Brown v. Lent

The opinion of the court was delivered by Davis, J. In torts a party may be responsible civiliter, by reason of his participation in the act occasioning the injury, either by direct personal interference, or by giving directions, or commands, or permission, which will make the act, though done by others, his own, in conformity with the maxim, Me qui facit per alium, facit per se; or he may be liable constructively, by reason of his particular rela — 532 — tion and connection with the agent, who commits the injury. In this last case, either the principal, the superior, or master, or the agent and servant, may be sued separately, or they may be sued jointly. The facts, as briefly set forth in the bill of exceptions in this case, do not appear to us to warrant a recovery against the defendant, on the ground of any direct, personal agency in firing the blast, which did the injury to the plaintiff’s daughter. Although he was at the quarry, some thirty rods distant, looking out stone, he had nothing to do with the particular preparation of this blast, nor had he any supervision over the time and manner of firing it, or of giving proper notice to such persons as might be passing in the highway. All this was the particular duty of Morris, who, as well as the defendant, was in the service and employment of Barker, the contractor, and whose special duty it was, to superintend and take charge of all the blasting at the ledge. The fact, that the defendant, as the general agent of the contractor in respect to all the work within the limits of his contract, gave general directions to Morris respecting the work to be done at the ledge, does not in any way connect him with the particular negligence, or carelessness, whatever it was, which the verdict finds caused the injury; unless we assume, from the vicinity of the ledge to the highway, the number of travellers upon the latter, or other circumstances, that operations of this kind could not be carried on there, however carefully and prudently, without danger to the persons of those thus passing. In such case negligence might be predicated of the mere act of carrying on blasting there at all; and consequently the giving directions to do so, however general, would directly connect the defendant with the mischief. We see no grounds for assuming this. Although we are not informed of the precise nature of the negligence, which was relied upon on trial, there are no facts disclosed, which warrant the conclusion, that, had the general directions given by the defendant been carried into effect by Morris, and the hands under him, with all practicable precautions, the injury would have occurred. It follows, then, if the defendant is liable at all, it must be by reason of his position as the general agent of Barker, or of the Rail Road Company, in which capacity he exercised a general supervis — 533 — ion over all the operations carried on under his control, including those at the ledge. An examination of the principal authorities on this subject leaves very little room for doubt, that the action was improperly brought against this defendant. Barker, the contractor, in whose service the defendant was employed, as well as all other persons engaged about the ledge, may be, perhaps, responsible, as the ultimate master, the first originator and mover of all operations there; and so may Morris, and those immediately under his control, by reason of their direct participation in the injurious act; but neither principle nor-authority will warrant the holding a mere middle man, an intermediate agent between the master and the direct agent, constructively responsible for the acts of the latter. Perhaps the question is of sufficient practical importance, to justify a reference to the leading authorities. In Stone v. Cartwright, 6 D. & E. 410, the defendant was the agent and manager of a coal mine, owned by one Ward, a minor, having been appointed by the court of chancery, and was declared against for negligently and carelessly carrying on operations at the mine, so that the plaintiff's dwelling house, situated above the mine, was rent, sunk and cracked, &c. It was held, that he was not liable; Ld. Kenyon observing, that he had ever understood, that the action must be brought, either against the person committing the injury, or against the owner, for whom the act was done. Lawrence, J., said, if there had been evidence, that the defendant particularly ordered those acts to be done, from which the mischief ensued, the case would have been different. The case of Littledale v. Earl of Londsdale, tried in King’s Bench, heard in Error in Exchequer Chamber, 2 H. Bl. 267, was, in its main features, like the preceding, except that it was brought and sustained against the owner of the mine. In Bush v. Steinman, 1 B. & P. 404, we have a remarkable case of successive intermediate agents and contractors, all of whom were passed over, and a suit instituted against the owner of a house, which he had never occupied, for the injury sustained by the plaintiff, in being overturned in a chaise, by means of a quantity of lime placed in the road near the house, by a person engaged in making repairs on the house. It seems, the owner had contracted with a surveyor to perform the whole work for a stipulated price; the latter contracted — 534 — with a carpenter to do the whole; and the carpenter employed a bricklayer under him; and the latter again purchased lime of a limeburner, whose servant placed the lime in the road. The action was held to be properly brought against the owner of the house, although Eyre, Ch. J., said, that, at the trial below, he had great doubts, whether the defendant was liable, being so far removed from the real author of the nuisance; but those doubts finally gave way, and he concurred with the other Judges of the Common Pleas. He declared his satisfaction with the decisions in Stone v. Cartwright and Littledale v. Londsdale. At Nisi Prius Lord Ellenborough had no doubt, that an action on the case could be sustained against an incorporated company, for injuries to a stage driver, whose coach was overturned and his leg broken, by means of an excavation and rubbish in a public street, the work of men employed by certain pipelayers, who had contracted with the company to lay down water pipes. Matthews v. West London Water Works Co., 3 Camp. 403. See Sly v. Edgley, 6 Esp. R. 6. Some years later, in 1826, a case occurred, in which the Judges of the Court of King’s Bench were equally divided, in consequence of which the case was argued before all the judges at Serjeant’s Inn ; but the judges of the other courts being no better agreed, it was, finally determined against the plaintiff in King’s Bench, upon an equal division. I refer to the case of Laugher v. Pointer, 5 B. & C. 547. The defendant was the owner of a carriage, and hired of one Bryant, a stable keeper, a pair of horses for a day, — Bryant sending with them a driver in his service, but who received no wages, depending wholly on gratuities from those who might have occasion for his services. The defendant paid him for the day. By the carelessness of this man the plaintiff’s horse was run against and injured. The Chief Justice, Ld. Tenterden, and Littledale, J., thought the action could not be sustained, — believing that the driver could not properly be considered as the servant of the defendant. Holroyd J., and Bailey, J., were of a different opinion, — believing, that, for the time, the driver was to be considered as the defendant’s servant, for whose acts he was responsible. Elaborate opinions were delivered by the four judges. There is, it will be perceived on examining these opinions, no radical difference in respect tot he broad principles of law, which should govern cases of that — 535 — kind. All agreed, that the master is responsible for the negligence of his servant, — all expresssed their concurrence in the cases above cited; but they differed as to whether, in point of fact, Pointer, or Bryant, was master. In Randleson v. Murray et al., 8 Ad. & El. 109, the defendants employed a porter, and the latter a carter, to remove barrels of flour from the defendant’s ware house; and in doing so one barrel, by reason of defective tackle, fell upon the plaintiff and injured him. The defendants were held liable, on the ground that both the porter ond carter were their servants. Where the purchaser of a bullock hired a drover to drive it out of London to the owner’s slaughter house, and the drover sent his boy for that purpose, but, through his carelessness, the bullock rushed into the plaintiff’s premises, the owner was held not responsible for the misconduct of the boy, and, as Coleridge, J., thought, would not have been liable, had the drover attended to the matter himself, — they not being regarded as the defendant’s servants. It is perhaps material to consider, that certain by-laws of the city required none, but licensed drovers, to be employed in such business. Milligan v. Wedge, 12 Ad. & El. 737. The particular question, which, in effect, was left undecided in Laugher v. Pointer, was recently revived, and again discussed in the Court of Exchequer, — Quarman v. Burnett et al., 6 Mees & Welsh. 499, — under a state of facts substantially similar. The whole court adopted the opinion of the Chief Justice and of Littledale, J., as the true doctrine. Baron Parke, in delivering the opinion of the court, adverts to certain circumstances, which were relied upon,, as distinguishing this case from the one in King’s Bench, — such as the fact, that the driver, though in the regular service of the stable-keeper, under wages, was often employed by the defendants, sometimes for a week or two together, to go into the country, and even had a livery provided for him, when in their service, and was paid a stipulated compensation per day, — but was of opinion, that they did not materially change the aspect of the case. A still later case in the same court, Rapson v. Cubitt, 9 Mees & Welsh. 710, is a very direct authority for the decision we now make. The defendant, a builder, was employed by the committee of a certain club to make alterations and repairs in their club house. He made a sub-contract with one Bland, a gas fitter, to execute that portion of the work re — 536 — lating to the gas fittings. In doing this work, Bland, or some of his men, omitted to turn off the gas from a certain pipe, by reason of which a large quantity escaped and exploded, seriously injuring the plaintiff and his wife. The whole court held, that the defendant was not liable, he not standing in the relation of master to Bland. There was assuredly more reason in that case for considering Cubitt responsible for the carelessness of Bland, than here in holding Lent accountable for the acts of Morris and his men; since in the former the sub agent was appointed, or contracted with, by the party sued; in the latter he was not. The doctrine of the case of Quarman v. Burnett, decided two years before, in 1840, was fully confirmed. We are all satisfied, that the instructions given by the county court to the jury were erroneous. The judgment of that court is therefore reversed, and a new trial granted.