New Orleans, Jackson & Great Northern Railroad v. Allbritton , 38 Miss. 242 ( 1859 )

Harris, J.,

delivered the opinion of. the court.

Under Article 86, p.'492, of"the'hew Code, abolishing the distinction between actions of. trespass yi et armis, and actions of trespass on the case, the defendant-here filed his action in the court below, to recover of plaintiff in-error-.damages alleged to have been sustained by him, “ hy a collision of the up and down mail and passenger trains on said road, paused hy the gross carelessness, negligence, misconduct, and■ mismanagement of the servants, agents, and conductors of the'said railroad company.”

The plaintiff in error filed an.ahsWqr to this complaint, amounting toa “general denial”-of ¡the .cause of action therein stated; and upon the issue thus joinejDthp -.cause was submitted to the jury. Only two exceptions to the testiniony wore reserved, in the progress of the trial. The first relates to tfie testimony of Dr. Simms; and the second to the admissibility of evidence to prove, by way of enhancing damages, the probable expéhse of the litigation in attorney’s fees. The ruling of the coifth;. on both these points, is in accordance with well-settled ..doctrines, not necessary to discuss here. No motion for a new.trial appears on this record, except by the bill of exceptions, and we have repeatedly held that a bill of exceptions is not the proper' medium through which to certify to this court matters which must ftecéssapily be a part of the original record in the cause, if they.exist at'all.

'The amended record, filedvby 'coh^ent of counsel, furnishes the judgment on the motion for a hey'trial. But a judgment without a cause of action,' on which itjs.baspd, is as insufficient in judicial proceedings, brought to this court for- revisal, as a cause of action without a judgment; Soí/Umiist appear in the transcript of the record, being necessary parís - thereof;, independent of the bill of exceptions, to enable this ¿curt, to ..determine the error assigned thereon. The office of a billyf-exceptions is to place upon record, by the direction of the court, or the law, such extraneous matters as do not necessarily constitute a{part of the record in the cause. But the pleadings of the parties ‘and the judgments of the court thereon, not depending for their preservation on the optionary right to a bill of exceptions, must have a more certain foundation as a record, and higher evidence as such, than the transcript of a bill of exceptions, which is itself but a copy, in this respect, of a supposed matter of record. We cannot therefore notice this motion for a new trial.

This brings us to the consideration of the points presented by the instructions of the court below, which are fully exhibited in the record, together with the whole testimony.

As the three first charges given for the defendant in error are substantially embraced in the propositions reasserted in the fourth instruction, we will consider of-them all in examining the fourth instruction given for the plaintiff below. That instruction is as follows: “ That in an action against a railroad company, the facts that a collision took place, and that plaintiff was injured, are prima facie evidence of negligence or want of skill, of the agent in charge, and shifts the burden of proof upon the defendant, to show that the engineer was in every respect qualified, and acted with reasonable skill and the utmost caution; and if the disaster was occasioned by the least want of due skill, or of prudence on the part of the engineer in charge of the colliding engine, the defendant is liable, and the jury should find for the plaintiff, all actual and consequential damages, proved to their satisfaction; and may also find exemplary damages, provided the testimony in the cause shows that the plaintiff received a bodily injury, and that that injury was caused by the gross negligence or wanton and wilful misconduct of the engineer ,of defendants.”

The first proposition here asserted, is that a collision is prima facie evidence of liability, and casts the onus probandi on the defendant.

This rule, in relation to passenger carriers, is correctly stated. “ They are bound to the utmost care and diligence of very cautious persons; and of course they are responsible for any, even the slightest neglect.” 2 Greenl. Ev. § 221.

“ They are held to the strictest responsibility for care, vigilance, and skill on the part of themselves and all persons employed by them, and they are paid accordingly. ■ The rule is founded on the expediency of throwing the responsibility upon those who can best guard against it.” Shaw, C. J., in Farwell v. Boston and Worcester Railroad Company, 4 Met. (Mass.) R. 49. Mr. Angell says, “that the onus probandi is on the proprietor of the vehicle to establish that there has been no disregard whatever of his duties, and that the damage resulted from a cause which human care and foresight could not prevent, is well settled.” Angelí on Carriers, § 569 ; Ingalls v. Bills, 9 Met. (Mass.) R. 1; Stokes v. Saltonstall, 13 Peters R. (U. S.) 181; Ware v. Gay, 11 Pick. (Mass.) R. 106; Chester v. Griggs, 2 Campb. It. 79; McKinney v. Niel, 1 McLean, (Circuit Ct. R.) 540; Carpue v. London and Brighton Railway Company, 5 Adol. & Ell. R.(N. S.) 747.

The second branch of the instruction asserts, that if the railroad company failed to show, that -the engineer was in every respect qualified and acted with reasonable skill, and the utmost caution, to prevent such collision, the company is liable for all-actual and consequential damages proved; and for exemplary damages, at the discretion of the jury; provided that the testimony in the cause shows, that the plaintiff received a bodily injury, and that that injury was caused by the gross negligence or wanton and wilful misconduct of the engineer of defendants.

It is insisted on this point: ■ 1st. That while the principal is responsible for the torts and negligences of his agent in the course of the agency, or even beyond such general agency, when expressly authorized, or subsequently adopted by the principal; yet he is never liable for the unauthorized, the wilful, or the malicious act, or trespass of his agent: and'-numerous cases and authorities are referred to in support of the limitation here contended for.

And it is urged in the second place, that notwithstanding the agent still occupies the place and assumes to exercise the duties of his agency, yet if, in doing so, he transgress the order of his principal, or by his wilful and malicious abuse of the power derived from his agency, inflict injury on the' public, or third persons, the principal is not responsible, without proof of some guilty omission or participation in such wrongful conduct. And for this, respectable authority is not wanting.

It is lastly insisted, in relation to this instruction, that, at all events, exemplary or punitive damages against the principal, for such wilful and malicious conduct, cannot upon any just principles, be visited upon the principal, — who is not only wholly innocent of intentional wrong, — but usually the greatest sufferer by such wrongful acts.

In the case before us, as it often happens in legal science, it will be found much more difficult to reconcile the apparently conflicting opinions of courts, — swayed by the peculiar hardships of the individual cases they have been called to decide, — with each other, or with true principles, than to ascertain the true principles themselves, which should guide us.

The foundation of the rule on this subject, is that the agent is but the instrument. That one having authority over the actions of another, — who for his own benefit places him in a condition to injure others, by the exercise of the powers conferred, — shall he responsible for the abuse of that power by his agent, as if it were the act of himself, whether such abuse be the result of negligence or wilfulness.

The true principle is thus stated by Judge Story, in his work on Agency, §§ 451, 452.

“ In the next place, as to the liability of principals to third persons, for the acts of their agents, this topic may be dismissed in a few words; for the whole doctrine turns upon the obvious maxim, that he who acts by another, acts by himself,” quoting the maxim of the Roman Code (4 Inst. tit. 5), “ Qui facit per alium, facit per sc,” and citing numerous elementary ivriters for this foundation 'of the principle.

He then comes, in section 452, to treat of the “ liability of the principal to third persons, for the misfeasances, negligences, and torts of his agent.” “ It is a general doctrine of the law,” says he, “ that although the principal is not ordinarily liable (for he sometimes is) in a criminal suit, for the acts or misdeeds of his agent, unless, indeed, he has co-operated in those acts or misdeeds; yet he 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 be forbade the acts, or disapproved of them. In all such cases, the rule applies, respondeat superior, 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. In every such case, the principal holds out his agent as competent and fit to be trusted; and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of the agency.”

Mr. Angelí, in his lucid woi’k on Carriers, treating of passenger carriers, and of 44 their duties in repect to the character and competency of their servants,” says : 44 The general rule, as to all persons professing to exercise any-trade or-'employment, for all persons indifferently is, that they are. bound for a due application, on the part of their servants, of the^ necessary attention, art, and shill.” He applies the doctrine to stage-drivers, engineers, and switch-tenders on railroads, and says: “ They must be such as are, in the first place, fully competent, añd in the next, careful and trustioor-thy, in their general character.” See" sec. 540.

And in section 541, speaking, of the duty of proprietors of public lines of conveyance, to employ temperate and discreet agents, he gives as a reason for the observance of this precaution : 44 for if the driver of a stage-coach, or the engineer of a railroad, is, under any circumstances, guilty of misconduct, rashness, or negligence, the proprietors will be responsible for any injury resulting therefrom.”

In section 546, the same author says : 44 In short, when the carriage is by railroad, the company impliedly warrants the road to be in good travelling order, and fit for use; then, again, supposing the condition of the road itself to be ever so good, the conductor of the train is guilty of misconduct, by endeavoring to drive his train to a certain station before it is reached by a counter train; for if the conductors of both trains are governed by the same idea, the passengers are exposed to the dangers of a collision.”

The'rule may be thus stated :

In all cases where it appears that the employment of the principal afforded the agent the means or opportunity, which he used while so employed, in committing an injury on a third person, the principal must be held responsible. The wilful trespass, or injury of the agent, derived from the authority confided to him by the principal, as a source of power, in the exercise of his master’s employment, will make the principal responsible. And this upon the reason, that he who employs and confides, should be the loser rather than a stranger, — a rule of justice entirely consonant with the maxim of the Roman law already cited.

These doctrines are very fully considered, the cases reviewed, and all the objections to these instructions fully answered in this court, in the case of the Vicksburg & Jackson R. R. v. Patton, 31 Miss. R. 198.

The case of McCoy v. McKeown, 26 Miss. R. 487, and the case, McManus v. Cricket, 1 East, 106, on which it was based, are clearly distinguishable from the case before the court now, as well as the case of Railroad v. Patton.

They were both cases having no relation to the great principle of public policy and convenience, and, indeed, of public necessity, which gave rise to the rules regulating the responsibility of carriers. These rules have been extended by the courts, wisely, we think, to meet the enhanced facilities, dangers, and necessities, growing out of the new modes of travel invented by the age.

It is no answer to the soundness of these views to say, that the doctrine of respondeat superior thus extended, involves the innocent with the guilty. The books abound not only with strong cases of recovery against common carriers, wholly without fault on their part, sanctioned by the most learned judges, and enlightened courts; but their inflexibility in' maintaining and even extending these salutary rules of law, without bending to popular sympathies, or yielding to the hardships of a particular ease, has been the subject of just admiration and compliment. See 2 Kent (9th edit.), 812, 813.

Indeed, even criminal responsibility attaches to the principal for the acts of the agent, in some cases, where the principal is wholly ignorant of the act of the agent. See Wharton’s American Cr. Law, § 153. We think there is no error, therefore, in the 1st, 2d, 3d, and 4th instructions given for plaintiff below.

The last instruction asked for the plaintiff, was asked as an ex- • planation of a modification of one of the defendant’s instructions. That the force*of this instruction may be seen more clearly, we state them in their order, in point of time.

The defendant below asked the following instruction, which was refused:

“ The testimony of the plaintiff, by himself, may be entirely disregarded by the jury, if they think proper.”

In lieu of this instruction, the court, without request, gave the following as a modification of the above charge so refused:

“ The jury are the proper judges of the testimony of all the witnesses in the case. It is their right and province to weigh and consider that of the plaintiff; and if, after weighing and considering it, with all the other facts and circumstances of the case, as shown from the evidence, they should believe that it is untrue,, they may so treat it, and entirely disregard it.”

As an explanation of the foregoing last instruction, the court, at the instance of plaintiff, gave the following:

“ To authorize the jury to disbelieve, and,’ consequently, to disregard the testimony of a witness, there must be something in his manner or conduct, in giving in his testimony, or in the testimony of the other witnesses in the cause, sufficient to satisfy the minds of the jury, that what the witness has stated is false.”

Under these instructions, the jury were wholly denied the right to consider of the “ interest” of the witness, as a party to the suit, in determining the weight to which his testimony was fairly entitled. They were confined to his “manner and conduct, in giving in his testimony,” and to “ the testimony of the other witnesses in the cause, sufficient to satisfy their minds that what he stated was false,” and could not consider of his direct interest, in the event of the suit, which the statute gives them the right, and makes it their duty to consider.

It is said, in answer to this objection to the ruling of the court below, that this instruction could not have been prejudicial to the defendant below, as the testimony of plaintiff below was wholly immaterial, and might have been omitted. We cannot so regard it. On one of the main points in issue (the injury to the plaintiff below), from the very nature of the inquiry, it was the most important testimony in the cause, and we cannot say what influence it may have exerted on 'the jury, in producing the verdict shown in this record.

For this error, let the judgment be reversed, cause remanded, and a venire de novo awarded.

HANDY, J.,

being a stockholder in the Railroad Company, did not sit in this cause.