8) Where a slave occupies the house, will a noxal action be granted, since one does not lie on the ground of business transacted: or can one De peculio be brought because no claim can be made on account of an offence of the slave? We cannot properly say that the damage was committed by the slave, since the latter committed no injury. I think, however, that the slave should not be unpunished, but that he should be corrected under the extraordinary authority of the judge. (9) We say that a party occupies a house whether he resides in his own or one which is leased to him, or which he obtains gratuitously. It is evident that a guest will not be liable, because he does not live there, but is only entertained, but the party is liable who entertains him; and there is as much difference between him who lives in a house and a guest, as there is between one who has a domicile and the traveller who has none. (10) Where several persons occupy the same room and something is thrown down from it, this action will be granted against any one of them; 2. Gaius, On the Provincial Edict, Book VI. (Since it is absolutely impossible to know which of them threw it down or poured it out) : 3. Ulpianus, On the Edict, Book XXIII. And suit can be brought for the entire amount, but where it is brought against one of the parties the others will be discharged: 4. Paulus, On the Edict, Book XIX. If the money has not been received on joinder of issue, the others will be compelled by a partnership or by an equitable action to pay their shares to the party who has made the settlement.1 1 This rule of contribution is still in force in both England and America, for where one party alone pays the entire sum for which several are jointly liable, he can recover from the others the amounts of their respective shares. — ED. 5. Ulpianus, On the Edict, Book XXIII. Where several persons occupy an apartment divided up among themselves, an action will be granted against him alone who occupied that part from which the pouring out was done. (1) Where anyone gives gratuitous lodgings to his freedman and his clients or to those of his wife, Trebatius says that he is liable on their account; and this is correct. The rule is the same where a man distributes small lodgings among his friends, for if anyone rents lodgings and he himself occupies the greater portion of the same, he alone will be liable; but if he rents lodgings and retains for himself only a small part, leasing the remainder to several persons, they will all be liable as occupying the lodging from which the throwing down or pouring out took place. (2) Sometimes, however, when no disadvantage results to the plaintiff, the Prætor, influenced by equitable motives, ought rather to grant an action against the party from whose bedroom or entry the object was thrown down, even though several persons occupy the same lodging; but if anything should be thrown down from the middle of the apartment, the better opinion is that all are liable. (3) Where the keeper of a warehouse throws down or pours out anything, or some one who has leased a storeroom, or has rented the place merely for the performance of some labor or for purposes of giving instruction does so, an action in factum will lie; even if one of the workmen or scholars threw it down or poured it out. (4) Where, however, a party has judgment rendered against him under the Lex Aquilia (because his guest, or anyone else, threw something down from the apartment) it is reasonable, as Labeo says that an action in factum should be granted against the party who did the throwing, and this is true. It is evident, if he had leased the room to the party who threw it down, that he will also be entitled to an action on the ground of contract. (5) This action which can be brought for things which are poured out and thrown down is a perpetual one, and is available by an heir but is not granted against an heir; but the one which will lie where a freeman is said to have been killed, can only be brought within a year, and is not granted against an heir nor in favor of an heir or similar persons, for it is a penal and a popular action, and we must always remember that where several persons desire to bring a suit of this kind it should preferably be granted to someone who has an interest in it, or was allied to the deceased either by marriage or by blood. Where, however, injury was inflicted upon a freeman he will have a perpetual right of action; but if anyone else desires to institute proceedings, the right will not extend beyond a year; nor are heirs entitled to it as an hereditary privilege; since, where any bodily injury is inflicted upon the freeman, no claim can be transmitted by hereditary right to his successors, as no pecuniary loss is involved, for the action is based on justice and equity. (6) The Prætor says, "No one shall have anything deposited upon a projecting roof above a place which is ordinarily used as a pas- sage-way or where people are accustomed to stand; if it can injure anyone by its fall. I will grant an action in factum for ten solidi against any person who violates this law; and if a slave is said to have done this without the knowledge of his master, I will order this amount to be paid, or the said slave to be surrendered by way of reparation." (7) This provision is a part of the Edict previously referred to; for it was only consistent that the Prætor should provide for this case as well, so that if anything should be placed on any part of the house which would be dangerous, it might not cause any injury. (8) The Prætor says, "No one," "on a projecting roof." These words "No one" have reference to all persons, whether they occupy the house as lodgers or as owners and whether they live there or not, so long as they have anything exposed in these places. (9) "Who have anything deposited above a spot which is ordinarily used as a passage-way or where people are accustomed to stand." We must understand the term "deposited" to be applicable to a lodging or apartment, or to a ware-house or any other building. (10) A person may properly be held to have something "deposited," even if he did not place it himself but allowed this to be done by someone else, and therefore if a slave should place it, and the owner allow it to remain in that position, he will be held liable not to a noxal action, but on his own account. (11) The Prætor says, "If it can injure anyone by its fall." It is manifest from these words that the prætor only provides against injury being done, not by everything which may be placed in such a position, but by whatever is placed so that it may possibly cause injury, for we do not wait until the injury is done, but the Edict is applicable if injury can result at all; and the party who kept the object in its position is punished whether it caused any damage by being placed there or not. (12) Where the object that was placed falls down and causes damage, an action will lie against the party who put it there, but not against the occupant of the house, as this action is not sufficient, because the party who placed the object cannot certainly be held to have kept it in its position, unless he was either the owner or a resident of the house. For when an artist had a shield or a picture on exhibition in a booth, and it fell down and injured a passer-by, Servius was of the opinion that an action corresponding to this one should be granted; for he said that the latter evidently could not be brought, since the picture had neither been placed on the eaves nor on the projecting roof. He stated that the same rule should be observed where a jar which was suspended in a net had fallen down and caused damage; for the reason that both a legal and an equitable action was wanting. (13) This action is open to everyone, and lies in favor of an heir and his successors, but it does not lie against heirs, because it is a penal one. 6. Paulus, On the Edict, Book XIX. This Edict is not limited to cities and villages, but also has reference to all roads along which persons ordinarily pass. (1) Labeo says that this Edict only applies where an object is thrown down in the daytime, and not at night; still, in certain places people also pass at night. (2) A person who occupies the premises is also responsible for the negligence of his family. (3) Where anything is thrown out of a ship, an equitable action will be granted against the party in charge of the ship. 7. Gaius, On the Provincial Edict, Book VI. Where the body of a freeman has been injured by something which has been thrown down or poured out, the judge must take into consideration the fees paid to a physician, and the other expenses incurred by the cure of the individual, as well as the value of any occupation which the party lost, or is liable to lose on account of having been disabled; but no estimate will be made of scars or of any other disfigurement, because the body of a freeman does not admit of appraisement. |