24 Conn. 40 | Conn. | 1855
The plaintiffs, in this case, having closed their evidence, the defendants moved for judgment as in case of nonsuit; and the superior court, being of opinion that the plaintiffs had failed to make out a prima facie case, granted the motion; and the case is now brought before us for revision, under § 2 of the statute of 1852. Comp, statutes of 1854, p. 97. The question here is the same as in the superior court. Is the plaintiffs’ evidence sufficient, in point of law, to make out a prima facie case in their favor ?
From the evidence, it appears that the plaintiffs’ steamboat, called the Alice, in July, 1852, was moored alongside of the defendants’ wharf in Bridgeport, upon which the defendants had what the witnesses call a depot, or freight-shed, an old wooden shed, described as similar to a farmer’s corn-house. The boat was fastened to the wharf by means of cables, and on the night of the 21 st of July, the boat took
The action is trespass, vi et armis, for causing, by means of the defendants’ servants, the cables, by which the boat was fastened to the wharf, to be cut; by means of which the boat drifted away from the wharf, and thereby prevented the plaintiffs’ servants from extinguishing the fire, and thus saving the boat. It does not appear what Sheridan’s duty as watchman was. Nor does it appear that the defendants had any property to be watched at the place, except the wooden shed, which was upon their wharf. It is insisted, however, by the plaintiffs, that, as watchman, he had an unlimited discretion, to do everything that he might think necessary, in order to secure the plaintiffs’ property from injury, in any emergency like the one in question; and that as he exercised this discretion in an unreasonable manner, by cutting the boat loose, when there was a reasonable probability that she might have been saved, and especially, when there was no reasonable ground to apprehend danger to the defendants’ property, from her burning at the wharf, the wind at the time being in a direction to drive the fire from the wharf, and the building that was upon it, the defendants are liable, and in this form of action, for his acts.
The view which we have taken of the case, renders it unnecessary for us to determine the extent of the watchman’s discretionary power, and we therefore do not wish to be con
If such a proposition could be sustained, then, indeed, the defendants might be liable in trespass for this injury, because to employ an agent, with such unlimited powers, might be tantamount to an express direction to the watchman, to cut the boat loose, given at or before the time when the act was done. The question, it is to be observed, is confined to the powers the law will imply, or infer to have been given to this agent, because there was no proof of any other powers having been given him, in point of fact. The books tell us that general agents must exercise a sound discretion, but precisely what this consists in, they do not inform us. It appears to us, that it is more correct to say, that the law will imply, in favor of agents, whether the agency is limited to one or more objects, the usual and appropriate means to accomplish the object, or objects of the agency. There must be some discretionary power in every agency, where the manner in which it is to be conducted is not specifically pointed out by precise and definite instructions, given before it commences, or has not become settled by known rules of law; and wherever there is any discretionary power, whether it is general or limited in its nature, it would seem that it ought to be exercised soundly. An unlimited discretion would give the watchman power to pull down, or blow up, with any means at his command, any buildings contiguous to a fire, which he might think, to some extent, endangered the property he was set to watch. If such powers were in fact given to a
The law is rather jealous of the exercise of unlimited powers of discretion, in subordinate agents and servants. In some cases, where the master is not at hand to be consulted, as is sometimes the case of the master of a vessel, in a foreign port, it will give very enlarged powers to an agent, but this is from the necessity of the case. Here it does not appear, we are aware, that the principal officers of the defendants’ company resided in Bridgeport; and that the company kept its office there; but the corporation is entirely within the state, and the principal terminus of the road is at Bridgeport, and it may fairly be presumed that there were officers there of a higher grade than that of night-watchman to one of their sheds; and if there was no one there, who could be consulted in such an emergency as this, we think, at least, it ought to be shown, before it is assumed, that it falls within the general powers of this subordinate agent, for a special purpose, to destroy a valuable vessel and cargo, in order to save property of very trifling importance, comparatively.
The principle that subjects a master for the tortious act of the servant, done in the performance of the master’s business, and within the scope of the general authority conferred, is the same as that which subjects him for the act of his servant, done by his express direction, given at the time. In both cases the maxim applies, qui facit per aliumfacit per se, and the master shall be responsible for the acts of his agent, to the same extent that he would be, if he personally committed the wrong. But the remedies, applicable to these several injuries, are entirely different. In the former case he is liable only in an action upon the case, founded upon the negligence of the servant in the performance of the master’s lawful business. Whereas, in the latter case, he is liable in an action of trespass, caused by the act of the servant. But his liability to be sued in trespass does not rest at all upon the relationship of master and servant which exists, but upon the fact that the act complained of was done by his express
The law never imputes malice, or a wanton and wilful trespass, to the transaction of any lawful business, contrary to the wishes of the party, any more than it will impute crime. These acts may be done through the instrumentality of agents; but it must be shown, as a fact, that they were ordered, directed or authorized to be done; the law will never infer this from the mere relation of master and servant. Undoubtedly, this relation may be a circumstance, proper to be shown in connection with other facts, tending to show that the act complained of, was done by the command of the master; but unless the act of trespass is the natural, or necessary, consequence of something which the master has ordered to be done, it will not alone be sufficient to subject the master. The old authorities on this subject were all i examined in the leading case of M’Manus v. Crickett, 1 East, 106, in which it was explicitly held that a master was not liable for the wilful act of his servant. The substance of these old authorities is very well condensed in the opinion of the court, as expressed by Lord Kenyon, in that case. “ It is a question,” says that learned judge, “ of very general con
The fact that the act of cutting the cables was a direct injury, which would render the watchman liable in trespass, had he been sued, makes no difference. This appears, negatively, from the fact, that no case can be found where an action of trespass has been sustained against a master, for the acts of a servant, where such acts were not expressly ordered or authorized to be done; or where they were not the natural or probable result' of something which the servant was ordered to do, which ordinary care in the execution of the master’s orders would not guard against; as was the case of Gregory v. Piper, 17 E. C. L., 454. The distinction between the trespass of the servant, and the liability of the master for negligence, arising from an act which might amount to a trespass in the servant, is very well illustrated by the case of Croft and another v. Alison, 6 E. C. L., 528. There, the action was case against the master, for the neg
The English cases on this subject are collected by Smith on master and servant, Law Library Edition, p. 172 and 193, inclusive, where the views which we have here expressed will be found to be fully sustained. Indeed, so long ago as the case of Morley v. Gainsford, 2 H. Bl, 442, it was said by the court, that it was difficult to put a case where the master would be considered as a trespasser for an act of his servant, which was not done at his command.
And we find nothing in our own reports, or in the reports of any of the states, which at all militates against the English cases. Wright v. Wilcox, 19 W., 343. Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480. Wilson v. Peverly, 2 N. H., 548. Vanderbilt v. Richmond Turnpike Co., 2 Comstock, 479. Church v. Mansfield, 20 Conn. R., 284.
As, therefore, there was no proof that the defendants ordered or directed- their watchman to cut the cables of the plaintiff’s vessel; and as this act was not a necessary, or natural, or probable result of anything that he was ordered to do, even in the emergency, as he considered it, when he
In this opinion, the other judges, WAITE and ~H~r4 concurred.
Judgment affirmed.