Mason v. Stiles

Scott, Judge, delivered the opinion of the court. The principle contended for by the defendants is correct in the abstract, but it has no application to the case under consideration : that principle is, that the master is only liable for consequential damages, resulting from the trespass of his servant, when the servant was in the course of his employment, and by an injudicious, negligent, or unskilful act, done in furtherance of his master’s business, the injury resulted to the plaintiff. This principle is stated in the case of Douglass v. Stephens, (18 Mo. Rep. 367.) But it does not apply when the wanton act of the agent causes injury to property bailed to his principal. Here another rule applies. If a merchant sends his clerk on a collecting tour, and on his way he wantonly fires his pistol and kills a horse in an adjoining field, the merchant will not be liable for this trespass. But, if the clerk wilfully shoots down the horse on which he is riding, and which the merchant has hired from another, the merchant will be liable to the owner of the horse. So, if the clerk, Hyland, while in the employment of the defendants, had wantonly destroyed a house with which his employers had nothing to do, they would not have been liable. But, inasmuch as the house was let to the [378] defendants, it was their duty to take care of it, and they cannot shift this responsibility on those whom they may employ. To an action of waste, it is no defence that a stranger did it; the defendant may bring trespass against the stranger and recover his damages. (Bull. N. P. 120. 2 Ins. 145.) No question was made that the wrong done to the plaintiffs was not actionable in itself. If it is true that a man shall be taken to intend that which he does, or which is the immediate and necessary consequence of his act, then the waste done in the present case was voluntary. But whether voluntary or permissive, is a matter of indifference ; for, though it be stated in some of the books that an action on the case will not lie for permissive waste, yet the idea is not thereby intended to be conveyed that such waste is dispunishable. (4 Kent, 79.) Tenants are answerable for waste committed by a stranger, and they take their remedy over against him; and it is a general principle that the tenant, without some special agreement to the contrary, is responsible to the reversioner for all injuries amounting to waste done to the premises during his term, by whomsoever the injuries may have been committed, with the exception of the acts of God, and public enemies, and acts of the reversioner himself. The tenant is like a common carrier, and the law, in this instance, is founded on the same great principles of public policy. (4 Kent, 77.) The doctrine of the common law, with respect to accidental or negligent burning, has nothing to do with this case, as the destruction of the house, in this instance, was neither accidental or negligent. It was a wilful and wanton act, as much so as if it had been done with powder and cannon ball. (3 Coke Litt. note 377, fol. 57, a, old ed.) So, though the common law, which exempted tenants from actions for accidental or negligent burning, may be considered as in force here, although not restored by the act of 6 Ann, ch. 31, which enacted, that no action should be prosecuted against any person in whose house any fire should accidentally begin, the common' law being supposed to be superseded by the statute of Glou [379] cester, making tenants liable for waste, without any exception. Now, though the statute of Gloucester is in force here, which took away the common law in relation to accidental fires, and though the statute of Ann has not been re-enacted, which restored the common law in that respect, yet, giving the defendants the full benefit of the common law, they are not protected from a recovery in this action. There was a point made as to the tenant’s right to rebuild. Had the premises been repaired before suit brought, it would have been a matter of defence. The petition shows, sufficiently plain, that the plaintiffs seek damages for the destruction of a house which they had leased to the defendants. That they have specified the agent by whom the wrong was actually done, was not objectionable under the old system of pleading, and is certainly less so under the present one. (Chit. 382.) The instruction given for the defendants was erroneous, yet, as notwithstanding such instruction, the verdict was against them, the judgment will be affirmed, with the concurrence of Judge Ryland.