[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 283 The defendant is sought to be made liable for the acts and neglects of another, upon the doctrine of respondeat superior.
The action can only be maintained by reason of the relation of master and servant between the defendant and the superintendent of the road; and, if that relation existed, it resulted solely from the fact that the defendant had, as receiver and assignee in bankruptcy of the property and franchises of the bankrupt corporation, the management and operation of the railroad, the employment of the necessary servants and agents, with the power to dismiss and change them as he pleased or as should be necessary. The principle that those who in the transaction of their business avail themselves of the services of others, of whose acts they have or may have the benefit, shall also be answerable for acts done in the course of the agency, is well settled, and as applied ordinarily the doctrine is very familiar. The difficulty is in applying the principle to cases where the employer occupies a representative or official capacity and has no individual or personal interest in the property or the business in which the subordinate is employed. The action is not upon contract express or implied, but for negligence, and would lie as well at the suit of any other person as in behalf of a passenger, if the neglect of the superintendent is imputable to the defendant.
I have met with no adjudication directly in point in support of the action; we are left to dispose of the questions presented upon the reason of the maxim relied upon.
It was urged upon us at the argument, that unless the defendant was liable the plaintiff was remediless, and, therefore, the action should be sustained. But this argument cannot avail. It has been repeatedly said by learned judges, in like cases, that it proves nothing; and there are many instances in which individuals, injured by the acts of agents, are without remedy — as is the case of injuries incurred by the acts of the employes and agents of public officers — with one or two exceptions, which rest upon peculiar reasons not *Page 286 applicable to the present action. Here no personal neglect is imputed to the defendant, either in the selection of agents or the performance of any duty; constructive negligence, by the act of a superintendent, necessarily and properly employed by him, is relied upon. Public officers performing their duties through the agency and with the assistance of subordinate agents employed by them, whether acting gratuitously or for a compensation, are not answerable for the neglects or wrongful acts of their subordinates. When acting for a compensation they are regarded as being paid for the services rendered and not for taking the hazard of the acts of those necessarily employed by them. (Lane v. Cotton, 1 Lord Mansf., 646; S.C., 1 Salk., 17; Whitfield v. Lord Ledespencer, Cowp., 754; Hall v. Smith, 2 Bing., 156; Duncan v. Findlater, 6 Cl. Fin., 894.) Sheriffs are an exception to the rule, for the reason that the poundage and other fees to which they are entitled for acts done by their deputies is deemed a just equivalent for their responsibilities. (Hall v. Smith, supra.) In the performance of their ministerial duties sheriffs employ such and so many deputies as they please and receive the compensation for their services, having at all times the supervision and control of their acts; and it may well be said that the acts of the deputy are performed for and in the business of the sheriff and for his benefit. The position of the defendant and his relation to the agents employed by him are not, in any respect, analogous to the position and relation of the sheriff to those acting for him.
The plaintiff, in her complaint, charges that the defendant was possessed of and was the owner of the railroad, and, as such, was a carrier of passengers for hire; and if that averment had been proven, the case would have been very different from that made by the evidence. The defendant was not individually the owner, or possessed of the property; he had neither a general or special property in the road or its earnings. The property was in the court for management and administration; and the defendant was an officer of the court, obeying its orders and carrying out its directions. His *Page 287 relation to the road and its operation was entirely official, and he had no interest in or control over the earnings, and was removable at the pleasure of the court. He was powerless to protect himself against the hazard of the acts of those he was compelled to employ. His position was analogous to that of a public officer charged with public duties, in the performance of which he is compelled to act in part by others. It is a great hardship, in such cases, to impose upon them the hazards and responsibilities which attach to individuals acting by agents appointed for their own convenience and profit. It would be different if the defendant had sought to do by others that which he was expected and was competent to do in person. But such was not the case. The employment of agents was a necessity, and expressly directed by the court; and if in the performance of this part of his duty he was prudent, and selected only competent agents, he had discharged his full duty, and ought not to be held to guarantee the acts of the agents employed. In other words, unless some imperative rule of law exists to the contrary, the defendant should only be held to answer for his own acts and neglects.
There is a substantial agreement of judges as to the reason of the rule making masters liable for the acts of their servants, although in the application of it there may have been differences of opinion, and occasionally room for doubt in border cases. BEST, Ch. J., in Hall v. Smith (supra), says: "The maxim ofrespondeat superior is bottomed on this principle, that he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it," thus making the benefit and liability reciprocal. The principle was recognized in Bush v. Steinman (1 B. P., 404), and the defendant held liable for the reason that the work was carried on for his benefit. Lord BROUGHAM, inDuncan v. Finlater (supra), places the liability upon the ground that what is done by the agent being done for the benefit of the principal, and under his direction, he should be responsible for the consequences of doing it. Scott v. Mayorof Manchester (2 H. *Page 288 N., 204), was distinguished from Hall v. Smith by the fact that the corporation derived a profit from the carrying on the works. Rogers v. Wheeler (43 N.Y., 598); Sprague v. Smith (29 Vermont, 421); Barter v. Wheeler (49 N.H., 9), proceed upon the same ground, that the defendants were the owners of the roads, and were bound personally by their contracts; and that the fact was unimportant that they were trustees and acted in a representative capacity. The actions were upon contracts made by the defendants, and, as in the case of executors and administrators, they were held to answer for them. (Ferrin v.Myrick, 41 N.Y., 315.) The legal title to the roads was in the defendants, and they operated them as proprietors, and their liability legitimately resulted from their proprietorship, although the title was in trust for others. As said by Judge PECKHAM, in Rogers v. Wheeler (supra), they were in no sense receivers or officers of the court. They had assumed to operate the roads, and had made contracts with the public in the course of that business, and there was no principle or policy that would shield them from liability if they failed to perform their engagements. Barter v. Wheeler (supra), was decided upon the same views of the position of the defendant. Ballou v.Farnum (9 Allen, 47), and Lamphear v. Buckingham (33 Conn., 237), were actions against trustees and mortgagees in trust for the bondholders in possession of and operating the roads as such trustees and mortgagees, to recover for injuries sustained by reason of the negligence of persons employed by them. The defendants were held liable. They were regarded as the owners of the roads, and the real principals, receiving the earnings, and having the benefit of the services of the employes. DEWEY, J., inBallou v. Farnum, held that the defendants had made themselves liable as principals, by the position they had voluntarily assumed, and must take the responsibility, looking for their indemnity to the earnings of the road. The employes were the servants of the defendants, operating the roads in virtue of the title and possession acquired under their mortgages; and whether a *Page 289 road is operated by mortgagees in possession, trustees, lessees or intruders, is not material, so long as they assume to operate the road and take the earnings either for themselves or those they represent. Blumenthall v. Brainerd (38 Vt., 402), was an action upon a contract for the carriage of goods, the defendants being receivers of the road by appointment of the Court of Chancery. A verdict passed against the defendants, but upon exceptions taken a new trial was granted. The court, in considering the question of liability, say that the plaintiff's evidence tended to show that the defendants were managing and controlling a long line of railroad, and conducted and held themselves out as common carriers over that line; and add: "If, in fact, they were common carriers over that railroad, we think that it is no defence to an action at law for a breach of duty or obligation, arising out of business intrusted to them in that relation, that they were running and managing the line of railroad as receivers under an appointment of the Court of Chancery." The court regarded the assumption by the defendants of the extraordinary responsibilities of common carriers as not incompatible with their duties and responsibilities as receivers, and held them to their contracts. It would seem that the business of a carrier was not regarded as within the limits of the duties of the defendant, as receiver, although consistent with that position. The court did not intimate that, in all respects, and in the absence of any contract, a receiver would be subject to all the responsibilities of an owner or proprietor of the road. On the contrary, it is said, "as between a receiver and the parties interested in the trust, the receiver would be responsible for negligence; but he might be liable in a larger or stricter degree of responsibility to other parties." Paige v.Smith (99 Mass., 395), without affirming the soundness of the decision of the case last cited, followed it, in an action against a receiver appointed by the Court of Chancery of the same State, on the ground that it was impossible to accord to the defendants an exemption from the ordinary common-law liabilities of common carriers more extensive than they are *Page 290 allowed in the State in which they were appointed. The statement in this record is, that the defendant claimed to and held himself out as operating the road in his official capacity as receiver and assignee in bankruptcy, and not otherwise; and it is not sought to charge him upon a contract in any form.
There is good reason that one employing another in his business should be responsible for his acts. The maxim qui facit peralium facit per se is in such case properly applied, and all the legal consequences should follow; but I know of no principle upon which a receiver or other officer of a court, merely obeying the orders of the court, having no interest in the prosecution of the work and deriving no profit from it, should be answerable except for his own acts and neglects. The present defendant was expressly authorized to employ all necessary assistants and laborers and operate the road. In the employment of subordinates as well as in the other acts connected with the operation of the road, he acted officially and as the representative of, and by orders from the court, and was only held to diligence and good faith in the performance of any act which he was authorized to do. There is no evidence that he at any time assumed to act other than as receiver or assignee, or held himself out as a carrier of passengers, save as an officer of the court.
If this were otherwise, the law only allows a recovery for the death of a person when caused by some wrongful act, neglect or default; and a party can only be made answerable when the act or neglect is in law his act or neglect. (Laws of 1847, chap. 450.) The defendant and the superintendent, by whose fault the death of the testator was caused, were in the same employ, both acting by the same authority; and the fact that the latter was subordinate to the former by no means makes him responsible for his acts; the superintendent or other general agent of a railroad, who by authority of the corporation employs and discharges the subordinates, is not the master so as to be made responsible under the doctrine of respondeat superior. *Page 291
I am for affirming the order granting a new trial and giving judgment absolute for the defendant, as stipulated.
All concur; except CHURCH, Ch. J., dissenting, and FOLGER, J., not voting.
Order affirmed, and judgment accordingly.