Schmidt v. Adams

• Decision Date: 15 June 1885
• Citation: 18 Mo.App. 432
• Parties: JOHN P. SCHMIDT, Appellant, v. J. B. ADAMS, Respondent.
• Court: Kansas Court of Appeals

18 Mo.App. 432

JOHN P. SCHMIDT, Appellant, v. J. B. ADAMS, Respondent.

Court of Appeals of Missouri, Kansas City.

June 15, 1885

APPEAL from Vernon Circuit Court, HON. CHAS. G. BURTON, J.

Reversed and remanded.

The case is sufficiently stated in the opinion of the court.

JANUARY & SMITH, for the appellant.

I. The court erred in granting instructions seven and eight asked by defendant (making liability of defendant depend upon whether his sons followed his directions). This is not law. 1. The principal is liable for the torts of the agent committed within the scope of his agency. 2. The principal is liable for the act of the agent, even if done in a manner expressly forbidden by principal. Garretson v Duenckel, 50 Mo. 104; Howe v. New Mark, 12 Allen (Mass.) 49; Story on Agency (8th Ed.) p. 614, note 1.

W. J STONE and A. W. VAN SWEARINGEN, for the respondent.

I. A parent cannot be held liable for the wilful trespasses of his infant children, when he neither assents to nor ratifies them. Paul v. Hummel, 43 Mo. 119; Tifft v Tifft, 4th Denio (N. Y.) 175.

II. Conceding that the relation of principal and agent existed between the father and his sons, the agents having expressly violated the orders of their principal, the latter cannot be held liable for the torts of the former. Flanagan v. Alexander, 50 Mo. 56; Tucker v. R. R., 54 Mo. 177; First Nat. Bank v. Gay, 63 Mo. 33; Tate v. Evans, 7 Mo. 419; McCoy v. McKowan, 26 Miss. 487; Baker v. Wasson, 53 Texas 157; Maddox v. Brown, 71 Me. 432.

OPINION

PHILIPS P. J.

This is an action for damages for an alleged injury done to plaintiff's cattle by defendant's servants, in chasing and worrying them with dogs. The case was submitted to a jury for trial.

Plaintiff's evidence tended to show that the cattle were so chased and injured by defendant's servants. The defendant testified that he did instruct his sons to drive plaintiff's cattle out of and away from his field at the time in question, but always cautioned them not to chase the cattle with dogs. On this state of the evidence the plaintiff asked, but the court refused to give, the following instructions:

" The court instructs the jury that the law holds the principal liable for the act of the agent, within the scope of the agency; and if the jury believe from the evidence that defendant, J. B. Adams, instructed his sons to drive plaintiff's cattle out of or away from defendant's field, and that Joseph or Manfred Adams, in pursuance of this instruction, did hiss and incite a dog to chase said cattle at the times mentioned in the petition, and that by reason of said chasing any injury was done to plaintiff's cattle, they shall find for plaintiff as directed in instructions numbered one, two, three and four, even though said Joseph and Manfred, or either of them, did not drive out said cattle in the manner directed, or exceeded their authority."

Numbers one, two, three and four are instructions on the case as contained in the several counts.

" If the jury believe from the evidence that defendant directed his sons Joseph and Manfred to drive plaintiff's cattle away from or out of defendant's field, and that in pursuance of that instruction, said sons or either of them hissed and incited a dog to worry and chase said cattle more than was necessary, then they must find for plaintiff in nominal damages, even though no substantial damages have been proved by plaintiff, and even though said sons, or either of them, did not drive said cattle in the manner directed, or exceeded their authority."

On behalf of defendant the court gave the following instructions inter alia:

" In order to recover at all on either count of the petition, the jury must find that the defendant's sons Joseph or Manfred, dogged the plaintiff's cattle, and that such dogging was done by defendant's direction, and that the injury and death of plaintiff's cattle, complained of in petition, was the result of such dogging.

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