author: Robertson, Ch. J. McCunn, J. (dissenting.)

text:
    Peter Haack, plaintiff and appellant, vs. Henry S. Fearing, defendant and respondent.
    1. The owner of a vessel, by merely permitting the master to have the custody of a gun and ammunition, with other equipments, on board'of the vessel, does not become responsible for the careless use thereof by one of the crew. The mere possession and control of such gun and ammunition cannot create or imply permission, much less authority or duty, to make use of them, in the face of the positive orders of the owner to the contrary.
    2. The discharge of a cannon on board of a pleasure vessel or yacht, by order of its master, in the harbor of New York, when not necessary for its navigation, or a matter of duty to other vessels, or done'in compliance with any custom governing vessels in such harbor, or vessels belonging to the yacht squadron to which such yacht belongs, forms no part of the duty of such master; and the owner of such yacht is therefore not responsible for any carelessness in such discharge.
    3. The extent of the employment of a servant may be limited by agreement, or a general command, so as to deprive him generally of the right of doing acts of a particular character, in such employment.
    4. Although the prohibition of a specific a'ct which is within'the scope of a general employment, on a particular occasion only, or of a particular mode of doing them, may not exempt the employer from liability, yet prohibiting their being ever done curtails the extent of the employment.
    8. Ño action will lie against the owner of a vessel or pleasure yacht, for a personal injury sustained by the plaintiff from the wadding of a cannon negligently discharged on board of the vessel by one of its crew, during the absence of the owner; where it appears that such owner had previously given strict general order's to all the crew, not to fire any guns unless he was on board. McOunn, J. dissented.
    6. A party cannot use a prior written statement of a witness of such party, to instruct him what to say, under pretext of refreshing his memory, when he has not shown any weakness of recollection.
    7. A question, put to a witness, as to the extent of certain orders given by the defendant, is not to be construed as calling for his construction of the language, but his recollection of it.
    (Before Robertson, Ch. J., and Moneen and McCunn, JJ.)
    Heard December 21, 1867;
    decided May —, 1868.
    This was an action for damages, for a hurt received by the plaintiff* in July, 1866, from the wadding of a cannon negligently discharged on board of a vessel or pleasure yacht (the Rambler) of the defendant by one of its crew during the absence of the defendant. The signal of the New York Yacht Club was generally used on board of such vessel, which indicated that she belonged to the squadron that body, but there was no other evidence offered on the trial of her doing so. Ón the occasion in question the gun was discharged about two or three o’clock in the afternoon of a day in July, 1866, while the vessel .in question was being towed by a steam tug to her anchorage near Hoboken, where other yachts were lying. The plaintiff received the injury while on board of a ferry boat, passing between the yacht in question and the shore.
    One witness (Smith) testified on the trial that he had not often seen yachts come to that anchorage without firing a salute. It was usual for them to do so. It was customary, but not always done. But finally said that he knew nothing as to the custom in firing salutes. Some did it.and some did not. Another witness (Morrill) only knew of such a custom up to 1859. The vice-commodore of such club squadron (Major) when the accident happened, testified that there was no rule of that club which had any bearing as to firing salutes, and no universal custom, by any means, of firing guns by yachts while approaching "their anchorage; that it was a thing done by some persons and not by others; that yachts sometimes saluted on meeting and sometimes not. He also testified that the firing of salutes did “ not come under the scope of the general duty of a sailing-master;” that it did “ not come under his supervision unless he had been particularly requested so to do; there was no duty of his as to firing salutes, except to obey the orders of his superior officer. A rule of such yacht club, (14,) for setting colors in the morning and lowering them at sunset, when two or more yachts sailed in company or were at anchor in sight of each other, was the only one as to firing guns. It prescribed that in such case the time for so hoisting or lowering colors should be taken from the senior officer in command, and that no guns should “be fired in setting or hauling down the colors except by the yacht giving the time.”
    This was all the evidence on the trial as to the duty or any custom of firing guns on anchoring or meeting another yacht, or on any other occasion. The mate of the yacht in .question, (Hoffman,) who was examined as a witness for the plaintiff on the trial, testified that when the gun was fired he was getting the anchor ready to drop it. That two years previously (being shortly after the yacht was built,) because a man had been hurt by discharging such gun, the defendant gave general strict orders to all the crew not to fire any guns unless he was on board; and again, in the previous summer at New London, such orders were known to all on board of the boat. They had fired such a gun a dozen times when approaching such anchorage while the defendant was on hoard; they sometimes fired it and sometimes not; they fired it off once or twice without the knowledge of the defendant. He was not on board at the time of the accident in question. Such witness testified that he supposed it was fired to salute the yacht Wave, and not the tugboat which blew its whistle; and that they had orders not to use any wadding in firing guns. The plaintiff was injuring by the wadding. - ■
    On the trial the defendant’s counsel moved to dismiss ' the complaint, which motion was granted, and the exceptions taken thereto, and on .the trial ordered to be heard, in the first instance, at general term.

      F. R. Ooudert, for the plaintiff, appellant.
    I. Thé gun on board the Rambler was fired by one of the hands, by order- of the sailing master, at a time, too, when they generally fired a salute. The owner of the vessel is therefore liable under the general and well settled rule: “The law has said that whenever an injury has been occasioned by the negligent conduct of a person in the service of another, the master is answerable for it, and this is for the purpose of inducing those who employ others to take care that they employ proper persons.” (Sleath v. Wilson, 9 Car. & P. 607.) A principal is responsible for the negligence or misconduct. of his agents while acting in his employment, and any person who sustains an injury by such negligence or misconduct, may resort to the principal for indemnity and redress. (Pennsylvania, Delaware and Maryland Steam Nav. Co. v. Hungerford, 6 Gill, & John. 291.) Story (Agency, § 308) lays down the rule thus : The master is liable to third persons for the “ misfeasances, negligences and omissions of duty of his agent, leaving him to his remedy over against the agent, when the law is of such a nature as that he is entitled to compensation.”
    H. This rule applies equally to cases of “ fraud, deceit, concealment, misrepresentations, torts, negligences and other

      malfeasances or misfeasances and omissions of duty ” of the agent in the course of his employment. (Story on Agency, § 308, and eases cited.)

    IH. Nor is this rule in any manner affected by the fact, that the act productive of the injury was done or performed against the wishes of the principal. It continues to hold good, “ although the principal did not authorize, or justly, or participate in or indeed know of such misconduct, or even if he forbade the acts or disapproved of them.” (Story on Agency, § 452.) So in Southwick v. Estes, (7 Cush. 384,) Ch. J. Shaw laid down the law as follows: “ A servant may do great damage to another person in the negligent and careless performance of his master’s service, though against the master’s will and contrary to his orders, yet this is a ground of action against the master.” The same rule is stated by Kent (Com. vol. 2, p. 633,) where the general statement of the law is qualified, by adding that the rule is much stronger in the case of ships. “ The master is liable for the wrong and negligence of his servant just as much, when it has been done contrary to his orders and against his will, as when he has co-operated in or known the wrong.” (Story on Agency, note 3 to % 452.)
    IV. That the defendant in this case cannot shield himself from responsibility by reason of orders, real or pretended, is a proposition which has been settled by the highest court in this country in cases involving precisely the same principle as those now under consideration. (See Philadelphia and Reading Co. v. Derby, 14 How. 295,) which involves and determines precisely the same question that is raised in this case. See also Sleath v. Wilson, (9 Car. & P. 607,) cited above, in which latter case the servant (a coachman) drove his carriage out of the way, to attend to business of his own and while in the act of thus violating his master’s order, he injured a woman who was walking along the street. Held that, the employer was liable “ on the ground that he had put it in the power of the servant to mismanage the carriage by entrusting him with it.”

      V. Even were it clearly made out that strict orders, of a general and peremptory character, had been given not to fire the gun, except when the defendant was on board, this could not affect his liability. The firing of the gun was certainly within the scope of the business of the persons who fired it as that was part of their employment; it certainly is not pretended that the defendant was in the habit of loading and discharging the gun with his own hands. He moreover entrusted them with the gun, powder, wads and every opportunity to do the very act which caused the accident He must therefore be held, if the above cases and authority are correct expositions of the law.
    VI. But it is by no means clear that the defendant ever intended to prevent the firing of the cannon when the yacht returned to her anchorage. The orders were given twice; on both occasions at a distance from home (at New London and Newport,) after they had got through sailing. There was nothing indicating that the former practice of firing on reaching the anchorage should be dispensed with; on the contrary, it is a fair inference from the proof, that the defendant simply objected to their firing in those two harbors (Newport and New London.) However this may be, it was a fair question to submit to the jury, assuming that the giving of orders could at all affect the defendant’s responsibility. The opinion of the witness Hoffman could clearly not determine the extent of the defendant’s orders. There is no proof that the orders were given to the sailing-master, or ever known to him except the general statements of Hoffman who was evidently doing his utmost to screen the defendant from responsibility. There is no proof that these orders were intended to apply to the sailing-master, whose duty it is to obey orders given him by his superior officer. It is fair to presume, in the absence of positive proof, that he understood his duty and performed it. The gun was fired by him, as was usual, i. e. on returning to the anchorage. There was no prohibition that could fairly apply to this.
    VH. The exception to the decision on the offer to refresh the witness’ memory by reading from a written statement previously made by the witness was well taken. (Gray v. Mead, 22 N. Y. Rep. 462.)
    VIH. The exception to the testimony as to what the orders were was also well taken. The conclusions of the witness were not proper subjects of testimony. He had stated what the orders were, and it thereupon became the province of the jury to determine, as a matter of fact, what these orders meant. The witness’ opinion on that subject being of no consequence whatever, should not have been allowed to go to the jury.

      Mr. Cadwalader, for the defendant, respondent.
    I. The defendant is sued for a willful trespass committed through the instrumentality of his servant. While a trespass, or even a crime, may be so committed, it must be shown as a fact that the act complained of was authorized and directed to be done, either by a positive order, or by being within the scope of the business of the servant for which he was employed. The burden of proof is on the plaintiff to prove these facts. (2 Hil. on Torts, 423. Wright v. Wilcox, 19 Wend. 343. Vanderbilt v. Richmond Turnpike Co., 2 N. Y. Rep. 479. Hibbard v. Erie R. R., 15 id. 455. Condit v. Baldwin, 21 N. Y. Rep. 219. Thames Company v. Housatonic R. R., 40 Conn. Rep. 40. Church v. Mansfield, 20 id. 284. Oxford v. Peter, 28 Ill. Rep. 434. Roe v. Birkenhead, &c. R. R., 7 Eng. L. & Eq. 546. Mitchell v. Crassweller, 16 id. 448. Green v. McNamara, 8 C. B. N. S. 880. McManus v. Cricket, 1 East, 106. Lyon v. Martin, 8 Ad. & El. 448. Hubbersty v. Ward, 8 Exch. 330.)
    H. The plaintiff must, therefore, have shown at the trial. (1.) That the firing in question was actually ordered by the defendant; or, (2.) That such firing was an act within the scope of the general employment of the master of the yacht as master. That is, that a part of the duty of the master of the yacht, and for which he was employed and paid, was to fire guns on such occasions as the one complained of. (1.) There is no pretense that the firing was so ordered hy the defendant. He was not upon the yacht, and the proof is conclusive that it was unknown to him, and against his orders. (2.) Was the firing within the scope of the master’s business ? Bid the relation of master- and servant exist in that particular affair ? The evidence on this question is from two sources:
    ■ 1. There was an attempt to prove it by an alleged general custom of yachts of the New York Yacht Club, to fire salutes on nearing their anchorage at Hoboken. (1.) It would seem enough to state the proposition to show its fallacy. The learned judge at the trial so ruled, but for the plaintiff’s benefit, changed the ruling. Could the authority of the master of the yacht to purchase supplies be inferred because other yachts so purchased? Could a custom to pass vessels upon the wrong side be presumed, in case of collision, because other yachts did so ? (2.) But the proof entirely failed. No general custom was shown whatever. The only witnesses who testified on this point except Major," knew nothing more than that certain yachts have fired guns for some purpose from time to time. But Major proves affirmatively that no such custom existed, and that there was no club rule upon the subject. (3.) And upon examination of the cáse, the. only instances of firing shown were when the defendant was on board, and those rare. Except as testified, no custom of firing on this boat, but the contrary, was shown.
    2. That the firing of salutes on occasions like the one complained of, was a part of the duty of the master of a" yacht. The only witness upon this question was Major, who distinctly states that the firing of salutes does not come under the general duty of a sailing' master. His evidence is clear and conclusive on this question.
    III. The plaintiff, therefore, entirely failed to make any case to charge the defendant. Still, if he had proved that such firing, apart from any order regulating it, was an act within the scope of the. master’s, authority, or a universal custom of the club, the testimony shows a perfect defense. The defendant had given specific orders that this gun should not be fired; and further, that when fired at all, no wad of any kind should be used, and it appears that the order was obeyed in general. The witness (Hoffman) testified distinctly that all firing was against positive orders, known to all on board, and that orders had been given that no wads of any kind should be used. This evidence, which was conclusive and without contradiction, established, that the acts were not simply not within the master’s business, but that he was specially ordered not to do so. Under these circumstances, the defendant cannot be held liable as a master, for his own act, by his servant. The act was a simple willful trespass by the servant against orders. • The law will no more impute a willful trespass to a party against his will and his orders, than it will impute crime. (Hibbard V. The N. Y. & Erie Railroad Co., 15 N. Y. Rep. 455. Wright v. Wilcox, 19 Wend. 343. Condit v. Baldwin, 21 N. Y. Rep. 222, per Davies, J. Thames Co. v. Housatonic Railroad, 40 Conn. Rep. 54. Roe v. Birkenhead Railroad, 7 E. L. & E. 546. Lyons v. Martin, 8 Ad. & El. 512.) It was, moreover, the servant’s own act, for his own pleasure. Saluting a friendly captain or yacht, even if not against orders, is not an act in the master’s business. Mitchell v. Crassweller, (16 E. L. &. E. 448,) is a case in point. The master of the yacht was also bound by the club rules to obey orders. Any case, if any there be, tending to the contrary doctrine, will be found to- be a case where, in doing something commanded by the master, or in the scope of the servant’s business, the servant has, in some respect, exceeded his instructions. That is not this case here; firing this gun at all is not within the scope of his business. The substance of the order was, not that he should be prevented from firing when the defendant was absent, but that he should only fire when the defendant was present, and directed it, to avoid the very act charged.
    IV. Certainly, the fact of owning a yatch is no wrong to the plaintiff or the public, and a gun upon it is a necessary thing. Unless the court is prepared to hold that the fact of owning a boat of any kind, carrying a gun, renders the owner liable for any conceivable injury, this suit cannot be maintained. The defendant ■ has done, not simply every thing that he was obliged to do, but every thing that any person could by any possibility do, to save himself from liability.
    V. Hone of the plaintiff’s exceptions during the trial were well taken.
    VI. The nonsuit was clearly right upon the law; but if it be contended that there was any disputed question of fact, or any question on which the plaintiff had the right to go to the jury, although we know of none, as the nonsuit was, at the close of the plaintiff’s testimony, it is enough to say that no such request was made. The court assumed that the weight of evidence lay with the defendant, and so decided, and that without any specific objection or request from the plaintiff as to go to the jury on any particular ' question. (Barnes v. Perine, 2 Kern. 22. People v. Cook, 4 Seld. 78. Beekman v. Bond, 19 Wend. 444. Hunter v. Trustees Sandy Hill, 6 Hill, 410. Bidwell v. Lament, 17 How. 357.)
   Robertson, Ch. J.

I have not been able to find any. evidence in this case that the gun, whose discharge caused the injury to the plaintiff, was fired in the course of any. employment or duty of the master of the-vessel in question. It was not necessary in the course of its navigation, or as a matter of duty to other vessels, or in compliance with any custom governing vessels in general in Hew York harbor, or yachts belonging to the Hew York Yacht Club squadron, (if the vessel in question belonged to that squadron, or was bound by the rules of that club, of which there does not seem to have been sufficient evidence.) So that the ground of the defendant’s liability is reduced to the question, whether, by merely permitting the master of the vessel to ■ have the possession and custody of the gun and ammunition, with other equipments of the vessel, the defendant became responsible for their careless use.

In the case of Lamb v. Lady Palk, (9 Car. & P. 629,) the defendant was held not liable for the negligence of her ■coachman, who, after descending from his box, had, in turning aside the head of a horse harnessed to a van, which obstructed his passage, precipitated a box of mineral waters from such van upon the shafts of the plaintiff’s gig, and broke them, because the act was not done in the course of the coachman’s employment for the defendant. In the case of Mitchell v. Crassweller, (13 C. B. 237, 16 Eng. L. and Eq. 448,) it was held that for an injury done by the negligence of the defendant’s carman to a third person, in driving his employer’s horse and cart, for his own private purpose, after the time when he should have, and usually did, put up such horse and cart in their stable, the employer is not responsible. In the cases of Joel v. Morison, (6 Car. & P. 501,) and Sleath v. Wilson, (9 id. 607,) it was conceded that if a servant drives for his own purposes his master’s carriage without leave, during the time it is not in use for the business of the latter, the master is not liable for any injury caused by its means while so driven. Although, in both, it- was held that if while driving for his master’s-business, the" servant merely make a detour for his own purposes, his master is responsible for his negligent driving during such deviation. That distinction is made in both such cases to rest on the fact that, in the latter event, the master has enabled the servant to do the injury, by the mismanagement of the carriage while intrusted with its use for the master’s benefit. That doctrine would have applied in this case, if the sailing master had injured a person or vessel by careless navigation of the vessel under his charge.

The mere possession and control of the gun and ammunition could not create or imply permission, much less authority or duty to use them in the face of the positive orders of the defendant to the contrary. It could not he any part of the duty of sailing or taking care of the vessel to discharge signal guns or give salutes, and there was no evidence of a uniform custom on the part of the vessel in question, or any other yachts, or of any regulation to that effect in the squadron to which it was supposed to belong, to make it part of the ordinary employment of the sailing-master. I apprehend there: is no difficulty in a general limitation of the extent of the employment of a servant by agreement or command, so as to prevent him from doing acts of' a particular character. It is true that the prohibition of specific acts within the scope of a general employment, on a particular occasion only, or of a particular mode of doing them, may not exempt the employer from liability; but prohibiting their being ever done, must certainly curtail the extent of the employment; and the language of Justice Story, (Agency, 452,) in declaring the liability of a principal, notwithstanding his prohibition of the acts of his agent, by which third parties are injured, must be construed in that sense. The case of the Philadelphia and Reading Railroad Co. v. Derby, (14 How. 295,) also can only extend that far, otherwise it is contrary to several of the very cases cited in the opinion then delivered.

I am not aware of any principle which justifies the use by a party of a prior written statement of a witness of such party to instruct him what to say, under pretext of refreshing his memory, when he has not shown any weakness of recollection. The case of Guy v. Mead, (22 N. Y. Rep. 462,) cited for the purpose, does not sustain any such proposition, and the attempt to do it on the trial was properly prevented. I do not understand the question put to a witness as to the extent of the orders given by the defendant as calling for his construction of their language, but his recollection of it. He had not previously undertaken to give their precise words. It was, therefore, properly admitted. . There being no error committed on the trial, the exceptions should be overruled, and judgment given for the defendant dismissing the complaint on the merits, with costs.

Mokell, J. concurred.

McCunn, J. (dissenting.)

I regret I must dissent in this case. On the 30th of July, 1866, as the yacht Rambler of the Hew York Yacht Squadron, was about to drop anchor at her rendezvous in the waters of‘ the Hudson, she fired a salute of one gun to the other yachts. of the squadron. The wadding of the gun struck and penetrated the side of the ferryboat, on which the plaintiff was sitting, knocking him down, breaking his arm, and rendering, it useless for life. This action is brought against the defendant, the owner of the yacht, to recover compensation for the injury. It appears in the evidence, that, in the harbor 'of Hew London and in the harbor of Hewport, two years previous to the accident, instructions were given by Mr. Fearing, the owner,'that no firing should take place on board his. yacht, unless he was present, or unless he ordered it to be done. That on the morning of the accident, Mr. Fearing quitted his yacht at Staten Island, and left her in command of a person named Smith, whom he called his sailing-master, and directed Smith to proceed to the rendezvous; that Smith, on arriving at such rendezvous, ordered the customary salute to the other yachts, without receiving instructions from Mr. Fearing. On this state of facts, a nonsuit was ordered by the learned judge below, on the ground that “ plaintiff bad shown no facts to render the defendant liable.” I am clearly of opinion that error was committed in granting such nonsuit.

On the trial of the action, an effort was made on the part of the defendant to establish the fact that the witness, Smith, was not the captain, but the sailing-master of the yacht. This is of little consequence; indeed it is quite immaterial ■ whether Smith was known as captain, or as sailing-master. It is admitted that when Mr. Rearing quit his yacht at Staten Island he placed Smith in the entire command of the ship, and that she was absolutely under his supreme control; and I hold that Mr. Rearing, the defendant, under the circumstances, is liable for the act of Smith in negligently firing the gun.

It is a sound maxim in law that, when a party is injured by the negligence of another, the person causing the injury shall be held strictly accountable, unless the party injured contributed to the accident, which was not the case here. There is no pretense that-the plaintiff was in the slightest degree negligent. On the contrary, he was sitting in the cabin of the ferry-boat, on his way from New York ’to his home in Hoboken, when this shot plunged through the side of the boat arid caused the injury, which has invalided him for life. Surely, if courts are intended to afford a remedy for gross negligence, there never was a case in which the refinements of the law should be brought to bear by the judges to enforce such remedy more than in this case. The plaintiff had been attending his daily toil, and was returning to his family, secure, as he thought, in all things which render life safe, when this defendant and his servants, after returning from a trip of pleasure, in the most negligent and careless manner did an act which resulted in the injury. '

A glance at the evidence, must convince even any ordinary mind that it was not only carelessness, but carelessness of the grossest kind. The act of Master Smith in firing the gun was within the strict line of his duty, and the defendant, Rearing, by placing Smith in command of his yacht and in the possession of the implements to do wrong, rendered himself liable, for I lay it down as a broad, general principle that wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must suffer.

In treating the question herein, we are compelled to withdraw ourselves from the ordinary method of looking into such cases, because the facts and circumstances are not altogether within the scope of ordinary business transactions. For instance, this was a pleasure yatch; she was the Means adopted by her opulent proprietor to gratify Ms tastes; and all those amenities and civilities which can by possibility pass between gentlemen able to afford such luxuries, are expected to be exchanged—such as salutations by displaying flags, firing guns, and exchanging other courtesies, and which, I hold, become a part and parcel of the duties of the yacht crew. The vice-commodore of the squadron testifies, “ that the salute to the flag, (the one causing the injury,) was in accordance with the rules of the club,” and the club rules declare such amenities and civilities to be a part of their duties; if such civilities are not part of the ordinary duties of a pleasure yacht and her crew, then it is hard, indeed, to say what their legitimate duties are; they do not engage in commerce, they do not contribute to the welfare or happiness of the community in general, but to the pleasures of the few who associate together; and their polite courtesies to each other, I hold, is part of their legitimate business; and, when they commit an error or a wrong, in carrying out these pleasures, upon one of the community, they should be held strictly accountable.

Once at Newport, in firing a salute from the same yacht, a similar accident occurred, and then it was admitted that Smith was acting within the limits of his duties, and it was because Mr. Fearing believed that the firing at Newport was a part of the duties of .his crew that he forbade firing thereafter, unless he was on board, or gave special directions to do so. Indeed, the fact that the firing was specially prohibited, unless at certain times, is the strongest evidence that it was within the ordinary bounds of the crew’s duty, else why prohibit it ? Smith had been the commander and sailing-master of the yacht for years past, and he knew well what his duties were, and if the firing had not been a part of his duties, even without instructions from Fearing, it must be presumed he would, not have fired the gun. But it is manifest that it was because he believed he was performing his duties that he tendered this salute to the squadron. It must, therefore, be taken for granted that the act of Smith, whereby the accident occurred, was strictly within the line of his duties, notwithstanding he was forbidden to perform it; and it is an elementary principle that you cannot bind innocent and third parties who have been injured, by proving private instructions to servants not to perform certain acts, acts ordinarily performed within the line of their duties.

After having said thus much as to what their legitimate duties are, let us see whether Mr. Fearing would not be held liable for the acts done by his commander, which injure others, even if those acts had been some two years before prohibited.

Suppose Captain Fearing to be on board his yacht, his sailing-master, Smith, in command of the vessel, the wind abeam; and another vessel is seen approaching indirectly the opposite course, having the wind also on her beam, and the ships are meeting end on, and Captain Fearing gives the command to put the helm to port, which is the proper command, the other vessel having received the like command, and, instead of putting the helm hard to port, Smith, the sailing-master, in the face of Mr. Fearing’s command, puts his helm hard a starboard, and a collision takes place; Mr. Fearing or his vessel would certainly be held liable for the injury to the other vessel, because article 2 of an act fixing rules and regulations for preventing collisions on water, passed April, 1864, (and which, by the way, is now the sailing regulation of all the world,) declares if two sailing vessels are meeting, end on or nearly end on, so as to involve risk of collision, the helms of both shall be put'to port, so that each may pass on the port side of the other.” Now, this is the aptest kind of an illustration ; and if Mr. Fearing had been absent from his vessel, and the sailing-master had, after receiving positive instruetions from Mr. Fearing to obey the law in relation to putting his helm to port, instead of putting his helm to port, put it hard to starboard, thereby causing the collision, surely the absence of Mr. Fearing would not have exonerated his vessel or himself from liability, more than if he had been on board; and certainly the law will hold Mr. Fearing strictly liable for the acts of his sailing-master in firing this gun improperly, as much as it would for the .act of such sailing-master in disobeying his orders, as I have illustrated above.

I might stop here without citing a single authority, because I hold that judges are not bound to treat the court as a thing of words, dates, readings and decisions, but as a living fact, in close relation to other living facts, and having in itself the germs of growth and change; and I would be justified in saying, without adding another word, that the judgment below should be reversed, and a new trial ordered; but let us see what some of the most eminent elementary writers and some of the ablest decisions say upon this question. One of the earliest cases in the books, and one directly' in point, is to be found in the first volume of decisions of Lord Mansfield, by Evans. (P. 98.) That was the case of the capture of a ship by the enemy, where it was agreed between the captors and the captain of the captured ship that one of the sailors should be retained as a hostage until the ransom fixed by the captain with the enemy for the ship should be paid. The sailor consented to be retained or imprisoned by the enemy, provided that the owners of the captured ship would, during his captivity, pay his regular wages, which was agreed to by the captain. The captain brought the ship home, but the agreement on his part with the captors was repudiated by the owners, and the ship was sold for the benefit of the captors. After the seaman obtained his liberty he returned and sued the ownners for his wages during his imprisonment. The answer set up was, that the captain had no authority to bind the owners in such a case, and that his doing so was illegal and entirely without the line of his duties, and contrary to the statute law of England. Lord Mansfield, delivering the opinion of the court, held that, although it was not within the strict line of his ordinary duties, and although the law forbade the captain doing so, yet, as the captain believed he was doing his duty when ransoming the ship, and upon principle, he should recover. And this decision was coincided in by all the legal minds of the day. Now, there was on unlawful act perpetrated by the captain, an act forbidden by his owners and by the law of the land, and one which might' be considered entirely beyond the line of his duty; and yet, because the sailor was injured by detention, and because the captain had it in his power so to stipulate, it was held he could recover.

The next case of any moment we find in the English books is that of Sleath v. Wilson, (9 Car. & Payne, 612,) decided by Lord Erskine, wherein that able jurist held “ that whenever the master intrusted the servant with the control of the horses and carriage, it is no answer that the servant acted improperly in the management of it.” “If it were,” proceeds that learned judge, “ it might .be contended that, if a master directs his servant to drive slowly, and if the servant disobeys his orders and drives fast, and through his negligence occasions an injury, the master will not be liable; but (saith Lord Erskine) that is not the law ; the master in such a case will be liable, and the ground is, that he has put it in his servant’s power to mismanage the carriage by intrusting it with him,” and he therefore held that the defendant should be held liable. Now, the case at bar and the one last cited are very similar, notwithstanding the fact that the instruments working the injury were very dissimilar, the one being a servant and a pair of horses, and the other being a servant and a yacht. Both disobeyed the instructions of their masters, and both thereby caused injury to the plaintiffs in the different actions. One disobeyed his master’s directions in taking the horses back to their stable out of their usual way, to perform errands of his own; the. other, when taking the yacht, at his master’s request, to her usual rendezvous, .fired a salute which he was not instructed- to fire, thereby causing the injury. The principles involved are precisely similar, and the ruling in the one case should govern the ruling of the other.

The rule that the master shall be liable for the tortious acts of his servant, is of universal application. The maxim is u respondeat superior.” If the act be done in the course of his employment, the master is liable, even if he forbade the act to be done. Such was the decision of Mr. Justice Grier in the case of Derby v. The Philadelphia and Reading Railroad Company, (14 How. U. S. Rep. 483,) where the question came fairly- up, and where the doctrine I contend. for was revived and re-affirmed in the most explicit terms. Derby-had sued the company for injuries to Ms person ; the locomotive causing the injury was run by an engineer employed by the road, who had express instructions not to run his engine on the road that day. Contrary to such instructions, he ran his engine, and in doing so injured the plaintiff, and the company was held liable. How the case of Derby is precisely similar to the one at bar; there the engineer was on that day expressly forbidden to run his engine on the track; he did run her, and caused the injury, and the company was held liable; here the sailing master had received instructions two years previous not to fire salutations without permission ; while in his master’s employ, in bringing up the yacht to her place of destination, he did fire one which caused the injury, and his employer should be held liable.

In some of the cases cited, on the defendant’s points, and in others not on his points, there are to be found dicta, which, when severed from the context, might seem to countenance the doctrine that the master, is not liable if the servant act in disobedience of his orders; but it will be seen on a careful examination that the question depended on whether he was or was not, at the time, in the relation óf master and servant; and I know that in some of those cases some subtle and astute distinctions are drawn as to when the servant is acting in his master’s employ; yet I can find no case contrary to the views expressed above. The elementary writers all agree that the master is liable for the acts of his servant, although those acts may be contrary to his orders. Judge Story, in his treatise on Agency, says that the master must be held liable in civil suits for “ the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasance or malfeasances, 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 the acts.” Chancellor Kent, in his Commentaries, holds the same rule; and both of these eminent writers cite a large number of authorities in support of their views. (Story on Agency, p. 537, notes 1, 2 and 3;)

It cannot be said in this case that Smith was not acting in the line of his duty when he fired the gun; he was. He was bringing the yacht to the place where his master directed him to bring her; he was in sole command, and was manoeuvering her, exchanging courtesies and salutations with other vessels, all of which was in the strict line' of his duty. One act of his duty, he was directed, two years before, to omit; he did not omit, but committed the act, and did it so negligently that he injured others. How, as I have said before, all wrongs have remedies in law, and, pray, where is the remedy here ? Who is to compensate this innocent man for the great injury and wrong he has suffered, without the slightest negligence on his part? Hot the ferry company, who were carrying him to his home, and who did not contribute to the negligence. It is idle to answer that the plaintiff may have recourse to Smith, when the law gives him the option to sue either the master or the servant. Smith’s responsibility is not so apparent as that of the owner of the yacht; but, however that may be, the plaintiff in- the exercise of an election ' accorded him by the law, has chosen to come against the principal. Instead of turning the plaintiff round to Smith, the defendant, as principal, may seek indemnity for any damages he may sustain in this action, hy a suit against his agent for disobedience of his instructions.

The judgment should tie reversed, and a new trial ordered.

Judgment for the defendant.


source: Caselaw Access Project

author: By the Court, Robertson, Ch. J.

license: Public Domain

text:
    Jane Mooney, plaintiff and respondent, vs. The Hudson River Railroad Company, impleaded, &c. defendants and appellants.
    1. It seems the decisions of the Court of Appeals in Chapman v. The New Haven Railroad Co. (19 H Y. Rep. 341,) and Cólegrme v. The H. Y. and New Haven Railroad Co. (20 id. 492,) to the effect that a passenger in a vehicle or railroad car, injured by its collision with another vehicle or railroad car, resulting from the concurrent negligence of the owners of such vehicles or cars, or their employees, may maintain'a joint action against both, áre in a great measure overruled by the later case of Rroio» y. The New York Central Railroad Company, (32 IV. Y. Rep, 597.)'
    2. When a person commits himself to the care of the employees of a carrier of passengers, to be transported any where, he makes them his agents, so far as the use of care to avoid the consequences to him of the negligence of the conductors of any other vehicles on the road is concerned.
    3. Even a party guilty of negligence himself is, in reference to the degree of care he is hound to use, entitled to rely on the obligation of others to us.e ordinary care to avoid the consequences of his negligence, when threatened hy it with injury, and is exempted from liability for the effect of a failure hy others to discharge their duty. And that should extend not only to the parties themselves so failing in such duty, but also to those who have so relied on the exercise of such a degree of care on their part as' to delegate to them the power of producing or preventing injury to them by such negligence. Per Robertson, Oh. J.
    4. Negligence in the managers of a railroad car in which a passenger is carried, contributing to a collision With a train upon another road, by which such passenger is injured, will defeat any recovery hy him for such injury.
    (Before Robertson, Oh, J., and Barbour and Garvin, JJ.)
    Heard January 18, 1868;
    decided May —, 1868.

      Appeal by the defendants, the Hudson River Railroad Company, from a judgment entered on the verdict of a jury. On the 30th of July, 1866, the plaintiff, being a passenger on a car of the defendants, the Central Park, North and East River Railroad Company, received an injury in consequence of a collision between said car and a locomotive engine of the appellants engaged in drawing some cars out of their depot yard at Thirtieth street. Eor this injury she brought an action against the two railroad companies jointly, and recovered a verdict for $1600 damages. A motion was thereupon made, upon the minutes of the judge, by the defendants, the Hudson River Railroad Company, to set aside the verdict, and for a new trial, upon the ground that the verdict, as to them, was against the weight of evidence, and-that the damages were excessive. The same was denied, and the said defendants appealed and made a case containing exceptions taken on the .trial.

      JF. Loomis, for the appellants, defendants.

      A. H. Heavy, for the respondent, plaintiff.
   By the Court, Robertson, Ch. J.

This was an action against two railroad companies to recover damages for an injury to the plaintiff produced by the joint negligence of their servants. She was a passenger at the time on one of them, (the Tenth Avenue Railroad Co.,) which was a city car drawn by horses merely. On the trial the court, in substance, charged the jury, that the defendants were jointly responsible, if they were both guilty of concurring negligence, and so the jury found. That charge was made pursuant' to the decisions of the Court of Appeals in Chapman v. New Haven R. R Co. (19 N. Y. Rep. 341,) and Colegrove v. N. Y. and New Haven R. R. Co. (20 id. 492.) But I understand the decision in the subsequent case of Brown v. N. Y. Central R. R. Co. (32 N. Y. Rep. 597,) to have in a great measure overruled those decisions. The plaintiff in that case was riding In a public stage and received the injury by its collision with a car of the defendants, at a place where the public highway, on which she was traveling, crossed the railroad. A nonsuit was moved for on the trial, among other grounds, because the evidence showed that the driver of the stage “ who was employed by the plaintiff, was himself negligent, and his negligence contributed to produce the injury.” “ The court charged the jury that the negligence of the driver must be regarded as the negligence of the plaintiff, (p. 602;) that he represented her, and that she could not recover in this action if his negligence contributed to produce the injury.” The jury found a verdict, upon which judgment was entered, and an appeal taken therefrom. The learned judge (Davis) who delivered the opinion of the .appellate court (Court of Appeals,) after referring to the two cases before cited, (ubi sup.) said: “I do not perceive why these cases do not dispose of the question as to the negligence of the driver, in this case. The plaintiff was a passenger in a public stage. She had no control of its management or direction, and occupied no relation to the driver different from that which passengers occupy to any public carrier of persons. In principle there is no difference whatever between her relation to the carrier and that of a passenger on a train of railroad cars. The difference is one of fact merely, growing out of the difference of motive power and the corresponding necessity for more stringent rules and greater vigilance in one case than in the other. But a majority of the judges are of opinion that the true rule in a case of this hind was laid down at the circuit. It becomes necessary, therefore, to consider the case in the same aspect in which it was presented at the trial. It is not pretended that there was any fault or want of care on the part of the plaintiff herself. And it seems to me there was no error in submitting the question of the driver’s negligence to the jury.” After discussing the evidence and the facts proved as to such driver’s conduct, the learned judge concluded by saying: “It was no error therefore to leave it to the jury to say whether under all the circumstances the driver was negligent in attempting to escape by crossing the-track.” Four judges, (Davis, Wright, Porter and Brown,) concurred in affirming the judgment in the court below. Two dissented, (Davis and Campbell,) and one, (Potter,) took no part in the decision. This was clearly an announcement of the principle adopted by the court; that in such a case as that before it, at all events, the general rule, if any, adopted in the two previous cases referred to in it would not control. One of those cases (Chapman v. New Haven R. R. Co., ubi sup.) in order to sustain the decision in it, was distinguished from that of Thorogood v. Bryan, (8 Com. B. R. 115,) cited in it, simply because, besides having no control over the train in which he was riding, the plaintiff had no choice except to go by that railroad or none. In. the case of Thorogood v. Bryan, the action was brought by a passenger in one omnibus against the proprietor of another, for a collision by which he was injured. The jury were instructed that if they thought want of care on the plaintiff’s part, or on the part of the driver, had been conducive to the injury, no recovery could be had. That ruling was maintained on a motion for a new trial, and exceptions. In that case the prior one of Bridge v. Grand Junction Railway Co. (3 Mees. & Wels. 244,) was referred to as supporting the decision. That was an action by a passenger in one railway train against another railway company for a collision by one of the trains of the latter with the former, by which such passenger was injured. A plea was interposed that the managers of the train in which the plaintiff Was, managed it so negligently and improperly, that the injury was caused, in part, by their negligence. Judgment was given for the plaintiff, on demurrer to such plea, because, if good in substance, it was merely a plea of not guilty, and it was bad in substance, because it did not allege that the plaintiff could, with ordinary care, have avoided the consequences of the defendants’ negligence; a very nice distinction, but repeated and adopted in the subsequent case of Davies v. Mann, (10 Mees. & Wels. 546.) The principle, however, is clearly recognized in Bridge v. Grand Junction Railway Co. that the want of ordinary care, by a train in which a passenger is carried, in avoiding the consequences of the negligence of the other colliding railway train, defeats any right of action on his part.

In the case of Colegrove v. N. Y. and N. H. R. R. Co., (ubi sup.) Denio, J. who joined in the decision in Brown v. JY. Y. Q. R R. Qo., (ubi sup.) dissented, upon the ground that a joint action was not maintainable, and two other judges (Grover and Strong) dissented because another question, as to the plaintiff’s negligence, should have been submitted to the jury. One of the judges (Davies) who joined in the decision in the first named case, was one of the dissentients in the last. The authority of the first, therefore, is weakened, and that of the last strengthened by such change of position. The first case went up from this court, and is reported in Duer’s Reports, (vol. 6, p. 492,) where the decision was mainly put upon the ground that a concurring want óf care being a joint contribution to a common result, is equivalent to concert of action. I think, however, that the case of Brown v. N. Y. C. R. R. Co., before referred to, rejects that principle, and not without reason, for the degree of control exercisable by the party injured over the vehicle in which he is transported, cannot well be measured or apportioned. If he drives, himself, and is guilty of negligence, he clearly could not recover. If he was driven by a hired servant of his own, there would be no more ground for a recovery, or even if in a vehicle driven by the servant of another, of which he had hired the use ; and so we may proceed to public stages and railway cars, drawn by horses or propelled by steam. Where can the line be drawn ? The true reason for the responsibility of the proprietors of any vehicle, on a public road, for any injury by their negligence to travelers upon it, by other means or vehicles, differs somewhat from that for their liability to those transported by themselves. In the latter a contract is mingled; in the former it arises entirely from a breach of a public duty. And that is, that such owners shall conduct the use of their vehicles with such care as not to injure any person, who, as well as his agents, uses due care to avoid the consequences of the negligence of the former, (as expressed in the English law,) or (in ours) are not guilty of negligence. \ When a person commits himself to the care of the employees of a carrier of passengers, to be transported any where, he makes them his agents, so far as the use of care to avoid the consequences to him of the negligence of the conductors of any other vehicle on the road, is concerned. Even a party guilty of negligence himself is, in reference to the degree of care he is bound to use, entitled to rely on the obligation of others to use ordinary care to avoid the consequences of his negligence, when threatened by it with injury, and is exempted from liability for the effect of a failure by others to discharge their duty in that respect. And that should extend not only to the parties themselves, so failing in such duty, but those who have relied on the exercise of such a degree of care on their part as to delegate to them the power of producing or preventing injury to them by such negligence.

If the distinction between the two earlier cases in Hew York reports and the last one, which seems to be hinted at by Judge Davis when he speaks of “ a case of this kind,” be that in the last, the plaintiff was in a vehicle drawn by horses, and not by so dangerous a power as steam, that was also the case in this action, and she comes within the reason given in Chapman v. N. H. R. R. Co. (ubi sup.) that she had other means of traveling on the Tenth avenue besides that adopted by her. Following the decision in those cases, I think the judgment in this case should be reversed, and a new trial had, with costs to abide the event.