Atchison, Topeka & Santa Fé Railroad v. Randall

The opinion of the court was delivered by HoutoN, C. J.: It appeared upon the trial of this case that on the morning of October 16,1884, through an unavoidable accident, a cattle train upon the road of the Atchison, Topeka & Santa Fé Railroad Company was derailed near Cedar Junction, in Johnson county, and two or three of the cars were thrown from the track; that, in order to clear the wreck, it was necessary to let out the cattle from some of the cars, and these were driven into a sort of pocket in the fences along the right-of-way; that, while the men were engaged in clearing away the wreck and getting the cars upon the track, some of the cattle escaped out of the pocket, running through the streets of the junction and on the hillside in the brush; that they were at large for the space of four hours — it having taken that time to clear the wreck away; that C. M. Foulks, the railroad’s claim agent, was present at the wreck, and that it was his duty, together with those he might employ, to look after the cattle and return them to the control of the company; that Mr. Foulks instructed the section foreman, Joe Landry, “to get some men, and we would drive those cattle around, and take them up and reload them;” that Landry saw Samuel Randall, the son of J. D. Randall, the plaintiff, upon the street; that he asked him “if he would go and hunt the cattle and get them in the corral?” that he also asked him, “if he had a horse to ride?” that he answered “he had;” that young Randall procured his father’s young mare, without [426] leave or license, and assisted the other employés in recovering and driving back the cattle; that after being driven back to the cars, but before the cattle were reloaded, one of them, (a Texas or Colorado steer,) being excited and angry, ran against and gored severely the mare belonging to plaintiff. Afterward, Samuel Randall was paid by the railroad company for his work in assisting in recovering and driving the cattle. Subsequently, the plaintiff brought his action against the railroad company to recover for the injury to his mare, alleging, among other things, that the taking and employing of his mare were without his knowledge and consent, and that he was damaged in the sum of $75 in procuring medicines and attention for the mare, and in the further sum of $150 for the deterioration in the value of the mare by reason of her injuries. The case was tried by the court without a jury, and judgment rendered against, the defendant for $137.50, together with all costs. We think it unnecessary to refer to the first and second counts of the petition, and therefore shall confine ourselves to the question whether, upon the undisputed evidence, the railroad company was responsible, under the allegations of the third count, for the damages recovered. On the part of the railroad company it is contended that Landry, the section foreman, had no authority to hire or use the .mare, and therefore that the employment of the plaintiff’s son, with the mare, was beyond his authority, and that the railroad company is not responsible for this act, and therefore not liable for the use of the mare in driving up the cattle, or for her being brought near the wreck where she was injured. Under the evidence in the cáse, Landry and young Randall were the employés or servants of the railroad company. They were at the time the- mare was taken, used and injured, engaged in the service of the railroad company. There is no pretense that either Landry or Randall was endeavoring to do anything for himself. It is scarcely possible that young Randall could have- used the mare as he did, in rounding up and driving the cattle, without being seen by Mr. Foulks, who had full authority to represent the company. The mare used by [427] Randall was useful in recovering and driving the cattle, and all of the acts done by Landry and Randall were done by them in the prosecution of the business of the company. It is not to be relieved because Landry departed from his instructions in collecting and driving the cattle. The test of the master’s responsibility for the act of his servant is not, whether the act was done according to the instructions of the master to the disobeyed. t>y servant; lia-master^ servant, but whether it was done in the prosecu-turn of the business that the servant was employed . , Jl ^ by the master to do. It is true that Mr. Foulks instructed Landry to get men, not horses, to assist in driving and reloading the cattle; but young Randall did not know the limit of Landry’s instructions. He acted upon the request of Landry, and his acts, as well as those of Landry, were in the furtherance of the company’s business. None of thé employés or servants of the company objected to the use of the mare, and as the cattle were scattered about in various directions for half a mile, the use of the mare was beneficial 2. wrongful act Sabiittyfdr damages. and necessary. Landry, for the benefit of the company directed young Randall to get the mare, an(j the company is responsible, although the act of Randall was wrongful in taking the mare without his father’s knowledge or consent. To make the corporation responsible it is not necessary, as plaintiff in error contends, that the principal should have directly authorized the particular wrongful act of the agent, or should have subsequently ratified it. Judge Story, in treating of the liability of principals for the acts of their agents, says: “The principal is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances and omissions of duty of his agent in the course of his employment, although the principal did not authorize or justify or participate in, or indeed know of such misconduct, or even if he forbade or disapproved of them.” And to sustain this he cites numerous authorities. “ In all such cases,” he says, “the rule applies, respondeat superior, [428] and it is founded upon public policy and convenience, for in no other way could there be any safety to third persons in their dealings either directly with the principal, or indirectly with him through the instrumentality of agents.” (Story on Agency, §452; Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kas. 350; Ochsenbein v.Shapley, 85 N.Y. 214; Cosgrove v. Ogden, 49 id. 255; Garretzen v. Duenckel, 50 Mo. 104.) The mare of the plaintiff was taken from a place of security, and brought by the employés of the railroad company for the use of the company into a place of danger, and there was injured without the fault or negligence of the owner. For the damages resulting from the injury the company is liable, because we have already held that the company is liable for the acts of Landry and young Randall, done in rounding up, driving and reloading the cattle. With the views expressed, the other matters discussed in the briefs need not be examined or decided. —' The judgment of the district court will be affirmed. All the Justices concurring.