Adams v. Cost

• Decision Date: 18 June 1884
• Citation: 62 Md. 264
• Parties: JOHN W. ADAMS v. JOHN COST and GEORGE W. ROUZER.
• Court: Maryland Court of Appeals

62 Md. 264

JOHN W. ADAMS v. JOHN COST and GEORGE W. ROUZER.

Court of Appeals of Maryland

June 18, 1884

APPEAL from the Circuit Court for Washington County.

The case is stated in the opinion of the Court.

The cause was submitted to ALVEY, C.J., YELLOTT, STONE, MILLER ROBINSON, IRVING, and BRYAN, J.

Hy. Kyd Douglas, for the appellant.

H H. Keedy, for the appellees.

YELLOTT J., delivered the opinion of the Court.

A suit was instituted in the Circuit Court for Washington County by the appellant against the appellees, for the recovery of damages, resulting from the killing of a horse belonging to the plaintiff in the cause. The trial in the Court below terminated in the rendition of a verdict and judgment for the defendants, and the plaintiff has brought the questions involved in controversy, into this Court by an appeal from said judgment.

The evidence adduced by the plaintiff tended to prove that the defendants were the keepers of a stable at which the plaintiff's mare had been put at livery. The defendants were instructed by the plaintiff not to let the mare go out to any one but himself; and not even on his own written order. On several occasions the plaintiff had instructed Briscoe, a servant of the defendants, employed at the stable to ride the animal out for exercise, the plaintiff watching him while doing so; had given him no general directions to ride the horse when he was not present, and had forbidden that to be done. The horse was killed by said Briscoe in running a race with another servant of the defendants while they were going to order a load of hay for defendants' stable.

The defendants offered evidence tending to prove that the plaintiff had repeatedly directed and ordered Briscoe to take the animal out, whenever he had time, to exercise and train her for a saddle horse; that he wanted this done every day; that this was no part of the contract of livery, but that the defendants permitted Briscoe to do so as requested by the plaintiff, and after being asked by plaintiff for permission to let said servant exercise the horse for him every day; that on the day the fatality occurred, Briscoe had taken the animal to exercise without the special consent of the defendants, and on that day went without their knowledge, as he was ordercd by the plaintiff; that they permitted their servant Daily to ride one of their horses on that day; that said Daily started after Briscoe, and that these two servants determined, without the knowledge of the defendants, to go and order a load of straw for the stable, as they had been accustomed to do without previous orders, and that while riding along at a lope the plaintiff's horse fell down and died of heart disease, and that they were not racing.

In rebuttal, the plaintiff's evidence tended to prove an admission on the part of one of the defendants that he had sent the said servants for a load of straw, and also an admission by Briscoe that the horse had run against a tree; that the servant Daily had asked permission of one of the defendants to ride one of their horses, which permission was given with an admonition not to stay long; that Daily overtook Briscoe and they proceeded together until the animal was killed.

The plaintiff offered three prayers and the defendants two. The first prayer of the plaintiff was conceded, the second was granted, and the third rejected by a divided Court. The first prayer of the defendants was conceded and the second was granted by the Court. The plaintiff has excepted to the rejection of his third prayer and to the granting of the second prayer of the defendants; and these exceptions present the only questions for determination.

The plaintiff's third prayer which was rejected reads as follows:

If the jury believe that the defendants were the proprietors of a livery stable at which the plaintiff's horse was placed at livery for pay, then it was the duty of the defendants to keep safely and take good care of said horse, to employ reliable servants, and not to order or permit said servants to ride or use said horse, without the consent of the plaintiff; and if the jury further find, that the plaintiff did permit and request Briscoe, one of the defendants' servants, to ride his horse for the purpose of exercising him or training him for a saddle horse; yet if the jury believe, that on the 14th of December, 1882, the said Briscoe took said horse out of the stable, and rode her, not for the purpose of exercising and training her, but either to carry a message and order of the defendants, or to run a race with a horse belonging to the defendants, and ridden by another servant of the defendants, and that while carrying said order and message, or running said race, the horse of the plaintiff was killed, then the plaintiff is entitled to recover.

The second prayer of the defendants is in these words:

The defendants pray the Court to instruct the jury, that if they believe from the evidence that the plaintiff had his mare at the livery stable of the defendants, at board for $16 per month, and that it was no part of their contract, as livery men having said mare at board, to take her out to exercise; and further find, that the plaintiff gave instructions and direction to Sargent Briscoe, one of the stable hands of the defendants, to take said mare out and exercise her for him, and that in pursuance of such instruction and direction, the said Sargent Briscoe did take the plaintiff's mare out for the purpose of exercising her, then the plaintiff is not entitled to recover, even though they may find that the said mare was injured and died by the immoderate riding and the carelessness and negligence of the said Sargent Briscoe, when he had her out for the purpose of exercising her as aforesaid.

These prayers involve the legal principles applicable to the relation of principal and agent, or master and servant. The doctrine has been settled by numerous adjudications that if the injury, for which the remedy is invoked, resulted from the negligence or misconduct of the servant or agent of the defendant while acting within the scope of his designated duties as such agent or servant, and thus either by the express orders or implied sanction of the principal or master, the defendant is liable. The maxim qui facit per alium facit per se is strictly applicable in all such cases. The principal or master is constructively present; the negligence is his negligence, and he is responsible for the resulting injury. Powell vs. Deveney, 3 Cushing, 305.

In relation to the liability of masters for the acts of their servants it was said in Ellis vs. Turner, 8 T. R., 533, "They are responsible for the acts of their servant in those things tbat respect his duty under them, though they are not answerable for his misconduct in those things that do not respect his duty to them." And HOLT, C.J., said in Middleton vs. Fowler, et al., 1 Salkeld, 282, that "No master is chargeable with the acts of his servant, but when he acts in execution of the authority given by his master, and then the act of the servant is the act of the master."

In 2 Rolle's Abr., 553, it is said, "If my servant, without my notice, put my beasts in another's land, my servant is the trespasser and not I; because by the voluntary putting of the beasts there without my assent, he gains a special property for the time, and so to this purpose they are his beasts." In M'Manus vs. Crickett, 1 East, 106, Lord KENYON, referring to the two last cited authorities, observed: "Now when a servant 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 according to the doctrine of Lord HOLT, his master will not be answerable for such act. Such upon the evidence was the present case, and the technical reason in 2 Roll. Abr., with respect to the sheep applies here; and it may be said, that the servant, by wilfully driving the chariot against the plaintiff's chaise, without his master's assent, gained a special property for the time, and so to that purpose the chariot was the servant's. This doctrine does not militate with the cases in which the master has been holden liable for the mischief arising from the negligence or unskilfulness of his servant who had no purpose but the execution of his master's orders."

In Coleman vs. Riches, 16 C. B., 104, it was held, that a master is responsible for the negligence of his servant acting in the course of his employment, but not for an act of negligenee done by him out of the scope of his authority. And in Lyons vs....