McClung v. Dearborne

• Decision Date: 28 April 1890
• Docket Number: 171
• Citation: 134 Pa. 396,19 A. 698
• Parties: WILLIAM McCLUNG v. GEORGE E. DEARBORNE
• Court: Pennsylvania Supreme Court

19 A. 698

134 Pa. 396

WILLIAM McCLUNG v. GEORGE E. DEARBORNE

No. 171

Supreme Court of Pennsylvania

April 28, 1890

Argued April 1, 1890

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.

No. 171 January Term 1890, Sup. Ct.; court below, No. 755 December Term 1886, C.P. No. 4.

On December 31, 1886, William McClung brought trespass against George E. Dearborne, and subsequently filed a statement of claim averring that the defendant by his agents, one A. B Fox, alias Bastian, and two colored men whose names were unknown to the plaintiff, said agents acting in the premises by order and instruction of the defendant, took and entered the plaintiff's dwelling on or about October 11, 1886 forcibly removed therefrom a cabinet organ of the plaintiff and assaulted, beat and kicked the plaintiff's wife etc., whereby the plaintiff was damaged in the sum of $10,000, etc. Issue.

At the trial on May 22, 1889, the following facts were shown:

In December, 1884, the plaintiff and his wife purchased from one Mrs. Hamilton a cabinet organ for $35, which thereafter remained in their home until the occurrence complained of in this action. On October 9, 1886, one Fox came to the plaintiff's house, introduced himself as Mr. Bastian of the Athletic Base-ball Club, and on pretence of wishing to see a young man who roomed in the house, to engage him as a base-ball player, obtained admission to the parlor, and while there examined the organ and ascertained its number.

Fox was an employee of the defendant, who was a dealer in pianos and organs doing business at 1508 Chestnut street, Philadelphia. The defendant sold instruments upon the instalment plan, reserving the title until the price should be paid and making the contract in the form of a lease to the purchaser, and employed Fox to hunt up and recover instruments, so sold, upon which the purchasers had failed to make the stipulated payments.

Fox reported to the defendant the number of the organ at the plaintiff's house, and it was found to be one which the defendant had delivered to Mrs. Hamilton on trial, with an agreement that if she was pleased with it she was to execute a lease contract, providing for the payment of $125 for it in monthly instalments of $5. The defendant, however, had lost trace of the organ, Mrs. Hamilton having moved away without executing the lease.

On the morning of October 11, 1886, the defendant sent Fox and two colored men named Lamont and Black, with a wagon, to the plaintiff's house to get the organ. Arriving at the house, Fox left the other men in the street, went to the door and inquired for Mrs. McClung, engaged her in conversation about the young man whom he had asked for on his previous visit, and finally announced his intention of taking away the organ. The testimony for the plaintiff tended to show that in spite of the protests and resistance of Mrs. McClung and her children, Fox and his companions forced their way into the parlor, removed the organ therefrom, and put it into the wagon; that when his authority for so doing was demanded by the plaintiff's son, Fox's reply was a threat to shoot the son if the latter interfered with his business, accompanied by a feint of drawing a pistol from his hip pocket; that, in effecting his purpose, Fox violently assaulted both Mrs. McClung and her son, inflicting injuries upon the former by kicking her, slamming her against the wall, striking her on the breast, and knocking her about; that the plaintiff's daughter went after a policeman, to have the men arrested, and the policemen arriving just as the men were starting away from the house with the organ, Fox persuaded him to arrest the plaintiff's son, which he did. A part of the testimony describing the scene is quoted in the opinion of the Supreme Court, infra.

The defendant testified, on his own behalf, that before sending Fox for the organ, he had given him explicit instructions to go about the business in a proper manner and to be careful not to have any row about it, but if he could get the organ without any trouble, to get it. Lamont testified for the defendant that the latter told Fox, before they started after the organ, to get it peaceably if he could, but, if he could not get it peaceably, not to bother with it; and Black testified that the instructions were to get it as peaceably as possible, and not to have any assault and battery or any disturbance whatever. The testimony of Lamont and Black tended to contradict in some particulars the testimony for the plaintiff as to the use of force.

At the close of the testimony, the court, THAYER, P.J., charged the jury as follows:

There can be no doubt, if you believe the evidence, that the conduct of Mr. Fox, in this transaction, was entirely unjustifiable; that he was guilty of a very high-handed and unjustifiable outrage, and one for which he might have been severely dealt with, if arrested, and subjected to the proper punishment. His conduct on this occasion was without mitigation and deserving of the severest condemnation; but, at the same time, the real question in this case, is not as to the conduct of Mr. Fox alone, but as to whether Mr. Dearborne is responsible for it. That is the question in the case. Of course, Mr. Dearborne is not to be punished for Mr. Fox's bad conduct, or his outrages, or outrages perpetrated by him in depriving these plaintiffs of their rights, unless he is responsible for it; unless the circumstances make him responsible for it.

[Now, whether he, the defendant, is responsible for it or not, depends upon the instructions given by him to Mr. Fox. If the meaning of the instructions given to Mr. Fox was that he was only to proceed to get the organ, provided he could do so peaceably and with the consent of the parties in whose possession the organ was at the time; if that was the whole scope of the authority or order given by Mr. Dearborne, then Mr. Dearborne would not be responsible for the wanton misconduct of the agent in the carrying out of his order. That is the wellsettled law of this state in relation to the question of master and servant.]

[In trespass, to use a familiar expression of lawyers, all are principals who join in the trespass, whether by effecting it or by participating in it; and, if Mr. Dearborne is to be held responsible here, his liability does not arise from the fact of Mr. Fox being his servant, but because he gave Mr. Fox orders to commit the trespass. If he did direct Mr. Fox to do that, he is just as much responsible for the trespass as if he had gone down there and taken the organ out by his own hands. But if he directed Mr. Fox to get the organ in a manner that depended upon the consent of the parties in whose possession it was, if the direction contemplated no violence or misconduct, then the defendant is not responsible for the misconduct or tortious behavior of Mr. Fox, although Mr. Fox was his servant.] . . . .

Something has been said to the effect that, if we were to look on everything in this light, that if the master were not responsible for the conduct of his servant in carrying out his orders, parties aggrieved would be without redress. Why, if you were to be held responsible for all the tortious acts of your employees, although you gave them no instructions contemplating such acts, who could stand such an amount of responsibility? The law is not so; the law is that every man shall be responsible in trespass for what he does or says, and the master is not responsible unless he consented to the trespass of his servant.

Now, this is an action of trespass. If you read the plaintiff's statement or declaration, you will see that the whole thing hinges on the allegation that the defendant authorized the trespass; and, unless you find that to be the fact, you cannot hold this defendant responsible. This is not a question of the negligence of the servant, and that question does not arise in this case. He cannot be held for anything but the action of the trespass or having participated in it; so that you see it is within very narrow limits that this question is confined.

[If Mr. Fox's orders were only to get the organ by peaceable means, and only to carry it away with the consent of the people who had it in their possession, then it is both common sense and law that Mr. Dearborne should not be held responsible for Mr. Fox's misconduct in violation of those orders. Mr. Fox undertook to take the organ; and, in attempting to get it away, did certain things which were in violation of the law; and Mr. Dearborne is not to be held responsible for the violent acts of Mr. Fox, if his directions to Mr. Fox contemplated taking the organ by quiet, peaceable means, only, and with the consent of the parties in whose possession it was. If, however, you find that the defendant was responsible for this misconduct, then you are to give damages to the plaintiff. If you find that Mr. Fox did this of his own head and without any instructions from the defendant, then you are to find your verdict for the defendant.]

The plaintiff requests the court to charge:

1. A master is responsible for the misconduct of his servant in the discharge of the functions committed to him by the master, notwithstanding the fact that the orders given by the master were proper and contemplated only a proper execution of them on the part of the servant.

Answer: I refuse that point. He is not responsible for a wilful and malicious trespass committed by his servant without his authority or consent. This is the law.

2. The master's orders to his servant to be cautious or careful cannot relieve him from responsibility. On the contrary, if in the performance of the duties which the master employs the servant to do, the servant does an act in...