Welsh v. Village of Rutland.

corporation, are, while acting in the line of duty prescribed for them, not agents of the corporation in the sense which renders it liable for their acts, but are in the discharge of an official duty as public officers. To such it is held in many cases that the doctrine of respondeat superior does not apply, and for their acts no liability can be imposed upon the corporation except by statute. Dill. Mun. Corp. (1st ed.), § 774; Hafford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass. 87; s. c., 6 Am. Rep. 196; Maxmilian v. Mayor, 62 N. Y. 160; s. c., 20 Am. Rep. 468; Smith v. Rochester, 76 N. Y .513; Jewett v. New Haven, 38 Conn. 368; s. c., 9 Am. Rep. 382; Ogg v. Lansing, 35 Iowa, 495; s. c., 14 Am. Rep. 499; Freld v. Des Moines, 39 Iowa, 575; s. c., 17 Am. Rep. 46; Heller v. Sedalia, 53 Mo. 159; s. c., 14 Am. Rep. 444; Howard v. San Francisco, 51 Cal. 52.

In the recent case of Wilcox v. City of Chicago, 107 Ill. 334 ; s. c., 47 Am. Rep. 434, which was an action for damages sustained by the plaintiff by reason of a collision between his carriage and a hook and ladder wagon, while in service at a fire, it was strongly urged that the city having voluntarily undertaken to organize a fire department, which was under its full control, it was unlike the case of a compulsory legislative requirement, and the doctrine of respondeat superior applied. But the court held otherwise, upon the grounds above indicated, and upon the further, and in itself, as it seems to us, unanswerable ground of public policy and necessity. Judge WALKER, in delivering the opinion of the court, thus tersely and forcibly states these reasons: "If liable for neglect in this case the city must be held liable for every neglect of that department, and every employee connected with it, when acting within the line of duty. It would subject the city to the opinions of witnesses and jurors whether sufficient dispatch was used in reaching the fire after the alarm was given; whether the employees had used the requsite skill for its extinguishment; whether a sufficient force had been provided to secure safety; whether the city had provided proper engines and other appliances to answer the demands of the hazard of fire in the city; and many other things might be named that would form the subject of legal controversy. To permit recoveries to be had for all such and other acts would virtually render the city an insurer of every person's property within the limits of its jurisdiction.

To allow recoveries for the negligence of the fire department would

Welsh v. Village of Rutland.

almost certainly subject property holders to as great, if not greater, burdens than are suffered from the damages by fire. Sound public policy would forbid it, if it was not prohibited by authority."

If the defendant were held liable in this case, it would be impossible to avoid a similar conclusion in case of a negligent or careless act in putting the hydrants in order for efficiency, or in the use or repair of any of the fire apparatus, or indeed any negligence or carelessness of firemen while in active service at a fire; and that would be a state of law which it must readily be seen cities and villages could not live under. It would make them virtually insurers of all property within their limits, and of their citizens, not only against damage by fire, but against all injuries to persons or property by reason of the efforts used to stay or extinguish fires, provided any negligence or want of due care and skill could be established to the satisfaction of a jury.

We find no error, and the judgment of the County Court is affirmed.

NOTE BY ROYCE, C. J.-Since the above opinion was written my attention has been called to the case of Edgerly v. Concord, 59 N. H.* The action was brought to recover damages occasioned by a defective highway. It appeared that the mayor and city council were engaged in testing the force and capacity of a hydrant at the intersection of two streets, and that the hose and hydrant were in the hands of members of the fire department, and water was being thrown under direction of the mayor upon buildings in the vicinity. It was so thrown that it frightened the plaintiff's horse, and in consequence of the fright the plaintiff was thrown from his carriage and injured. The defendant moved for a non-suit, which was denied. The Supreme Court held that the motion should have been granted. Chief Justice DOE, in the opinion, says that the experiment was the proper work of the fire department, like the trial of a steam fire engine, hose cart or other fire extinguishing apparatus. Such an experiment might not be judiciously postponed until the neighborhood was on fire.

VOL. XLVIII-97

* Page 78.

McCloskey v. Gleason.

MCCLOSKEY V. GLEASON.

(56 Vt. 264.)

Executor and administrator — liability for default of agent

An administrator is liable for the loss of the proceeds of a note, caused by the misappropriation of his collecting agent, unless he shows that the employment was necessary, of the usual accredited character that there was no delay in endeavoring to recover from the agent, and that the administrator generally exercised the diligence and care of a prudent man

ILL for accounting, etc. The opinion states the case.

BILL

S. C. Shurtleff, for defendant.

J. A. & Geo. W. Wing, for orators.

Ross, J. [Omitting other questions.] Another contention is whether the defendant is to account for the $1,000 lost through Dr. Richardson. The main facts bearing upon this contention are that Dr. Richardson formerly resided at Montpelier and was a man of good repute, both financially and as a man; that he was named by the testator as his executor and duly qualified and acted for several years, but removed to Winona, Minnesota, whereupon he resigned and the defendant was appointed administrator de bonis. When he settled his account he passed over to the defendant a note for $1,900 secured by mortgage on land near Winona. This was in December 1867, and the note matured May 20, 1870. The defendant, at once upon receiving it, placed the note in the hands of Dr. Richardson for collection. The money due thereon was paid to him at the maturity of the note. In the August following Dr. Richardson sent the defendant the amount collected by him except $1,000, for which he offered to give to the defendant a good note secured by mortgage bearing twelve per cent interest. The defendant declined the note, asked for payment, preferring to invest the $1.000 east. In August 1872, the defendant consulted Joseph A. Prentiss, a lawyer at Winona, who advised him that he considered Dr. Richardson good, but that he had his property locked up in real estate which was not then salable, and advised against bringing a suit. He also consulted H. D. Morse, a business man of Winona, in January 1874,

McCloskey v. Gleason.

and sought to collect the $1,000 through him. He replied that he looked upon Dr. Richardson as responsible, and that he thought the claim could be collected in time without suits or costs; and in a subsequent letter doubted if the doctor could give satisfactory security, and asked for further instructions. Dr. Richardson died in the summer of 1874. The claim was proved against his estate, but nothing received thereon. The defendant also received in 1873 two letters from Dr. Richardson, in which he promises to pay as soon as he could, and states that he has a large amount of real estate, which was slowly appreciating, but that money was tight and it was difficult to realize upon it; and in the last letter he states that he had been sending money east to parties whose needs seemed to him to be greater than the Carpenter estate, but that times were looking better, and that he should begin in September to send him money monthly as he made collections. This letter is dated August 25, 1873. These letters were put in evidence by defendant. On this contention the masters say: "We find that Gleason in the matter of the collection of the $1,900 note, and that part thereof that was finally lost, acted in good faith, and on his best judgment, and with ordinary care and prudence.'

On these facts, has the defendant legally accounted for the $1,000 or shown that it was lost without his fault? He insists that the burden is upon the orator, to show that the loss was occasioned by his fault. As a general proposition this is true. They show that he received a good note secured by mortgage, which was paid at maturity to him or his agent. Showing this it is incumbent on the defendant to give a legal excuse for not having the money received on the note; in other words to account for the note and the money collected thereon. His excuse in substance is that nearly three years before it was due he gave the note to Dr. Richardson for collection; that he collected it and appropriated $1,000 of it to his own use, without the consent and against the will of the defendant; and that he continued so to hold it for more than four years without suit, and so far as is found, without any special effort to recover it except by writing an occasional letter, until Mr. Prentiss was applied to in August, 1872. It is not found nor shown that he was authorized to enforce collection. It is found that the defendant sought to collect the $1,000 by Mr. Morse early in 1874. It is contended that the finding of the masters, that the defendant "acted in good faith and on his best judgment and with ordinary care and

McCloskey v. Gleason.

prudence," is a legal excuse. But we apprehend that lying back of this finding are the questions when and under what circumstances an executor or administrator may properly part with property or evidences of property of the estate? And how far and when is he responsible for the default or misfeasance of the person to whom he intrusts a portion of the property of the estate for a particular purpose? The answer to be given to these questions is important to the defendant, to the orators, to trustees and cesturs que trust generally. So far as we are aware they are now first presented for the decision of this court. We have endeavored to give them the careful consideration which their importance deserves. The defendant held this debt to collect for the estate when due. Persons undertaking to collect debts, as a general proposition are responsible for the negligence, misdoings and defaults of their agents or attorneys, in making the collection and paying over the money. Whart. Neg., §§ 532, n. 6, 753, n. 3; Whart. Agen., §§ 275, 276, 544, n. 6; Floyd v. Nangle, 3 Atk. 568; Whitney v. Mer. U. Ex. Co., 104 Mass. 152; Am. Ex. Co. v. Harse, 21 Ind. 4; Riddle v. Hoffman's Ex., 3 P. & W. (Penn.) 224; Simmans v. Rose, 31 Beav. 1; Bradstreet v. Everson, 72 Penn. St. 124; s. c., 13 Am. Rep. 665, and cases cited in the opinion by AGNEW, J. He clearly shows that collection agencies and attorneys who receive a debt for collection, and who intrust the collection thereof to a sub-agent or another attorney are responsible for the misapplication of the money collected by such sub-agent or other attorney. A distinction is made in the cases between receiving a debt for collection and receiving it to forward for collection. In the latter case he is not responsible, if he has used due diligence, care and prudence in selecting a reliable, skillful and responsible sub-agent or other attorney to whom he forwards the claim for collection. But he must, to exonerate himself, exercise this degree of diligence, care and prudence in making the selection at the time he forwards the claim. 1 Perry on Trusts, states the same doctrine as applicable to trustees and executors, § 441. "But if a trustee employs an agent and the agent steals or appropriates the property intrusted to him, the trustee will be held responsible; that is, the trustee is not responsible for the crimes of strangers, but is responsible for the criminal acts of agents employed by him about the trust fund." Bostock v. Floyer, L. R., 1 Eq. 28; Hapgood v. Perkin, L. R., 11 Eq. 74; Eaves v. Hickson, 30 Beav. 136.

Sec. 444. *

"Or if they (trustees) place their papers