Error
to circuit court, Portage county.
Action
by the Stranahan Bros. Catering Company against Frank R
Coit. Judgment for defendant, and plaintiff brings error.
Reversed.
The
plaintiff's action was brought upon a petition of which
the following is a copy: ‘ Plaintiff is a corporation
duly organized and doing business, with its principal office
in Cleveland, Ohio. That said plaintiff is engaged in the
business of bakers and general caterers in the city of
Cleveland, Ohio, and also in the manufacture of butter
cheese, and candies, and other confectionery. That in said
business, and each of its branches, it requires, needs, and
uses large quantities of pure milk and cream, butter, and
cheese, and ships large quantities of butter and cheese into
the general market. That as a part of its said business it
runs a butter and cheese factory at Mantua, Ohio, where it
purchases from its patrons, and receives, a large amount of
milk, to be in part manufactured into butter and cheese, and
in part shipped to its principal place of business, and in
part skimmed and the cream therefrom sent to it at its said
place of business in Cleveland, to be used in its said
business as aforesaid. That defendant, Frank R. Coit, was one
of plaintiff's patrons, and furnished large quantities of
milk, delivered at its said factory at Mantua, Ohio. That
said defendant promised and agreed, at the time of bringing
first, his milk to plaintiff's said factory, to bring
nothing but milk of first class or superior quality. That he
brought milk to said factory from December 14, 1891, to
November 21, 1892, and in all about 120,000 pounds, and
received therefor the price of a superior quality of milk, to
wit, about $1,150; but that said defendant, Coit, instead of
bringing first-class milk, or milk of a superior quality
during all of said time furnished plaintiff at its said
factory, milk adulterated with water, only about two-thirds
of which was milk and one-third water, and made foul by
stale, filthy, and impure water, well knowing, at said time,
it was to be placed with and mixed with the other milk of
said factory, and knowing it was to be used in
plaintiff's business as aforesaid. That the entire amount
of milk received and used at said factory, as said defendant
well knew, amounted to about 7,000 pounds daily, upon the
average. By reason of said adulterated milk furnished by said
defendant, the product of said factory was greatly lessened
and damaged. That the butter and cheese manufactured
therefrom, and the milk with which said adulterated milk
furnished by defendant was mixed, were poor, and of an
inferior quality, and soon became unfit for use, or for the
trade, except as second or third class, or very inferior
quality, and many times became wholly worthless. That large
quantities of cream from said factory, which otherwise would
have remained good, sweet, and wholesome, became thereby
sour, tainted, and unfit for use, and entirely worthless, and
the business of plaintiff greatly injured thereby; the said
defendant well knowing the uses to which the milk and cream
from said factory would be put, and that plaintiff's
business, in a great measure, depended thereon; and defendant
knew that plaintiff's said business depended upon the
absolute purity of the milk from said factory. Yet defendant
continued to thus send impure, unwholesome, foul, and
adulterated milk to said factory, knowing the same to be
adulterated, and palming off upon plaintiff, for pure milk,
milk that had been watered and adulterated, and to the damage
of plaintiff as set forth herein, in the sum and to the
amount of ($4,000) four thousand dollars. Wherefore plaintiff
prays judgment against said defendant for said sum of $4,000,
with interest thereon from November 21, 1892.’
Defendant, by answer, admitted the corporate character of
plaintiff, and that it was doing business at Cleveland and
denied all other averments. By cross petition he alleged
‘ that, on the 21st day of November, 1892, the said
plaintiff was indebted to him for milk before that time
furnished it, in the sum of $219, that the same is now due
and not paid,’ and prayed judgment for that sum and
interest.
At the
trial, as appears by the bill of exceptions, ‘ the
plaintiff, to maintain the issues on its part, introduced
evidence tending to sustain the allegations of the petition;
and the defendant offered evidence tending to show that he,
said defendant, did not water the milk, or know that it had
been or was watered, and that he had in his employ one Ed.
Miller, who assisted in milking the cows, and part of the
time delivered the milk to the factory of plaintiff, and that
the said Miller, without his (defendant's) knowledge, for
the purpose of injuring the defendant, maliciously watered
the milk which was delivered to plaintiff's factory by
defendant or his employé, but without any knowledge or
suspicion on defendant's part that it had been watered;
that while said milk may have been watered by said Miller
during the period he (said Miller) was in the employ of
defendant, yet it was no part of his duty, nor was he in any
way authorized, to water said milk, and that in doing it said
Miller acted, not for defendant, but to injure defendant; but
it was the duty of said Miller to milk the cows of defendant
in his absence, and to assist defendant when at home, and in
his (defendant's) absence to deliver the milk to
plaintiff's factory, and that other times he was to
deliver milk at the factory of plaintiff as a part of his
employment a part of the time at least, but that it was no
part of his duty, nor was he directed or in any way
authorized, to water the milk, and that, in so doing, he was
not acting for defendant, but solely out of malice, and for
the purpose of injuring defendant, and to gratify a feeling
of ill will towards defendant, of which defendant at the time
was entirely ignorant. The plaintiff, upon this question,
requested the court to charge the jury as follows: ‘ If
the jury shall find that the milk of defendant was delivered
at its factory watered, then the defendant would be liable
for the damages that necessarily and directly resulted
therefrom, even though the defendant did not water such milk,
or authorize it to be done, or know the same was or had been
watered, if the jury shall find it was watered by one Ed.
Miller, the employé of defendant.’ But the court
refused to charge the jury as requested, but did charge the
jury upon this question as follows: ‘ If it appear to
you that the milk was adulterated by Miller maliciously, to
injure Coit, and was without Coit's knowledge so
delivered to the factory adulterated, then Mr. Coit is not
liable to defendant for any damage resulting to them from
such adulterated milk. Mr. Coit, however, would remain liable
for the amount of water delivered, but only because it was
not milk.’ No other or further charge upon this subject
was given to the jury, nor was the above charge in any way
modified, changed, or withdrawn, but was, without change or
modification, given by the court to the jury as the law by
which they were to be governed in arriving at a verdict in
the case.'
Exceptions
to the refusal to charge as requested, and to the charge as
given, were duly entered by plaintiff. Verdict for $185, for
defendant and against plaintiff, was rendered, and a judgment
thereon, and for costs, entered, which was affirmed by the
circuit court. The plaintiff asks reversal of these
judgments.
Where
one under contract to deliver to a cheese and butter factory
pure milk, and knowing that the milk is to be mixed with the
milk of other patrons, intrusts the delivery to a servant,
who, in the course of such employment, delivers adulterated
milk, the master is liable for damages necessarily and
directly resulting; and it is no defense that the servant
adulterated such milk without authority, and merely to
gratify his malice towards his employer, intending to injure
him.
1. A
master is liable for the malicious acts of his servant,
whereby others are injured, if the acts are done within the
scope of the employment, and in the execution of the service
for which he was engaged by the master.
2.
Where a master owes to a third person the performance of some
duty, as to do or not to do a particular act, and commits the
performance of the duty to a servant, the master cannot
escape responsibility if the servant fails to perform it,
whether such failure be accidental or willful, or whether it
be the result of negligence or malice. Nor is the case
altered if it appear that the malice was directed to the
master.
3.
Where a master is under contract to deliver to the proprietor
of a cheese and butter factory pure milk, and has knowledge
that the milk so delivered is to be mixed with the milk of
other patrons, and intrusts and delivery to a servant, who,
in the course of such employment, delivers adulterated milk,
the master is liable for damages necessarily and directly
resulting by reason of such delivery; and it is not a defense
to show that the servant, without authority and purposely,
and to gratify his malice towards his employer, and with
intent to injure him, adulterated the milk so delivered by
mixing with it water, and that the master had no knowledge of
such adulteration. In such case the rule of damages is
compensation for the injury. Bradbury, J., dissenting.
I. T. Siddall, for plaintiff in error.
J. H.
Nichols, for defendant in error.
SPEAR,
J. (after stating the facts).
The
question arising on the record are: (1) Whether or not Coit
is liable for the acts of Miller which produced the injury
(2) whether or not the plaintiff's damages, in case...
