34 Kan. 635 | Kan. | 1886
The opinion of the court was delivered by
This was an action brought by the Central Bank of Kansas against the Kansas Lumber Company Jr., to recover the sum of $500, alleged to have been an overpayment by the bank to the lumber company on a check. The case was tried before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant, and also made certain special findings of fact, and upon this general verdict and these special findings the court below rendered judgment in favor of the plaintiff and
The evidence in the court below was contradictory and conflicting, but there was sufficient evidence to sustain the verdict and findings of the jury; hence we must take the facts to be just as the jury found them to be, and just as the defendant in eri’or, plaintiff below, claims them to be. The facts as they are claimed to be by the defendant in error, plaintiff below, are substantially as follows: The Kansas Lumber Company Jr. is a corporation engaged in the lumber business at Topeka, Kansas, and John W. Griffith is its general manager and agent. The Central Bank of Kansas is, or at least was during the time while the transactions involved in this case were occurring, a corporation doing a banking business at Topeka, Kansas. On May 18, 1883, W. A. Sells drew a check for $300 on the said Central Bank in favor of the said lumber company, to pay a debt due from Sells to the lumber company for lumber, and handed the check to Griffith. Griffith immediately took the check to the Central Bank for payment, and the officers of the bank, through a mistake, taking a figure “ 3 ” in the check for a figure “ 8,” paid to Griffith the sum of $800, instead of the sum of $300; the entire payment being made in twenty-dollar gold pieces. Immediately afterward, and on the same day, the officers discovered their mistake and demanded of Griffith that he should rectify the same and pay back to the bank the sum of $500, that being the amount of the excess paid to Griffith over and above the amount of the check, but Griffith refused, claiming that he had received only $300. There was evidence tending to show that Griffith accounted to the lumber company for the sum of $300, but what he did with the other $500 is not shown. In five days thereafter, and on May 23,1883, the Central Bank commenced this action against the lumber company to recover the said $500 paid in excess over the amount of the check.
The plaintiff in error, defendant below, claims that the verdict and findings of the jury are not sustained by sufficient
“ Plaintiff in error in this case contends that even if the fact of John W. Griffith having received the excess of five hundred dollars in mistake from the bank be fully established, still plaintiff in error cannot be held responsible for this tortious act of Griffith, unless it be first shown affirmatively by the defendant in error that the Kansas Lumber Company Jr. received the benefits or avails of said tortious act; or, in other words, unless it is shown conclusively by the testimony that the five hundred dollars paid in excess of the check by mistake to John W. Griffith went into the coffers of the Kansas Lumber Company Jr., and that it received the benefits thereof.”
In other words, the plaintiff' in error claims that it did not at any tiine authorize Griffith to commit the wrongful acts charged against him; that he did not, therefore, in committing the same, act for it or on its behalf, or within the scope of the authority conferred upon him, and therefore that it is not responsible for such wrongful acts unless it afterward ratified and confirmed the same by receiving the benefits or avails thereof. We do not agree with counsel for plaintiff in error. In the case of The Philadelphia & P. Rld. Co. v. Derby, 55 U.S. (14 How.), 468, 486, the following language is used:
“The rule of ‘respondeat superior,’ or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, o.r even know of the servant’s act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment. (See Story on Agency, §452; Smith on Master and Servant, 152.)
“ There may be found, in some of the numerous cases re*638 ported on this subject, dicta, which, when severed from the context, might seem to countenance the doctrine that the master is not liable if the act of his servant was in disobedience of his orders. But a more careful examination will show that they depended on the question, whether the servant, at the time he did the act complained of, was acting in the course of his employment, or in other words, whether he was or was not at the time in the relation of servant to the defendant.”
In Morawetz’s work on Private Corporations, § 95, the following language is used:
“It is a general rule of the law of agency, that a principal is liable for any tort committed by his agent in the performance of the business which he was employed to transact, even though the particular act constituting the tort may have been done without the knowledge of the principal and in violation of his express directions; but a principal is not responsible for an act performed by his agent while in no manner engaged in performing his business.”
We might properly quote much from Mr. Wood’s treatise on the Law of Master and Servant, but we will content ourselves with quoting the following:
“Sec. 282. The master assumes the risk of an improper discharge of duties by the servant. Indeed, he takes the risk of all the consequences of a wrongful execution of his duties, on the part of any person 'whom he employs, in whatever capacity. By such employment he sets in motion that which produces the injury.”
We would also quote the following, from Cooley on Torts, page 534:
“ The maxim applied here is the familiar one: Qui facit per alium facit per se. That which the superior has put the inferior in motion to do must be regarded as done by the superior himself, and his responsibility is the same as if he had done it in person. The maxim covers acts of omission as well as of commission, and embraces all cases in which the failure of the servant to observe the rights of others in the conduct of the master’s business has been injurious.”
In Wisconsin it has been held that a master is liable for a wrong done by his servant in the course of his employment, whether done through the negligence or the malice of the lat
We think the decision of the court below is correct, and it will be affirmed.