Williams v. Hendricks

*282 COLEMAN, J. Section 3296 of the Code of 1886, provides that “any person who cuts down any oak * * * on land not his own, willfully and knowingly, without the consent of the owner of the land, must pay to the owner ten dollars for every such tree, ” &c. The plaintiff, the appellee, sued to recover the statutory penalty for cutting down thirty-four oak trees. The evidence shows that the defendant and one Hinton were partners in getting staves, and according to their agreement, the defendant furnished’the money for the partnership and Hinton attended to the business of getting out the staves. He furnished to defendant at regular stated periods the amounts due parties from whom trees were purchased, and also. what wTas due for labor, and the defendant settled the claims as thus reported. There was evidence tending to show, that Hinton had no authority from defendant to cut trees on any land except by agreement and purchase from the owner, and that the trees in controversy were cut by Hinton for staves without the knowledge and consent of the defendant. One of the questions involved in the case was, whether the fact that' defendant and Hinton were partners in the stave business subjected the defendant to the statutory penalty. In Story on Partnership, section 168, the following language is used : ‘ ‘From what has been already suggested, it is obvious, that a tort committed by one partner, or by any other agent of the partnership, will not bind the partnership, unless it be, either authorized or adopted by the firm, or be within the scope and business of the partnership.” The general rule is that those partners only are liable in respect of a tort who arepxivy to the tort; but this rule is subject to the exception, that partners are responsible for the tortious acts of a partner in the prosecution of the co-partnership business. Collyer on Partnership, § 457-; 3 Kent, § 47, note. The rule is well settled, at least in this State, that the master is liable for the willful tortious acts of his servants done within the scope and range of his employment, although the particular act was not authorized by the master. The rule as here declared was at first limited to actions against railroads. —Gilliam v. S. & N. A. R. R. Co.; 70 Ala. 268. But if sound as to railroads, there seems to be no good reason why it should not apply, under like circumstances, in all cases of respondeat superior, or to a part *283 ner acting for and within 'the scope of the business. Lilley v. Fletcher, 81 Ala. 234; A. G. S. R. R. Co. v. Frazier, 93 Ala. 45 ; Kansas City, M. & B. R. R. Co. v. Higdon, 94 Ala. 286. In all these cases where the principle was applied, the action sought to hold the principal or superior responsible for a common law liability. The actions were to recover damages sustained as the consequential and natural result of the tort of the agent or servant. ,'If in the case at bar the plaintiff had sued to recover the consequential damages sustained by the tortious cutting of the trees by Hinton, the partner, we would without hesitation, under the well settled principles declared in the foregoing cases, hold that defendant was responsible for such damages, resulting naturally and proximately from the tortious acts of his partner, done in the range of the partnership business. The penalty is not imposed for a mere mistake or' negligence in cutting the trees. The cutting must be done knowingly and willfully. Different principles arise when it is sought to hold a principal responsible for the criminal acts of his agent or servant. The act is highly penal, and must be strictly construed ; and before a party can be subjected to its penalties, it must clearly appear that' he has violated it knowingly and willfully. It is not enough in such a case, that a partner or servant, without his knowledge and contrary to instructions and against his assent, has committed the unlawful act. .To so hold would be to extend the statute by judicial interpretation beyond its meaning and its positive terms. Clifton Iron Co. v. Curry, 108 Ala. 581. In the case of Patterson v. The State, 21 Ala. 571, it was held that a principal was not bound, unless he authorized or cooperated in the illegal act of his clerk. In Barnett v. The State, 54 Ala. 579, 587, the rule is thus declared: “A principal or a partner may be civilly liable in damages for the tort of his agent or associate, under facts which would not subject him to criminal responsibility. In a civil suit, the material inquiry is, whether the wrong was done while the agent was within the line of duty with which he was charged, or the partnér within the scope of his partnership. In criminal cases, it is the participation of the principal or partner in the wrongful act, either directly by concurring therein or by assenting thereto. If the principal or partner, com *284 mands, procures or expresses assent that the wrong shall be done, before or at the time of the commission, criminal responsibility may be fixed upon him.” —Nall v. The State, 84 Ala. 262 ; Seibert v. The State, 40 Ala. 62. In the case of Smith v. Causey, 22 Ala. 568, the suit was to recover statutory penalty of double damages for causing an injury to stock. The court held that the statute was penal, and to enable a party to recover under the statute, it must be shown “that the injury to the stock of the plaintiff arose out of some act of the defendant, done, or commanded or directed to be done by him. If this be not shown he can not be said, in the meaning of the statute, to cause it to be done. The mere negligence of the servant, acting in the ordinary business of the master, although the damage to the stock of the plaintiff actually results from such negligence, will'not authorize a recovery.” “It may often happen” (continues the court) “that an action on the case at common law would well lie to recover damages for the injury so done when a proceeding under the statute would not.” We find a similar ruling in the case of Cushing v. Dill, (3 Ill. 460) 2 Scammon’s Rep. 460, where the action was to recover a statutory penalty given for cutting trees, very similar to our statute. We quote from the decision as follows : ‘ 'This action is brought upon a penal statute, the object of which is to punish the wrongdoer, as well as to recompense the injured individual. To subject any one, therefore, to the penalty of the act, it must be shown to have been willfully violated, by proof that the party charged, committed the forbidden act himself, or caused another to do it by his c'ommand or authority. The statute gives the penalty against the actual trespasser only ; it would be a violation of legal principles, therefore, to extend it so as. to embrace another by implication. “The liability arising from the relation of master and servant, is founded in policy, but the implication of authority in the servant, that would render the master liable in many cases in a civil suit, would not be sufficient to convict him in a criminal or. penal prosecution. The maxim, qui facit per alium facit per se, would be strictly applicable in an action of trespass against Cushing, but in this prosecution he is liable only for his per *285 sonal acts or such acts of his workmen or servants as are proved to have been done by his express, or, at least, necessarily implied, authority. ‘ ‘There is no proof of such acts, or such authority having been given by Cushing, to those who committed the trespass ; he can not, therefore, be considered liable under the statute. “Although Dill can not recover in this action, he is not without a remedy for the injury sustained. That-given by the statute is in addition to the remedy at common law, and an action under it would not be a bar to a suit at common law, in any result.” In the case of Satterfield v. Western U. Tel. Co., 23 App. Court, Ill. 446, the action was brought against the Telegraph Company to recover the statutory penalty for trees conceded by the court, to have been cut under the directions of the superintendent of the wires of the defendant. There was no evidence to show that the trees were cut under any authority, or directions of the defendant, or had been ratified by it. The court conceded the liability of the principal or master for the torts of the agent done within the scope of his authority, but held that the principle did not apply when the action was brought to recover the statutory penalty. A statute of Massachusetts requires “that whenever persons travelling with any kind of vehicle shall meet each other upon a road or bridge, each of them shall seasonably drive his vehicle to the right of the middle,” &c. “Every person offending against the provisions (of the act) shall for each offense forfeit a sum not exceeding twenty dollars * * * and be further liable to any party for all damages sustained by reason of such offense.” In the case of Goodhue v. Dix, 2 Gray 181, the plaintiff sought to hold the principal or master liable, upon the ground that the servant omitted seasonably to drive to the right as provided in the statute. The court held that the employer or owner of the vehicle was not liable under the statute, “if he be in no Avay implicated in the conduct of the servant,” and that the liability Avas limited to the particular individual who Avas guilty of its violation. The case recognized the common law liability’ of the principal or employer for the acts of the agent or servant, but held the rule did not apply under the statute. In the case of Reynolds v. Hanrahan, 100 Mass. 313, the *286 acts were very similar if not identical with those stated in Goodhue v. Dix, 2 Gray 181, supra, but the complaint was framed upon the common law liability of the master for the acts of the servant, and not upon the statute. The court recognized the principle declared in 2 Gray, but called attention to the fact, that in the one case, the action was under the statute, and in the case at bar the action was upon the common law liability of the defendant. In the latter case the defendant was held liable for the acts of the servant, while under the statute, the liability was limited to the particular person who violated it. We think it is clear that the- authorities make a broad distinction as to the liability of a principal or master, where it is sought to hold him responsible upon a common law liability, for the torts of the agent or servant, and when it is sought to recover from him a statutory penalty. In the former cases he is liable for the acts done within the scope of his employment. In the latter, the liability is fixed and limited by the statute itself. The distinction is clear and rests upon sound principles of law. What was said in the case of Postal Telegraph Co. v. Brantley, 107 Ala. 683, and Ib. v. Lenoir, Ib. 640, is wholly correct when applied to the common law action for the recovery of damages. A decision of the question now considered was not before the court in either of those cases, and what was said with reference to the liability of a principal for the statutory penalty was merely dictum. We have been referred to the case of Renfro & Andrews v. Adams, 62 Ala. 302, where the action was for the recovery of the penalty imposed for a failure to enter satisfaction of a mortgage under section 2223 of the Code of 1876. We approve of all that was said and decided in that case. The mortgage was executed to the partnership as a unit, and the action was against the partnership as a unit. The statute imposed the penalty upon “any mortgagee who failed to enter satisfaction after notice by the, mortgagor.” The duty was imposed upon the partnership as mortgagee. The question was, whether notice to one partner was notice to the partnership. We do not doubt that it was correctly held to be sufficient. Under the one act, mere negligence or failure to act incurs the penalty. In the other, an affirmative act knowingly and willfully done is necessary. *287 This court will not ordinarily reverse a cause because of giving instructions to the jury which are merely misleading or argumentative, though it is better that such charges be refused. But when it is manifest that misleading and argumentative charges given were of such a character as to have probably unduly influenced the jury and thereby probably defeated a fair verdict, it becomes the duty of the court to reverse and remand the cause. Charges numbered 2, 4 and 7 were objectionable, in singling out and giving undue prominence to the fact of the partnership. Charge 7 was not only an argument throughout, but under the facts of the case highly injurious t.o the defendant. This charge utterly ignored that part of the evidence, which showed that Hinton claimed to have cut the trees by virtue of an agreement of purchase from plaintiff, and so reported to the defendant, and that the offer to pay may have proceeded from the representation or statement of Hinton. Reversed and remanded.