Smith v. Foran

Park, C. J.

If the plaintiffs in this case had been the owners of the piano, which was injured through the carelessness of the defendant, it would be clear that the defendant would be liable to them for the amount of the damage done to the property; for a hired servant is as much bound to exercise reasonable care not to injure the property of his employer while engaged in his service, as he is to exercise such care in relation to the property of other persons. There is nothing implied in the contract of employment which absolves him from such responsibility, but on the contrary the implication is that he undertakes to exercise such care.

But it is said that the liability of the defendant to the plaintiffs in this case arises from the supposed liability of the plaintiffs to the person whose property was injured by the carelessness of the defendant while engaged in their business, and, this being the case, that the liability of the plaintiffs must first be established in a suit brought by the owner of the property against them, and the amount of damages ascer *250 tained, before a suit can be sustained by the plaintiffs against the defendant. It is unnecessary to determine how this would be in an ordinary case of a liability of a master for the negligence of his servant, as where the servant in driving the master negligently runs into the carriage of another and injures it.- There the master is liable in damages for the act of the servant, and the servant to the master for whatever loss he is subjected to by the servant’s negligence. Here however another element comes in. The plaintiffs, being common carriers, had a special property in the piano and could as such special owners maintain an action against the servant for an injury by his negligence to such special property. And besides this, the plaintiffs, by reason of their undertaking as common carriers, were liable to the owner of the piano for its destruction or injury, even though it had been destroyed ip the hands of the servant with no fault of his, as where the horses he was driving had run away and broken the piano in pieces, in spite of his careful driving and of his efforts to control them. The liability of the plaintiffs stands upon its own ground, their implied contract to deliver the piano in good condition at its place of destination, in spite of all obstacles except those caused by the act of God or of a public enemy. And this liability rests upon no other ground where the delivery is prevented by the negligence of their servant. He is liable to them for his negligence, they to the owner for the non-performance of their undertaking.

But the two kinds of liability have this in common, that where, as here, the carrier fails to deliver the property solely because of its destruction or injury by his servant, the amount of damage to which’ the carrier is liable at the suit of the owner, is precisely the same as that to which 4hc servant is liable at the suit of the carrier. And upon this fact the counsel for the defendant base their claim that the plaintiffs should have first had their liability and the exact amount of it established in a suit at law before they could maintain a suit against the defendant. But the reason of the thing is wholly against this claim. In the first place, if the plaintiffs were liable to the owner of the piano, it is absurd to require *251 the owner to bring a suit, and the plaintiffs to defend against it, and finally pay, after a judgment and with costs, what they were perfectly willing to pay at the outset, and what the judgment would show they were legally bound to pay. And in the next place, the judgment would not establish the liability of the defendant. That, as we have seen, would stand upon its own ground, and his negligence, on which alone his liability would rest, would not even enter into the suit against the plaintiffs as a matter for consideration. Ho could still, in the suit against him, deny the fact of his negligence, and could prove the amount of the damage. All this he could do if the plaintiffs had settled with the owner without suit. If in such settlement they had paid the owner more than the actual damage, such payment would not have bound the defendant. He would be liable to them only for the actual damage. If, however, they had settled with the owner for less than the real damage, they could recover of the defendant no more than the damages paid. The damage which the defendant is to pay is the actual damage to the plaintiffs. That of course can not be greater than the sum they have had to pay, though it may be less, if they have unnecessarily and of their own folly paid more than they were obliged to pay. They were bound to pay the actual damage done to the piano, and if they got off with paying less, then they were themselves damaged so much less, and could recover only such reduced sum from the defendant.

Until the plaintiffs have settled with the owner it is to be presumed that they will be compelled, either upon a voluntary settlement or upon suit, to pay the owner the actual damage. If die defendant had reason to suppose that a settlement could be effected for a less sum, he could himself settle with the owner, and save the plaintiffs from the necessity of paying the damages at all; and this it would be equally his duty and his interest to do.

We think there is no error in the judgment complained of.

In this opinion the other judges concurred.