Axman v. Washington Gaslight Co.
38 App. D.C. 150
D.C. Cir.
1912
Check Treatment
Hr. Justice Robb

delivered the opinion of the Court:

1. It is conceded that the three gas inspectors who entered plaintiff’s home were agents of the defendant in so far as they committed no acts of trespass; in other words, that the business upon which they "were there was not their own, but that of the defendant. The issue, therefore, is sharply defined. Were these men, upon the occasion in question, acting within the scope of their employment in the business of their principal, so as to charge that principal with responsibility for their acts, even though the manner in which they fulfilled their duties was inconsistent with or in violation of their instructions ? It will be helpful in the determination of this question to review some of the cases in which it has been considered. It is, of course, now beyond dispute that a corporation may be held responsible for the tortious acts of its agents, when such acts are within the scope of their employment. Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101, 37 L. ed. 97, 13 Sup. Ct. Rep. 261; United, Cigar Stores Co. v. Young, 36 App. D. C. 390.

In Washington Gaslight Co. v. Lansden, 172 U. S. 534, 545, 43 L. ed. 543, 548, 19 Sup. Ct. Rep. 296, in which it was sought to charge the gas company for an alleged libel published *156bv its general manager, it was held that, in order to hold the master responsible in such a case, “there must be some evidence from which an authority might be implied on the part of the manager to represent the company as within the general scope of his employment in regard to the subject-matter.”

In New York, C. & H. R. R. Co. v. United States, 212 U. S. 481, 53 L. ed. 613, 29 Sup. Ct. Rep. 304, involving in its broadest aspect the question whether a corporation can commit a crime, the court, after stating the general rule as to the responsibility of a corporation in actions of tort for damages for the acts of its agent within the scope of his employment, said: “And this is the rule when the act is done by the agent in the course of his employment, although done wantonly or recklessly, or against the express orders of the principal. In such cases the liability is not imputed because the principal actually participates in the inalice or fraud, but because the act is done for the benefit of the principal, while the agent is acting within the scope of his employment in the business of the principal, and justice requires that the latter shall be held responsible for damages to the individual who has suffered by such conduct. Lothrop v. Adams, 133 Mass. 471, 43 Am. Rep. 528.”

In Grant v. Singer Mfg. Co. 190 Mass. 489, 6 L.R.A. (N.S.) 567, 77 N. E. 480, the question was whether a corporation manufacturing sewing machines was responsible in damages for an assault committed by one of its agents in taking a sewing machine for nonperformance of the conditions of a contract of conditional sale, it appearing that the agent had been instructed to take the machine if he could get it peaceably, and, if not, to report the matter that resort might be had to replevin. The liability of the corporation was affirmed, the court saying : “It is settled that the defendant would be liable for force used by Andrews as a means of retaking the machine, even if he had been told not to use force. Roberge v. Burnham, 124 Mass. 277; George v. Gobey, 128 Mass. 289, 35 Am. Rep. 376. The defendant’s liability does not depend upon his having been authorized expressly or impliedly to use force, but upon his *157having used force as a means of doing what he was employed to do.”

Miller-Brent Lumber Co. v. Stewart, 166 Ala. 657, 51 So. 943, 21 A. & E. Ann. Cas. 1149, involved the question whether the lumber company was responsible for an assault alleged to have been committed by its agent in entering plaintiff’s land. The court ruled that, even though the evidence warranted a finding that the act of the agent “in assaulting plaintiff was not anticipated or expressly authorized by the master, but, on the contrary, was an abuse by Vaughan [the agent] of the authority committed to him, viz., to go through the gate, as indicated, the master was responsible.” It was further held that even if the lumber company was in fact entitled to cross plaintiff’s land, that constituted no justification or palliation of the assault.

In Bergman v. Hendrickson, 106 Wis. 434, 80 Am. St. Rep. 47, 82 N. W. 304, the action was against saloon keepers for an assault committed by their bartender upon the plaintiff, who had refused to pay for drinks. It was held that the defendants were liable for the servant’s act, there being evidence that the assault was committed for the purpose of collecting payment for the masters’ liquor, and hence that the servant Avas acting within the scope of his employment. “It Avas his method,” said the court, “of performing the duty delegated to him, and, although the method may not have been either expressly authorized or even contemplated, — nay, although it may haA^e been expressly prohibited, — yet the master is liable iov tlie damages caused thereby, provided he has intrusted to the servant the duty he Avas attempting to perform.”

In Evans v. Davidson, 53 Md. 245, 36 Am. Rep. 400, the action was to recover the value of a cow killed by defendant’s servant, a general farm hand, in driving the cow from defendant’s field, the defendant being away from home at the time. There Avas no direct evidence that the servant had authority to drive the cow from the field. The court, however, held that it was for the jury to say whether the servant was acting at the time *158“in the course of his master’s service and for his master’s benefit, -within the scope of his employment.”

In McClung v. Dearborne, 134 Pa. 396, 8 L.R.A. 204, 19 Am. St. Rep. 708, 19 Atl. 698, which was an action for damages growing out of a trespass committed by the defendant’s agents in taking possession of an organ for defendant, the defendant was held liable on the ground that “the acts complained of were committed in the course of, and as a means to, the accomplishment of that for which they were sent. Let it be conceded that they were instructed to do no wrong, and that they did what they were warned not to do. The master is nevertheless liable.”

The following additional cases are in accord with those above reviewed. Stranahan Bros. Catering Co. v. Coit, 55 Ohio St. 398, 4 L.R.A.(N.S.) 506, 45 N. E. 634; Shear v. Singer Sewing Mach. Co. 171 Fed. 678; Garretzen v. Duenckel, 50 Mo. 104, 11 Am. Rep. 405; Moon v. Matthews, 227 Pa. 488, 493, 29 L.R.A. (N.S.) 856, 136 Am. St. Rep. 902, 76 Atl. 219; Richberger v. American Exp. Co. 73 Miss. 161, 31 L.R.A. 390, 55 Am. St. Rep. 522, 18 So. 922; Quinn v. Power, 87 N. Y. 535, 41 Am. Rep. 392; Loomis v. Hollister, 75 Conn. 718, 55 Atl. 561.

In the light of these adjudications, we conceive the true test in measuring the principal’s responsibility, to be whether the act of the agent was done in the prosecution of the business either impliedly or expressly intrusted to the agent by the principal. If it was, the principal is responsible for the manner in which the agent executed his commission, even if he acted wantonly, recklessly, or against orders. He represented his principal, and what he did was for the benefit of his principal. If his recklessness or lack of judgment caused loss or damage, it is only just that the one who selected and commissioned him should be held accountable therefor. Of course, the moment the agent turns aside from the business of the principal and commits an independent trespass, the principal is not liable. The agent is not then acting within the scope of his authority in the business of the-principal, but in the furtherance of. his own ends.

*159In the case before us it is conceded, as we have said, that these three gas inspectors, when they appeared at plaintiff’s home, were the representatives or agents of the defendant; that they were there upon the business of the defendant, and in no sense upon their own. AVhy did they seek admission to plaintiff’s home? Admittedly for one purpose, — to make an inspection of the defendant’s meter. In making such inspection they would have been acting within the scope of their authority, in the business of the defendant, and for its benefit. AVhen they went through the window they had the same object in view; the evidence disclosed no other, and, even if there had been a conflict in the evidence upon this point, it would have been for the jury to determine it. AYhile we do not regard it as material, in the view we have taken of the case, it is at least significant that no official of the defendant testified that these inspectors had ever been instructed as to the manner in which they should perform their duties. Assuming, hoivever, what the record does not show, namely, that they were instructed or expected to effect an entrance in a regular way, it having been their duty to make an inspection, the defendant was liable for any damages caused by them in performing that duty. Had they climbed to the roof of plaintiff’s house, and, for the purpose of avenging some real or fancied personal grievance, thrown down the chimney or pulled off shingles, it could not have been said that they were acting in the business of their principal, within the scope of their authority. The acts complained of, however, were in supposed furtherance of the business that the company had intrusted to them. Great care should be exercised in the selection and instruction of these inspectors, ’ since they are sent into the homes of the patrons of the company. To insure the exercise of such care, the company should be held to a strict accountability for the manner in which these men perform the work intrusted to them. It is needless to observe that the humblest citizen is entitled to the same protection in the peaceful enjoyment of his home that is accorded any other.

2. The court granted a prayer of the plaintiff on the ques*160tion of damages, to the effect that if the jury should find for the plaintiff, they might, in assessing damages, take into consideration all the facts and circumstances, including the conduct and language of the agents and servants of the defendant, and give a verdict that would fairly compensate the plaintiff under all the circumstances of the case. The court then granted certain instructions submitted by the defendant, to which the plaintiff objected and excepted, to the effect that the jury were “limited to the actual damages suffered,” and that in assessing such damages they were entitled to take into consideration the fact, if they should find it to be a fact, “that the plaintiff and her husband acted in a suspicious manner, and led the agent or agents of the defendant to fairly imfer from said suspicious actions that the reason why said agents were denied entrance to the premises, for the purpose of inspecting the gas meter, was because the plaintiff had tampered with said gas meter in such a manner as to prevent said meter from properly registering the consumption of gas.” The first part of defendant’s instruction might easily have misled the jury, as in assessing plaintiff’s actual damages it was proper to take into account any injury suffered in body or mind, and to consider the humiliation and outrage to which she may have been subjected, to the end that she might be fairly compensated under all the circumstances of the case. Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101, 111, 37 L. ed. 97, 102, 13 Sup. Ct. Rep. 261. The second part of the instruction was erroneous. The plea was the general issue, and not justification. Whatever may have been the conduct of the plaintiff and her husband, it afforded no justification for the acts complained of, and should not have been considered by the jury. Miller-Brent Lumber Co. v. Stewart, 166 Ala. 657, 51 So. 943, 21 A. & E. Ann. Cas. 1149; McClung v. Dearborne, 134 Pa. 396, 8 L.R.A. 204, 19 Am. St. Rep. 708, 19 Atl. 698. Had the plaintiff and her husband been guilty of any dereliction, the law afforded ample redress. Neither belief in nor the existence of such dereliction would justify or palliate a breaking and entering of plaintiff’s home by these three men.

*1613. The jury were further instructed, at the request of the defendant and over the exception of the plaintiff, that in assessing damages they could not consider the fact, if they should find it to be a fact, that these agents of the defendant broke into the house in which plaintiff was living. This was misleading. While the plaintiff could not maintain an action for a trespass to the freehold, the jury were certainly entitled to consider all the circumstances surrounding the alleged assault. In no other way could they have determined the actual damages suffered. The plaintiff was in her home, where she had a right to be; and, in trying to prevent these men from forcibly entering it, she was, as she alleges, cursed and assaulted. The entry, therefore, was one of the circumstances of the assault.

4. One point remains: The defendant, over the objection of the plaintiff, introduced in evidence the contract between the company and Axman, under the terms of which the company was to examine the meters and other apparatus, and have the right of free access to the premises for that purpose. This contract was merely a license to the defendant’s agents to enter the premises at reasonable times, in a regular way, nothing more; and the jury were in effect so instructed at the request of the plaintiff.

As we have previously suggested, the question should have been submitted to the jury whether the acts complained of in plaintiff’s declaration were performed by agents of the defendant in the course and within the scope of their employment in the business of their principal. Washington Gaslight Co. v. Lansden, 112 U. S. 534, 544, 43 L. ed. 543, 541, 19 Sup. Ct. Rep. 296.

Judgment reversed, with costs, and the cause remanded for further proceedings. Reversed and remanded.