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[371]

conveyed and gives no special directions as to trol over the conduct of the driver at the time
his mode or manner of driving, he is not re- of the accident he is not responsible for the
sponsible for the acts or negligence of the driv-driver's negligence nor precluded thereby
er; and if he sustains an injury by means of from recovering in the action, we have only
a collision between his carriage and another he to consider whether the relation of master and
may recover damages from any party by whose servant existed between them. Plainly, that
fault or negligence the injury occurred, wheth-relation did not exist. The driver was the serv-
er that of the driver of the carriage in which he ant of his employer, the livery stable keep-
is riding or of the driver of the other; he may er, who hired him out with horse and car-
sue either. The negligence of the driver of the riage, and was responsible for his acts. Upon
carriage in which he is riding will not prevent this point we have a decision of the court of
him from recovering damages against the other exchequer in Quarman v. Burnett, 6 M. & W.
driver, if he was negligent at the same time." 499. In that case it appeared that the owners
"The passenger in the carriage may direct the of a chariot were in the habit of hiring, for a
driver where to go, to such a park or to such a day or a drive, horses and a coachman from a
place that he wishes to see; so far the driver is job mistress, for which she charged and re-
under his direction; but my charge to you is ceived a certain sum. She paid the driver by
that as to the manner of driving, the driver of the week and the owners of the chariot gave
the carriage or the owner of the hack (in other him a gratuity for each day's service. On one
words, he who has charge of it and has charge of occasion he left the horses unattended and
the team) is the person responsible for the man- they ran off and against the chaise of the plaint-
ner of driving; and the passenger is not re-iff, seriously injuring him and the chaise; and
sponsible for that, unless he interferes and con-
trols the matter by his own commands or re-
quirements. If the passenger requires the
driver to drive with great speed through a
crowded street, and an injury should occur to
foot passengers or to anybody else, why then
he might be liable because it was by his own
command and direction that it was done; but
ordinarily in a public hack the passengers do
not control the driver, and therefore I hold that
unless you believe Mr. Hackett exercised con-
trol over the driver in this case, he is not liable
for what the driver did. If you believe he did
exercise control, and required the driver to
cross at this particular time, then he would be
liable because of his interference."

The plaintiff recovered judgment, and instruction is alleged as error, for which its versal is sought.

he brought an action against the owners of the chariot and obtained a verdict, but it was set aside on the ground that the coachman was the servant of the job mistress, who was responsible for his negligence. In giving the opinion of the court, Baron Parke said: "It is undoubtedly true that there may be special circumstances which may render the hirer of job horses and servants responsible for the negligence of the servant, though not liable by virtue of the general relation of master and servant. He may become so by his own conduct, as by taking the actual management of the horses or ordering the servant to drive in a particular manner, which occasions the damage complained of, or to absent himself at any particular moment, this and the like." As none of these circumstances re-existed it was held that the defendants were not liable, because the relation of master and servant between them and the driver did not exist.

That one cannot recover damages for an injury to the commission of which he has directly This doctrine was approved and applied by contributed is a rule of established law and a the Queen's Bench Division, in the recent case principle of common justice. And it matters of Jones v. Corporation of Liverpool, L. R. 14 not whether that contribution consists in his Q. B. D. 890. The corporation owned a water participation in the direct cause of the injury, cart and contracted with a Mrs. Dean for a or in his omission of duties which, if per- horse and driver, that it might be used in waterformed, would have prevented it. If his fault, ing the streets. The horse belonged to her, and whether of omission or commission, has been the driver she employed was not under the conthe proximate cause of the injury, he ie with- trol of the corporation otherwise than that its out remedy against one also in the wrong It inspector directed him what streets or portions would seem that the converse of this doctrine of streets to water. Such directions he was reshould be accepted as sound; that when one quired to obey under the contract with Mrs. has been injured by the wrongful act of another, Dean for his employment. The carriage of the to which he has in no respect contributed, he plaintiff was injured by the negligent driving should be entitled to compensation in damages of the cart; and in an action against the corporafrom the wrongdoer. And such is the generally tion for the injury, he recovered a verdict which received doctrine, unless a contributory cause of was set aside, upon the ground that the driver the injury has been the negligence or fault of was the servant of Mrs. Dean who had hired some person towards whom he sustains the rela- both him and the horse to the corporation. tion of superior or master, in which case the negligence is imputed to him, though he may not have personally participated in or had knowledge of it; and he must bear the consequences. The doctrine may also be subject to other exceptions growing out of the relation of parent and child, or guardian and ward, and the like. Such a relation involves considerations which have no bearing upon the question before us. To determine, therefore, the correctness of the instruction of the court below, to the effect that if the plaintiff did not exercise con

In this country there are many decisions of courts of the highest character to the same effect, to some of which we shall presently refer.

The doctrine resting upon the principle that no one is to be denied a remedy for injuries sustained, without fault by him or by a party under his control and direction, is qualified by cases in the English courts, wherein it is held that a party who trusts himself to a public conveyance is in some way identified with those who have it in charge, and that he can only recover against a wrongdoer when they who are in

[3

[3

1885.

LITTLE V. HACKETT.

charge can recover. In other words, that their | Armstrong v. Lancashire & Y. R. R. Co., L. R. contributory negligence is imputable to him, so 10 Exch.47, 52. Assuming this to be the correct as to preclude his recovery for an injury when explanation, it is difficult to see upon what printhey by reason of such negligence could not re- ciple the passenger can be considered to be in Cases cited from the cover. The leading case to this effect is Thoro- the same position with reference to the negligood v. Bryan, decided by the Court of Common gent act as the driver who committed it, or as Pleas in 1849, 8 C. B. 114. It there appeared his master the owner. that the husband of the plainuff, whose adminis- English courts, as we have seen, and numerous tratrix she was, was a passenger in an omnibus. others decided in the courts of this country, The defendant, Mrs. Bryan, was the proprie-show that the relation of master and servant tress of another omnibus running on the same does not exist between the passenger and the line of road. Both vehicles had started to- driver, or between the passenger and the owner. gether and frequently passed each other, as In the absence of this relation, the imputation either stopped to take up or set down a passen- of their negligence to the passenger, where no ger. The deceased, wishing to alight, did not fault of omission or commission is chargeable wait for the omnibus to draw up to the curb, to him, is against all legal rules. If their negbut got out whilst it was in motion, and far ligence could be imputed to him, it would renenough from the path to allow another carriage der him equally with them responsible to third to pass on the near side. The defendant's om- parties thereby injured, and would also prenibus coming up at the moment, he was run clude him from maintaining an action against over, and in a few days afterwards died from the owner for injuries received by reason of it. the injuries sustained. The court, among other But neither of these conclusions can be mainthings, instructed the jury that if they were of tained; neither has the support of any adjudged The truth is, the decision in Thorogood v. the opinion that want of care on the part of cases entitled to consideration. the driver of the omnibus in which the deceased was a passenger, in not drawing up to Bryan rests upon indefensible ground. The the curb to put him down, had been conducive identification of the passenger with the neglito the injury, the verdict must be for the de- gent driver or the owner, without his personal fendant, although her driver was also guilty of co-operation or encouragement, is a gratuitous negligence. The jury found for the defendant, assumption. There is no such identity. The and the court discharged a rule for a new trial parties are not in the same position. The owner for misdirection, thus sustaining the instruc- of a public conveyance is a carrier, and the The grounds of its decision were, as driver or the person managing it is his servant. stated by Mr. Justice Coltman, that the de- Neither of them is the servant of the passenger, ceased, having trusted the party by selecting and his asserted identity with them is contrathe particular conveyance in which he was car-dicted by the daily experience of the world. ried, had so far identified himself with the owner and her servants that if any injury resulted from their negligence, he must be considered a party to it; "in other words," to quote his language, "the passenger is so far identified with the carriage in which he is traveling that want of care on the part of the driver will be a defense of the driver of the carriage which directly caused the injury." Mr. Justice Maule, in the same case, said that the passenger "chose his own conveyance and must take the consequences of any default of Mr. Justhe driver he thought fit to trust." tice Cresswell said: "If the driver of the omnibas the deceased was in had, by his negligence In this country the doctrine of Thorogood v. or want of due care and skill, contributed to any injury from a collision, his master clearly could Laintain no action, and I must confess I see no Bryan has not been generally followed. In reason why a passenger who employs the driver Bennett v. New Jersey R. R. and Trans. Co. 36 to carry him, stands in any different position." N. J. L. (7 Vroom) 225, and New York, L. E. Mr. Justice Williams added that he was of the & W. R. R. Co. v. Steinbrenner, 47 N. J. L. (18 same opinion. He said: "I think the passen-Vroom) 161, it was elaborately examined by per must, for this purpose, be consider as ident with the person having the management of the omnibus he was conveyed in."

274]

tion.

What is meant by the passenger being "iden-
tfed with the carriage" or "with the person
Laving its management" is not very clear. In
a recent case, in which the court of exchequer
angled the same test to a passenger in a railway
faa which collided with a number of loaded
wizons that were being shunted from a siding
by the defendant, another railway company,
fron Pollock said that he understood it to
that the plaintiff, for the purpose of the
20, must be taken to be in the same position
the owner of the omnibus or his driver."

Thorogood v. Bryan has not escaped criticism
in the English courts. In the court of_admi-
ralty it has been openly disregarded. In The
Milan, Dr. Lushington, the Judge of the High
"With due respect to the Judges who
Court of Admiralty, in speaking of that case,
said:
decided that case, I do not consider that it is
necessary for me to dissect the judgment, but I
decline to be bound by it, because it is a single
case; because I know, upon inquiry, that it has
been doubted by high authority; because it ap-
pears to me not reconcilable with other princi-
plce laid down at common law; and, flastly,
because it is directly against Hay v. La Neve and
the ordinary practice of the court of admiralty."
Lushington, 388, 403.

[375]

the Supreme Court and the Court of Errors of
learning, and was disapproved and rejected. In
New Jersey, in opinions of marked ability and
the first case it was held that the driver of a horse
car was not the agent of the passenger so as to
render the passenger chargeable for the driver's [37
negligence. The car, in crossing the track of
the railroad company, was struck by its train,
and the passenger was injured, and he brought
an action against the company. On the trial the
defendant contended that there was evidence
tending to show negligence by the driver of the
horse car, which was in part productive of the
accident, and the presiding judge was requested
to charge the jury that if this was so, the plaint-

655

[377]

iff was not entitled to recover; but the court | that to attribute to the passenger the negligence
instructed them that the carelessness of the of the agents of the company, and thus bar his
driver would not affect the action or bar the right to recover, was not applying any existing
plaintiff's right to recover for the negligence of exception to the general rule of law but was
the defendant. And this instruction was sus- framing a new exception based on fiction and
tained by the court. In speaking of the "iden- inconsistent with justice. The case differed
tification" of the passenger in the omnibus with from Thorogood v. Bryan in that the vehicle
the driver, mentioned in Thorogood v. Bryan, carrying the plaintiff was a railway train instead
the court, by the Chief Justice, said: "Such of an omnibus; but the doctrine of the English
identification could result only in one way; that case, if sound, is as applicable to passengers on
is, by considering such driver the servant of the railway trains as to passengers in an omnibus;
passenger. I can see no ground upon which and it was so applied, as already stated, by
such a relationship is to be founded. In a prac- the court of exchequer in the recent case of
tical point of view, it certainly does not exist. Armstrong v. Lancashire & Yorkshire R. R.
The passenger has no control over the driver or Co.
agent in charge of the vehicle. And it is this
right to control the conduct of the agent which
is the foundation of the doctrine that the master
is to be affected by the acts of his servant. To
hold that the conductor of a street car or of a
railroad train is the agent of the numerous pas-
sengers who may chance to be in it would be a
pure fiction. In reality there is no such agency;
and if we impute it, and correctly apply legal
principles, the passenger, on the occurrence of
an accident from the carelessness of the person
in charge of the vehicle in which he is being
conveyed, would be without any remedy. It
is obvious, in a suit against the proprietor of the
car in which he was the passenger, there could
be no recovery if the driver or conductor of such
car is to be regarded as the servant of the pas-
senger. And so, on the same ground, each pas-
senger would be liable to every person injured
by the carelessness of such driver or conductor:
because, if the negligence of such agent is to be
attributed to the passenger for one purpose, it
would be entirely arbitrary to say that he is not
to be affected by it for other purposes" 7
Vroom, 227, 228.

In Dyer v. Erie R. Co. 71 N. Y. 228, the plaintiff was injured while crossing the defendant's railroad track on a public thoroughfare. He was riding in a wagon by the permission and invitation of the owner of the horses and wagon. At that time a train standing south of certain buildings, which prevented its being seen, had started to back over the crossing without giving the driver of the wagon any warning of its approach. The horses becoming frightened by the blowing off of steam from engines in the vicinity, became unmanageable, and the plaintiff was thrown or jumped from the wagon and was injured by the train which was backing. It was held that no relation of principal and agent arose between the driver of the wagon and the plaintiff, and although he traveled voluntarily he was not responsible for the negligence of the driver, where he himself was not chargeable with negligence and there was no claim that the driver was not competent to control and manage the horses.

[378]

A similar doctrine is maintained by the courts of Ohio. In Transfer Co. v. Kelly, 38 Ohio St. 86, the plaintiff, a passen on a car owned In the latter case it appeared that the plaint- by a street railroad company, was injured by iff had hired a coach and horses, with a driver, its collision with a car of the transfer company. to take his family on a particular journey. In There was evidence tending to show that both the course of the journey, while crossing the companies were negligent, but the court held track of the railroad, the coach was struck by that the plaintiff, he not being in fault, could a passing train and the plaintiff was injured. recover against the transfer company; and that In an action brought by him against the rail- the concurrent negligence of the company on road company, it was held that the relation of whose cars he was a passenger could not be master and servant did not exist between him imputed to him, so as to charge him with conand the driver, and that the negligence of the lat-tributory negligence. The Chief Justice, in deter, co-operating with that of persons in charge of livering the opinion of the court, said: "It the train, which caused the accident, was not seems to us that the negligence of the company imputable to the plaintiff, as contributory neg-or of its servant should not be imputed to the ligence, to bar his action. passenger, where such negligence contributed In New York a similar conclusion has been to his injury jointly with the negligence of a reached. In Chapman v. New Haven R. R. Co. third party, any more than it should be so im19 N. Y. 341, it appeared that there was a col-puted where the negligence of the company or lision between the trains of two railroad com- its servant was the sole cause of the injury." panies, by which the plaintiff, a passenger in "Indeed," the Chief Justice added, "it seems as one of them, was injured. The court of ap- incredible to my mind that the right of a passpeals of that State held that a passenger by rail- enger to redress against a stranger for an injury road was not so identified with the proprietors caused directly or proximately by the latter's of the train conveying him or with their ser- negligence should be denied, on the ground vants as to be responsible for their negligence; that the negligence of his carrier contributed to and that he might recover against the proprie his injury, he being without fault himself, as it [379) tors of another train for injuries sustained from would be to hold such passenger responsible a collision through their negligence, although for the negligence of his carrier, whereby an inthere was such negligence in the management jury was inflicted upon a stranger. And of the of the train conveying him as would have de- last proposition it is enough to say that it is feated an action by its owners. In giving the simply absurd." decision the court referred to Thorogood v. Bryan, and said that it could see no justice in the doctrine in connection with that case; and

In the Supreme Court of Illinois the same doctrine is maintained. In the recent case of the Wabash, St. L. & Pac. R. Co. v. Schacklet,

105 Ill. 364, the doctrine of Thorogood's Case | rect, and the judgment must be affirmed, and it is
was examined and rejected; the court holding so ordered.
that where a passenger on a railway train is in-
jured by the concurring negligence of servants
of the company on whose train he is traveling,
and of the servants of another company with

True copy. Test:

James H. McKenney, Clerk, Sup. Ct. U.S.

[200]

TION, Piff. in Err.,

whom he has not contracted, there being no KINGS COUNTY SAVINGS INSTITU.
fault or negligence on his part, he or his per-
sonal representatives may maintain an action
against either company in default, and will not
be restricted to an action against the company
on whose train he was traveling.

Similar decisions have been made in the courts of Kentucky, Michigan and California. Danville, L. & N. Turnpike Co. v. Stewart, 2

v.

BENJAMIN F. BLAIR, as Admr of JAMES
FREELAND, Collector of Internal Revenue.

(See S. C. Reporter's ed. 200-206.)

Met. (Ky.) 119; Louisville, C. & L. R. R. Co. v. Internal revenue-taxes illegally exacted-lim-
Case, 9 Bush, 728; Cuddy v. Horn, 46 Mich. 596;
Tompkins v. Clay Street R. R. Co. 4 W. Coast
Rep. 537.

itations to recovery of.

No suit can be maintained against a collector of
internal revenue for taxes claimed to have been il-
legally collected, unless a claim therefor has been
presented to the Commissioner of Internal Revenue
within two years, the time prescribed by law.
[No. 195.]
Argued Dec. 15, 1885. Decided Jan. 4, 1886.

IN ERROR to the Circuit Court of the United

States for the Eastern District of New York. The history and facts of the case appear in the opinion of the court.

Messrs. Lewis Sanders, George N. Sanders and S. Kaufman, for plaintiff in error. Mr. John Goode, Solicitor-Gen., for defendant in error.

Mr. Justice Woods delivered the opinion of the court:

There is no distinction in principle whether
the passengers be on a public conveyance like
a railroad train or an omnibus or be on a hack
hired from a public stand in the street for a
drive. Those on a hack do not become respon-
sible for the negligence of the driver, if they
exercise no control over him further than to in-
dicate the route they wish to travel or the places
to which they wish to go. If he is their agent
so that his negligence can be imputed to them
to prevent their recovery against a third party,
he must be their agent in all other respects, so
far as the management of the carriage is con-
cerned; and responsibility to third parties would
attach to them for injuries caused by his neg-
ligence in the course of his employment. But
as we have already stated, responsibility cannot,
within any recognized rules of law, be fastened
upon one who has in no way interfered with
and controlled in the matter causing the injury
From the simple fact of hiring the carriage or
riding in it no such liability can arise. The
party hiring or riding must in some way have
co-operated in producing the injury complained
of before he incurs any liability for it. "If the
law were otherwise," as said by Mr. Justice
Depue in his elaborate opinion in the latest case The defense relied on was pleaded by the de-
in New Jersey, "not only the hirer of the coach fendant, as follows: "That the plaintiff herein
but also all the passengers in it would be under did not present to the Commissioner of Inter-
a constraint to mount the box and superintend nal Revenue its alleged claim for abatement,
the conduct of the driver in the management or for refunding the amount claimed in said
and control of his team, or be put for remedy
exclusively to an action against the irresponsi-
ble driver or equally irresponsible owner of a
coach taken, it may be, from a coach stand, for
the consequences of an injury which was the
product of the co-operating wrongful acts of
the driver and of a third person; and that too,
although the passengers were ignorant of the
character of the driver, and of the responsibility
of the owner of the team, and strangers to the
route over which they were to be carried." 18
Vroom, 171.

The Kings County Savings Institution, plaintiff in error, was the plaintiff in the circuit court. It brought its action, as for money had and received, against the defendant in error as administrator of the estate of James Freeland, deceased, late Collector of Internal Revenue, to recover the amount of taxes illegally exacted from it, as it alleged, by the intestate of the defendant in error.

complaint, within two years after the said al-
leged claim had accrued, as required by sec-
tion 3228 of the Revised Statutes of the United
States."

The bill of exceptions shows that on the trial
of the case by the circuit judge and a jury, the
plaintiff, to sustain the issue on its part, proved
that it made its return for internal revenue tax-
ation for the six months ending May 31, 1878,
on the form prescribed by the Commissioner of
Internal Revenue, in duplicate, and accom-
panying the same filed an amended return in
duplicate. The prescribed return had the fol-
lowing words written upon its face:

In this case it was left to the jury to say
whether the plaintiff had exercised any control
over the conduct of the driver, further than to in- 'This return not exempting any part of ac-
dicate the places to which he wished him to drive. counts exceeding $2,000, in the name of any
The instruction of the court below, that unless one person, is made under protest by compul-
be did exercise such control and required the sion, to prevent a penalty from being assessed;
driver to cross the track at the time the collis- but the accompanying is claimed to be the true
ion occurred, the negligence of the driver was and legal return exempting $2,000 of all de-
not imputable to him, so as to bar his right of posits made in the name of any one person; and
action against the defendant, was therefore cor-[if the assessment and collection are enforced in

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[201]