#### Zulkee vs. Wing and another.

*Master and servant*— liability *of one servant for injuries earned by Ms*negligence, *concurring with that of mother servant.*

A servant is liable to bis master for injuries caused by his negligence *to*the master’s property, although the negligence of another servant, not made defendant with him, concurred in producing such injuries.

APPEAL from the Circuit Court for *Winnebago*County.

Action to recover for labor and services in cutting and getting out logs, &c. Defendants claimed to recoup for damages done them by the plaintiff while so engaged in their service, by so cutting a tree as to cause it to fall upon and kill two horses belonging to them. Evidence was introduced tending to establish the defense. The plaintiff’s evidence tended to show that there was also negligence on the part of defendants’ teamster, one Harmon, who had charge of the horses, in not removing them when warned of the danger. The court refused the following instructions asked by the defendants : “1. If defendants’ team was killed by the negligence of the plaintiff, they have a right to recoup the value of the same against the sum due the plaintiff. 2. If there was negligence on the part of the plaintiff in felling the tree, it is no defense for him that there was negligence on the part of his fellow servant Harmon in leaving his team.” The following instruction was given at the defendants’ request. “ 3. If defendants could not have prevented the accident by ordinary care, they are entitled to recoup damages." The court then gave the jury the following among other instructions: “ If the negligence of the defendants, *or their*servant, contributed to the injury, they cannot recoup from the plaintiff the value of the horses, unless the plaintiff’s acts were destitute of all reasonable care or prudence.” “ The defendants, to make out a *prima facie*defense, must not only prove that the injury arose from the negligence of the plaintiff, but also that the negligence of themselves *or servants*did not essentially contribute to it.” “ The defendants *409are responsible for their servant Harmon’s negligence, if any, in this case, to the same extent as they would have been if they had been in the place of Harmon and done the same acts.”

Verdict for the plaintiff for the full amount of his claim; and the defendants appealed.

*U. B.*Jackson, for appellants,

cited *Sherman v. R. & S. B. B. Co.,*17 N. Y, 153; *Russel v. JIudson River B. B. Co.,*id., 134; *Coon v. S.&TT.R. R. Co.,*5 id., 492 ; 18 Wis., 700.

*Cabe Bouck,*for respondent,

cited *Keegan v. Western B. B. Co.,*8 N. Y., 175 ; *Ryan v. Fowler,*24 id, 410.

Dixon, C. J.

The court below, both as to the instructions given and those refused, seems to have totally misconceived or misapplied the maxim, *Qui facitper alium facitper se;*or, what is the same in principle and more usually and appropriately applied with reference to actions *ex delicto,*the maxim, *Respondeat superior.*The master is always liable to third persons for the negligence or omission of duty of his servant while acting within the scope of his employment. If a servant drive his master’s carriage or cart so negligently as to overturn another carriage, or to run over an individual and do him an injury, the master is liable for the damages. The maxim, *Respondeat*superior, is applied in such a case, upon grounds of policy and security. It is founded upon the principle that it is the duty of every man, in the management of his own affairs, whether by himself or by his agents or servants, so to conduct them as not to injure another ; and if he does not do so, and another is thereby injured, he shall answer for the damage. If the injury be done by a servant in the course of his employment, it is, in contemplation of law, so far the act of the master, that the latter is civilly responsible therefor. *Qui faeit per alium facit per se.*But this maxim is applicable only as between the master or principal and third persons. It presupposes that the parties stand to each other in the relation of strangers, between whom there is no privity ; and has no application as between *410tbe master and Ms negligent servant, or tbe principal and bis agent, wbo bas so unskillfully or carelessly conducted bis business as to cause bim damage. As between tbe master and a stranger, tbe servant represents tbe master, and tbe master is responsible; but as between tbe master and tbe servant wbo bas committed tbe wrong or violated bis duty no less to tbe master than to tbe stranger, no sucb rule prevails. A servant is directly liable to bis master for any damage occasioned by bis negligence or misconduct, whether sucb damage be direct to tbe property of tbe master, or arise from tbe compensation wbicb tbe master bas been obliged to make to third persons for injuries sustained by them. To apply the maxim in sucb a case would be an utter perversion of it, and destructive of all liability on tbe part of servants. Tbe servant in sucb case represents, not tbe master, but himself. It is bis own negligence and misconduct for wbicb be is required to answer; and, in this respect, be stands upon tbe same footing as any other wrong-doer. In tbe case above supposed, tbe master, having paid tbe damage caused by tbe negligence of bis servant in running over a stranger, may sue tbe servant for tbe same act of negligence, to recover back tbe money paid. It would be strange if tbe servant, in answer to sucb an action, could say: “Be-*spondeat superior.*I was your servant at tbe time of tbe injury ; my act was your act, my negligence your negligence; and therefore you cannot recover.” Sucb an answer would be absurd enough; and yet tbe objection of the plaintiff to tbe claim of tbe defendants seems scarcely less so. It is insisted, and tbe jury were instructed, *“*that tbe defendants are responsible for their servant Nathaniel Harmon’s negligence, if any, in this case, to tbe same extent as they, tbe defendants, would have been if they bad been in tbe place of Harmon, and done tbe same acts.” It is clear that under this instruction there could be no recovery against Harmon under any circumstances, whether suit were brought against bim alone or jointly with tbe present plaintiff. But why, if correct, ought not tbe doc-*411line to have been, carried one step further* and thus have saved any instruction as to the negligence of Harmon ? If the defendants in this action are responsible for the negligence of Harmon, “ to the same extent as they would have been if they had been in the place of Harmon and done the same acts,” why are they not responsible for the negligence of his fellow servant, the plaintiff? And why were the jury not instructed, as to the plaintiff, that it was the same as if the defendants had been in his place and had done the same acts ? This would have ended the controversy at once, since it is clear that if the defendants themselves killed the horses, they have no cause of complaint against either of their servants. The answer to these and similar propositions has already been given. Between the master and his servant, as to the wrongs committed by the servant without the assent or direction of the master, the servant does not stand in the place of his master, and if two or more servants, though acting independently of each other, are each at the same time guilty of a wrong which contributes to the injury of the master, all or either of them are liable to the master to the full extent of the injury, the same as other wrong-doers. The doctrine in such a case is correctly stated by Tendal, C. J., in *Davis v. Garrett,*6 Bing., 716 [19 E. C. L., 215], that no wrong-doer can be allowed to apportion or qualify his own wrong; and that, as a loss has actually happened, whilst his wrongful act was in operation and force, which is fairly attributable to his wrongful act, he cannot set up as a defense that there was another or more immediate cause of the loss, acting upon the subject matter at the same time, or the bare possibility of a loss if his wrongful act had never been done.

*By the Court.*— The judgment is reversed, and a new trial awarded.