McClung v. Dearborne

134 Pa. 396 | Pa. | 1890

Opinion,

Mr. Justice Williams:

Dearborne is a dealer in cabinet organs and other musical instruments. It is his habit, and it seems to prevail quite generally among dealers in similar articles, to sell on the instalment plan to those who desire it, taking an instrument in the nature of a lease from the purchaser. The several instalments of purchase money are to be paid as rent. If they are paid, the article becomes the property of the so-called lessee. If not paid, the vender reserves the right to seize and retain the article.

Fox was an employee of Dearborne, whose business was to hunt up instruments on which one or more instalments were unpaid, whether in the hands of the original purchasers or their vendees, in order that they might be seized or replevied by Dearborne. He had sought and obtained admission to the house of MeClung by means of falsehood, and secured the number and description of the cabinet organ in the parlor. His employer alleged that it was an instrument which he had sold or leased to a customer two or three years before, and on which unpaid instalments were due. Fox expressed confidence in his ability to invade McClung’s home a second time, and bring off the organ, without a breach of the peace. An expedition was fitted out, consisting of two men and a team, under the direction and control of Fox, for this purpose. Before they set out, they were instructed by Dearborne not to commit an assault and battery on any person, and not to break the law. They went to McClung’s house, secured admission to the parlor by a false pretence, and began the removal of the organ. Mrs. MeClung, and her son who happened to be at home, tried to resist, but were at once overpowered, and the organ and its belongings carried off. The scene is described by one of the witnesses thus: “ I came down and saw Mr. Fox. He was holding my mother up against the parlor door. I came forward, and my brother came out, and asked what all this meant. He said: ‘ Just this: if you interfere with my business, I will shoot you dead,’ and reached in his back pocket...... He said: ‘ I came to take this organ out of here. If you interfere with my business, I will shoot you.’ Then my brother said: ‘You do not take this organ out of this house. Show your authority. If you don’t, you take it over my corpse.’ ..... Then he clinched my brother...... Then the two colored men came in, and began knocking us about...... I then went to the corner and saw a policeman, and asked him to come down. He came down, and Fox said: ‘ Arrest this man, (meaning my brother,) and I will appear against him in the morning.’ They arrested my brother, and he was taken to the station.”

This action was brought by MeClung to recover damages for this high-handed and hostile invasion of his home. On the trial, the learned judge of the court below told the jury that the conduct of Fox “ was without mitigation, and deserving of the severest condemnation,” but that whether Dearborne was responsible for it or not, depended on the instructions he gave him when he started out on the expedition. The correctness of this instruction is the point on which this appeal depends.

The general doctrine laid down by the learned judge, that every man is liable for his own trespass only, must not be taken too literally; for one must be held to do that which he procures or directs another to do for him, as well as that which he does in his own person: Qui facit per alium, facit per se. Servants and employees are often without the means to respond in damages for the injuries they may inflict on others by the ignorant, negligent, or wanton manner in which they conduct the business of their employer. The loss must be borne in such cases by the innocent sufferer, or by him whose employment of an ignorant, careless, or wanton servant has been the occasion of the injury, and, under such circumstances, it is just that the latter should bear the loss. But the master is not liable for the independent trespass of his servant. If a coachman, while driving along the street with his master’s carriage, sees one against whom he bears ill-will at the side of the street, and leaves the box to seek out and assault him, the master would not be liable. Such an act would be the wilful and independent act of the coachman. It was done while in his master’s service, but not in the course of that service. But if the coachman sees his enemy sitting on the box of another carriage, driving along the same highway, and he so guides his own team as to bring the carriages into collision, whereby injury is done, the master is liable. The coachman was hired to drive his master’s horses. He was doing the work he was employed to do, and for the manner of his doing it the master is liable: Wood on M. & S., § 277. It would be no defence to the master to prove that he had given his coachman orders to be careful and not drive against others. It was his duty not only to give such orders, but to see that they were obeyed. It will be seen, therefore, that it is the character of the employment, and not the private instructions given by the master to Ms servant, that must determine the measure of his liability in any given case. An excellent illustration is afforded by the case of Garretzen v. Duenckel, 50 Mo. 104. The defendant was a gunsmith. In his absence from his store a clerk was waiting upon a customer who wanted to buy a rifle. The customer desired to see it loaded, and would not buy unless this was done. The orders of the defendant to his clerk were that he should not load a rifle in the store. The customer was so earnest in desiring it that the clerk loaded it, and by accident it was discharged, the ball injuring the plaintiff, who was sitting at a window on the opposite side of the street. The defendant set up his orders to his clerk as a defence, but it did not prevail. The court said: “ There is no pretence that he (the clerk) was endeavoring to do anything for himself. He was acting in pursuance of authority, and trying to sell a gun, to make a bargain for his master; and, in his eagerness to subserve his master’s interests, he acted injudiciously and negligently.”

In the case now before us, Dearborne sent Fox and his helpers to the house of McClung for the purpose of seizing and bringing away the organ. He says: “ I told him to take the men and team when he was ready, and to bring the organ in, but to be careful and not to have any row about it.” Black, who drove the team, testifies: “Mr. Dearborne told Fox to go-down and get this organ on South Sixteenth street; to get it as peaceably as possible, and not to have any assault and battery, or any disturbance whatever.” These directions show that Dearborne knew that the errand on which he sent his employees was one that was likely to result in trouble, and would require to be managed with great coolness and care, in order to avoid collision and a breach of the peace. But, however the rule may be held in regard to the criminal liability of the master, under such circumstances, it is very clear that he cannot escape liability civilly by virtue of his instructions to his servant as to the manner of doing an act which the servant is to undertake on his behalf. He knew that the invasion of McClung’s house, in the manner contemplated, was likely to excite indignation and resistance on the part of the inmates, and that what ought to be done might have to be determined under excitement; and without time for consultation or reflection by his employees. Under such circumstances, he puts them in his own stead, and he is bound by what they do in the effort to do the thing which was committed to them: Sanford v. Railroad Co., 28 N. Y. 343; Lake Shore etc. Ry. Co. v. Rosenzweig, 113 Pa. 519; Pittsb. etc. Ry. Co. v. Donahue, 70 Pa. 119; Hays v. Millar, 77 Pa. 238; Garretzen v. Duenckel, supra.

The defendant was bound not only to give proper instructions to his servants when sending them on such an errand, but he was bound to see that his instructions were obeyed. In the leading English case of Seymour v. Greenwood, 6 Hurl. & N. 359, referred to at some length in Wood on M. & S., § 297, it is said: “ If the act is done within the scope of the servant’s employment, and is done in the master’s service, an action lies against the master, and he is liable even though he has directed the servant to do nothing wrong.” Here Fox and his helpers were sent to bring away the organ. 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. When he sends them upon an errand that exposes them to resistance and danger, and the excitements consequent upon the presence of such a state of things, he must take the chances of their self-control and ability to obey. If he finds the risk inconveniently expensive, he may conclude to respect the homes of inoffensive citizens, and rely on his legal remedies for the recovery of any property to which he may claim title hereafter. The jury should have been told that the defendant was liable for what the learned judge aptly characterized as an “ unjustifiable outrage ” by his employees, and they should have been allowed to assess adequate damages for the breach of the plaintiff’s close, if the entry was forcible, and for all the injury done him by any and all the defendant’s servants while engaged in the business of seizing and carrying away the organ. All the circumstances may be considered in fixing the compensation to be awarded to the plaintiff.

Judgment reversed, and a venire facias de novo awarded.