Tuller v. Voght

Caton, J. We look upon the rule of the common law as well settled, that the master is not liable for the wilful trespasses of the servant, which are not committed in furtherance of the business of the master. McMorris v. Crickett, 1 East, 106. This principle has already been adopted by this court, in the case of Johnson v. Barber, 5 Gilman, 425. That action was against the master and servant jointly, and the court said, “ If one of the defendants, while engaged in the prosecution of the business of the other, carelessly or negligently set fire to the prairie, or even purposely, with a view to benefit or protect the interests of the employer, the latter would- be liable for the consequences ; but if he set out the fire from motives of malice or wantonness, the principal would not be liable, for that would be an abandonment of the business of the agency.” Here, the declaration professes to count in trespass; and avers, that the defendant’s servant, “ with force and arms, drove the same [the carriage] along the highway, with great force and violence, against,” &c. The pleader has succeeded in mating what he intended, a declaration in trespass, and not case. 2 Chitty’s Plead. 850. For that act, the master, as we have seen, is not liable at the common law. The effect of our statute will be subsequently considered. Unless the master expressly commanded the servant to commit the trespass, the servant alone is liable in this form of action. The owner of the coach is undoubtedly responsible for injuries resulting from the negligence, carelessness, or unskilfulness of the driver; but then he is only liable in a special action on the case. 2 Chitty’s Plead. 708, and note. In case the declaration in general avers, that the injury resulted from the carelessness or unstilfulness of the agent. The plaintiff, however, insisted, that he was entitled to maintain this action under the ninety-third chapter of the.Revised Statutes. The sixth section of that chapter is this: “ The owners of any carriage, running upon any turnpike-road or pub-lip highway, for the conveyance of passengers, shall be liable, jointly and severally, to the party injured,' in all cases, for all injuries and damages done by any person in the employment of such owners, as a driver, while driving such carriage, to any person, or to the property of any person; and that, whenever the act occasioning such injury or damage shall be wilful, negligent, or otherwise, in the same manner as such driver would be liable. Any driver of any mail stage-coach, or other vehicle for the conveyance of passengers, wilfully offending against the provisions of this chapter, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be imprisoned not exceeding six months, or fined not exceeding three hundred dollars.” That this statute makes the owner of such carriage liable in an action of trespass, for the wilful misconduct of the driver, there can be no doubt. The extent of the liability, and the form of the action, is the same against the owner as it is against the driver. But, when the owner is sought to be made liable under this statute, the declaration must show affirmatively such a case as the statute describes. This the declaration before us fails to do. It does not show that the carriage or vehicle was “ for the conveyance of passengers.” For aught that appears, it may have been only for the transportation of goods, or for the private use of the owner, without reference to the accommodation of the travelling public. For this reason, the declaration is fatally defective under the statute. The judgment must be reversed, and the cause remanded, with leave to the plaintiff to amend his declaration. Judgment reversed.