Philadelphia and Reading Railroad Company v. Derby.

"So where one leaves his horse at an inn, to stand there by agreement at livery, although neither himself nor any of his servants lodge there, he is reputed a guest for that purpose, and the innkeeper hath a valuable consideration, and if that horse be stolen, he hath an action upon the common custom of the realm. But, as in the case at bar, where he leaves goods to keep, whereof the defendant is not to have any benefit, and goes from thence for two or three days, although he saith he will return, yet he is at liberty, and is not a guest during that time, nor is the innkeeper chargeable as a common hostler for the goods stolen during that time, unless he make a special promise for the safe keeping of them, and the action ought to be grounded upon it." Greeley v. Clark, Cr. Jac. 188.

"For if a man be lodged with another who is not an innholder on request, if he be robbed in his house by the servants of him who lodged him, or any other, he shall not answer for it." Cayle's case, 4 Rep. 32.

"And therefore, if a neighbor who is no traveller, as a friend, at the request of the innholder, lodges there, and his goods be stolen, &c., he shall not have an action." Cayle's case, Id. 33.

The principles on which rights and obligations, arising from particular relations, are founded, are stated by Shaw, C. J. in Farwell v. Boston & Worcester Railroad Co. 4 Metcalf, 58.

And it may be proper to refer to that class of cases based upon the principle, that unless the parties met upon the terms of contract, none can be inferred, or, in the words of Mr. Justice Williams, in Davies v. Davies, (38 Engl. C. L. R. 46,) that the evidence must show "that the parties came there on the terms that they were to pay and be paid, but if that was not so, there can be no ex poste facto charge made on either side."

And to the same effect are the actions brought upon claims for services rendered, when the relations of the parties do not justify the inference of contract, Strine v. Parsons, 5 Watts & S..357. The case of a woman who lived with the decedent (whose estate was sued) as his wife. Walker's Estate, 3 Rawle, 343. An action by a son for services rendered after he arrived at full age. And also Candor's Appeal, 5 Watts & S. 216; Hacks v. Stewart, 8 Barr, 213.

2. The plaintiff, being a stockholder as well as guest, and availing himself of an opportunity to inspect, for his own interest as for that of others, the line of the road, their shops, &c, he cannot, by reason also of this relation, recover.

He was in the car, as already stated, as a stockholder, and not carried by the company in the way of their business, but for his own benefit, and for the interest of other stockholders whom he represented, and for whom he was acting as agent. No contract

Philadelphia and Reading Railroad Company v. Derby.

was entered into with him, and he occupied, in this regard, no other relation than any other officer or agent of the company or coproprietor of the road.

One agent injured by another agent, cannot recover from their common principal. Farwell v. Boston & Worcester Railroad Co. 4 Metcalf R. 49; Brown v. Maxwell, 6 Hill, 592; Murray v. South Carolina Railroad Co. 1 McMullan, 385; Coon v. Railroad Co. 6 Barbour, 231; Priestly v. Fowler, 3 Mees. & Welsb. 1.

If the defendant in error owned half the stock of the road, or being so the owner, the company was unincorporated, (its charter cannot affect this relation,) or if the charter had created an individual liability in the shareholders, what duty did the law impose upon the other proprietors towards him, while he was on the road by their license, without compensation, to inspect its condition for his own benefit? It is submitted he went there like any other tenant in common, or joint proprietor, without right to claim against his coproprietors for the negli gence of any of their common servants.

II. The plaintiff suffered no damage from any act with which the defendants are by law chargeable.

The gist of the action is, the neglect by the servant of the defendants of some duty imposed upon them by law, for which negligence they are sought to be held responsible.

I. It is first to be observed, that this liability of the defendants, if any, is not affected by their corporate character, and if under like circumstances an individual would not be liable, a corporation will not.

"A corporation will be liable for an injury done by its servants, if under like circumstances an individual would be responsible." The First Baptist Church v. Schenectady & Tr. R. R. Co. 5 Barb. Sup. Ct. Rep. N. Y. 79. "Indeed the same rule should be applied to a corporation as should be applied to an individual who carries on a business solely through the medium of agents and servants." Pratt, J., Coon v. The Utica R. R. Co. 6 Barb. S. C. R. 231; Philadelphia R. R. Co. v. Wilt, 4 Wharton, R. 146.

"The power and duty of an engine driver must be the same, simply as such, whether he be employed by a corporation or a joint stock company, or an ordinary partnership, or an individual. The driver appointed by a corporation, or company, or partnership, carrying on the business of carriers of passengers or goods, must, as such, have the same duties and powers." Per Parke, B. 3 Welsby, H. & G. 277; Con. v. R. R. Co.

2. That an individual would not, under the facts in this case, have been liable, is, it is submitted, clear, from the following

Philadelphia and Reading Railroad Company v. Derby.

authorities, and the principles upon which the decisions are based:

"A master is chargeable with the acts of his servant, but when he acts in the execution of the authority given him by his master, and then the act of the servant is the act of the master." Per Holt, C. J., Middleton v. Fowler, 1 Salk. 282.

"In civil matters, to render one man amenable for another's misconduct, it must ever be established that the latter, in committing the injury, was all the while acting under the authority, and with the assent, express or implied, of the former." Hammond's Nisi Prius, 80.

"Hence it is, that the principal is never liable for the unauthorized, the wilful, or the malicious act or trespass of the agent." Per Story, J., Princip. and Agt. § 456.

In McManus v. Crickett, Lord Kenyon cites these cases, as illustrating the rule:

"If my servant, contrary to my will, chase my beasts into the soil of another, I shall not be punished."

"If I command my servant to distrain, and he ride on the distress, he shall be punished, not I." 1 East, 106:

"In order to render a master liable for a trespass committed by the servant, it is necessary to show that the acts were done while the servant was acting under the authority of the master. To render him liable, it must be shown that the commission of the trespasses was in the execution of his order, or with his assent or approbation." Per Waite, J., Church v. Mansfield, 20 Conn. 287.

In Armstrong v. Cooley, (5 Gill's Rep. 512,) it was said, by Treat, C. J., "Even when the act is lawful, the principal is responsible for the manner of its performance, if done in the course of his employment, and not in wilful violation of his instructions." Thus declaring that, in the latter case, he would not be liable.

"It should here be observed, that the ground of the principal's liability cannot be that he has selected an agent who is more or less unworthy, and placed him in a situation which enables him to become the instrument of mischief to his neighbor, because that would hold him responsible; not alone for the acts done by the other, in his capacity quatenus agent, but even for a wilful default." Ham. N. P. 81.

This principle is exemplified in the case next cited, which, with the following, it is submitted, rule the cause now before the court.

Joel v. Morrison, 25 Eng. C. L. Rep. 512. In this case, the plaintiff was knocked down by the defendant's horse and cart, then driven by one of his servants accompanied by another.

Philadelphia and Reading Pailroad Company v. Derby.

The defendant proved that his horse and cart were only in the habit of being driven out of the city, and did not go into the city (where the act happened) at all. Thesiger, counsel for the plaintiff, suggested that the defendant's servants might have gone out of their way, for their own purposes, or might have taken the cart at a time when it was not wanted for the purpose of business, and have gone to pay a visit to some friend. He was observing that, under these circumstances, the defendant was liable for the acts of his servants-but, per Parke, B., "He is not liable, if, as you suggest, these young men took the cart without leave."

Wilson v. Peverley, (2 N. Hamp. Rep. 548,) was an action on the case against the master. It appeared that, by the defendant's orders, a fire was set on his land, and the charge of it given to a hired laborer. That the defendant left home, directing the laborer, after setting the fire, to employ himself in harrowing other land in the neighborhood. That the laborer, after his master's absence, and before he commenced harrowing, carried brands from that fire into the ploughing field, to consume some piles of wood and brush there collected, and on his way dropped some coals, from which another fire arose, and did all the injury complained of. That carrying fire from one field to another was dangerous, and was not in conformity to any express authority of his master; that the laborer was accustomed to work under the particular directions of his master, and could conveniently have harrowed, without first burning the piles of wood, though to burn them first is the usual course of good husbandry. A 'verdict was taken for the plaintiff, subject to the opinion of the court. Judgment was afterwards given for the defendant, and the Judge (Woodbury) said: "The next ground on which a master is liable for wrongs of his servant, is, that the wrongs are performed by the servant in the negligent and unskilful execution of business specially intrusted to the servant, but the principle does not reach wrongs caused by carelessness in the performance of an act, not directed by the master, as a piece of business of some third person, or of the servant himself, or of the master, but which the master did not, either expressly or impliedly, direct him to perform. Thus, a piece

of labor might be very properly performed at one time, and not at another; as, in this case, the setting of a fire in the neighborhood of much combustible matter. And if the master, when the fire would be highly dangerous in such a place, forbore to direct it to be kindled, and employed his servant in other business, it would be unreasonable to make him liable, if the servant, before attending to that business, went in his own discretion, and kindled the fire to the damage of third persons.

Philadelphia and Reading Railroad Company v. Derby.

The master quoad hoc, is not acting in person, or through the servant, neither per se, nor per aliud, and the doctrine of respondeat superior, does not apply to such an act, it being the sole act of the servant."

It appears by the evidence, as applied to these rules:

1. Jones was not acting in execution of the authority given him by his master, the company, which is deemed essential by Lord Holt.

2. In committing the injury, he was not all the while, or at any time, acting under the authority, or with the assent of the company, things, says Hammond, ever to be established to make the principal liable.

3. His act was contrary to the will and express direction of the company, which, under the cases approved by Lord Kenyon, in McManus v. Crickett, would discharge the master from liability.

4. The company directed him to do one thing, and not to do another; yet, he did the latter, and did not do the former; therefore, according to the rule approved by Lord Kenyon, he, and not the company, is liable to the plaintiff.

5. His whole conduct was unauthorized by the defendants, who are, therefore, not liable, under the authority of Story and Waite, Js

6. His acts were "in wilful violation of his instructions," and, therefore, as stated in the opinion of Treat, C. J., the defendants are not liable.

7. He took and run the car "without leave," in which case, says Parke, B., the principal is "not liable."

8. Nor are the defendants liable because Jones was in the performance of a piece of business of the defendants, because they did not, either expressly or impliedly, direct him to perform it; and if, as Judge Woodbury said, it would be unreasonable to make the principal liable for an act done by the servant, without authority, but only on his own discretion, with what reason can the principal be made responsible for the wilful violation of his orders?

It is hence submitted, that the defendants are not by law chargeable with the damages resulting from the wilful and disobedient act of one of their servants, and that the second point is maintained.

(The argument upon the remaining points, is necessarily omitted.)

The points made by the counsel for the defendant in error, were the same ruled by the court below, and were stated as follows: