Bard and Wenrich v. Yohn

• Decision Date: 01 January 1856
• Citation: 26 Pa. 482
• Parties: Bard and Wenrich versus Yohn.
• Court: Pennsylvania Supreme Court

26 Pa. 482

Bard and Wenrich versus Yohn.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Berks county.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Strong and Davis, for plaintiff in error.—The joint action against Bard and Wenrich cannot be sustained. The action against both is for the negligence of their respective servants for different and independent acts, and of different natures. As to the kicking of the horse, Wenrich is not responsible, unless he knew of his vicious propensities, which must be averred and proved: 1 Ch. Pl. 82, 11th Am. ed.; 1 Bac. Ab. 82. Where several are concerned, they may be jointly sued if they assented to the act before or after it was committed. Neither had any control over the other. They are not in pari delicto: 2 Saund. 117 a; Custworth's Case, Sty. 153; 3 Esp. N. P. Rep. 202-4. The case of Rogers v. Stewart, 5 Verm. 215, does not sustain the ruling of the court below. There they were jointly liable, because they were jointly concerned in keeping the nuisance: Wilson v. Peto et al., 6 Moore 47; 17 E. C. L. 13; Tarr v. Voorhees, 7 Leg. Int. 114.

The acts of a servant bind his master only when done in the course of his business, or within the scope of his authority: Kerns v. Piper, 4 Watts 222; Joel v. Morrison, 6 C. & P. 501; Sleath v. Wilson, 9 C. & P. 607; Lamb v. Polk, Id. 629; Church v. Mansfield, 20 Conn. R. 284; Mitchell v. Crasweller, 16 Eng. L. & Eq. R. 451; Middleton v. Fowler, 1 Salk. 282; Croft v. Allison, 4 B. & A. 590; McManus v. Crickett, 1 East 106.

Banks and Richards, for defendant in error.—Were the defendants jointly liable? There are some torts which in legal consideration may be committed by several, and for which a joint action may be supported against all. Where the act could not have been jointly committed, there it is the tort of the actual trangressor, or the distinct tort of each and separate actions must be brought: 1 Ch. Pl. 86. Their joint acts produced the result, and it was not necessary to allege or prove any direct concert or combination. In all joint trespasses there must be separate acts: Thomas v. Rumsey, 6 Johns. 26-32; Boyce v. Douglas, 1 Camp. 60.

As to the liability of David Wenrich, it was placed upon the ground that Elijah was there with the team as the servant of his father, under a general permission to use it. The jury were satisfied that the relation of master and servant existed. That the master is liable for injuries occasioned by the negligence of his servants is well settled, even though the servant was driving out of the direct road for his own purpose: 1 Ch. Pl. 80, 81.

The opinion of the court was delivered by KNOX, J.

This record presents for our consideration two questions, viz.: —

1st. Is David Wenrich responsible for the negligence of his son Elijah?

2d. Can there be a joint recovery against Adam Bard and David Wenrich, founded upon separate acts of negligence, when such acts together produced the injury complained of?

Upon a careful examination of the facts of this case, and of the authoritative decisions relating to the liability of a master for the tortious conduct of his servant, we are satisfied that the Court of Common Pleas erred in permitting the jury to render a verdict against David Wenrich. Elijah was not in his father's employ when the act complained of was committed. He was neither acting for his father's benefit, nor by his direction. There was no direct evidence that he took the horses to go to Reading with his father's consent. But the consent of the father, even if expressly given, would not have rendered him liable for injuries occasioned by his son's negligence.

If one lets or hires to another a horse to be used exclusively for the purposes of the latter, the owner of the horse is in nowise responsible for the negligent manner in which the horse may be used. That Elijah was in his father's employ generally, did not create the relation of master and servant, so that he could not act for himself and be solely responsible for his own negligence. From all the evidence in the case, we are clearly of opinion that David Wenrich was not liable for his son's negligence in leaving the horses in the street to the plaintiff's injury.

2d. Were the defendants jointly liable? It is not pretended that the acts which occasioned the injury were jointly done; or that there was any understanding or combination between the defendants or their servants in doing the acts complained of. Each party acted for himself, solely. The servants of Bard placed vehicles along the street to accommodate his customers, and young Wenrich left his wagon and horses in the same street, on the opposite side, to accommodate himself. Now, conceding that the independent act of each contributed to the result, can there be a joint recovery against the two for the...