Hower v. Ulrich , 156 Pa. 410 ( 1893 )

Opinion by

Me. Justice Mitchell,

The learned judge instructed the jury that “ if somebody else carried it (the corn) away, if the children or family of the defendant, and he was not present and did not aid, abet or counsel them, of course he would not be guilty. This is an action of trespass, and the defendant must be guilty of the wrongful or tortious act himself, or have advised or assisted in some way before he can be found guilty.” This would have been entirely correct if the trial had been, as under the evidence it might well have been, on an indictment for larceny by bailee, but in a civil action for damages it put the defendant’s liability on too narrow a basis. By his contract defendant was to gather the corn and put it in plaintiff’s barn. The corn was gathered by defendant or his family, and there was evidence that some of them had carried off part of it and put it in his own, or his wife’s bin. Whether he was present or not was disputed, and the learned judge charged as already quoted that if “he was not present and did not aid, abet or counsel ” he was not liable. Later on the charge was qualified somewhat in this respect by the direction that “if these children were in his employ and he knew of it, and he countenanced it and directed it, he would be responsible, even though he was not on the ground himself.” But even this was much too narrow a basis for liability. A man cannot keep and use another’s stolen corn, and avoid liability for its value by saying that he did not know of, or countenance, ox-direct the stealing of it. It he knew at any time, he becamé immediately responsible, and the presumption in the present case is that he did know. His children, several of them under age, were doing his work, by his orders, and, to some extent at least, in his personal presence. It is highly improbable that they would have hauled the corn to his bin without his knowledge and sanction, at least. The circumstances give iise to a strong presumption that what they did was by his orders. It is true that a master, and even a parent, is not liable for the indeperxdexxt torts of his servant, or child, but for his own trespass only, but, as said by our brother Williams in McClung v. Dearborne, 134 Pa. 396, this general doctrine must not be taken too literally. And in Strohl v. Levan, 39 Pa. 177, it was said by Thompson, J.: “ The son was driving and the father, the defendant, was riding. The latter made no objection or endeavor to control his son, and, if he did not, it was a presumption which a jury might well make, and which I thirxk they were bound to make, that he assented to what was done in the management of the team which did the injury, and therefore was answerable.” See also Beedy v. Reding, 16 Maine, 362, a very analogous case to the present. The jury should have been instructed that if the corn was taken by any of the defendant’s family under the circumstances charged, then it was not necessary that he should have been present, or ordered, or aided the taking in any way. If he knew of it, at the time or afterwards, he was liable for its value in this action.

There was also error in not setting aside the levy on the fi. fa. and relieving the appellant from the costs of it. There was an outstanding attachment, prior to this levy, which appellant was not bound at his own risk to disregard. The fi. fa. was oppressively issued when appellant was in no default, and the subsequent assignment and discontinuance of the attachment did not cure the original wrong.

Judgment reversed and venire de novo awarded.