The opinion of the court was delivered by
Redfield, J.
The only question in the'present case is, whether the plaintiff can sustain this action upon the case for an immediate injury, caused by the negligent driving, by the defendant, of his own horse.
There certainly is not the fullest coincidence in the cases upon this subject, nor is it easy, I think, to reconcile all the cases on the subject, either English, or American, which are to be found in the books. This case, however, might be decided by what is said by the-court in Slater v. Baker, 2 Wils. 362, — “That the plaintiff ought to receive a satisfaction for the injury seems to be admitted ; but then it is said, the defendants ought to have been charged as trespassers vi et armis ; the court will not look with eagle’s eyes, to see whether the evidence applies exactly to the case, or not, when they can see the plaintiff has obtained a verdict for such damages, as he deserves ; they will establish such verdict, if it be possible.” Perhaps the rule of practical common sense, of making, as far as can well be done, the mere form of the action bend to the substantial justice of the case, is here stated somewhat boldly, but it Sounds well, and will not be found to vary substantially from the practice of most modern courts.
But we have no doubt the present case comes fully within the most sensible, most numerous and longest standing and most approved authorities upon the subject. It may be true, perhaps, that [610]*610an action of trespass might have been sustained in the present case; but clearly, we think, that is not the only remedy. Trespass and case are concurrent remedies for a great many injuries. Where personal chattels are taken from the owner and converted into money, he may sue the person taking, either in trespass, or trover, (which is trespass on the case,) or he may bring assumpsit for the money. For criminal conversation with the wife, or seduction of the daughter, or servant, or an assault and battery upon a child, or servant, either trespass, or case, will lie, at the election of the husband, parent, or master. And so for many other injuries, which might be named, the party injured has an election of remedies. The rule, we think, is the same in a certain class of cases, involving the same, or a similar subject matter with the present action.
If the injury be wilful and committed by the defendant himself, and the injury immediate, the action must be trespass. Almost all the cases concur in this. So, too, if the injury is immediate, and the defendant positively does any act producing, or increasing, the injury, trespass is the appropriate remedy. But when the only fault of the defendant consists in negligence, is a mere non-feasance, although the injury is immediate, the appropriate remedy is case. The cases will be found, we think, to sustain this view.
But some cases go so far, as to affirm, that, in the last class of cases, and in all casses, where the injury is immediate, the proper action, perhaps the only action, is trespass. Leame v. Bray, 3 East 593, goes upon this ground, but has been often doubted and seems to me to have been decided rather too much upon the ground quoted from Slater v. Baker, to be regarded as much authority for other cases. It is well enough to decide a case upon its own peculiar circumstances, especially when they present a strong equity, as is very often done in the English courts, — much oftner, it would seem, than in this country; but, then, in Westminster Hall such a case is never regarded as of much account, in determining any other case. The courts there, as all courts ought to do, seem to fasten more upon the general current of the authorities, the principle evolved from all the cases, so to speak, than upon the peculiar facts of any particular case. Thus it will be found, that, in that country, the case of Leame v. Bray has not been much regarded, if we except, perhaps, one or two nisi prius cases, decided, soon after that [611]*611case, by Lord Ellenborough, — who doubtless considered himself so far the author of the decision in Leame v. Bray, that he was unwilling to act the part of an unnatural parent, by abandoning it to its fate, without an effort to sustain it. Covell v. Laming, 1 Camp. 497. Lotan v. Cross, 2 Camp. 465. With these exceptions, I do, not find, that any English court or judge, has undertaken much to vindicate the case of Leame v. Bray, or to rescue it from that oblivious disregard, into which it has been constantly falling in that country.
But the effort, in this country, to reconcile all the cases upon that subject, and, in so doing, to follow the case of Leame v. Bray, seems to us to have made rather sad work in one or two instances, at least. Gates v. Miles, 3 Conn. 65, is, indeed, ably argued by the court, and the most is made of the'facts in the case, to defeat the action, but to sustain the verdict below; but it seems to us, that, without the support of Leame v. Bray, and the nisi prius cases cited above, this case of Gates v. Miles, might quite as well have been decided for the plaintiff. It is very probable, that the fact, that the action of trespass was., clearly barred by the statute of limitations induced the court to deny the remedy by an action upon the case. There might have been other facts in the case, which do not appear in the report. The fact, too, that the collision in that case, occurred by the positive act of the defendant, or of his servant, acting in his presence and under his express orders, distinguishes it from the ease now before the court, and from the rule, which we have stated above.
The case of Case et al. v. Macks, 3 Ohio 305, [2 Hammond 169,] is a case not reconcilable with the rule laid down above, nor with any well considered ease, unless it be that of Leame v. Bray, and is opposed, as we think, to the general current of authority on the subject of water navigation. In the case of Day v. Edwards, 5 T. R. 648, stress is laid upon the allegation, that the defendant drove furiously upon the plaintiff’s carriage, as showing that the injury was done, not only by a positive agency of the defendant, but that it was wilful and immediate. Savignac v. Roome, 6 T. R. 125, is a case against the master for the wilful act of the servant, and was decided upon the ground, that the master is not liable at all for the wilful act of his servant, unless it was done by his direction or con[612]*612sent, and, in that case, that he is liable to the same action with the servant, — which must be trespass, the act being both positive and wilful, and the injury immediate.
The case of Ogle v. Barnes, 8 T. R. 188, decides, that “ If A. wilfully run his vessel against B’s and damage ensue, B. may bring trespass; but, if A. so negligently steer his vessel, that it run foul of B’s, then case is the proper action.” This case seems fully to justify the present action. Tripe v. Potter, cited in the opinion in this case and in 6 T. R. 128, goes upon the same ground. Rogers v.
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The opinion of the court was delivered by
Redfield, J.
The only question in the'present case is, whether the plaintiff can sustain this action upon the case for an immediate injury, caused by the negligent driving, by the defendant, of his own horse.
There certainly is not the fullest coincidence in the cases upon this subject, nor is it easy, I think, to reconcile all the cases on the subject, either English, or American, which are to be found in the books. This case, however, might be decided by what is said by the-court in Slater v. Baker, 2 Wils. 362, — “That the plaintiff ought to receive a satisfaction for the injury seems to be admitted ; but then it is said, the defendants ought to have been charged as trespassers vi et armis ; the court will not look with eagle’s eyes, to see whether the evidence applies exactly to the case, or not, when they can see the plaintiff has obtained a verdict for such damages, as he deserves ; they will establish such verdict, if it be possible.” Perhaps the rule of practical common sense, of making, as far as can well be done, the mere form of the action bend to the substantial justice of the case, is here stated somewhat boldly, but it Sounds well, and will not be found to vary substantially from the practice of most modern courts.
But we have no doubt the present case comes fully within the most sensible, most numerous and longest standing and most approved authorities upon the subject. It may be true, perhaps, that [610]*610an action of trespass might have been sustained in the present case; but clearly, we think, that is not the only remedy. Trespass and case are concurrent remedies for a great many injuries. Where personal chattels are taken from the owner and converted into money, he may sue the person taking, either in trespass, or trover, (which is trespass on the case,) or he may bring assumpsit for the money. For criminal conversation with the wife, or seduction of the daughter, or servant, or an assault and battery upon a child, or servant, either trespass, or case, will lie, at the election of the husband, parent, or master. And so for many other injuries, which might be named, the party injured has an election of remedies. The rule, we think, is the same in a certain class of cases, involving the same, or a similar subject matter with the present action.
If the injury be wilful and committed by the defendant himself, and the injury immediate, the action must be trespass. Almost all the cases concur in this. So, too, if the injury is immediate, and the defendant positively does any act producing, or increasing, the injury, trespass is the appropriate remedy. But when the only fault of the defendant consists in negligence, is a mere non-feasance, although the injury is immediate, the appropriate remedy is case. The cases will be found, we think, to sustain this view.
But some cases go so far, as to affirm, that, in the last class of cases, and in all casses, where the injury is immediate, the proper action, perhaps the only action, is trespass. Leame v. Bray, 3 East 593, goes upon this ground, but has been often doubted and seems to me to have been decided rather too much upon the ground quoted from Slater v. Baker, to be regarded as much authority for other cases. It is well enough to decide a case upon its own peculiar circumstances, especially when they present a strong equity, as is very often done in the English courts, — much oftner, it would seem, than in this country; but, then, in Westminster Hall such a case is never regarded as of much account, in determining any other case. The courts there, as all courts ought to do, seem to fasten more upon the general current of the authorities, the principle evolved from all the cases, so to speak, than upon the peculiar facts of any particular case. Thus it will be found, that, in that country, the case of Leame v. Bray has not been much regarded, if we except, perhaps, one or two nisi prius cases, decided, soon after that [611]*611case, by Lord Ellenborough, — who doubtless considered himself so far the author of the decision in Leame v. Bray, that he was unwilling to act the part of an unnatural parent, by abandoning it to its fate, without an effort to sustain it. Covell v. Laming, 1 Camp. 497. Lotan v. Cross, 2 Camp. 465. With these exceptions, I do, not find, that any English court or judge, has undertaken much to vindicate the case of Leame v. Bray, or to rescue it from that oblivious disregard, into which it has been constantly falling in that country.
But the effort, in this country, to reconcile all the cases upon that subject, and, in so doing, to follow the case of Leame v. Bray, seems to us to have made rather sad work in one or two instances, at least. Gates v. Miles, 3 Conn. 65, is, indeed, ably argued by the court, and the most is made of the'facts in the case, to defeat the action, but to sustain the verdict below; but it seems to us, that, without the support of Leame v. Bray, and the nisi prius cases cited above, this case of Gates v. Miles, might quite as well have been decided for the plaintiff. It is very probable, that the fact, that the action of trespass was., clearly barred by the statute of limitations induced the court to deny the remedy by an action upon the case. There might have been other facts in the case, which do not appear in the report. The fact, too, that the collision in that case, occurred by the positive act of the defendant, or of his servant, acting in his presence and under his express orders, distinguishes it from the ease now before the court, and from the rule, which we have stated above.
The case of Case et al. v. Macks, 3 Ohio 305, [2 Hammond 169,] is a case not reconcilable with the rule laid down above, nor with any well considered ease, unless it be that of Leame v. Bray, and is opposed, as we think, to the general current of authority on the subject of water navigation. In the case of Day v. Edwards, 5 T. R. 648, stress is laid upon the allegation, that the defendant drove furiously upon the plaintiff’s carriage, as showing that the injury was done, not only by a positive agency of the defendant, but that it was wilful and immediate. Savignac v. Roome, 6 T. R. 125, is a case against the master for the wilful act of the servant, and was decided upon the ground, that the master is not liable at all for the wilful act of his servant, unless it was done by his direction or con[612]*612sent, and, in that case, that he is liable to the same action with the servant, — which must be trespass, the act being both positive and wilful, and the injury immediate.
The case of Ogle v. Barnes, 8 T. R. 188, decides, that “ If A. wilfully run his vessel against B’s and damage ensue, B. may bring trespass; but, if A. so negligently steer his vessel, that it run foul of B’s, then case is the proper action.” This case seems fully to justify the present action. Tripe v. Potter, cited in the opinion in this case and in 6 T. R. 128, goes upon the same ground. Rogers v. Imbleton, 5 B. & P. 117, is almost identical with the case now before us, and the court held, without doubt, that case is the proper remedy, and wholly disregard the case of Leame v. Bray, as an authority. Huggett v. Montgomery, 5 B. & P. 446, is similar, in principle, to the case of Savignac v. Roome, cited above. Morley v. Gaisford, 2 H. Bl. 442, is also a similar case. The cases all agree, I believe, that no action of trespass can be maintained against the master, for any act of his servant, unless the servant acts by his consent, either express or implied, and that, if the master, in other cases, is liable at all for the wilful acts of his servant, which causes immediate injury to the plaintiff, the action must be trespass on the case against the master, although trespass lies against the servant.
The case of Turner v. Hawlkins, 1 B. & P. 472, is a case decided in the exchequer chamber, and seems to us to put this subject upon its true ground, that, where the wrong complained of is a mere nonfeasance, the appropriate remedy is case, but that trespass will also lie, perhaps, where the injury is immediate. Moreton v. Hordern et al., 4 B. & C. 223, [10 E. C. L. 316,] is a case fully sustaining the same view, and withall, a very elaborate and well considered case. It decides, that case is the proper remedy for an injury resulting from the defendant’s own negligence in driving his coach upon the plaintiff’s carriage, although the injury is immediate. Opinion of Littledale, J. See, also, here, the review of all the cases, upon this subject, by Bayley, J. Williams v. Holland, 10 Bing. 112, [25 E. C. L. 50,] fully affirms the view we have just taken of More-ton v. Hardern et al., and is a case learnedly and ably discussed, both by court and counsel; and it decides, “that, when injury is ■occasioned by the carelessness and negligence of the defendant, the [613]*613plaintiff is at liberty to bring an action on the case, notwithstanding the act be immediate so long as it is not a wilful act.” We have thus examined the English cases as far, perhaps, as will be profitable. It will be seen, that they fully justify the present action.
The American cases upon this subject are numerous, and many of them, and those most reliable, as a fair exposition of the common law, seem to us to sustain the view we have here taken of the law upon this subject. They will be found extensively collected and collated in a note to Scott v. Shepherd, 1 Smith’s Leading Cases 329.
Judgment affirmed.