1799.

April 22d.

15 Eaft, 389. 2 Taun. 317.

A. having a house by the road fide, contracted with B. to repair it for a ftipulated fum; B. contracted with C. to do

the work; and C. with D. to

furnish the materials The fervant of D.

brought a quantity of lime to the house and placed it in the

THESE

BUSH V. STEINMAN.

Idem et Ux. v. Eundem.

HESE were two actions on the case against the Defendant for caufing a quantity of lime to be placed on the high road, by means of which the Plaintiff and his wife were overturned and much hurt, and the chaife in which they then were was confiderably damaged. Pleas. Not guilty.

The two actions came on together to be tried before Eyre Ch. J. at the Guildhall Sittings after laft Hilary term, when the following circumftances appeared in evidence. The Defendant having purchased a houfe by the road fide, (but which he had never occupied,) contracted with a furveyor to put it in repair for a ftipulated fum; a carpenter having a contract under the road, by which furveyor to do the whole business, employed a bricklayer under him, and he again contracted for a quantity of lime with a limeburner, by whofe fervant the lime in question was laid in the Held that 4.was road. The Lord Chief Juftice was of opinion that the Defendant was not answerable for the injury fuftained by the Plaintiff under the above circumftances; but in order to fave expence, a verdict was taken for the Plaintiff for 127. 12s. with liberty to the Defendant to move to have a nonfuit entered.

the Plaintiff's

carriage was overturned.

anfwerable for the damage fuftained.

Poft, 475.

Accordingly a rule nifi for that purpose having been obtained on a former day,

Cockell and Shepherd Serjts. now fhewed caufe. The queftion is not whether this action might not have been brought againft fome other perfon, but whether it cannot be maintained against the present Defendant. It is fufficiently established that masters are civilly answerable for the neglect of their fervants, though abfent at the time of the injury committed. Hern v. Nicholls, 1 Salk. 289. Jones v. Hart, 2 Salk. 441. So it is with carriers and owners offhips. The house in this cafe was undergoing repair for the Defendant, and the act which caufed the injury complained of, was an act done for his benefit, and in confequence of his having authorised others to work for him. Though the perfon by whofe neglect the accident happened was the immediate fervant of another, yet for the benefit of the public he must be confidered as the fervant of

1799.

BUSH

V.

this Defendant. The maxim in law is refpondeat fuperior; and accordingly Lord Kenyon in a cafe ftrongly analogous to the prefent, faid, "In all thefe cafes I have ever understood that the "action muft either be brought against the hand committing STEINMAN. "the injury or against the owner for whom the act was done." Stone and another v. Cartwright, 6 Term Rep. 411. If this Defendant be not liable, the Plaintiff may be obliged to fue all the parties who have fubcontracts in this cafe, before he can obtain any redress for the injury he has fuftained.

The Plaintiff con

Le Blanc and Marshall Serjts. contrà. tends, first, that a perfon is liable for the confequences of every act done for his benefit; at least if the act take place on his own premifes: fecondly, that he is answerable for any injuries committed by those whom he employs, if the injuries happen in the courfe of carrying into execution, the commiffion with which they are charged. Firft, it is clear that the cause of action did not in this cafe arife on the Defendant's premises, the complaint being, that a quantity of lime which fhould have been placed there, was actually laid in the high-road: that being the cafe, there is no authority to fhew that the Defendant is liable, merely because the act from which the injury arofe was done for his benefit. If that general propofition were true, it might be contended, that the Defendant must have answered for any accident which might have happened during the preparation of the lime in the lime-burner's yard. Secondly, The liability of the principal to answer for his agents, is founded in the fuperintendence and control which he is fuppofed to have over them. 1 Black. Com. 431. In the civil law that liability was confined to the person standing in the relation of pater-familias to the perfon doing the injury. Inft. lib. 4. tit. 5. §1. Dig. lib. 9. tit. 3. And though in our law it has been extended to cafes where the agent is not a mere domeftic, yet the principle continues the fame. Now clearly it was not in the power of this Defendant to control the agent by whom the injury to this Plaintiff was effected. He was not employed by the Defendant but by the lime-burner: nor was it in the Defendant's power to prevent him, or any one of the intermediate fubcontracting parties, from executing the refpective parts of that business which each had undertaken to perform. The Defendant's interference would have amounted to a breach of his own contract with the surveyor, by which the latter was empowered to employ fuch perfons as he might

1799.

BUSH

think proper. So little connection was there between the De. fendant and the various perfons employed in the work that he could have maintained no action against any one of them for STEINMAN. having ill performed his part, but muft have reforted to the furveyor with whom his contract was made. With respect to Stone v. Cartwright, the owner of the mine was there faid to be anfwerable for the negligence of the perfons employed by the fteward, but it is to be obferved, that he was alfo anfwerable to them for their wages. In Lane v. Sir Robert Cotton, 12 Mod. 488, 9. Holt Ch. J. faid, that "the reafon why a principal

fhall anfwer for his deputy is, becaufe as he, as principal, "has power to put him in, fo he has power to put him out "without fhewing any caufe." So in Michael v. Aleftree, 2 Lev. 172. it was held that an action might be maintained against a mafter for damage done by his fervant to the Plaintiff, in exercifing his horfes in an improper place, though he was abfent, becaufe it thould be intended that the mafter fent the fervant to exercife the horfes there. But if a fervant who is ordered to do a lawful act exceed his authority, and thereby commit an injury, the mafter is not liable. King flon v. Booth, Skin. 228. Middleton v. Fowler, 1 Salk. 282.

EYRE Ch. J. At the trial I entertained great doubts with respect to the Defendant's liability in this action. He appeared to be fo far removed from the immediate author of the nuifance, and fo far removed even from the perfon connected with the immediate author in the relation of mafter, that to allow him to be charged for the injury fuftained by the Plaintiff feemed to render a circuity of action neceffary. Upon the Plaintiff's recovery, the Defendant would be entitled to an action againft the furveyor, the furveyor and cach of the fubcontracting parties in fucceffion to actions againft the perfons with whom they immediately contracted, and laft of all the lime-burner would be entitled to the common action against his own fervant. I hesitated therefore in carrying the refponfibility beyond the immediate mafter of the perfon who committed the injury, and I retained my doubts upon the fubject, till I had heard the argument on the part of the Plaintiff, and had an opportunity of conferring with my Brothers. They, including Mr. Juftice Buller, are fatisfied that the action will lie, and upon reflection, I am difpofed to concur with them: though I am ready to confefs that I find great difficulty in ftating with accuracy the groundson which it is to be fupported. The relation between mafter and

fervant

fervant as commonly exemplified in actions brought against the mafter is not fufficient: and the general propofition, that a perfon hall be anfwerable for any injury which arifes in carrying into execution that which he has employed another to do, feems to be too large and loofe. The principle of Stone v. Cartwright, with the decifion of which I am well fatisfied, is certainly applicable to this cafe but that of Littledale v. Lord Lonsdale (a) comes much nearer. Lord Lonfdale's colliery was worked in such a manner by his agents and fervants (or poffibly by his contractors, for that would have made no difference) that an injury was done to the Plaintiff's houfe, and his Lordship was held responsible. Why? Because the injury was done in the courfe of his working the colliery: whether he worked it by agents, by fervants, or by contractors, ftill it was his work: and though another perfon might have contracted with him for the management of the whole concern without his interference, yet the work being carried on for his benefit, and on his property, all the perfons employed must have been confidered as his agents and fervants notwithstanding any fuch arrangement; and he must have been refponfible to all the world, on the principle of fic utere tuo ut alienum non lædas. Lord Lonfdale having empowered the contractor to appoint fuch perfons under him as he should think fit, the perfons appointed would in contemplation of law have been the agents and fervants of Lord Lonfdale. Nor can I think that it would have made any difference, if the injury complained of had arifen from his Lordship's coals having been placed by the workmen, on the premises of Mr. Littledale, fince it would have been impoffible to diftinguish fuch an act from the general courfe of business in which they were engaged, the whole of which bufinefs was carried on either by the express direction of Lord Lonfdale, or under a prefumed authority from him. The principle of this cafe therefore, feems to afford a ground which may be fatisfactory for the prefent action, though I do not fay that it is exactly in point. According to the doctrine cited from Blackftone's Commentaries if one of a family " layeth or cafteth" any thing out of the houfe which conftitutes a nuifance the owner is chargeable. Suppofe then that the owner of a houfe, with a view to rebuild or repair, employ his own fervants to erect a hord in the ftreet (which being for the benefit of the public they may lawfully do) and they carry it out fo far as to encroach

(a) 2 H. Bl. 267. 299. The facts of that cafe are to be collected from the pleadings.

1799.

BUSH

V.

STEINMAN.

1799.

Busi

♡.

STEINMAN.

unreasonably on the highway, it is clear that the owner would be guilty of a nuifance: and I apprehend there' can be but little doubt that he would be equally guilty if he had contracted with a person to do it for a certain fum of money, instead of employing his own fervants for the purpose; for in contemplation of law the erection of the hord would equally be his act. If that be established we come one ftep nearer to this cafe. Here the Defendant by a contractor, and by agents under him, was repairing his houfe: the repairs were done at his expence, and the repairing was his act. If then the injury complained of by the Plaintiff was committed in the course of making those repairs, I am unable to diftinguish the cafe from that of erecting the hord, or from Littledale v. Lord Lonfdale, unlefs indeed a diftinction could be maintained (which however I do not think poffible) on the ground of the lime not having been delivered on the Defendant's premises, but only at a place close to them, with a view to being carried on to the premises and confumed there. My Brother Buller recollects a cafe which he would have ftated more particularly, had he been able to attend. It was this: a mafter having employed his fervant to do fome act, the fervant out of idlenefs employed another to do it, and that perfon in carrying into execution the orders which had been given to the fervant committed an injury to the Plaintiff, for which the master was held liable. The refponfibility was thrown on the principal from whom the authority originally moved. This determination is certainly highly convenient, and beneficial to the public. Where a civil injury of the kind now complained of has been fuftained the remedy ought to be obvious, and the perfon injured fhould have only to discover the owner of the house which was the occafion of the mischief; not be compelled to enter into the concerns between that owner and other perfons, the inconvenience of which would be more heavily felt than any which can arise from a circuity of action. Upon the whole cafe therefore, though I ftill feel difficulty in ftating the precife principle on which the action is founded, I am fatisfied with the opinion of my Brothers.

HEATH J. I found my opinion on this fingle point, viz. That all the fubcontracting parties were in the employ of the Defendant. It has been ftrongly argued that the Defendant is not liable, because his liability can be founded in nothing but the mere relation of mafter and fervant; but no authority has been cited to fupport that propofition. Whatever may be the doctrine

of