The Little Miami Railroad Company v. Wetmore.

ment, the servant is as much a stranger to his master as any third person, and the act of the servant, not done in the execution of the service for which he was engaged, cannot be regarded as the act of the master. Id. s. p. 160; Shear. & Redf. on Negl. §§ 59, 62; Lampus v. London Genl. Omnibus Co., 1 Hurl. & Colt. 541; Foulton v. London & Southwestern R. R. Co., L. R. (2 Q. B.) 535.

That there was in this case no express authority given to the servant is conceded. Can such authority be implied under the circumstances of the case from the nature of the business intrusted to his charge? The company contends that it cannot; and the tenth instruction was asked on the grounds that there was no evidence tending to show such authority. For the plaintiff below, it is insisted that the servant was impliedly invested with such powers as were essential to the regular and certain performance of his duties; that for the dispatch of his business, in certain emergencies, he must be considered as authorized to suppress by force, if necessary, any interference with, or obstruction of, the quick and certain discharge of his duties.

Without undertaking to lay down a general rule to govern all cases, it may safely be admitted that the servant is invested with authority to use the necessary means to the performance of the duties assigned him; and that the character of the means that may be used will vary according to the nature of the duty to be performed and the attending circumstances.

But, in looking at the evidence, it is to be noticed that the assault complained of was not committed in endeavoring to eject the plaintiff from the space inclosed by the tables, over which the servant may be supposed to have had a special control. The plaintiff, according to his own statement, had gone outside of the tables, and was shaking his finger in Halpine's face, and addressing him with ar opprobious epithet.

It seems to us the assault was in no way calculated to facilitate o promote the business for which the servant was employed by the master; nor could it have been supposed to be, or intended as, an act done with that view or object. It is not a case of excess of force and violence in executing the authority of the master but rather an act beyond such authority and foreign to the objects of the employment. There was no evidence tending to show that Halpine had any charge of the portions of depot not allotted for the purpose of checking baggage; neither did his employment imply

The Little Miami Railroad Company v. Wetmore.

any authority or control over the persons of passengers or others who might be found there. Nor is this the case of an act done from a wrong judgment in regard to a matter committed by the master to the discretion of the servant.

Another ground assumed is, that the assault was an act of the servant done in part execution of the contract of carriage between the plaintiff and the company.

This is merely presenting the question in a different form, the principle being the same as that already referred to, namely: whether the act was done in the execution or performance of the service for which the servant was engaged. Whether the service to be rendered by the master is in the performance of a contract, or in the discharge of any other duty resting on him, can, it is conceived, make no difference; the question being, in either case, whether the act is within the scope of the servant's express or implied authority in respect to the master's service.

In order to withdraw this case from the operation of the general rule, and hold the company responsible on the ground of its contract with the plaintiff as a passenger, it is necessary to maintain that the company is requiring the plaintiff to apply to its servant for the purpose and as the only means of getting his baggage checked, impliedly undertook to vouch for and warrant the good conduct of the servant toward the plaintiff while the two were engaged in transacting the business. Whether this position is tenable we do not find it necessary, in the decision of the case now before us, to express a definitive opinion. The case was not tried on this theory in the court below, nor has this phase of the question been argued here.

But if any such rule of liability could be applied against the company, it would necessarily impose the reciprocal duty upon the plaintiff to so demean himself toward the servant as not, by misbehavior, to provoke a personal quarrel between them.

The evidence of the company on the trial tended strongly to prove that the plaintiff, by his importunate conduct and abusive language toward the servant, provoked a personal quarrel between them; that the assault was the result of this quarrel; and that the blow was inflicted by the servant as an act of personal resentment. If these facts had been found by the jury, the wrongful act of the servant in striking the plaintiff could not be regarded as authorized by the master, nor as an act done by the servant in the execution of VOL. II.-48

The Little Miami Railroad Company v. Wetmore.

the service for which he was engaged by the master. The fact that the blow was inflicted with a hatchet furnished by the master to be used for a wholly different purpose, though in connection with the servant's business, was wholly immaterial as respects the liability of the master. If he would not otherwise have been liable for the assault, the fact that it was committed with his hatchet did not contribute to make him so.

The existence of the quarrel and its bearing upon the character of the assault was not noticed in the charge. And if the jury found the quarrel to have been of the character which we have stated the evidence tended to show it, they were not advised as to the influence it might properly have in enabling them to determine whether the assault was an act done in the course of the servant's employment, or was merely his own personal act.

It is true, the charge stated the general rule correctly. But the difficulty encountered by the jury, as shown by the nature of the case and by the questions they propounded to the court, was to ascertain how to apply the general rule to the peculiar facts of the case in making up their verdict.

The reference made in the charge to the use for which the hatchet was provided was calculated, we think, to make an erroneous impression on the jury on the very point on which their verdict hinged. And, furthermore, the charge, from the generality of its terms, failed to give the jury the assistance they ought to have received in view of the facts of the case.

A charge, though not strictly objectionable in point of law, but which leaves the jury to draw an incorrect inference from facts in the case material to the issue, will constitute good ground for a new trial, where it is reasonable to suppose, from a consideration of the whole evidence, that a different verdict would have been rendered if the jury had been fully instructed. The charge ought not only to be correct, but to be so adapted to the case and so explicit as not to be misconstrued or misunderstood by the jury in the application of the law to the facts as they may find them from the evidence. Grah. & Water. on New Trials, 774; 18 Me. 436; 30 Conn. 343. Judgment reversed and cause remanded for a new trial.

NOTE.-See Goddard v. Grand Trunk Railway Company, ante, 39; also, Atlantic vid Great Western Railway Co. v. Dunn, post.-REP.

1

Mullen v. Stricker.

MULLEN, plaintiff in error, v. STRICKER.

(19 Ohio, 135.)

Easement of light and air- Implied grant.

The owner of two adjacent lots, having dwelling-houses thereon, conveyed one to the plaintiff and the other to the defendant, by deeds containing covenants of warranty and against incumbrance. The house purchased by plaintiff received light and air through windows opening upon an area on the lot purchased by defendant. The defendant being about to obstruct these windows by building upon and filling up the area, the plaintiff brought suit for an injunction. Held, that there was no grant of an easement for light and air implied from the fact that the windows were in use at the time of the conveyance, and were necessary to the convenient enjoyment of the property, and that an injunction could not be granted.

THIS was an action to enjoin the plaintiff in error from obstructing the windows in the house of defendant in error.

Prior to April, 1866, one Deitrich owned two adjacent lots, 51 and 53, in the city of Cincinnati, on each of which was a four-story brick house. The house on lot 51 covered the entire lot, and its south wall was a partition wall, and its center the dividing line between the two lots. Between this wall and the house on lot 53 was an alley or open space extending part the length of the wall, and some four or five feet in width. Several of the windows in the house on lot 51 opened upon and was lighted from this area. On the 24th of April, 1866, Deitrich sold both lots at auction, lot 51 being struck off to the defendant in error, and the sale was completed by the delivery of the deed on the 30th of that month. The other lot was struck off to another person, who having failed to fulfill, it was purchased by Mrs. Mullen, she receiving her deed one day after the defendant in error. Both deeds contained covenants of warranty and against incumbrances, and in both the dividing line between the lots was described as the center of the partition wall. It was admitted that substitutes for the windows opening on the area could be had by openings from above, but at considerable cost.

A perpetual injunction was granted against Mrs. Mullen, restraining her from obstructing the windows, from which judgment she brought her petition in error.

Mullen v. Stricker.

Hoadley, Jackson & Johnson, and J. & R. A. Johnston, for plaintiff in error.

Stallo & Kittredge, for defendant in error.

WELCH, J. The whole case is a question of the construction of Deitrich's deed to Stricker. If Stricker has any right to the easement in controversy he acquired it by that deed. That the deed does not expressly grant the easement is admitted. Its language is unequivocal, making the "partition wall" the dividing line between the two lots. Nor is it claimed that the easement had attached or became appurtenant to lot 51, by user or prescription. On the contrary it is conceded, and so we understand the law to be in Ohio (Hieatt v. Morris, 10 Ohio St. 523; Washb. Easm. 497), that no prescriptive right to the use of light and air through windows can be acquired by any length of use or enjoyment. But it is claimed that the easement is granted by implication, arising upon the circumstances surrounding the execution of the deed. In other words, it is claimed that the grant is to be implied from the fact that the windows were in use at the time of the conveyance, and were necessary to the convenient enjoyment of the property, and that this implication is not rebutted by the fact that the lots were simultaneously sold at auction.

In the view we take of this case it is unnecessary to consider the effect of the circumstance that the lots were simultaneously sold at auction. In a proper case, no doubt, that fact might go far to rebut the implication of a grant, and there are a number of decisions to that effect. In such a case it would, perhaps, be quite immaterial which deed was executed first, as the parties to the first deed would be held to have known and intended, at the time of its execution, that the other deed was to be executed also, and was to be made conformable to the terms and conditions of the sale, neither purchaser having any preference over the other. But we place our decision of the case upon other grounds, and need not, therefore, discuss the question whether it is varied by the fact that the lots were simultaneously sold.

Nor do we deem it necessary to discriminate between the case of an implied grant and that of an implied reservation in a grant. Some of the early English decisions stand upon the ground of such a distinction, holding that the same circumstances, of necessity or