Cox, Brainard & Co. v. Keahey , 36 Ala. 340 ( 1860 )

STONE, J.

In the leading case of McManus v. Crickett, (1 East, 106,) Lord Kenyon reviewed the earlier decisions, and, among other things, declared, that “if I command my servant to distrain, aud he ride on the distress, he shall be punished, not I.” “When a servaut quits sight of the object for which he is employed, and, without having in view his master’s orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and his master will not be answerable for such act.”

This case has been regarded as an authority for the following propositions : 1st. When the servant is in the performance of his master’s orders, or authorized acts, and, in the doing thereof, conducts himself so negligently or uuskillfully that injury results to another or his goods, then the doctrine of respondeat superior applies ; and the master will be liable in an action on the case. 2d. That for the acts of the agent or servant, willfully and intentionally done, without the command or authorization of the master, the servant is liable, and the master is not.

These principles are asserted in the following authorities : Story on Agency, § 456; 2 Kent’s Com. m. pp. 259, 260; Addison on Contracts, 635; 1 Smith’s Lead. Cases, (notes by II. & W.,) 560 ; Foster v. Essex Bank, 17 Mass. 479; Edw. on Bailments, 318-9; Angell on Carriers, §§ 541, 604; Wright v. Wilcox, 19 Wend. 343; Richmond Turnpike v. Vanderbilt, 1 Hill’s (N. Y.) R. 480 ; Hibbard v. N. Y. & Erie R. R. Co., 1 Smith’s (N. Y.)R. 455, 467; Tuller v. Voght, 13 Ill. 277; Moore v. Sanborne, 2 Mich. 519; McCoy v. McKowen, 26 Miss. 487; Ingram v. Atkinson, 4 Texas, 270 ; Croft v. Alison, 4 B. & Ald. 590.

The principles declared in McManus v. Crickett, supra, have been several times recognized, and, in some cases, made the basis of decision in this court. — Blackburn v. Baker, 1 Ala. 173; Lindsay v. Griffin, 22 Ala. 629; Walker v. Bolling, ib. 294; Kirksey v. Jones, 7 Ala. 622.

Influenced by these decisions, we feel it our duty to adhere to the rule, and to reverse this case on the charge refused by the court.

There was, at least, some evidence tending to show that the injury was caused by the willful act of those in charge of the steamboat; and it was the right of the defendants to have it passed on by the jury. — Hopper v. Ashley, 15 Ala. 457; Ala. & Tenn. R. R. v. Kidd, 29 Ala. 221, 227.

Several distinctions, in cases of master and servant, have been taken, some of which appear to us to be unsound. We will not consider them in this opinion, as they are not necessary to a correct decision of this case. None of them materially unsettle the great distinction, ruled in McManus v. Crickett, between those injuries which are the direct result of intentional or willful fault on the part of the servant, and those which result from his mere carelessness, or want of skill. It seems to be well settled, that if the servant be in the performance of a duty entrusted to him, and, from a want of either skill or diligence, injure another, it will not excuse the master or employer, even if the servant, in the matter complaind of, was acting contrary to instructions. Trusting the servant in the given case, is an assumption by the master of all responsibility which results from negligence or want of skill in the servant. But this rule does not apply, when the servant actually wills and intends the injury, or steps aside from the purpose of the agency committed to him, and inflicts an independent wrong. Thus, if an officer, having the control and direction of a steam-engine committed to him, willfully and intentionally perverts its immense power to the damage of others, he alone is responsible ; unless, perhaps, in case of want of skill, or known recklessness of the servant, a question may arise as to the liability of one who employs such reckless or unskillful servant. On the other hand, for all damage which is the result (not intended by the officer in charge) of his want of skill, carelessness, or even recklessness, the doctrine is, respondeat superior.

In the following cases, no question was raised or considered as to the responsibility of the master for willful •oi' intentional torts committed by the servant. The question was, whether or not the master ivas liable for injuries caused by the recklessness or unskillfulness of the servant, in eases in which the servant, though not intending injury, had nevertheless disregarded the instructions of the master, or even gone against orders. Such disregard of orders will not excuse the master, unless the servant go further and intend or will the wrong done. — Phila. and Read. R. R. v. Derby, 14 How. (U. S.) 465, 484-7; Sleath v. Wilson, 9 C. & P. 607; Joel v. Morrison, 6 C. & P. 501; Smith on Mas. and Serv. 151-2; Vicks. and Jack. R. R. v. Patton, 31 Miss. 156, 196-7; Redfield on Railways, 380, 381; Parsons on Contracts, 86-7; Reeves’ Dom. Rel. 358 ; Railroad Co. v. Keary, 3 Ohio St. R. 201, 206-7. See also the following authorities; Echols v. Todd, 20 Texas, 190; Mills v. Ashe, 16 Texas, 295; Henderson v. Railroad Co., 17 Tex. 560; Luttrell v. Hayne, 3 Sneed, 20; Duggins v. Watson, 15 Barber (Ark.) 118; Jones v. Glass, 13 Ired. 305; Lowry v. Ingram, 6 Mees. & Wels. 302; Hegeman v. Western R. R. Co., 16 Barb. (Sup. Ct.) 353.

What we have said above is not intended to impair the liabilities of common carriers.

Whether some of the principles ruled in the case of McManus v. Crickett, supra, should not be changed, so as to accommodate the relation of master and servant to the very useful, yet terrible motive agent, steam, is a question not for us, but for the legislature.

Reversed and remanded.