Grand Trunk Railway Co. v. Latham

Appleton, C. J. A judgment was recovered against the plaintiff corporation for the misconduct of the defendant’s intestate — a servant in their employ. This suit is brought to recover compensation for the loss and injury by them sustained in consequence of such misconduct. The presiding justice instructed the jury that an employer/ might recover in an action against his servant for all loss and dam-s age caused by the servant’s breach of duty, and that it was the \ duty of Latham (the defendant’s intestate) in the exercise of his \ vocation as conductor, to treat all passengers civilly and respect- j fully; and if he failed to do so, and in consequence of such fail- j ure his employer sustained loss and damage, he is liable for all ¡ the loss and damage so sustained. Every servant is bound to take due care of his master’s property entrusted to him. If guilty of gross negligence, whereby it is iujured, he is liable to an action. So, too, if guilty of fraud or' misfeasance, whereby damage has accrued to -his master. A servant is liable to an action at the suit of his master, when, a third person has brought an action, and recovered. damages against the master, for injuries sustained in" consequence of the servant’s negligence or misconduct; and in such action against the servant, the verdict against the master, in the action brought' against him, is evidence as to the quantum. of damages, though not, according to some of the English authorities,'as to the fact of the injury. Smith’s Master and Servant, 66. The evidence shows that Latham was notified of the pendency .of the suit against the plaintiffs; that he was present and a witness at the trial; that he was advised and requested* to settle; and (that the defence was made by the plaintiffs, at l^js request, and ..that; he was fully informed that he would be held responsible for the amount recovered against the plaintiffs. The principles established in Veazie v. Penobscot R. R. Co., 49 Maine, 119, and in Portland v. Richardson, 54 Maine, 46, are applicable to the case .at bar. '.The defendant’s counsel requested the court to instruct the jury [181] that the plaintiffs could not recover for counsel fees and disbursements in conducting the suit against the plaintiffs; or, necessarily, the amount of the judgment paid by them, but the only actual damages to Mrs. Benson, (the plaintiff in that suit) caused by the improper conduct of Latham, if there was any. This instruction the court declined to give. The defendant’s intestate had been guilty of gross misconduct. \\ It was his duty to settle the suit brought against his employer for damages caused by such misconduct. Instead of so doing he requested that a defence should be made. Having requested the plaintiff to defend, and being present at the trial as a witness, he cannot object to the costs and expenses which accrued in consequence of complying with his request. The instruction, as requested, should not have been given. It is unnecessary to consider the other portion of the requested instruction, for it is not the duty of the court to dissect a request and eliminate its errors. It is sufficient, therefore, that the request, in its totality, was erroneous. It is not, therefore, important to discuss the residue. Exceptions overruled. Walton, Dickerson, Barrows and Peters, JJ., concurred.