59 Mass. 592 - Parsons v. Winchell — 59 Mass. 592

Sidney C. Parsons vs. Tryon Winchell & others. A master ar.d servant are not liable jointly in an action on the case, for an injury occasioned by the negligence of the servant, while driving the horses and carriage of the master in his absence. This was an action on the case against Tryon Winchell, Henry Luddington, and Joseph Powers, for negligently and improperly managing a pair of horses and wagon, whereby the plaintiff’s horse and wagon were injured. The declaration alleged, that the plaintiff, at Northampton, on the 20th of September, 1849, was the owner and possessor of a horse and wagon, which were in the lawful custody of one Isaac Parsons, and lawfully passing over Elm street in Northampton ; that the defendant Powers, as the servant of Luddington and Winchell, the other defendants, and being in their employ, had the care, direction, and management of a certain pair of horses harnessed to a wagon, which were then and there used by the defendant Powers in and about the business of the other defendants; that the defendants, not regarding their duty in this behalf, by the defendant Powers, acting as the servant of the others, so ignorantly, carelessly, and negligently, drove, managed, and guided their horses and wagon, that the wagon was violently drawn and forced against the • horse and wagon of the plaintiff, with such force and violence, that the plaintiff’s wagon was overset, broken to pieces, and destroyed, and his horse lamed, wounded, and otherwise injured. The defendants pleaded the general issue. At the trial of the case, before Horn, J., in the court oí common pleas, it was in evidence on the part of the plaintiff, that the defendant Winchell employed Powers, another of the defendants, as his servant, to take Winchell’s wagon, and a pair of horses belonging to Luddington, the other defendant, for the purpose of going with them about a mile on business of Winchell; and that the injury complained of in the declaration, as there stated, occurred while Powers was on his way for the purpose stated, Winchell not being present. The defendant contended that, on this evidence, the action could not be maintained against the defendants jointly. But the presiding judge instructed the jury, that if the injury complained of occurred in consequence of the negligence of Powers, the action would lie against him ; and that if he was at the time acting in the service of Winchell, the other defendant, Winchell was liable jointly with him. The jury returned a verdict in favor of Luddington, and a verdict of guilty against the other defendants, who thereupon alleged exceptions. R. A• Chapman and W. C. Bates, for the defendants. C. P. Huntington and C. Delano, for the plaintiff. — Metcalf, J. (majority) Metcalf, J. The question to be decided is, whether this action on the case, brought against the owners of horses and a carriage, and their servant the driver, jointly, can be maintained for an injury done by the negligent driving of the servant, in the absence of the owners. And we are of opinion that it cannot. To maintain an action against two or more jointly, the plaintiff must show a joint cause of action. In an action ex delicto, the act complained of must be the joint act of all the defendants, either in fact, or in legal intendment and effect. In trespass, all are principals, and he who commands a trespass to be committed, though absent when it is committed, is regarded as a trespasser, and may be sued alone, or jointly with him who obeyed his command. And it has been decided, where one of several proprietors of a coach and horses acted as driver, in the absence of the others, and injured a third party, by negligent driving, that he and the other proprietors were jointly liable to such party, in an action on the case. Moreton v. Harden, 6 Dowl. & Ryl. 275, and 4 Barn. & Cres. 223. They were all held to be responsible for the conduct of the person whom they suffered to drive, whether he was one of themselves or their servant. But the act of a servant is not the act of the master, even in legal intendment or effect, unless the master previously directs or subsequently adopts it. In other cases, he is liable for the acts of his servant, when liable at all, not as if the acts were done by himself, but because the law makes him answerable therefor. He is liable, says lord Kenyon, “ to make a compensation for the damage consequential from his employing of an unskilful, or negligent servant.” 1 East, 108. The servant also is answerable to the party injured by his acts done as servant, and is answerable to the master for any damages which the master may be compelled to pay for his wrongful acts, unless those acts were directed by the master. But if the master and servant were jointly liable to an action like this, the judgment and execution would be against them jointly, as joint wrongdoers, and the mastej, if he alone should satisfy the execution, could not call on the servant for reimbursement, nor even for contribution. Merryweather v. Nixan, 8 T. R. 186; Vose v. Grant, 15 Mass. 505, 521. It is said, in Hammond on Parties, 77, that where a sheriff’s bailiff, or a carrier’s servant, is liable for causing a breach of duty, he cannot be charged jointly with his superior, since the grounds of their liability are different. And it was decided, in Campbell v. Phelps, 1 Pick. 62, that a sheriff and his deputy could not be joined in an action for the act of the deputy alone, though both were severally liable for the act. That case, as it seems to us, is not distinguishable from the case at bar. And we find no decision to the contrary, though it was said by Cowen, J., in Wright v. Wilcox, 19 Wend. 343, that he saw no reason why a joint action, like the present, would not lie. In 1 Walford on Parties, 564, 565, it is said that “ the only instance,” in which a principal is chargeable for the acts of an inferior, so as to afford a joint right of action against both, is that of a sheriff who is chargeable jointly with his under-officer, when the latter commits a tort under color of executing legal process. See also Broom on Parties, 273, 274. The authorities referred to by these writers are not conclusive on the question, whether even a sheriff in England can be sued jointly, with his under-officer, for the act of the latter. However this may be, the case of Campbell v. Phelps, before cited, has settled that question in this commonwealth. The plaintiff’s counsel relied, in support of this action, on the case of Michael v. Alestree, 2 Lev. 172; and we have carefully examined it. It was an action on the case, “ for that the defendants, in Lincoln’s Inn Fields, a place where people are always going to and fro about their business, brought a coach, with two ungovernable horses, and them, improvidently, incautiously, and without due consideration of the unfitness of the place, there drove, to make them tractable, and fit them for a coach; and the horses, because of their ferocity, being not to be managed, ran upon the plaintiff, and hurt and grievously wounded him.” The report states that “ the master was absent, yet the action was brought against him, as well as his servant, and both found guilty.” A motion was made in arrest of judgment for several causes. But judgment was given for the plaintiff; and the court said, among other things, “ it shall be intended the master sent the servant to train the horses there.” In Keble’s report of the same case, (3 Keb. 650,) no part of the declaration is set forth; but it is stated that the court said, on a motion in arrest, “ it’s at the peril of the owner to take strength enough to order them,” (the horses,) “ and the master is as liable as the servant, if he gave him order for it; and the action is generally for bringing them thither.” Thus it appears that the principle of the decision was, that the master, though absent, had ordered his servant to train intractable horses in a place constantly thronged with passengers, and was, therefore, in legal intendment, guilty of the act of training them there, jointly with his servant. Whether this principle was rightly applied, in that case, we need not consider. Very clearly, it was recognized by -the court. See Broom on Parties, 258, 259. In Whitamore v. Waterhouse, 4 Car. & P. 383, an action was brought against the proprietors and driver of a coach for an injury done by the servant’s careless driving. Mr. Justice Parke said he never saw a case before, in which the proprietors and coachman were joined. But, upon being referred to the case of Michael v. Alestree, he did not think proper to call on the plaintiff to discharge either the proprietors or the coachman ; as the question would afterwards be open, in arrest of judgment. The plaintiff’s counsel thereupon consented to the acquittal of the coachman, and the trial proceeded against the proprietors, who were also acquitted. That case, therefore, does not aid the present plaintiff. New trial ordered.