Garretzen v. Duenckel

• Decision Date: 31 March 1872
• Citation: 50 Mo. 104
• Parties: ANTON GARRETZEN, Respondent, v. G. F. S. DUENCKEL, Appellant.
• Court: Missouri Supreme Court

50 Mo. 104

ANTON GARRETZEN, Respondent,

v.G. F. S. DUENCKEL, Appellant.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

J. Wickham, for appellant.

The defense set up is that the salesman was not acting in the course of his employment, and that the master is not liable for damages resulting from an injury caused by the carelessness or negligence of the servant, in the performance of an act not within the scope of the agency or the course of the employment of the servant, and which was expressly forbidden; also that there was no negligence. The principle of law holding the master liable for the acts of his servant or agent, rests on the ground that the master should not do an act himself, or cause it to be done, with such negligence or want of skill as to injure third persons. This principle does not reach a wrong done by the servant while not engaged in the business of his master; nor does it reach wrongs caused by negligence in the performance of an act not directed by the master, or not within the scope of the agency or the course of the employment of the servant. (1 Am. Lead. Cas. 619.)

A master is not liable for any act or omission of his servants which is not connected with the business in which they serve him, and does not happen in the course of their employment. Beyond the scope of his authority the servant is as much a stranger as any other person. (Schouler Dom. Rel. 638; Shearman & R. Negl. 64, 71; id. 77, § 63; Foster v. Essex Bank, 17 Mo. 510; Douglas v. Stephens, 18 Mo. 336, 367.) No servant can, by an nauthorized act of his, raise a presumption against the master; the master, in such case, is no more liable to such a presumption than a stranger. The law will not infer authority to commit a trespass; and in order to hold the master liable for a trespass committed by a servant, it is necessary to show that the act was done while the servant was acting under the authority of the master; and if wrong be done by a servant without the authority of his master, and not for the purpose of executing his orders and loing his business, the master is not liable. (Church v. Mansfield, 20 Conn. 287; Howe v. Newmark, 12 Allen, 52; Mali v. Lord, 39 N. Y. 384.) It was the duty of the plaintiff to show affirmatively that the act complained of was within the scope or course of the duty of the servant. (Wilson v. Peverly, 2 N. H. 548; Wright v. Wilcox, 19 Wend. 343, 345; Tuller v. Voght, 13 Ill. 285; McManus v. Crickett, 1 East, 67.)

The only authority presumed by law is to do all lawful acts belonging to his employment, and the specific instructions of the master determine the limits of the employment and scope of the duty of the servant; no master is chargeable with the acts of his servant but when they are done in the execution of the authority given him. When the servant oversteps his authority he becomes as a stranger, and the act not having been done in the service of the master, or within the limits of his authority, but contrary to his express and specific instructions, it was willful, and the master is not liable. (Oxford v. Peters, 28 Ill. 435; Harris v. Nicholas, 5 Mumf. 489; Wright v. Wilcox, 19 Wend. 345; Armstrong v. Cooley, 5 Gill, 512; Joel v. Armstrong, 25 Eng. Com. Law, 512; McKeon v. Citizens' Railway Co., 42 Mo. 87-8.)

The cases of Joel v. Morrison, 6 Carr. & P. 510, and Sleath v. Wilson, 9 Carr. & P. 607, cited by respondent in support of the proposition that it is immaterial whether the act complained of was done in disregard of the orders of the master, have been overruled by late authorities. (Mitchell v. Crassweller, 13 C. B. 237; 16 Eng. L. and Eq. 448, 451; Story v. Ashton, Law R. 4 Q. B. 476, 479; Bard v. Yohn, 26 Penn. St. 482.)

Jecko & Hospes, for respondent.

The master is responsible for the acts of his servant, done in the general scope of his employment and in pursuit of his master's business, and it is immaterial whether the particular act causing the injury was done in disregard of the general orders or specific commands of the master. (Joel v. Morrison, 6 Carr. & P. 510; Sleath v. Wilson, 9 Carr. & P. 607; Limpus v. London General Omnibus Co., 1 Hurlst. & Col. 526; Croft v. Alison, 4 B. & Ald., 6 Eng. Com. L. R.; Seymour v. Greenwold, 7 Hurl. & Nev. 355.) The rule of respondeat superior, or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent or deceitful. If it be done in the course of his employment the master is liable; and it makes no difference that the master did not authorize or even know of the servant's act or neglect, or even if he disapproved or forbade it, he is equally liable if the act be done in the course of the servant's employment. (Philadelphia & R. R.R. Co. v. Derby, 14 How. 486; Southwick v. Estes, 7 Carl. 385; Luttrell v. Hazen, 3 Snead, 20; Pennsylvania R.R. Co. v. Vandivier, 42 Penn. St. 365; Oxford v. Peters, 28 Ill. 434; Howe v. Newmark, 12 Allen, Mass., 52-3.)WAGNER, Judge, delivered the opinion of the court.

This was an action against the defendant for damages caused by a wound inflicted on the plaintiff by the firing of a gun by a salesman who was in the employ of the defendant. The record shows that at the time of the happening of the injury the defendant was the keeper of a gun and ammunition store; that one Brewer was his servant, employed by him in selling arms and ammunition; and that, upon the occasion of the injury, the defendant being absent, Brewer was showing a rifle of Henry's patent to a customer, who requested to have it loaded, in order that he might see how it worked, and refused to buy unless it was done. Brewer at first refused, stating that it was against his orders to load firearms in the store, but for the purpose of making the sale he was finally persuaded and induced to load the gun, and in doing so it was discharged and shot the plaintiff, who was sitting at a window in a house on the opposite side of the street. The defense was that, inasmuch as the act of loading the gun was against the orders and instructions of the defendant, Brewer was acting outside of the scope of his employment and the defendant was not bound. This defense was overruled, and the jury found a verdict for the plaintiff, and the case is brought here by appeal.

The universally recognized rule is that a principal is civilly liable for the neglect, fraud, or other wrongful act of his agent in the course of his employment, though the principal did not authorize the specific act; but the liability is only for acts committed in the course of the agent's employment. A master is not responsible for any act or omission of his servants which is not connected with the business in which they serve him, though in general he is responsible for the manner in which they execute his orders, and for their negligence in selecting means by which the orders are to be carried out. In determining whether a particular act is done in the course of a servant's employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act was done while the servant was at liberty from his service, and pursuing his own ends exclusively, there can then be no question that the master is not responsible, even though the injuries complained of could not have been committed without the facilities afforded by the servant's relations to his master. (Shearman & R. Negl., § 63 and notes.) It may not, perhaps, be very easy to reconcile the numerous cases on this subject, but we think that the correct rule extracted and deduced from them will be found as above laid down.

The leading case cited and relied on for the appellant is McManus v. Crickett, 1 East, 106. But that decision rested entirely upon the distinction between trespass and trespass on the case under the old forms of pleading. That case only decided that trespass vi et armis would not lie against the master for the willful trespass of his servant, which was not authorized or consented to by the master either directly or by implication, from the nature or subject-matter of the employment.

Lord Kenyon, in giving the judgment, says: “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 an act.” But he adds that “this doctrine...