Douglass, Appellant, vs. Stephens, Respondent, 18 Mo. 362

Scott, Judge, delivered the opinion of the court. 1. There are but two questions involved in this controversy, which are deemed of any consequence. The first is, whether, in case of a tort, if the injured party can protect himself from damage, at a trifling expense, or by any reasonable exertions, be is bound to do so ? It is not maintained, that tbe want o£ diligence in tbe person injured, will take away bis right of action for tbe wrong, but that tbe rule only extends to such damages as might have been prevented by tbe reasonable exertions of tbe party complaining.

For tbe direct and consequential damages caused by an injury, tbe party committing it is responsible, but not for remote, speculative and contingent consequences, which be might have easily averted by bis own exertions. Tbe law will not reward a man for tbe indulgence of bis malice. If a party sustaining an injury by tbe act of another, can protect himself at a trifling expense, or with reasonable exertions, from tbe consequences, be fails in social duty if be omits to do so, regardless of the increased amount of damages for which be may intend to bold tbe other party liable.

This case is put in tbe books : Suppose a man should enter bis neighbor’s field unlawfully, and leave tbe gate open; if, before tbe owner knows it, cattle enter and destroy the crop, tbe trespasser is responsible. But if the owner sees tbe gate open, and passes it frequently, and wilfully and obstinately, or through gross negligence, leaves it open and cattle get in, it is bis own folly. So, if one throw a stone and break a window, tbe cost of repairing tbe window is tbe ordinary measure of damage.

But if tbe owner suffers tbe window to remain without repairing a great length of time after notice of the fact, and bis furniture and pictures and other valuable articles1 sustain damage, or the rain beats in and rots tbe window, this damage would be too remote. Greenleaf says, that in all cases of breach of contract, if tbe party injured can protect himself from damage at a trifling expense or by any reasonable exertions, be is bound to do so. He can charge the delinquent party only for such damages as, by reasonable endeavors and expense, he could not prevent.

Tbe same doctrine is equally applicable in cases of trespass. 2 vol., sec. 261, and note. 2. In tbe consideration of tbe question, as to tbe liability of tbe master for tbe injuries caused by bis servant, the cases in which the wrong has been done bj the command.of the master, must be distinguished from those in which there is no command. Where a master commands a thing to be done, and an injury results from the want of care in the servant whilst performing the order, the master is liable in trespass.

The employer is responsible in this form of action for the conduct of his servant, whom he has expressly commanded or procured to do the act, though he was not present at the time of the trespass ; or if he has assented to a trespass, committed for his use and benefit, though not privy at the time the act was done. A bare subsequent ratification will not operate to make the master a trespasser.

In the absence of the proof of any command to do the unlawful act, the master is not liable in trespass as principal; for the only act of the master is the employment of the servant, from which no immediate prejudice can arise to any one, and the only authority presumed by the law to be vested by the master in his servant, is an authority to do all lawful acts belonging to his employment.

But, although a master is not liable in trespass, as principal, for the unlawful and directly injurious act of his servant, unless he has commanded it, yet he is responsible for conse..-quential damages, where, by the negligence and carelessness of the servant, in doing the business of his employer, another re¡-ceives an injury for which the servant would himself be liable in an action of trespass.

To make the master liable for consequential damages, resulting from the trespass of the servant, it must appear, that the servant was in the course of his employment, and that, by an injudicious, negligent or unskilful act, done in furtherance of his master’s business., thejnjury resulted to the plaintiff. But if the servant wilfully,, and to effect some design of his own, does an injury to another, the master will not be liable ; otherwise it would be in the power of every servant to subject his master to what actions or penalties he pleases.

The business of life requires the employment of servants or agents, and to hold that masters are liable for their wilful and wanton acts, would be placing every employer entirely at the mercy o£ those whom he might engage in his service. Such a principle would greatly impede, if not wholly prevent, commercial intercourse between man and man.

The rule of law is correctly laid down by Blackstone, (1 Com. 429.) If a servant, by his negligence, does any damage to a stranger, the master shall answer for his neglect, but the damage must be done whilst he is actually employed in his master’s service ; otherwise the servant shall answer for his own misbehavior. Price, v. Thornton, 10 Mo. Rep. Gregory v. Piper, 17 Eng. Com. Law, 454. Croft v. Alison, 6 Eng. Com. Law, 528. Foster v. The Essex Bank of Mass., 17 Mass. 508-9. McManus v.

Crockett, 1 East, 106. 2 Kent, 259. 3., As to the point that there was no evidence that sustained the instruction relative to the liability of masters for wilful and intentional wrongs by servants, it must be answered, that the record does not raise the question. The record only shows that evidence on particular points was given. The evidence on this point should have been stated. If there, was none, that fact should have appeared. The presumption is that the judgment below is correct, and he who would reverse it, must, by his record, show that error has been committed.

The other judges concurring, the judgment is affirmed.