Opinion by
Beaver, J.,Mr. Justice Story, in his work on Agency (9th ed.), sec. 313, lays down this rule, deduced from the authorities which he cites, relating to the liability of an agent for the acts of a subagent to third parties: “ But no action will ordinarily lie against an agent for the misfeasance of his principal by his consent or authority; any more than it will lie against a servant who hires laborers for his master at his request for their acts; unless indeed in either case the particular acts which occasion the damage are done by the orders or directions of such agent or servant.” The same principle, based upon the same authorities and other later ones, is thus stated in the 1 Am. & Eng. Ency. of Law (2d ed.), 981: “ Where an agent has authority to employ subagents, he will not be liable for their acts or omissions, unless in their appointment he is guilty of fraud or gross negligence or improperly co-operates in the acts or omissions.”
The numerous seeming exceptions to this rule in the case of common carriers are based upon the peculiar relations of common carriers to the public and the special contracts under which their rights and obligations are usually determined. The correctness of the rule and its application to the facts of this case do not seem to have been questioned by the court below, which seemed to regard the case as exceptional in this — that there was such evidence of negligence on the part of the defendant-in the appointment of the subagent as to warrant the submission of that fact to the jury. The case was made to turn upon this question exclusively and the portion of the charge sub-. mitting it to the jury has been specifically assigned as error and constitutes the fourth specification.
That the defendant was the agent of the owner of the house *496leased by the plaintiff was known to her, as she states in her testimony. The defendant had specific authority from his principal, in a special power of attorney, to distrain for rent. There is no allegation that the defendant actively participated in any way in the irregular, tortious and criminal manner in which the warrant of distress signed and delivered by him was executed. He gave no directions in regard to the distress and there is nothing in the warrant itself which is unusual or confers authority to do anything not authorized by law. The counsel for the appellee misapprehends the ground upon which the court submitted the case to the jury in claiming that the defendant was a trespasser, because there was no rent due at the time of the issuing of the warrant, and that “ all who aid, command, advise or countenance the commission of trespass by another are liable as if they had committed the tort with their own hands.” This principle is in itself entirely correct but has no application to the present case. The trial judge in the court below, in his charge to the jury, said : “ When you come to consider the question whether or not the defendant shall answer in damages, you are to disregard the question of rent. Under the circumstances, so far as you are to decide upon the facts, it makes no difference whether there was rent due or not at that time (the date of the distress) by this lady to her landlord.”
The question of the negligence of the defendant in the selection of the agent to distrain for rent is, therefore, the only one which need now be considered. The testimony as to this point is simple and is not contradicted. A young man employed by a regularly elected constable as a canvasser appeared at the office of the defendant, with the card of the constable, known to the defendant as such, and with a distress warrant bearing his address. The defendant, although not personally acquainted with the constable, knew of him, of his official position and of his business office. Without making any specific inquiry, he filled up the warrant of distress and delivered it to the canvasser who, instead of delivering it to the constable, seems to have made the levy, without consulting him, signed his name to it and returned it to his up-town office. What was done in pursuance of the warrant does not seem to have been communicated to the defendant at the time by either the canvasser *497or the constable, who became aware of the levy upon the day it was made or the next day. The canvasser was employed by the constable; he appeared in the defendant’s office with his card and with a blank warrant of distress bearing his name; there was nothing unusual in this, nor were there any suspicious circumstances such as would put a reasonably prudent man upon his guard. Whether the defendant regarded the canvasser as the constable himself or as his messenger seems to us to make little difference. The warrant was undoubtedly delivered to the messenger to be executed by the constable. That the messenger exceeded his authority and executed the warrant in an illegal or tortious manner was not the fault of the defendant, and we are unable to see how the uncontradicted testimony presents such a state of facts as would warrant the submission to the jury of such gross negligence on the part of the defendant as takes the case out of the operation of the rule regarding the liability of an agent to third parties for the acts of a subagent employed by him in strict accordance with the authority delegated to him by his principal. Whilst negligence is ordinarily a question for the jury, yet the question as to whether there is such evidence of negligence as should be submitted to the jury is for the court. For, as was said in Leidy v. Cold Storage, etc., Co., 180 Pa. 323, so here: “ If there was no evidence of negligence more than a scintilla, of course there was nothing for the jury to consider, and it would be error to submit the question of negligence to be disposed of by them.” The fourth specification of error should, therefore, be sustained, and it follows that the defendant’s points for charge should have been affirmed. This leaves nothing for the jury and the judgment is, therefore, reversed.
Orlady J. dissents.