Mason v. Stiles

• Decision Date: 31 July 1855
• Citation: 21 Mo. 374
• Parties: MASON & FARLEY, Respondents, v. STILES & OTHERS, Appellants.
• Court: Missouri Supreme Court

21 Mo. 374

MASON & FARLEY, Respondents,

v.STILES & OTHERS, Appellants.

Supreme Court of Missouri.

July Term, 1855.

1. The lessee of a store, blown up with powder by the wanton or reckless act of his clerk, is liable to the landlord for the value.

Appeal from Clinton Circuit Court.

This was an action begun in the Platte Circuit Court, taken by change of venue to the Weston Court of Common Pleas, and afterwards to the Clinton Circuit Court, to recover the value of a store blown up with powder by the act of a clerk of the defendants, while it was in their possession as lessees.

The petition stated that the plaintiffs rented to the defendants a store in the town of Farley; that defendants were in the actual occupation of the store on the 22d of July, 1851; that they had in their employment as clerk one John Hyland, who acted for them as their agent in selling goods and taking care of the store; and that on said 22d of July, by the “carelessness, imprudence, negligence and recklessness” of said Hyland, the store was blown up with powder and entirely destroyed.

The defendants, in their answer, alleged that the store was not blown up by the “ carelessness or negligence” of Hyland, while he was engaged in their business, but by his “ wilfully and intentionally” applying a cigar to a can of powder.

At the trial before a jury, it appeared in evidence that Hyland was a boy and a clerk of defendants; that he and other young men were smoking cigars in the store one evening; that he took a can of powder, placed it on the counter, with the top off, and said, “look here, boys, see me touch it off;” that he then held his cigar over the can, and either threw it into the powder, or sparks fell in, the witness could not tell which; and an explosion took place which blew up and destroyed the store.

The court gave the following instruction asked by the plaintiffs:

1. If the jury believe that John Hyland, while he was acting as clerk, and in the employment of defendants, carelessly, negligently, or recklessly dropped fire into the powder and blew up the house, not intending to do so at the time, although the act may not have been done by the consent of the defendants, they must find for plaintiffs the value of the injury done.

The following instruction was given for the defendants:

1. Although the defendants would be liable for the negligent conduct of Hyland, while engaged in the business of, and having in view the business for which he was employed by defendants, yet, if he wilfully or intentionally set fire to the powder, or if, at the time he set flre to the powder, he was not engaged within the business of his employment, but had in view purposes of his own, the jury will find for defendants.

The following instructions, among others, asked by defendants, were refused:

3. In order to render the defendants liable, Hyland must have been engaged in the transaction of defendants' business, and must have been acting within the scope of his employment.

4. Although John Hyland was in the general employment of defendants as clerk, yet, if the particular act, which resulted in the destruction of the house, was not done in the discharge of his duty as employee of defendants, they are not liable.

5. Defendants are not liable for any wrongful act of Hyland, unless the same resulted from some act done by him as their servant. They are not liable for wilful injuries done by him out of the line of his duties as their servant.

8. Although the jury may believe that Hyland was employed to take care of the house as well as to sell goods, and that while he had charge of the house, it was destroyed, yet, if they find that its destruction was caused by his wilfully setting powder on fire, from malice, for his amusement, or from mere recklessness, they will find for defendants.

The jury returned a verdict for the plaintiffs.

The defendants filed motions for a new trial and in arrest of judgment, which were overruled, and they appealed.

Abell & Stringfellow, for appellants.

1. The court erred in the instructions given and refused, and the error consisted in not making the liability of the defendants for the act of their servant depend upon its being done in the course of their business; but simply upon its being done while he was in their employment. (18 Mo. Rep. 365. 19 Wend. 343-5. 17 Mass. 494.) 2. This can not be construed into an action for not returning the premises in good repair. The petition is not framed on any such view. It does not show that the lease had expired before suit brought -- nor negative the possibility of defendants repairing the premises -- nor show plaintiffs' right to sue for injury to the reversion or for not returning the premises in good repair. The only question involved in the pleadings and instructions turns upon the relation of master and servant; and if plaintiffs' only right to recover be that of landlord against tenant, the jury were misled. (18 Mo. Rep. 403.) 3. The petition does not show the relation of master and servant in the act complained of. It shows the act was wilfully done.

H. M. Vories, for respondents.

1. This action is not founded upon the relation of master and servant, but of landlord and tenant, which imposes on the tenant the obligation to take good care of the premises leased; and if the property is destroyed, either by the careless or reckless use made of it by the tenant or his servants entrusted by him with its possession and control, he is liable to the landlord for the injury sustained. (Story's Bailments, §...