Court of Appeals of the State of New YorkJul 1, 1851
5 N.Y. 48 (N.Y. 1851)

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July Term, 1851

Edward Sanford, for appellant.

H.E. Davis, for respondent.

It is quite clear that the building of the sewer in question was not a city improvement, carried on by the city officers as a public work. The defendants applied to the city authorities for permission to construct the sewer at their own expense, but under the direction of the street commissioner. As the construction of the work had a tendency to disturb the then existing sewers and pavements of the city, it was proper that it should be executed under the inspection of the city officers, and this is a sufficient reason for their reserving and exercising a supervision over it, but not sufficient to make the city a principal in building the sewer. Whether the city owned the land occupied by the street, or only the right of way over it, and the improvements upon the land, it was necessary for the defendants to get permission from the city to build their sewer in the street, and it was not denied that such permission gave them a lawful right to do so, so far as the corporation was concerned; nor was it or could it be claimed that the provisions contained in the permission requiring the defendants to cause proper guards and lights to be placed at the excavation, for the prevention of accidents, and to be answerable for all damages and injuries which might be occasioned to persons, animals or property in any manner connected with the construction of the sewer, however beneficial it might be to the city, did or could enure to the benefit of the plaintiff in this action, or strengthen his right to recover against these defendants. For the purpose of considering the question before us, the defendants may, therefore, be regarded as the persons at whose expense, and for whose benefit the sewer in question was to be constructed, having a lawful right to construct it themselves or by their agents or servants, being responsible to third persons for all injuries occasioned by the negligent or improper manner in which they exercised that right, or the right to let by contract the execution of the whole work to some other person, who, as to the right to make the sewer, might be considered the representative of the defendants, and be protected by the permission given to them. This case shows that the defendants adopted the latter course, and either by themselves or by their agent, contracted with Gibbons to furnish the materials for, and build the sewer, in every respect according to the specifications of the street commissioner, that is to say, to construct such a sewer as the defendants were permitted to construct. That while Gibbons and his men were engaged in the execution of this contract, his men or servants, in his absence, without his knowledge, and in disregard of his directions, were guilty of the negligence which was the cause of the injury to the plaintiff's horses and carriage. Upon the close of the evidence tending to establish this state of facts, the counsel for the defendant requested his honor, the judge, to charge the jury, in substance: That if the contractor, who was engaged in constructing the sewer, when the accident happened, was exercising an independent employment, and the defendants did not interfere with the work, they were not liable. If the proposition contained in the request was a legal one, and was fairly presented by the case, the defendants were entitled to the instruction prayed for, and it was error to refuse it. The learned judge not only refused to give the desired instruction, but in his charge, which followed the refusal, seems to have negatived the principle sought to be recognized, by telling the jury, in effect, that if they were satisfied from the evidence that the sewer was undertaken by the defendants, and for their benefit, and that Horace Butler, in making the contract with Gibbons for building it, acted as their agent, the defendants were responsible for whatever damages might have resulted from the want of due care in the execution of the work. I know the charge was not excepted to, and I have not referred to it as erroneous, but for the purpose of showing that the error, if there was any, in the refusal to charge as requested, was not corrected by the charge. By refusing to charge, as requested, the learned judge permitted the cause to go to the jury upon the principle, that the person who undertakes the erection of a building, or other work for his own benefit, is responsible for injuries to third persons, occasioned by the negligence of the servants of the builder or the person who is actually engaged in executing the whole work, under an independent employment, or a general contract for that purpose. This presents a legal question of great practical importance, and is the only one raised by the bill of exceptions or discussed upon the argument in this court which requires to be considered in deciding this case. The refusal of the learned judge to charge as requested is attempted to be sustained partly, if not principally, by the maxim, qui facit per alium facit per se, and the consequential rule of respondeat superior. The rule of respondeat superior, is simple and easily understood, but it must be confessed that its application in the reported cases has produced some diversity of opinion among learned judges. It will, however, upon examination be seen, that this diversity did not arise out of any intricacy or uncertainty in the rule, or any doubt of its correctness, but has been occasioned by the variety and intricacy of the facts to which it has been applied, and the difficulty in ascertaining whether or not the relation, to which the rule is applicable, existed in the cases under consideration. Williams, J., in the case of Milligan v. Wedge, (12 Adol. and Ellis, 737,) says "the difficulty always is, to say whose servant the person is that does the injury; when you decide that, the question is solved." The rule of respondeat superior, as its terms imply, belongs to the relation of superior and subordinate, and is applicable to that relation wherever it exists, whether between principal and agent, or master and servant, and to the subjects to which that relation extends, and is co-extensive with it, and ceases when the relation itself ceases to exist. It is founded on the power which the superior has a right to exercise, and which for the prevention of injuries to third persons he is bound to exercise, over the acts of his subordinates. Therefore the rule cannot be applicable to cases where no such power exists. The absolute and direct coincidence and co-existence of the rule respondeat superior with the relation to which it is applicable, and to the subject-matter to which that relation extends, is an important proposition in determining the applicability of the rule, and may be illustrated by the following cases: The case of Laugher v. Pointer, (5 Barn and Cress, 560,) was an action to recover damages for an injury done to a horse of the plaintiff, by the negligence of another person, under the following circumstances: The defendant owned a carriage and hired of a stable keeper a pair of horses and a driver, to draw it for a day, or a short time. The injury was done through carelessness of the driver in driving, while the defendant was riding in the carriage. The plaintiff brought his action against the owner of the carriage. The judge before whom the cause was tried non-suited the plaintiff. A strong attempt was made for a new trial, both in the king's bench and exchequer chamber, which failed on account of a disagreement among the judges in both courts, as to the question whose servant the driver was that did the injury, whether in the act of driving he was the servant of the defendant, who was riding in the carriage, or of the stable keeper, who sent him with the horses to draw it. In the case of Milligan v. Wedge, (12 Adol. and Ellis, 737,) the rule of respondeat superior, was again brought before the court, upon the following facts: The defendant, who was a butcher, had bought a bullock at Smithfield market, which is within the city of London, where those who drive cattle for others are required to be licensed. The butcher employed a licensed drover to drive the bullock to the slaughter house, which was without the bounds of the city. The drover employed a boy to drive the ox, who conducted so negligently in the business that he permitted the ox, as he was passing by the plaintiff's show-room, in which he had marble chimney pieces, c., for sale, to run into the show-room and break the chimney pieces, for which injury the plaintiff sued the butcher. The judge, before whom the cause was tried, was of opinion that the boy was not the defendant's servant, and a verdict was given for the defendant. An attempt was made to set aside the verdict, which was unanimously denied, on the ground that the boy was not the defendant's servant. Upon this occasion, Williams, J., made the remark above quoted, and Coleridge, J., said, "the true test is, to ascertain the relation between the "party charged, and the party actually doing the injury. "Unless the relation of master and servant exists between "them, the act of one creates no liability in the other." The case of Quarman v. Burnett and others, (6 M. and W., 497,) was similar in its facts to the case of Laugher v. Pointer. The defendants owned a carriage and hired a pair of horses and driver from another person to draw the carriage for a short time, during which an injury was done to the plaintiff's horse and chaise by the carelessness of the driver, for which the owner of the horse and chaise brought his action against the defendants. The defendants pleaded, first, not guilty. Second. That the carriage and horses or either of them were not under the care of the defendants. Upon the trial the jury found a verdict for the plaintiff, and the judge reserved liberty to move to enter a non-suit. On the decision of this motion, Park B. delivered the opinion of the court, which was that the defendants were not liable, and that a rule be made absolute to enter a verdict for them. In delivering the opinion of the court, the learned baron says, that "upon "the principle that, qui facit per alium facit per se, the master "is responsible for the acts of his servant: and that person "is undoubtedly liable, who stands in the relation of "master to the wrong-doer; he who had selected him as his "servant from the knowledge of, or belief in his skill and care, "and who could remove him for misconduct, and whose orders "he was bound to receive and obey. But the liability, "by virtue of the relation of master and servant, must cease, "when the relation itself ceases to exist; and no other person "than the master of such servant can be liable, on the simple "ground, that the servant is the servant of another, and his "act the act of another." The decision is approved of, and the same principles recognized in the cases of Rapson v. Cubitt, (9 th M. and W. 709,) and Hobbitt v. the Northwestern Railway Company, published in the Monthly Law Reporter of April, 1850, and the doctrine of these cases adopted by Mr. Justice Story in his commentaries on the law of agency, 2d ed. sec. 453, B.

4 Welsb. Hurlst. and Gordon, 254.

Another condition to be regarded in the application of the rule of respondeat superior is, that there can be but one responsible superior for the same subordinate, at the same time, and in respect to the same transaction. Littledale, Justice, in the case of Laugher v. Pointer, puts his opinion, that the owner of the carriage was not liable for the injury done to a third person by the negligent driving of the servant of the stable keeper who sent his horses and driver to draw the carriage for a short time, on the ground that the driver could not be the servant of both, the livery stable keeper and the person riding in the carriage. His honor remarks, that he "was the "servant of one or the other, but not the servant of one and "the other. That the law did not recognize a several liability "in two principals." That the action must be brought either against the principal, or person who committed the injury. The propositions, that the rule of respondeat superior, is applicable only to the immediate superior of the person who does the injury, and that there can be but one such responsible superior, are clearly adopted by the English court of exchequer in the recent case of Reedie v. The Northwestern Railway Company, published in the Monthly Law Reporter, new series, for April, 1850. In this case, the Railway Company had let out, by contract, the building of a viaduct, which was a part of their railway, to contractors. Through the negligence of the men employed by the constructors a stone fell on a man, who was passing under the viaduct, and killed him. For this injury, an action was brought by his representatives against the railway company, and it was held that the company were not liable. Rolfe B., in delivering the opinion on the branch of the case involving the above principle, says, "the liability of any one, other than the party actually guilty of any wrongful act, proceeds on the maxim, qui facit per alium facit per se. The party employing has the selection of the party employed, and it is reasonable that he who has made choice of an unskillful or careless person to execute his orders should be responsible for any injury resulting from the want of skill, or want of care, in the person employed; but neither the principle of the rule, nor the rule itself, can apply to a case, where the party sought to be charged does not stand in the character of employer to the party by whose negligence the injury has been occasioned, and he refers to the cases of Quarman v. Burnett, Rapson v. Cubitt, Milligan v. Wedge, and some more recent cases (which are not to be found here) as settling this principle. And the same learned baron, in recognition of the principle laid down by Littledale, Justice, remarked, in substance, that to decide that the railway company was liable would be equivalent to deciding that the contractors, whose servant did the injury, were not liable, which was a proposition which could not be maintained.

4 Welsb v. Hurlst. Gordon, 244.

Allen v. Haywood, 7 Adolph. Ellis, N.S. 960.

All the above cases are cited with approbation by Mr. Justice Story, in his commentary on agency, Sec. 453, A, B C; and in Sec. 454, A, he alludes to a distinction, which, if properly considered, will have a tendency to simplify this, and all similar inquiries. He says, nice questions have arisen as to when and under what circumstances the parties employed are to be deemed servants or sub-agents of the principal employer, and when only the sub-agents of the immediate person by whom they are actually employed. In the first case the principal employer is liable, and in the latter not.

This distinction was alluded to by Littledale, Justice, in the case of Laugher v. Pointer, and Park B., in the case of Quarman v. Burnett. The first class of cases embraces those where the men or servants, though actually employed by a third person, are employed for, in the name of, and at the expense of the primary principal, and are continued subject to his control, as seamen employed by a master of a vessel, servants hired by a steward, laborers hired to work on a farm by a general superintendent, workmen to work in a manufactory by a managing agent, in all which, and similar cases, the person who employed the men is himself an agent for that purpose, and he, as well as the men whom he employed, are paid by the general principal, and subject to his control. In such cases, they are the agents or servants of the general principal, and he is their responsible superior. But when a man is employed in doing a job or piece of work with his own means, and his own men, and employs others to help him, or to execute the work for him, and under his control, he is the superior who is responsible for their conduct, no matter whom he is doing the work for. To attempt to make the primary principal or employer responsible in such cases would be an attempt to push the doctrine of respondeat superior beyond the reason on which it is founded.

The defendants' liability in this action being so absolutely dependent upon the fact that they occupied the position of superior of the persons whose negligence or misconduct occasioned the injury, and had the powers which belonged to that position, we may now inquire, what evidence there was in the case to establish that fact. There certainly was none on the part of the plaintiff, except the inference or presumption arising from the circumstance that they obtained permission to make the sewer, or that it was being constructed for their benefit. To destroy this inference, and to show that the relation of superior and subordinate did not exist between the defendants and the persons whose negligence or misconduct occasioned the injury, the defendants proved that Gibbons was constructing the sewer under a contract with Horace Butler, by which he bound himself to Butler to furnish the materials and to do the whole work for a specified compensation. If Butler did not make that contract on behalf of and as the agent of the defendants, it would create no relation whatever between Gibbons and the defendants. If he did make the contract as the agent of the defendants, then the case would present the question whether the contract created the relation of superior and subordinate between the defendants and Gibbons, in respect to those acts which belong to the practical execution of the work, or the employing of men to execute it, which was in substance the question which the learned judge was requested to decide for the jury, and upon the decision of which their verdict might have depended. It is claimed, on the part of the appellants in substance, that when a person is engaged in doing a job or piece of work, under an employment or contract which leaves to him the independent use of his own skill, judgment, means and servants in the execution of it, he is not the agent or servant of the general employer; that the relation between them is governed by the contract or by the nature of the employment. The decision in the case of Milligan v. Wedge, was put upon the ground that the butcher employed a person who was recognized by law as exercising a distinct calling, to drive the ox, whose servant did the mischief. In the case of Rapson v. Cubitt (9 M. W. 70), the defendant, Cubitt, who was a builder, was employed to execute certain alterations in a house, including the propositions for and the fixing of gas-fittings. He made a contract with Bland, a gas-fitter, to execute that part of the work. In the course of doing it, through Bland's negligence the gas exploded and injured the plaintiff, a third person, who brought his action for the injury against Cubitt, on the ground that Bland was his servant; but the court, consisting of Lord Abinger, Ch. B. and Park, Alderson Rolf, B.'s, were unanimous in the opinion that Bland did not stand in the relation of servant of Cubitt, but was merely a sub-contractor. Park B., in delivering the opinion in the case of Quarman v. Burnett, after laying down the doctrine, that the liability by virtue of the relation of master and servant must cease when the relation itself ceases to exist; that no other person than the master of the servant can be liable, on the simple ground that the servant is the servant of another, and his acts the acts of another, proceeds in effect to deny that when one person enters into a contract with another, which does not raise the relation of master and servant between them, that the employer is liable for the negligence of the contractor's servants, and remarks in substance, that such a doctrine would render the employer liable not only for the acts of his own servants, but for injuries which arise from the acts of another person in carrying into execution that which the contractor had agreed to do for his benefit, and concludes by remarking, "this is too large a position, "and cannot be maintained to its full extent, without over-turning "some decisions, and producing consequences which "would," (as Lord Tenterden observes,) "shock the common "sense of all men." The learned judge then proceeds to give some illustrations of the absurd consequences of such a doctrine as that which he was repelling, which clearly show the applicability of the principle mentioned by him, to the question now under consideration, and the concurrence of his opinion with the proposition put forth by the appellants. The impracticability and injustice of the construction of the rule of respondeat superior, contended for by the plaintiff below, may be further illustrated by the supposition of a very common case in this country, that of a man, who is about to build a house for himself. He may, if he pleases, superintend and manage the whole from its commencement to its completion, employ men, give directions in reference to every part of the work, which his men would be bound to follow, and thus make himself the master in fact of all the persons employed; but as Baron Park said about the butcher's driving the ox, he is not bound to do so, and he may not know how to do it. He may, therefore, let out by contract, the building of the house to some person who will undertake to furnish all the materials and complete the building in a specified manner, and for a stipulated compensation. Would he thereby become the master of all the contractor's appurtenances, servants and men employed by him, and render himself liable for all the injuries to third persons, which might be occasioned by their negligence or misconduct in doing any act tending to the construction of the house. For instance, by the carpenter's men in getting out timber in the forest; by the stone cutter's servants in blasting stone in the quarry, or by the teamsters in handling materials; such consequences would indeed shock the common sense of all men. The truth is, such a contract does not constitute the contractor the agent or servant of the employer, nor authorize him to pledge the responsibility of the employer for the conduct of servants, nor for any thing to be done in the execution of his contract. The proposition, therefore, contained in the request of the defendants' counsel to the judge, was sound, and if properly presented by the case was erroneously overruled.

But the respondents' counsel, on the argument in this court, attempted to obviate the force of the appellant's point raised on his exception, by setting up the principle that where the injury is occasioned by the negligence or misconduct of a person while transacting any business connected with the improvement, use or enjoyment of real property, the owner of the property is liable, whether the wrong doer is working for wages or under a contract, or in other words, whether he was the owner's servant, or was executing an independent employment. If this proposition was sound law, and applicable to this case, it might render the question contained in the request to charge irrelevant, and justify the learned judge in refusing to decide it. I will not, on this occasion, stop to inquire, how this principle was raised on the trial of this cause, whether there was any proof that the defendant owned or had any interest in real estate, or that there was any connection between the sewer and the houses that were building on Twelfth street. The proposition assumed by the respondent's counsel is confessedly founded on the case of Bush v. Steinman, (1 Bos. Pull. 404,) which was an action on the case against the defendants for causing a quantity of lime to be placed on the highway, by means of which the plaintiff and his wife, who were riding in a chaise, were overturned and much hurt, and the chaise considerably injured. The facts of the case were these. The defendant having purchased a house by the road side, (but which he had never occupied,) contracted with a surveyor to put it in repair for a stipulated sum. A carpenter having a contract under the surveyor to do the whole business, employed a bricklayer under him, and he contracted for a quantity of lime with a lime burner, by whose servant the lime in question was laid in the road. On the trial, there was a verdict for the plaintiff, with liberty for the defendant to move to have a non-suit entered. The motion was made before Eyre, chief justice, and Heath and Rook, justices, and denied, as it was said, with concurrence of Mr. Justice Buller, though the learned judge who delivered the opinion, acknowledged that he was unable to give a satisfactory reason for it, and thus the principle advanced by the respondent was adopted in that case. The decision in Bush v. Steinman was followed by Lord Ellenborough at nisi prius, in the case of Sly v. Edgeley, (6 Esp. Rep. 6,) but it is believed it has never received the sanction of any English court. In the case of Laugher v. Pointer, heretofore referred to, the authority of that decision in reference to the case before the court, was denied, and the correctness of the principle on which it was founded, doubted by Littledale, J. It was noted by Park B., in the case of Quarman v. Burnett, and again in the case of Rapson v. Cubitt, as not being applicable to those cases, with a remark, that it might be applicable to injuries occasioned by the negligent management of fixed real property, with some attempted explanation of the difference between the two classes of cases. But in the case of Reedie v. The Northwestern Railway Company, hereinbefore cited, the case of Bush v. Steinman was brought directly before the Court of Exchequer, under circumstances calling for a recognition or denial of the principle on which it was decided. In this case, the facts of which have already been stated, a verdict had been taken for the plaintiff, with liberty to the defendants to move for a nonsuit. On the argument of the motion, the counsel for the plaintiff insisted that the law, as settled in the cases of Quarman v. Burnett, Rapson v. Cubitt, Milligan v. Wedge, and other concurring cases, was not applicable to the case under consideration. That there was a recognized distinction on the subject, between injuries arising from the careless or unskillful management of an animal or other personal chattel, and injuries resulting from the negligent management of fixed real property. That as the injury in the case under consideration was occasioned by persons at work on the defendant's rail way, of which they were the owners, they were responsible, and to sustain this proposition, referred to the case of Bush v. Steinman. Baron Rolf, in delivering the opinion of the Court, after alluding to the distinction set up, and the authority cited to support it, said: " but on full consideration, " we have come to the conclusion that there is no such distinction, " unless perhaps in cases where the act complained of is such " as to amount to a nuisance; and in fact, according to the " modern decisions, Bush v. Steinman must be taken not to be " law, or at all events, that it cannot be supported on the ground " on which the judgment of the court proceeded." And in his further remarks, the learned Baron says: "this doctrine," (meaning the doctrine of respondeat superior,) "is one of general "application, irrespective of the nature of the employment, "and applying the principle to the present case, it "would be impossible to hold the present defendants liable, "without at the same time deciding that the contractors are "not liable, which it would be impossible to contend." Baron Park concurred in this opinion, and a non-suit was ordered. It is believed that the principle asserted in the case of Bush v. Steinman, to its full extent, as claimed by the respondent, has never been adopted in this state. It was not so adopted in the case of Bailey v. The Mayor of New York, referred to by the respondent, either by the supreme court or by the court for the correction of errors. In the supreme court, (3 Hill, 531), the principle insisted on by the counsel here, was not mentioned by the learned judge who delivered the opinion. In the court for the correction of errors, (2 Denio, 434,) Chancellor Walworth referred to the case of Bush v. Steinman, and may be considered as adopting it in the limited and restricted sense to which it had been reduced by the English courts, to cases where the injury complained of has been occasioned by a nuisance which the owner of real estate suffered upon his premises. Senator Hand also referred to this case, and apparently adopted it without noticing the limitation put upon it; but it was not necessary for him to notice the limitation, as in its restricted sense, it was sufficient to justify his opinion, so far as the point to which he applied it was concerned. Gardiner, President, in his dissenting opinion, did not refer to the case of Bush v. Steinman, nor directly to the principle claimed to be sustained by it, but in a short and clear reference to the rule of respondeat superior, did derive propositions which, if truth and reason can prevail, will reject the authority of that case to the extent claimed for it. Upon the examination of the case of Bush v. Steinman, it would appear that the main proposition asserted by it is not law in England, or in this state, and that the respondent's point and reasoning founded on it did not obviate the force of the appellants' objection to the refusal of the learned judge to charge as requested.

The judgment appealed from must therefore be reversed, and a new trial ordered.

Judgment reversed