Thames Steamboat Co. v. Housatonic Railroad

Hinman, J. The plaintiffs, in this case, having closed their evidence, the defendants moved for judgment as in case of nonsuit; and the superior court, being of opinion that the plaintiffs had failed to make out a prima facie case, granted the motion; and the case is now brought before us for revision, under § 2 of the statute of 1852. Comp, statutes of 1854, p. 97. The question here is the same as in the superior court. Is the plaintiffs’ evidence sufficient, in point of law, to make out a prima facie case in their favor ? From the evidence, it appears that the plaintiffs’ steamboat, called the Alice, in July, 1852, was moored alongside of the defendants’ wharf in Bridgeport, upon which the defendants had what the witnesses call a depot, or freight-shed, an old wooden shed, described as similar to a farmer’s corn-house. The boat was fastened to the wharf by means of cables, and on the night of the 21 st of July, the boat took — 50 — fire, between the wheel-houses, near the smoke-pipe, and before the fire had so far progressed as to endanger the building upon the wharf, and while she was in such a condition that the witnesses supposed the fire could easily be extinguished by the engines just then arrived, or arriving, at the spot, she was cut loose from the wharf by the defendants’ watchman, Lawrence Sheridan, and drifted out upon the flats, and was consumed and destroyed. After the boat had drifted away from the wharf, Capt. Hawley, also in the defendants’ employment, as superintendent, on hearing it proposed to haul her alongside of the wharf again, said that she could not be hauled back again. The action is trespass, vi et armis, for causing, by means of the defendants’ servants, the cables, by which the boat was fastened to the wharf, to be cut; by means of which the boat drifted away from the wharf, and thereby prevented the plaintiffs’ servants from extinguishing the fire, and thus saving the boat. It does not appear what Sheridan’s duty as watchman was. Nor does it appear that the defendants had any property to be watched at the place, except the wooden shed, which was upon their wharf. It is insisted, however, by the plaintiffs, that, as watchman, he had an unlimited discretion, to do everything that he might think necessary, in order to secure the plaintiffs’ property from injury, in any emergency like the one in question; and that as he exercised this discretion in an unreasonable manner, by cutting the boat loose, when there was a reasonable probability that she might have been saved, and especially, when there was no reasonable ground to apprehend danger to the defendants’ property, from her burning at the wharf, the wind at the time being in a direction to drive the fire from the wharf, and the building that was upon it, the defendants are liable, and in this form of action, for his acts. The view which we have taken of the case, renders it unnecessary for us to determine the extent of the watchman’s discretionary power, and we therefore do not wish to be con — 51 — sidered as expressing any opinion upon it, any farther than it is involved in the question which we do feel called upon to decide, in order to determine whether there was any error in the court’s granting the nonsuit. To hold, however, that his discretion was unlimited, as claimed by the plaintiffs; that he had power to do whatever he might think best, even to the destruction of the property of third persons, and without any reference to its comparative value to the property he was set to watch, is such a startling proposition that we can not for a moment sanction it. If such a proposition could be sustained, then, indeed, the defendants might be liable in trespass for this injury, because to employ an agent, with such unlimited powers, might be tantamount to an express direction to the watchman, to cut the boat loose, given at or before the time when the act was done. The question, it is to be observed, is confined to the powers the law will imply, or infer to have been given to this agent, because there was no proof of any other powers having been given him, in point of fact. The books tell us that general agents must exercise a sound discretion, but precisely what this consists in, they do not inform us. It appears to us, that it is more correct to say, that the law will imply, in favor of agents, whether the agency is limited to one or more objects, the usual and appropriate means to accomplish the object, or objects of the agency. There must be some discretionary power in every agency, where the manner in which it is to be conducted is not specifically pointed out by precise and definite instructions, given before it commences, or has not become settled by known rules of law; and wherever there is any discretionary power, whether it is general or limited in its nature, it would seem that it ought to be exercised soundly. An unlimited discretion would give the watchman power to pull down, or blow up, with any means at his command, any buildings contiguous to a fire, which he might think, to some extent, endangered the property he was set to watch. If such powers were in fact given to a — 52 — watchman, we do not see why the master should not be liable for its exercise. But a power so liable to be abused, and when abused, attended with such consequences, no prudent man would entrust to an agent of this description. And will the law, by implication, confer a power which no prudent man would entrust to his agent ? All powers are to be construed with reference to the subject-matter, which, in this instance, was to keep watch. As incident to the discharge of this duty, the watchman might have power to extinguish fires, and, in some instances, to remove combustible materials from the vicinity of the property watched, when it could be done without injury to others. But, at best, the power to remove the boat from the vicinity of the property watched, was only incidentafjand, on general principles, ought not to be so construed as IS empower the watchman to ruin his employers, by destroying her, without reference to the comparative value of the property watched, and the property destroyed. The law is rather jealous of the exercise of unlimited powers of discretion, in subordinate agents and servants. In some cases, where the master is not at hand to be consulted, as is sometimes the case of the master of a vessel, in a foreign port, it will give very enlarged powers to an agent, but this is from the necessity of the case. Here it does not appear, we are aware, that the principal officers of the defendants’ company resided in Bridgeport; and that the company kept its office there; but the corporation is entirely within the state, and the principal terminus of the road is at Bridgeport, and it may fairly be presumed that there were officers there of a higher grade than that of night-watchman to one of their sheds; and if there was no one there, who could be consulted in such an emergency as this, we think, at least, it ought to be shown, before it is assumed, that it falls within the general powers of this subordinate agent, for a special purpose, to destroy a valuable vessel and cargo, in order to save property of very trifling importance, comparatively. — 53 — The law will not presume that a principal, for any purpose, would authorize an agent to take and convert property to his own use, that did not belong to him; and if it will not confer this power on an agent, we see no more reason for its conferring on him a power to destroy, than to take property ; and we certainly should require some direct and controlling authority, before we should feel authorized to hold that where the principal’s property is to some extent threatened by a contiguous fire, though, in this case, it does not appear to have been even threatened to any considerable extent, that the agent has power to remove the property which threatened it out of the way, and by such removal, destroy it. No such authority has been produced, and we presume, therefore, none such can be. But however this may be, we are satisfied that the plaintiffs can not recover in this ease, even assuming the authority of the watchman, as the agent of the defendants, to cut the vessel loose, on the ground that it endangered the property he was employed to watch, to be unquestionable. The principle that subjects a master for the tortious act of the servant, done in the performance of the master’s business, and within the scope of the general authority conferred, is the same as that which subjects him for the act of his servant, done by his express direction, given at the time. In both cases the maxim applies, qui facit per aliumfacit per se, and the master shall be responsible for the acts of his agent, to the same extent that he would be, if he personally committed the wrong. But the remedies, applicable to these several injuries, are entirely different. In the former case he is liable only in an action upon the case, founded upon the negligence of the servant in the performance of the master’s lawful business. Whereas, in the latter case, he is liable in an action of trespass, caused by the act of the servant. But his liability to be sued in trespass does not rest at all upon the relationship of master and servant which exists, but upon the fact that the act complained of was done by his express — 54 — direction and command; and so, in reality, as well as in law, is his own act, though done through the instrumentality of another. A man shall not be made a trespasser against his will, though he may be made liable in an action on the case for the negligence of the servant, while engaged in the business of the master, however contrary to the master’s wishes such negligence may be ; and the reason is, because he, who is damaged, ought to be recompensed; and a man must so use his own, as to do no injury to another; and where one of two innocent persons must suffer, it is more reasonable that he should suffer whose act of employing an unskilful, or negligent servant, was the cause of the injury, than that the other, who has been wholly in the right, should be compelled to bear a loss, brought upon him through another’s want of care, in not attending to his own business, and in entrusting it to the carelessness of his servant. The law never imputes malice, or a wanton and wilful trespass, to the transaction of any lawful business, contrary to the wishes of the party, any more than it will impute crime. These acts may be done through the instrumentality of agents; but it must be shown, as a fact, that they were ordered, directed or authorized to be done; the law will never infer this from the mere relation of master and servant. Undoubtedly, this relation may be a circumstance, proper to be shown in connection with other facts, tending to show that the act complained of, was done by the command of the master; but unless the act of trespass is the natural, or necessary, consequence of something which the master has ordered to be done, it will not alone be sufficient to subject the master. The old authorities on this subject were all i examined in the leading case of M’Manus v. Crickett, 1 East, 106, in which it was explicitly held that a master was not liable for the wilful act of his servant. The substance of these old authorities is very well condensed in the opinion of the court, as expressed by Lord Kenyon, in that case. “ It is a question,” says that learned judge, “ of very general con — 55 — cern, and has been often canvassed, but I hope at last it will be at rest. It is said in Bro. Abr., tit. trespass, pi. 435, 1 If my servant, contrary to my will, chase my beasts into the soil of another, I shall not be punished.’ And in 2 Roll. Abr., 533, £ If my servant, without my notice, put my beasts into another’s land, my servant is the trespasser, and not I, because by the voluntary putting of the beasts there without my assent, he gains a special property for the time, and so for this purpose they are his beasts.’ And in Noy’s maxims, ch. 44, ‘ If I command my servant to distrain, and he ride on, the distress, he shall be punished, not I.’ And it is laid down by Holt, C. J., in Middleton v. Fowler, Salk., 282, as a general position, £ that no master is chargeable with the acts of his servant, but when he acts in the execution of the authority given him.’ Again, says Lord K., £ This doctrine does not militate with the cases in which a master has been holden for the mischief, arising from the negligence or unskilfulness of the servant, who had no purpose but the execution of the master’s orders ; but the form of their actions proves that this action of trespass can not be maintained.’ ” The fact that the act of cutting the cables was a direct injury, which would render the watchman liable in trespass, had he been sued, makes no difference. This appears, negatively, from the fact, that no case can be found where an action of trespass has been sustained against a master, for the acts of a servant, where such acts were not expressly ordered or authorized to be done; or where they were not the natural or probable result' of something which the servant was ordered to do, which ordinary care in the execution of the master’s orders would not guard against; as was the case of Gregory v. Piper, 17 E. C. L., 454. The distinction between the trespass of the servant, and the liability of the master for negligence, arising from an act which might amount to a trespass in the servant, is very well illustrated by the case of Croft and another v. Alison, 6 E. C. L., 528. There, the action was case against the master, for the neg — 56 — ligence of the servant in striking the plaintiff’s horses, and the plaintiff recovered. At the time when the horses were struck, the carriage of the plaintiff became entangled with the carriage of the defendant. The chief judge told the jury to find for the defendant, if the entangling was the result of the moving of the plaintiff’s horses, which were left without a driver, and the whipping was for the purpose of extricating himself from that situation ; but to find for the plaintiffs, in case the entangling arose from the fault of the defendant’s coachman. The court in sustaining this charge, say, if a servant, driving a carriage, in order to effect some purpose of his own, wantonly strike the horse of another person, and produced the accident, the master will not be liable. But if, in order to perform his master’s orders, he strikes, but injudiciously, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant’s employment. The English cases on this subject are collected by Smith on master and servant, Law Library Edition, p. 172 and 193, inclusive, where the views which we have here expressed will be found to be fully sustained. Indeed, so long ago as the case of Morley v. Gainsford, 2 H. Bl, 442, it was said by the court, that it was difficult to put a case where the master would be considered as a trespasser for an act of his servant, which was not done at his command. And we find nothing in our own reports, or in the reports of any of the states, which at all militates against the English cases. Wright v. Wilcox, 19 W., 343. Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480. Wilson v. Peverly, 2 N. H., 548. Vanderbilt v. Richmond Turnpike Co., 2 Comstock, 479. Church v. Mansfield, 20 Conn. R., 284. As, therefore, there was no proof that the defendants ordered or directed- their watchman to cut the cables of the plaintiff’s vessel; and as this act was not a necessary, or natural, or probable result of anything that he was ordered to do, even in the emergency, as he considered it, when he — 57 — did cut it, it appears to us that the defendants can not be made liable in trespass for this act; and the nonsuit was consequently correctly ordered. There was a question of evidence made on the trial, whether the declarations of Hawley, the defendants’ superintendent, were admissible, under the circumstances; but the result to which we have come, makes it unnecessary to consider that question, and we do not therefore intend to decide it. There is no error in the judgment complained of. In this opinion, the other judges, WAITE and ~H~r4 concurred. Judgment affirmed.