delivered the opinion of'the Court.
The plaintiff in error sued the defendants in an action on the case, to recover damages for the loss of some beef-cattle,, belonging to him, and which had been shipped on board the Cate Joy-euse, bound for New Orleans. The declaration alleges that the Cate Joyeuse, descending the Mississippi river, met with the-steamboat Talma, of which the defendants were the owners, and that, by the negligence and mismanagement of the officers, who had charge of the Talma for the defendants, she ran into and sunk the Cate Joyeuse, whereby the plaintiff’s cattle were drowned and lost to him. The case being tried before a jury, on the plea of not guilty, the plaintiff excepted to three of the instructions given by the Court, at the request of the defendants, which, are as follows : “ 5th. If the Cate Joyeuse contributed to the accident or collision by her own carelessness or unskilful management, the defendants are not liable.” “6th. The plaintiff being a passenger and shipper on the Cate Joyeuse, he is bound by the same principles of law as would the boat be, were she plaintiff in the action.” “Yth. If the collision was produced by the wilful act of the officers and agents of the Talma, the defendants are not liable. If the collision was the result of inevitable accident, and not produced by negligence, or want of skill, on the part of either boat, the plaintiff cannot recover’, but must bear the loss himself.”
The bill of exceptions taken by the plaintiff, does not set out any of the evidence adduced at the trial, nor is it made to appear upon the record, by agreement of the parties or otherwise, what the facts of the case were, or which the evidence may have conduced to prove; and it is therefore contended for the defendants in error, that no questions are presented .for the consideration of this Court. The salutary rule of law is, that every judgment of a Court of competent jurisdiction is presumed to be correct, unless the party complaining that it is erroneous will make it appear by his exception, or in some other appropriate mode upon the record, wherein the alleged error consists. Hence, if instructions asked for by either party be refused, and judgment go against the party dissatified with the refusal, it devolves upon him to set forth in his exception all, or so much of the evidence, with reference to which it may have been asked, as will present the question of law designed to be made. . Else the appellate court would have to presume, in favor of the judgment, that the instruction was properly refused, because there may have been no evidence upon which to predicate it. (Collins vs. Bowler,
Presuming, therefore, that the Court below would not have given the instructions complained of, unless there had been some competent evidence at the trial upon which to predicate them, it results of necessity that their correctness in point of law will have to be determined.
The plaintiff sued as a shipper on the Cate Joyeuse, and, considering the 5th and 6th instructions, and the latter clause of the Yth together, the Court below may be understood as charging the jury, that if they believed the Cate Joyeuse contributed to the collision by her own carelessness, or unskilful management, or that it was the result of inevitable accident, and not occasioned by negligence or want of skill on the part of either boat, the owners of the Talma would not be liable for any damage sustained by the Cate Joyeuse, and that the plaintiff is bound by the same principles of law, as would be applicable to an action by the owners of the Cate Joyeuse for the injury done to her. No fault is to be found with the tenor of this instruction. However equitable the course of decision in admiralty, which would apportion the damages, as between the vessels and the freighters or insurers of cargo in board, arising from collision, when occasioned by mutual fault or neglect, or was the result of inevitable accident, without fault on either side, may seem to be, and whatever conclusion might be proper, if the maritime law extended over the waters of the Mississippi, with courts competent to adjudicate the whole subject matter, to investigate and adjust the divers interests of all the parties interested, it seems to be well settled that, in a common law action, a Court, proceeding according to the course of the common law, cannot exercise such powers, and the rule is, that if collisions happen, on land or on water, from unavoidable accident, as between the two vessels, or vehicles, each one injured must bear its own loss; and the ruléis the same where the collision is occasioned by the mutual fault of both; not indeed that the plaintiff complaining of the injury must have been wholly free from blame, because, though in some degree in fault, or negligent, as for example by being in a wrong position, that will not excuse the defendant if there be a want of ordinary care, on his part, to avoid a collision, much less can he take advantage of it as a license to commit a wanton aggression. In such case, the injured vessel, though in fault, is not considered as having contributed to the collision. But we are not to presume that there was any evidence in the cause to render such a qualification necessary, and, according to the terms of the instruction, the Cate Joyeuse must have contributed by her own carelessness or unskilful management. Presuming in favor of the Court below, that there was no evidence conducing to show that it was in the power of the Talma to have kept clear of the Cate Joyeuse, there can be no reason to doubt the correctness of the general proposition asserted by the instruction- — a number of the authorities in support of which, are collected in Broadwell vs. Swigart,
The Court also charged the jury, that if the collision was produced by the wilful act of the officers and agents of the Talma, tier owners are not liable. We understand it to be implied in the terms of this instruction, that the officers of the Talma, at the time of the collision, were engaged in the service of the defendants ; being in charge of the boat, and navigating it, the presumption would be, that they were employed about the business •of the owners, and acting within the scope of their authority. Obviously the fact, to which it directed the enquiry of the jury, was whether the trespass was wilfully committed by the officers -of the Talma, and not whether they were at the time exercising ,an independent employment. In a variety of cases, according to their peculiar circumstances, it may be difficult, in view of adjudged cases, to say whether the servant or agent was or was not acting in the employ of the principal, and the determination of it has often been swayed either way by the apparent hardship of the particular case. But, conceding the premises laid down in tbis instruction, the only safe rule of law is, tbat the master is-liable for the tortious act of his servant, engaged in his employment, though done wilfully, without orders, or even against-orders. If the servant’s disobedience of instructions will exonerate the master, the proof, easily mgide, virtually does away with the maxim of respondeat superior, designed for the protection of' innocent third persons, and obliging the principal to be careful in the employment of agents, to whom he entrusts the means of' committing an injury. In the case cited of Philadelphia and Reading R. R. Co. vs. Derby,
Tor the error in giving so much of the 7th instruction, the judgment is reversed, and the cause remanded, to be further proceeded in according to law, and not inconsistent with this opinion.