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A. having a house by the

CHESE were two actions on the case against the Defendant for

THESE road fide, con

causing a quantity of lime to be placed on the high road, by tracted with B. means of which the plaintiff and his wife were overturned and to repair it for a stipulated fum; much hurt, and the chaise in which they then were was conB.contracted

fiderably damaged. Pleas. Not guilty. with C. to do the work; and

The two actions came on together to be tried before Eyre C, with D. to Ch. J. at the Guildhall Sittings after last Hilary term, when the furnish the materialsThe following circumstances appeared in evidence. The Defendant servant of D.

having purchased a house by the road fide, (but which he had brought a quan tity of lime to never occupied,) contracted with a surveyor to put it in repair the house and

for a ftipulated sum; a carpenter having a contract under the placed it in the road, by which surveyor to do the whole business, employed a bricklayer under the Plaintiff's him, and he again contracted for a quantity of lime with a lime carriage was overturned.

burner, by whose servant the lime in question was laid in the Held that A.was road. The Lord Chief Justice was of opinion that the Defendant answerable for the damage

was not answerable for the injury fuftained by the Plaintiff unsustained. der the above circumstances; but in order to save expence, a Poft, 475.

verdict was taken for the Plaintiff for 121. 128. with liberty to the Defendant to move to have a nonsuit entered.

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

Cockell and Shepherd Serjts. now shewed cause. The question is not whether this action might not have been brought againft some other person, but whether it cannot be maintained againft the present Defendant. It is fufficiently established thatmasters are civilly answerable for the neglect of their servants, though absent at the time of the injury committed. Hern v. Nicholls, 1 Salk. 289. Jonesv. Hart, 2 Salk. 441. So it is with carriers and owners offhips. The house in this case was undergoing repair for the Defendant, and the act which caused the injury complained of, was an act done for his benefit, and in consequence of his having authorised others to work for him. Though the person by whose neglect the accident happened was the immediate servant of another, yet for the benefit of the public he must be considered as the servant of

Busi

this Defendant. The maxim in law is respondeat superior ; and

1799. accordingly Lord Kenyon in a case strongly analogous to the present, faid, “In all these cases I have ever understood that the " action must 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 subcontracts in this case, before he can obtain any redress for the injury he has sustained.

Le Blanc and Marshall Serjts. contrà. The Plaintiff contends, first, that a person is liable for the consequences of every 'act done for his benefit; at least if the act take place on his own premises : fecondly, that he is answerable for any injuries committed by those whom he employs, if the injuries happen in the course of carrying into execution the commission with which they are charged. First, it is clear that the cause of action did not in this case arise on the Defendant's premises, the complaint being, that a quantity of lime which should have been placed there, was actually laid in the high-road: that being the case, there is no authority to fhew that the Defendant is liable, merely because the act from which the injury arose 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 superintendence and control which he is supposed to have over them. i Black. Com. 431. In the civil law that liability was confined to the person standing in the relation of pater-familias to the person doing the injury. Inst. lib. 4. tit. 5. si. Dig. lib. 9. tit. 3. And though in our law it has been extended to cases where the agent is nota mere domestic, yet the principle continues the same. 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 subcontracting parties, from executing the respective parts of that business which each hadundertaken 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 toemploy such persons ashemight DD 3

think

Bush

1799. think proper. So little connection was there between the De.

fendant and the various persons employed in the work that he

could have maintained no action againit any one of them for STEINMAN. having ill performed his part, but must have resorted to the fur

veyor with whom his contract was made. With respect to Stone v. Cartoright, the owner of the mine was there faid to be answerable for the negligence of the persons employed by the fteward, but it is to be observed, that he was also answerable to them for their wages. In Lane v. Sir Robert Cotton, 12 Mod. 488, 9. Holt Ch. J. fuid, that “ the reason why a principal “ shall answer for his deputy is, because as he, as principal, “ has power to put him in, fo he has power to put him out 6 without thewing any cause.” So in Michael v. Aleftree, 2 Led. 172. it was held that an action might be maintained against a master for damage done by his fervant to the Plaintiff, in exercising his horfes in an improper place, though he was abfent, because it should be intended that the master fent the fervant to exercise the horses there. But if a fervant who is ordered to do a lawful act exceed his authority, and thereby commit an injury, the master is not liable. Kingfion v. Booth, Skin. 228. Middleton v. Fowler, i Salk. 282.

Eyle Ch. J. At the triał I entertained great doubts with respect to the Defendant's liability in this action. He appcared to be fo far removed from the immediate author of the nuisance, and fo far removed even from the person connected with the immediate anthor in the relation of mafter, that to allow him to be charged for the injury sustained 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 surveyor, the surveyor and cach of the subcontracting parties in fuccellion to actions against the persons with whom they immediately contracted, and last of all the lime-burner would be entitled to the common action against his own servant. I heltáted therefore in carrying the responsibility beyond the immediate master of the perfon who committed the injury, and I retained my doubts upon the subject, 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 satisfied that the action will lie, and upon reflection, I am difpofed to concur with them : though I am ready to confess that I find great difficulty in ftating with accuracy the groundson swhich it is to be supported. The relation between master and

servant 1799.

BUSH

STEINMAN.

fervant as commonly exemplified in actions brought against the master is not sufficient: and the general propofition, that a perfon lhall be answerable for any injury which arises in carrying into execution that which he has employed another to do, seems to be too large and loofe. The principle of Slone v. Cartwright, with the decision of which I am well fatisfied, is certainly applicable to this case: but that of Littledale y. Lord Lonsdale (a) comes much nearer.

Lord Lonfiale's colliery was worked in such a manner by his agents and feryants (or poflibly by his contractors, for that would have made no difference) that an injury was done to the Plaintiff's house, and his Lordship was held responsible. Why? Because the injury was done in the course of his working the colliery: whether he worked it by agents, by fervants, or by contractors, still it was his work : and though another person 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 considered as his agents and servants notwithstanding any such arrangement; and he must have been responsible to all the world, on the principle of fic utere tuo ut alienum non lædas. Lord Lonsdale having empowered the contractor to appoint such perfons under him as he should think fit, the persons appointed would in contemplation of law have been the agents and servants of Lord Lonsdale. Nor can I think that it would have made any difference, if the injury complained of bad arisen from his Lordship’s coals having been placed by the workmen, on the premises of Mr. Littledale, since it would have been impossible to diftinguilla fiich an act from the general course of business in which they were engaged, the whole of which business was carried on either by the express direction of Lord Lonsdale, or under a presumed authority from him. The principle of this case therefore, seems to afford a ground which may be satisfactory for the present action, though I do not say that it is exactly in point. According to the doctrine cited from Blackstone's Commentaries if one of a family “ layeth or castech” any thing out of the house which constitutes a nuisance the owner is chargeable. Suppose then that the owner of a house, with a view to rebuild or repair, employ his own fervants to erect a hord in the street (which being for the benefit of the public they may lawfully do) and they carry it out so far as to encroach

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

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unreasonably

1799.

BUSII

STEINMAN.

unreasonably on the highway, it is clear that the owner would be guilty of a nuisance: 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 sum of money, instead of employing his own servants 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 step nearer to this case. Here the Defendant by a contractor, and by agents under him, was repairing his house: 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 case from that of erecting the hord, or from Littledale v. Lord Lonsdale, unless indeed a diftinction could be maintained (which however I do not think poflible) 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 consumed there. My Brother Buller recollects a case which he would have stated more particularly, had he been able to attend. It was this: a mafter having employed his fervant to do some act, the servant outof idleness employed another to do it, and that person in carrying into execution the orders which had been given to the fervant committed an injury to the Plaintiff, for which the matter was held liable. The responsibility 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 sustained the remedy ought to be obvious, and the person injured should have only to discover the owner of the house which was the occasion of the mischief; not be compelled to enter into the concerns between thatowner and other persons, the inconvenience of which would be more heavily felt than any which can arife from a circuity of action. Upon the whole case therefore, though I ftill feel difficulty in ftating the precise principle on which the action is founded, I am fatisfied with the opinion of my Brothers.

HEATH J. I found my opinion on this single point, viz. That all the subcontracting parties were in the employ of the Defendant. It has been strongly argued that the Defendant is not liable, because his liability can be founded in nothing but the mere relation of master and servant; but no authority has been cited to support that proposition. Whatever may be the doctrine

of

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