Althorf v. . Wolfe , 22 N.Y. 355 ( 1860 )

The defendant had the control of his own house and premises, and was generally responsible for their conduct and management, and was bound to see that his necessary affairs to be carried on in and about them were so conducted that other persons should not receive injury. In laying this down as a general rule, I concede that it is subject to some exceptions: for instance, if his premises should be invaded by a superior force, and injury should be inflicted upon others in the course of such usurped possession, he could not be made liable; and so, if a stranger, without his consent or knowledge, and notwithstanding all usual and proper precautions, should impertinently interfere in the management of his affairs, he could not be made responsible. And so, also, according to several cases, if he had contracted with another to have work done upon his premises, and an injury had been done to a third person by the servants of such contractor. (Blake v. Ferris, 1 Seld., 48, and cases cited.) But, in this case, the defendant entrusted the removal of the snow and ice from the roof to one of his servants. I admit that this servant ought not to have taken his friend on to the premises, but that he should have done the work himself, and, moreover, that it was a piece of misconduct to admit Cashan upon the roof; and if Fagan did not know Cashan to be a discreet and prudent man, it was an act of negligence. But the defendant, by giving him charge of the business and permitting him to have access to the roof, enabled him to take others there. The defendant does not and cannot deny but that he is responsible for the negligent and wrongful acts of Fagan. If it had been certain that it was that person, and not Cashan, who threw the piece of ice which killed the deceased, the defendant would clearly have been responsible. Instead of accomplishing the mischief in that manner, Fagan, by a negligent and improper act, enabled Cashan to do it. If we keep in mind that the defendant is responsible for the acts of Fagan, and that Fagan took his comrade on to the roof, and thus enabled the latter to do the mischief, it is difficult to discover any principle which will shield the defendant from responsibility. It is not necessary to consider Cashan as the defendant's servant. He was, rather, the instrument by which Fagan, for whose conduct the defendant was undeniably responsible, did the wrong. The law was long ago laid down thus: "I shall answer to my neighbor for him who enters my house with my leave, or with my knowledge, or who is a guest with me, orwith my servant, if he, or any of them, does anything, as with a candle or other thing, by which doing the house of my neighbor is burned." (Beaulieu v. Finglam, Year Book, 2 H. IV., fol. 18, pl. 6.)¹

There is a class of cases where the master is not responsible for the acts of his servant, on the ground that he was not, at the time, acting in the business of his master, as where he commits a willful trespass. (McManus v. Cricket, 1 East., 106; Vanderbilt v. The Richmond Turnpike Co., 2 Comst., 479.) But in this case, Fagan was in the service of the defendant, even in procuring Cashan to go upon the house. He was not, it is true, serving him properly, or according to his duty; but it was the master's business, and not his own that he was engaged in.

I am in favor of affirming the judgment appealed from.

DAVIES and CLERKE, Js., dissented; all the other judges concurring,

Judgment affirmed.

¹ As a specimen of the quaint but vigorous style of the Year Books, the Reporter subjoins a translation, from the law-French, of the case above cited. The Latin of the writ, it is to be supposed, notwithstanding the Code, is still intelligible to the profession in the original.

One brought a writ like this: "Si Willihelmus Beaulieu, c.,pone Rogerum Finglam, quare cum secundum legem consuitudinemregni nostri Angliæ hactenus obtenta quod quilibet de eodem regnoignem suum salvo secure custodiat custodire teneatur, ne perignem suum dampnum aliquod vicinis suis ullo modo eveniat: praed'Rogerus ignum suum apud Carlion tam negligentur custodivit quodper defectu debitae custodiae ignis praedicti, bona cattalaipsius Willihelmi ad valentiam quadraginta librarum in domibusibidem existentia, ac domus praedictae ad tum ibidem per ignemillum combusta extiterant, ad dampnum ipsius W. c." And he declared accordingly. Hornby [for the defendant] prayed judgment of the count, "for he has counted on a common custom of the realm, and has not ever said that this custom has been in use [time whereof, c.]" To which the whole court said: Pass over that, for the common law of the realm is the common custom of the realm. THIRNING [Ch. J.] said: A man shall answer for his fire which, by misfortune, has burnt the goods of another. And some have been of opinion that the fire could not be said to be his fire, for this, that a man cannot ever have property in fire: but this opinion was not allowed. MARKHAM [J.]: A man is held to answer for the deed of his servant or of one of his household in such case; for if my servant or one of my family puts a candle in a bracket and the candle falls into the straw and burns up my house and the house of my neighbor also, in such case I shall answer to my neighbor for the damage he has received: which was allowed by the court. HORNBY: Then ought he to have had a writquare domum suam ardebat vel exarsit. HULL [J.]: This would be against all reason to put blame or fault upon a man where there was none in him; for the negligence of his servants cannot be said to be his own. THIRNING [Ch. J.]: If a man kill or slay another by misfortune, he shall forfeit his goods; and it is necessary that he get his charter of pardon as of grace. To which the court agreed. MARKHAM [J.]: I shall answer to my neighbour for him who enters my house with my leave, or with my knowledge, or who is a guest with me, or with my servant, if he, or any of them, does anything, as with a candle or other thing, by which doing the house of my neighbor is burned; but if a man from outside my house, against my will, throws fire into the straw of my house or elsewhere, whereby my house is burned and also the houses of my neighbors, for this I shall not be held to answer to them, for this cannot be called a fault on my part, but was against my will. HORNBY: This defendant is undone and impoverished for all his days if the action is maintained against him; for then twenty other such actions will be brought against him for the same matter. THIRNING: What is that to us? It is better that he should be utterly undone than that the law should be changed for his sake. And then they came to issue, that the house of the plaintiff was never burnt by the fire of the defendant. (Easter term, 2d Henry IV, A.D. 1401.)