( Thomas v. Chicago etc. R. Co., 202 Fed. 766; Norfolk W. R. Co. v. Holbrook, 235 U.S. 625, 35 Sup. Ct. 143, 59 L. ed. 392.) Actionable negligence in failing to maintain safe premises does not exist in favor of persons generally, but only to those whose presence the owner is required to anticipate at the place complained of. (20 R. C. L. 47; Shearman Redfield on Negligence, 6th ed., secs. 6, 10, 188; Hobbs v. Great Northern Ry. Co., 80 Wn. 678, 142 P. 20, L.R.A. 1915D, 503; Garland v. Boston Maine R. R., 76 N.H. 556, Ann. Cas. 1913E, 924, 86 Atl. 141, 46 L.R.A., N.S., 338; United States Express Co. v. Everest, 72 Kan. 517, 83 P. 817; Erie R. Co. v. Van Buskirk, 228 Fed. 489, 143 C.C.A. 71.) Where a correct instruction relative to the issue is requested, it is error not to give it unless a correct instruction on that subject is given by the court.
"All acts, taken apart from their surrounding circumstances, are indifferent to the law." Holmes, Com. Law, 54; Garland v. Railroad, 76 N.H. 556. The legal quality of an act is determined by considering upon what persons and in what way it might be expected to take effect.
The building was his, and at the time the work was done the plaintiffs were not his tenants. He bore no relation to them, and consequently could not be guilty of any negligence in the legal sense of that term. Garland v. Railroad, 76 N.H. 556. His erection of an insufficient building involved no breach of any duty toward the plaintiffs, and no liability can be predicated upon such fault. Unless it is the law that one who erects an unstable building is chargeable with knowledge of its defects, so that his failure to disclose the condition to a prospective tenant amounts to deceit, there is no ground upon which the defendant can be held liable here. While it is true that in certain cases a representation made without knowledge of its falsity can be made the foundation of an action for deceit, the cases go upon the ground that there must be a "conscious indifference, not caring whether it was true or false.
In these cases the parties injured were lawfully engaged in removing moth nests and climbed the trees for that purpose. But the failure of the defendants to use care which might render them liable for injury to those lawfully in proximity to their wires does not create liability as to those there without right. Garland v. Railroad, 76 N.H. 556. It is argued that if the plaintiff was a trespasser as against the owner of the adjoining lot he was not a trespasser as against the defendants. This argument overlooks the legal location of the defendants' wires through the tree.
But whatever those duties, the law is settled that the only one extending beyond the scope of the license to a position on the licensor's property where the licensee would not reasonably be expected, is to abstain from willfully injuring him; he has then become, in legal effect, a trespasser. Restatement, Torts, vol. 2, ยง 341, par. b, p. 931; 20 R.C.L., Negligence, ยง 59; Garland v. Boston M.R.R., 76 N.H. 556, 86 A. 141, 46 L.R.A., N.S., 338, 339, 342, Ann.Cas. 1913E, 924; Roberts v. Kelly Axe Tool Co., 104 W. Va. 452, and authorities cited on page 458, 140 S.E. 283; Perryman v. Mankin Lbr. Co., 113 W. Va. 848, 169 S.E. 462. The injury to the instant plaintiff is not shown to have been willful.
If there be no relation, there is nothing upon which the rule can operate. * * * Unless and until one is brought into relation with other men, or property, or rights, he has no obligation to act with reference to them; and this is true whether the obligation be called legal, moral, or reasonable.' Garland v. Boston Maine R.R., 76 N.H. 556, 563, 86 A. 141, 142, 46 L.R.A. (N.S.) 338, Ann. Cas. 1913E, 924. * * *" And it is there further said:
Rather, the situation is like that in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253, where, abstractly stated, the point was whether, if A. omitted to perform a positive duty to B., C., who had been damaged in consequence, might invoke the breach, though otherwise A. owed him no duty; in short, whether A. was chargeable for the results to others of his breach of duty to B. The decision was by a very narrow majority, and was contrary to some of the dicta in Smith v. London S.W. Ry. Co., L.R. 6 C.P. 14, which probably are now the law in England. Explicit discussion of the question in the books is not common, though the Supreme Court of New Hampshire in Garland v. Boston Maine R.R., 76 N.H. 556, 86 A. 141, 46 L.R.A. (N.S.) 338, Ann. Cas. 1913E, 924, had, before Palsgraf v. Long Island R.R. Co., consciously anticipated the result. It was implicit nevertheless in several other cases. Bremer v. L.R. W.R.R. Co., 318 Ill. 11, 148 N.E. 862, 41 A.L.R. 1345; Peterson v. R.R. Co., 143 N.C. 260, 55 S.E. 618, 8 L.R.A. (N.S.) 1240, 118 Am. St. Rep. 799; Wood v. Pa. R.R. Co., 177 Pa. 306, 35 A. 699, 35 L.R.A. 199, 55 Am. St. Rep. 728; Trinity, etc., Ry. v. Blackshear, 106 Tex. 515, 172 S.W. 544, L.R.A. 1915D, 278. Alabama, etc., Ry. v. Chapman, 80 Ala. 615, 2 So. 738, is to the contrary, but Hill v. Winsor, 118 Mass. 251, is not; for the plaintiff's presence was, or should have been, known to the defendant's tug when it struck the piling.
To be sure the evidence does not exclude the possibility that a radar could be placed where the chief officer could view it at times when he was awaiting an order, but NGL had the burden of showing that this was a feasible procedure and did not sustain it. Yet I am unwilling to find that an assisting tug must not only have a radar but an extra crew member to man it as well. The other reason is the established proposition that breach of duty to one class of persons does not give rise to a claim by another class even though performance of the duty to the first class would have prevented the loss suffered by the second. Gorris v. Scott, L.R. 9 Exch. 125 (1874); Garland v. Boston M.R.R., 76 N.H. 556, 86 A. 141, 46 L.R.A., N.S., 338 (1913); Lang v. New York Central R. Co., 255 U.S. 455, 41 S.Ct. 381, 65 L.Ed. 729 (1921); Irwin Savings Trust Co. v. Pennsylvania R.R., 349 Pa. 278, 37 A.2d 432 (1944); American Law Institute, Restatement of Torts 2d, Tentative Draft No. 4, ยง 281(b) comment c. Although examples of this rule are generally in tort, the same principles must be a fortiori applicable when, as here, the claim sounds in contract and the claimant could so easily have made its own law by stipulating for whatever aids to safety it thought needed. Accordingly the claims of the Birkenstein and NGL for indemnity for amounts paid or payable as a result of the accident are dismissed. If a form of decree cannot be agreed, let it be settled on notice.
We perceive no relationship between the two insurers which would impose directly upon Reserve a duty to exercise due care in regard to Allstate. See Garland v. Railroad, 76 N.H. 556, 86 A. 141 (1913). We agree, however, that Allstate is entitled to bring an action against Reserve on the basis of Moreau's assignment clause.
"If there is no relationship, there is no duty." Garland v. Railroad, 76 N.H. 556, 565. The plaintiffs assert that such a relationship exists between a subcontractor and the employer of an independent contractor as to impose a duty upon the employer to select a contractor of financial competency.