Drew v. Peer

Mr. Justice Sterrett

delivered the opinion of court, May 3d 1880.

The main contention of the plaintiff in error, to which several of the assignments relate, is that the action should have been trespass vi et armis and not case. A brief consideration of the facts upon which the action was grounded, and the nature of the damages for which compensation was claimed, will enable us to determine this question. The declaration, after setting out, by way of inducement, the purchase by the plaintiff of two tickets of admission to defendant’s theatre, entitling the holders thereof to occupy two designated seats therein, and witness the performances and exhibitions there given on the evening of April 16th 1874, averred in substance that he in company with his wife presented the tickets to the proper person to receive the same and admit them to said seats; that his demand for admission was refused, and both he and his wife were so rudely ejected from the theatre that she was greatly injured, and her health was for a long time much impaired ; whereby the plaintiff was deprived of her assistance in his domestic affairs, and was obliged to expend large sums of money in endeavoring to have her injuries cured and health restored, and thereby sustained damage, &c.

The- loss of his wife’s services in his domestic affairs, by reason of the injuries she received, and the consequent outlay necessarily incurred in hiring others to do what she w’ould have done, and in procuring medical attendance, &e., evidently constitute the gravamen or gist of his complaint; and it was to these matters that the testimony was mainly directed. It was not claimed that the plaintiff in error personally inflicted the injuries from which the alleged damages resulted. On the contrary the testimony tended to prove that they were inflicted by her agents in the course of their employment in the theatre, and the court instructed the jury that if they so found, the plaintiff in error was liable in so far as her agents “ had occasioned loss and damage to the plaintiff; but, as the action was by the husband alone, only such loss as he had experienced could' enter into the verdict.” The facts then as claimed by the plaintiff below, and supported by his testimony were found by the jury. Upon the facts so found we think there can be no doubt that the form of action was properly case; because the injuries to Mrs. Peer, from which the damages to her husband resulted, were not inflicted personally by the plaintiff in error, or by her command or with her assent, but by her agents in the course of their employment. The criterion is not whether the master has given the authority to do the particular act, but whether the servant has done it in the ordinary course of his employment. In 1 Chitty Pleading 149, it is said : “ Eor some torts which may prima facie appear to be forcible and immediate * * * an action on the case is the proper remedy. So, though a master may be liable under the circumstances to compensate an immediate injury committed by his servant, in the course of his employment, with force, yet the action against the master must in general be case, though against the servant it might for the same act be trespass.” To maintain trespass vi et arm-is against the employer it must appear that the particular injury or act of trespass was done by his command or with his assent: The Railroad Co v. Wilt, 4 Whart. 142 ; Yerger v. Warren, 7 Casey 319 ; The Allegheny Valley Railroad Co. v. McLain, 10 Norris 442.

The action was properly in case for the further reason that the damages claimed by the plaintiff were consequential. In treating of actions of trespass by husband and wife, for battery of the wife, Blackstono says, if the beating be so severe that the husband is thereby “ deprived for any time of the company and assistance of his wife, the law gives him a separate remedy, by action of trespass- in the nature of an action upon the ease for this ill usage, per quod consortium amisit, in which he may recover a satisfaction in damages: 3 Bl. Com. 140. Mr. Stephen, in his treatise on the principles of pleadings, says : “ The action of trespass lies where a party claims damages for a trespass committed against him. A trespass is an injury committed with violence, either actual or implied; and the law will imply violence, though none is actually used, where the injury is of a direct and immediate kind, and committed on the person or tangible and corporeal property of the plaintiff.” It follows from this that where damages are claimed by the husband for loss of his wife’s services, and for medical attendance resulting from a personal injury to her, that case is the proper form of action. The right to the services is an intangible right, and therefore not the subject of immediate forcible injury, such as may he inflicted on tangible or corporeal property. The principle is also recognised in Ream v. Rank, 3 S. & R. 214, which was an action on the case for debauching the plaintiff’s daughter, by which he lost her services and was put to great expense, &c. After reviewing the “authorities, it is there said that “ the injury complained of does not follow directly from the act of the defendant, but consequentially, and that is the criterion between trespass and case. The injury is the loss of services occasioned by consequences flowing from the act itself.” While it is conceded by the court that trespass has often been resorted to in similar cases, it is said, in sustaining the action in that case, that “ on principle the .action of case would seem to he the more appropriate remedy.” This case was followed by Wilt v. Vickers, 8 Watts 227, in which the distinction between trespass and case was elaborately considered, and the principle, contended for by the learned counsel for the defendant in error, recognised.

There was no error in holding that the action was in proper form, or m submitting the case to the jury, as was done.

If there had been an improper joinder of distinct causes of action in the declaration, this should have been taken advantage of by demurrer; but there was no such misjoinder. The tickets were set out merely by way of inducement to show that the plaintiff and his wife had a right to be where they were at the time the injuries to her person were inflicted, and that as patrons of defendant’s theatre they were entitled to protection from injury at the hands of her employees.

Whether the tickets conferred merely a license or something more is immaterial. If they gave only a license to enter the theatre and remain there during the performance, it is very clear that the agents of the defendant had no right to revoke it as they did, and summarily eject Peer and his wife from the building in such manner as to injure her. We incline to the opinion, however, that as purchasers and holders of tickets for particular seats they had more than a mere license. Their right was more in the nature of a lease, entitling them to peaceable ingress and egress, and exclusive possession of the designated seats during the performance on that particular evening.

It is unnecessary to notice specially the remaining assignments of error, further than to say that they are not .sustained. The verdict was fully justified by the evidence, and the judgment thereon should not be disturbed.

Judgment affirmed.