Stranahan Bros. Catering Co. v. Coit

• Court: Ohio Supreme Court
• Writing for the Court: SPEAR, J. (after stating the facts).
• Citation: Stranahan Bros. Catering Co. v. Coit, 55 Ohio St. 398, 45 N.E. 634 (Ohio 1896)
• Decision Date: 08 December 1896
• Parties: STRANAHAN BROS. CATERING CO. v. COIT.

45 N.E. 634

55 Ohio St. 398

STRANAHAN BROS. CATERING CO. v. COIT.

Supreme Court of Ohio.

December 8, 1896

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.

Syllabus by the Court

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...