Fraser v. . Freeman

Allen, J. The exceptions taken upon the trial do not present any questions as to the character or degree of force which may be lawfully exerted to obtain access to preznises from which the rightful owner is tortiously and forcibly excluded. It will be assumed, for the purposes of this appeal, that the defendant was a trespasser, seeking by foz-ce to enter *569 upon the premises in dispute, and that Mullady and the other persons aiding him were employed with a design to overcome all opposition, and to use such force as should be necessary to accomplish the purpose, and that this was illegal, and constituted the defendant, and those present and assisting him, trespassers as against Fraser the deceased. There were no exceptions to the rulings of the judge at the trial, upon this branch of the case. Under such circumstances the defendant, the principal, putting the others in motion, is answerable for all the necessary or legal and natural consequences that ensue, such as might in the ordinary and natural course of events follow. To this extent he must be regarded as intending all the consequences of the proceedings instituted and carried on by him. The acts of the agent are his acts. The law holds that he ought to have foreseen whatever results naturally or necessarily flow from his unlawful act, and he will be held liable for all that is done by his agents in furtherance of the general design, for acts within the general scope of the design, or which legitimately and naturally result from the purpose. (Addison on Torts, 5; Guille v. Swan, 19 J. R., 381.) But the principal is not liable for the malicious and willful act of the servant, done without his direction or assent. (McManus v. Crickett, 1 East, 106.) For the unauthorized, willful or malicious act of the agent, the principal is never liable. (Story on Agency, § 456; Wright v. Wilcox, 19 W. R., 343.) Judge Cowen, in the case last cited, says: “A man shall be presumed to intend the ordinary consequences of his own acts, and especially, so far as such consequences may be innocent of all evil intention; for these he may be safely held accountable. But for those which are remote and barely possible he is not accountable; and if they be, at the same time, criminal, it would be violating one of the plainest principles of presumptive evidence to say that he intended them.” Upon the trial, the judge was requested to charge, as a distinct proposition, that if the jury believed that Mullady fired the pistol shot, which caused Fraser’s death, with *570 the premeditated design, to effect his death, the defendant, Freeman, was not liable for his act. Homicide, when perpetrated “ from a premeditated design to effect the death of the person killed, or of any human being,” is declared to be murder in the first degree, when it is not manslaughter or justifiable homicide. (Laws of 1862, chap. 197.) The request was in the words of the statute, and within the statutory definition of murder, and there was nothing in the form of the request to bring the act within any of the degrees of manslaughter or the description of justifiable homicide. To kill “with premeditated design,” is to kill “with malice aforethought.” The terms of the request had reference as well to the common-law as the statutory definition of murder, and the request was in effect that if the jury should find that the killing was willful and malicious, the defendant was not responsible for the act.. (People v. Enoch, 13 Wend., 159; People v. White, 22 id., 167; Fitzgerrold v. The People, 37 N. Y., 413.) The jury have not found that the defendant intended murder or the taking of human life, or that it was within the consequences of his act in the necessary and ordinary course of events, and the case was not submitted to them on any such theory. By the refusal to charge as requested, the judge held the defendant liable for the willful and malicious, as well as criminal, act of Mullady. There was no qualification or limitation of the responsibility of the defendant for the acts of his agents; but he was declared chargeable for everything that was done by them, whether in the course of the employment, and at the instigation of the defendant, or of their own volition, to effect their own purposes, or to gratify their own malice. The law does not charge a master for the malicious act of the servant. ( Vanderbilt v. Richmond T. Co., 2 Comst., 479; Croft v. Alison, 4 B. & Ald., 590.) Willful murder was certainly a remote and scarcely possi ble result of the action of the defendant, and could not have been within his intent, so that it could be said that he per *571 formed the act by the hands of his servant, which is the foundation of the ordinary liability of masters for the acts of their servants. The request excluded the idea that the homicide was authorized by the defendant or committed in the furtherance of his plans and purposes, or that it was within the range of possibilities contemplated, or which could have been foreseen by him. The cause was submitted to the jury upon the theory that the defendant was responsible for all the acts of his servants, whether committed in furtherance of his plans and purposes, and in pursuance of his orders, or- of another’s, and for purposes of their own. This was in violation of the principles regulating the liability of a master for the acts of his servant. (Bacon’s Ab., Master and Servant, K.) As joint tort feasor, the individuals concerned were only liable for the acts of each other, - committed in furtherance of the common design, or which they instigated,-or in which they took part as aiders and abettors. Other questions are involved; but as a new trial must be granted for the reasons stated, they will not be passed upon. ■ The judgment must be reversed and a new trial granted, costs to abide event. Grover. Peckham and Rapallo, JJ., concurred. Church, Ch. J., and Folger, J., were for affirmance. Judgment reversed.