Bissell v. Roden

• Decision Date: 31 March 1863
• Parties: GEORGE R. BISSELL, Appellant, v. DAVID RODEN et al., Respondents.
• Court: Missouri Supreme Court

34 Mo. 63

GEORGE R. BISSELL, Appellant,

v.DAVID RODEN et al., Respondents.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Law Commissioner's Court.

Bryan, for appellant.

The declaration of law by the Law Commissioner implies either that no liability exists on the part of respondents, unless there were a contract with appellant; or if there be such liability, they are exonerated therefrom by having been engaged or hired by Birch & Cooper. Was any contract with appellant necessary to make respondents liable for damages occasioned by them?

In Whitfield v. Lord Despenser, Cowp. 754, Lord Mansfield, in giving the decision, says, “As to an action on the case lying against the party really offending, there can be no doubt of it; for, whoever does an act by which another person receives an injury is liable in an action for the injury sustained.”

In Chit. Plead. (153/135), it is laid down, “For any misfeasance by a party, in a trade in which he professes, the law gives an action upon the case to the party grieved against him.” (1 Sand. 312, a. & n. 2.) And it seems that though there be an express contract, still if a common law liability results from the facts, the party may be sued in tort for any neglect or misfeasance in the execution of the contract. (Langridge v. Levy, 2 M. & W. 519; Leslie v. Wilson, 6 Moore, 415; Kinbyside v. Thornton, 2 W. Black. 111; 1 Mo. 430 & 643; 13 Mo. 99.)

In Bacon's Ab., title Action, on the case ( b.) it is laid down, (and this case is taken from the Year Books, and though cited frequently in treatises since that time, has never, we believe, been questioned), “If I deliver my horse to a smith to shoe and he delivers him to another smith, who pricks him, I may have an action on the case against him, though I did not deliver the horse to him.” And, under the same head, “If one slanders my title, whereby I am wrongfully disturbed in my possession, I have a remedy against the trespasser; yet I may have an action against him that caused the disturbance.” And, in Roll. Ab. 90, “If I deliver goods to A., who delivers them to B. to keep to the use of A., and B. waste them, I may have an action upon the case against B., though I did not deliver them to him.

In Stone et al. v. Cartwright, 6 S. R. 411, it was held that no action lies against a steward, manager or agent for damages done by the negligence of those employed by him in the service of his principal, but the principal or those actually employed are only liable. Per Lord Kenyon, C. J.: “In all these cases I have ever understood that the action must either be brought against the hand committing the injury or against the owner for whom the act was done.” In Stephens v. Elwell, 4 Maule & Sel. 259, it was held that a servant may be charged in trover, although the act of conversion be done by him for the benefit of his master. (Stort v. Clemens, Peake's N. P. cases, 144; Knight v. Fox & Henderson, 1 Law & Eq. 447; Moreton v. Hardern et al. 6 Dow. & Ry. 223; Wille v. Hayne, 2 Dow. & Ry. 33; Morgan v. Bowman, 22 Mo. 538; Barry v. City of St. Louis, 17 Mo. 121.)

Farish, for respondents.

DRYDEN, Judge, delivered the opinion of the court.

This was a suit, originating before a justice of the peace, to recover damages suffered by the plaintiff by reason of the break of a waterpipe built into the upper part of his dwelling house, and the consequent flow of water through the house, and upon his furniture, injuring both. The case was tried by appeal to the Law Commissioner's Court, where a trial anew was had, resulting in a verdict and judgment for defendants, from which plaintiff has appealed to this court.

The evidence on the trial disclosed the following facts: The plaintiff employed Birch & Cooper, a firm of master builders in St. Louis, to build him a dwelling-house complete, and Birch & Cooper, for themselves, and not for the plaintiff, employed the defendants, who were plumbers by profession, to do the plumbing work required to be done in the building. That, after the completion of the house, and the plaintiff had entered into possession, the water in one of the pipes put in by the defendants froze, because of the defective drainage, as alleged, and burst the pipe, thus occasioning the flow of water through the house and upon the plaintiff's furniture. At the conclusion of the evidence, the...