Murray v. . Usher

Andrews, J. We concur in the opinion below that a case was made for the jury upon the question whether there was negligence in failing to.ascertain the defective condition of the platform, and to take necessary means for its reparation. Certain questions of law have been argued by the counsel for the defendants which we will briefly consider. The judgment could not be maintained against the defendant Lewis if the case presented an exception raising the question that his neglect to perform the duty imposed on him by his employers to inspect and repair the platform from time to time, so as to keep it in a safe condition, did not render him liable for injury resulting to third persons from such neglect. Lewis and the plaintiff’s intestate were co-servants of the owners of the mil], the former having the general charge and superintendence of the business under the supervision of the owners, who themselves gave directions from time to time. They instructed Lewis to look after the necessary repairs, and the evidence justifies the inference that, in respect to the platform, he omitted to perform his duty. The general rule of respondeat superior charges the master •with liability for the servant’s negligence in the master’s busi *547 ness, causing injury to third persons. They may, in general, treat the acts of the servant as the acts of the master. But the agent or servant is himself liable as well as the master, where the act producing the injury, although committed in the master’s business, is a direct trespass by the servant upon the person or property of another, or where he directs the tortious act. In such cases the fact that he is acting for another does not shield him from responsibility. The distinction is between misfeasance and non-feasance. For the former the servant is, in general, liable; for the latter, not. The servant, as between himself and his master, is bound to serve him with fidelity and to perform the duties committed to him. An omission to perform them may subject third persons to harm, and the master to damages. But the breach of the contract of service is a matter between the master and servant alone, and the non-feasance of the servant causing injury to third persons is not, in general, at least, a ground for a civil action against the servant in their favor. (Loane v. Cotton, 12 Mod. 488; Perkins v. Smith, 1 Wils. 328 ; Bennett v. Bayes, 5 H. & N. 391; Smith’s Mas. and Ser. 216, and cases cited.) But the case was tried upon the theory that there was no distinction between the position of Lewis and that of his co-defendants. The defendants joined in their answer and in the appeal, and no suggestion was made at any point that the action could not be maintained against Lewis, although there was negligence on his part in failing to inspect and repair the platform. The grounds specified in the motion to nonsuit were presented at first in behalf of all the defendants, and then of each separately. But they contain no suggestion that Lewis stands in any relation to the action different from that of his co-defendants, but assume that all the defendants stand in the same situation. The point now taken, that the action was not maintainable against Lewis because he was an agent and servant of the other defendants, and was chargeable with non-feasance only, not having been raised by any exception, cannot be entertained. The defendants also urged an exception taken to the refusal *548 of the trial judge to permit evidence to- be given that the-defendants paid the expenses of the support and maintenance of the intestate after the injury up to his death, and of his. proper interment. There was no error in this ruling. The-expenses incurred by a person injured for medical treatment, or for support between the happening of the injury and the-death resulting therefrom, are not recoverable by his administrator in the statutory action given by the act of 1847; and it. would seem to follow that the payment of such expenses by the wrong-doer cannot be shown either in bar or in mitigation of damages. If they were paid in satisfaction of the wrong under an agreement with the intestate, and under circumstances winch would sustain a plea of accord and satisfaction, and show an extinguishment of the cause of action in favor of the intestate in his lifetime, the case of Littlewood v. Mayor, etc. (89 N. Y. 24), might have some application. It was there-held that the action given to the next of kin by the statute, while not a continuation of the same right of action vested in the intestate, was, nevertheless, made dependent on the existence of a cause of action in the decedent at the time of his. death, not satisfied or otherwise discharged, for the recovery of damages for the same negligence. But the proof was not-offered with a view of showing that the cause of action in favor of the decedent had been satisfied or discharged, and no-such defense was set up in the answei*. The suggestion that the evidence was competent to show that the estate of the intestate was not depleted by the disability caused by the injury has a sufficient answer in the fact, brought out by the defendants, that the intestate had no estate, and it is not necessary to-consider whether the evidence would have been competent under other circumstances. The exception to the charge is not, we think, well taken. The charge, as a whole, stated the correct rule of law, and the clause objected to, by fair construction, presented the point that the sudden development of the insecurity of the platform would not excuse the defendants if the failure to ascertain the defect before that was attributable to want of proper *549 or competent inspection, and the charge, so construed, was unobjectionable. We think that no error was committed on the trial, to which any exception was taken, and the judgment should, therefore, be affirmed. All concur. Judgment affirmed.