Cases on Principal and Agent, and Master and Servant : Selected from Decisions of English and American Courts / by Edwin C. Godd

Ch. 5) LIABILITY or CONSTITUENT TO THIRD mason 69? //'7' '..

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SECTION 2.—IN TORT ..-. .5

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MICHELL v. ALLESTRY. .‘,,_

(Court of King's Bench, 1676. 3 Keble, 650.) 714 ' Simson excepted in arrest of judgment, in act. upon the case for ~ bringing horses wild to tame in Little Lincolnﬁelds, being an open pub ' lick place where people are all the day passing and repassing, because c'I its not said to be any high-way, nor said that the defendant knew them to be wild, nor was there negligence in the coachman, who was thrown '.> -".2 out and hurt; but by Saunders an action upon the case well lay, as by ')J'G Smith of Westminster, for not pinning an ox, but setting a dog on him, whereby he ran into pallas-yard and hurt him; so where a monky escaped and did hurt, by default of the owner; & per Curiam, Its at peril of the owner to take strength enough to order them, and the mas is ter is as lyable as the servant if he gave order for it, and the action

generally for bringing them thither, which is intended personal, and judgment for the plaintiff.”

JONES v. HART."

(Court of King's Bench, 1699. Holt, 642.)

A servant to a pawn-broker took in goods, and the party came and tendered the money to the servant, who said he had lost the goods. Upon this, action of trover was brought against the master; and the

question was. whether it would lie or not? HOLT, action well lies in this case. the servants of A. C. I. The If

with his cart run against another cart, wherein is a pipe of wine, and overturn the cart and spoil the wine, an action lieth against A. So a where a carter’s servant runs his cart over boy, action lies against is the master for the damage done by this negligence: and so it if is a smith’s man pricks horse in shoeing, the master liable. For a

whoever employs another, is answerable for him, and undertakes for his care to all that make use of him.

The act of a servant is the act of his master, where he acts by au thority of the master.

95 See the interesting view of this case by Mr. Justice Holmes in 4 Harv. Law Rev. 35-i.

=6 Accord: Turberville v. Stampe, 1 Ld. Raym. 264 (1698); Barwiek V.

English Joint-Stock Bank, L. R. 2 Exch. 259 (1857). 698 EFFECTS AND CONSEQUENCES on mm RELATION (Part 3

SIR ROBERT WAYLAND’S CASE.

(Court of King's Bench, 1702. 3 Salk. 234-)

He‘ used to give his servant money every Saturday to defray the charges of the foregoing week, the servant kept the money; yet per HOLT, Chief Justice, the master is chargeable, for the master at his peril ought to take care what servant he employs; and it is more rea sonable, that he should suifer for the cheats of his servant than stran gers and tradesmen; so if a smith’s man pricks my horse, the master is liable. Q -2-?

HERN v. NICHOLS."

(Court of King's Bench at Nisi Prlus, 1708. 1 Salk. 289.)

In an action on the case for a deceit, the plaintiff set forth, that he bought several parcels of silk for silk, whereas\it was another kind of silk; and that the defendant, well knowing this deceit, sold it to him for silk. On trial, upon not guilty, it appeared that there was no actual deceit in the defendant who was the merchant, but that it was in his factor beyond sea. And the doubt was, If this deceit could charge the merchant? And HOLT, C. ]., was of opinion, that the merchant was answerable for the deceit of his factor, though not criminaliter, yet civiliter; for seeing somebody must be a loser by this deceit, it is more reason that he that employs and puts a trust and conﬁdence in the deceiver should be a loser, than a. stranger. And upon this opinion the plaintiff had a verdict.

M‘MANUS v. CRICKETT.

(Court of King’s Bench. 1800. 1 East, 105.)

This case was very much discussed at the bar, upon a motion to set aside a verdict for the plaintiff and enter a nonsuit, by Gibbs and \Vood, against the rule, and Garrow and Giles in support of it. The Court took time to consider of their judgment; and afterwards en tered so fully into the cases cited and the arguments urged at the bar, that it is unnecessary to detail them in the usual form. LORD KENYON, C. ]., now delivered the unanimous opinion of the Court. This is an action of trespass. in which the declaration charges that the defendant with force and arms drove a certain chariot against a chaise in which the plaintiff was riding in the king’s highway, by

27 Mr. Justice Holmes, in 5 Harv. Law Rev. 8. considers that, though this is a case of agency, it was treated as one of master and servant, and as such it is always cited. Does it ‘matter which it is? ' Ch. 5) LIABILITY or CONSTITUENT TO THIRD PERSON 699

which the plaintiff was thrown from his chaise and greatly hurt. At the trial, it appeared in evidence that one Brown, a servant of the defendant, willfully drove the chariot against the plaintiffs chaise, but that the defendant was not himself present, nor did he in any manner direct or assent to the act of the servant, and the question is, if for this willful and designed act of the servant an action of trespass lies against the defendant his master? As this is a question of very gen eral extent, and as cases were cited at the b_ar, where verdicts had been obtained against masters for the misconduct of their servants under similar circumstances, we were desirous of looking into the au thorities on the subject before we gave our opinion; and after an examination of all that we could ﬁnd as to t-his point, we think that this action cannot be maintained. It is a question of very general con cern, and has been often canvassed; but I hope at last it will be at rest. It is said in Bro. Abr. tit. Trespass, pl. 435. “If my servant, contrary to my will, chase my beasts into the soil of another, I shall not be punished.” And in 2 Roll. Abr. 553. “If my servant, without my notice, put my beasts into another's land, my servant is the tres passer, and not I; because by the voluntary putting of the beasts there without my assent, he gains a special property for the time, and so to this purpose they are his beasts.” I have looked into the corre spondent part in Vin. Abr. and as he has not produced any case con trary to this, I am satisﬁed with the authority of it. And in Noy’s Maxims. c. 44. “If I command my servant to distrain, and he ride on the distress, he shall be punished, not I.” And it is laid down by Holt, C. ]., in Middleton v. Fowler, Salk. 282. as a general position, “that no, master is chargeable with the acts of his servant but when he acts in the execution of the authority given him.” Now when a servant quits sight of the object for which he is employed, and without having in view his master's orders pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and according to the doctrine of Lord Holt his master will not be an swerable for such act. Such upon the evidence was the present case: and the technical reason in 2 Roll. Abr. with respect to the sheep applies here; and it may be said, that the servant by willfully driving the chariot against the plaintiffs chaise without his master's assent gained a special property for the time, and so to that purpose the chariot was ‘ the servant's. This doctrine does not at all militate with the cases in which a mas ter has been holden liable for the mischief arising from the negli gence or unskillfulness of his servant who had no purpose but the execution of his master’s orders; but the form of those actions proves that this action of trespass cannot be maintained: for if it can be sup ported, it must be upon the ground that in trespass all are principals; but the form of those actions shews, that where the servant is in point of law a trespasser, the master is not chargeable as such, though liable to make a compensation for the damage consequential from his 700 nrrntrrs AND consnounncns or TIIE RELATION (Part 3 employing of an unskillful or negligent servant. The act of the master is the employment of the servant; but from that no immediate preju dice arises to those who may suffer from some subsequent act of the servant. If this were otherwise the plaintiffs in the casesmentioned in 1 Lord Raym. 739 (one where the servants of a carman through negligence ran over a boy in the streets and maimed him: and the other, where the servants of A. with his cart ran against the cart of it, B. and overturned by which a pipe of wine was spilled); must have been nonsuited from their mistaking the proper form of action, in bringing an action upon the case, instead of an action of trespass;

for there is no doubt of the servants in those cases being liable as tres it passers, even though they intended no mischief; for which, if were necessary, Weaver v. \Vard in Hobart, 134, and Dickinson v. Watson in Sir Thomas Jones, 205, are authorities.

But it must not be inferred from this, that in all cases where an

action is brought against the servant for improperly conducting his master’s carriage, by which mischief happens to another, the action

must be trespass. Michael v. Allestree in 2 Levinz, 172, where an action on the case was brought against a man and his servant for breaking a pair of horses in Lincoln’s Inn Fields, where being un manageable they ran away with the carriage and hurt the plain-tiff’s

wife, is an instance to show that trespass on the case may be the proper

form of action. A-nd upon a distinction between those cases where the mischief immediately proceeds from something in which the de is fendant himself active, and where it may arise from the neglect or other misconduct of the party, but not immediately, and which per

haps may amount only to a non—feasance, we held in Ogle v. Barnes, 8 Term Rep. 188, that the plaintiff was entitled to recover.

The case of Savignac and Roome, 6 Term Rep. 125, which was much pressed as supporting this action, came before the court on a motion in arrest of judgment; and the only question decided by the

court was, that the plaintiff could not have judgment, as it appeared that he had brought an action on the case for that which in law was

a trespass; for the declaration there stated, that the defendantby his servant willfully drove his coach against the plaintiff’s chaise. Day v. Edwards,'5 Term Rep. 648, was also mentioned; which was an action on the case, in whic_h the declaration charged the defendant personally with furiously and negligently driving his cart, that by and through the furious, negligent and improper conduct of the defendant the said cart was driven and struck againstithe plaintiff's carriage: and on demurrer the court were of opinion, that the fact complained of was

a trespass. And in the last case that was mentioned of Brucker v.

Froment, 6 Term Rep. 659, the only point agitated was, VVhether evi

dence of the defendant's servant having negligently managed a cart supported the declaration, which imputed that negligence to the de

fendant: and the court with reluctance held that it did, ‘on the au thority of a precedent in Lord Raymond’s Reports, 264, of Turberville rump ' Ch.'5) A LIABILITY or CONSTITUENT TO PERSON 701

and Stamp. In none of these cases was the point now in question de cided; and those determinations do not contradict the opinion we now entertain, which is, that the plaintiff cannot recover, and that a nonsuit must be' entered. PER CURIAM. Rule absolute for entering a nonsuit."

MOTT v. CONSUMERS’ ICE CO.

(Court of Appeals of New York, 1878. 73 N. Y. 543.)

Appeal from a nonsuit in an action to recover damages sustained by the careless driving of defendant’s ice cart against plaintiﬂ"s car riage. ALLEN, J. The injury complained of was committed by a servant of the defendant, and the sole question is, whether there was evi dence for the jury that the act of the servant was one for which the master was responsible. The responsibility of the master for the acts of a servant rests upon the express or implied authorization of the act by the master who in the employment of another to act for him, as sumes all the risks of a wrongful execution of his duties. The general principles by which the liability of the master to respond for the conse quences of the wrongful acts of his servant are tested, have in their frequent discussion by the courts of late become quite familiar, and the

only difficulty has been, and is, to apply them to the different circum stances under which the question arises. The rule recognized in all the recent cases, and which does not materially conﬂict with any of the

older decisions, although it may qualify some of the intimations and

casual expressions or illustrations of the judges, is that for the acts of the servant, within the general scope of his employment, while en

gaged in his master's business, and done with a view to the furtherance of that business and the master’s interest, the master will be responsible,

23 Followed in some early cases in the United States: Foster v. President, etc., of Essex Bank, 17 Mass. 479, 9 Am. Dec. 168 (1821): Ware v. Barataria

& Lafourche Canal Co.. 15 La. 169, 35 Am. Dec. 199 (18-10), with extensive note; Cox v. Keahey, 36 Ala. 340. 76 Am. Dec. 325 (1860) ; Wright v. Wilcox, 19 W'end. 343, 32 Am. Dec. 507 (1838). See, contra, Richberger v. Am. Exp. Co.. 73 Miss. 161, 18 South. 922, 31 L. R. A. 390, 55 Am. St. Rep. 522 (1896), and cases cited. In England the rule of McManus v. Grlckett has been much modiﬁed. Lim ' pus v, London General Omnibus Co., 1 H. & C. 526 (1862). But compare Ers

kine, J., in Sleath v. VVilson, 9 C. & P. 607 (1839), with Cockburn, G. J., in

Storey v. Ashton, L. R. 4 Q. B. 476 (1869). See, also, Citizens‘ Life Assurance

Co. v. Brown, [1904] App. Cas. 423, in which the servant published a libel against a third person. Many American cases express dissatisfaction with

'McManus v. Ci-lckett. See Gilliam v. So. & N0. Ala. R. Co., 70 Ala. 268 (1881), and Holler v. P. Sanford Ross.,6S N. J. Law, 324, 53 Atl. 472, 59 L. R. A. 943, 96 Am, St. Rep. 546 (1902), in which the court held, however, that the exten sion of the rule should be kept in strict limits. 702 mrrscrs AND consmotmncms or ran RELATION (Part 3 whether the act be done negligently, wantonly or even willfully. In general terms, if the servant misconducts himself in the course of his employment, his acts are the acts of the master, who must answer for them. There are intimations in several cases of authority that for the willful acts of the servant the master is not responsible. McManus v. Crickett, l East, 106; Hibbard v. N. Y. 8: E. R. Co., 15 N. Y. 455; VVright v. \Vilcox, 19 VV end. 343, 32 Am. Dec. 507. But these intimations are subject to the material qualiﬁcation, that the acts designated “willful,” are not done in the course of the service, and were not such as the servant intended and believed to be. for the interest of the master. In such case the master would not be excused from liability by reason of the quality of the act. Limpus v. London Gen’l Omnibus Co., 1 H. & C. 526; Seymour v. Greenwood, 6 H. & N. 359, aﬁirmed 7 H. & N. 355; Shea v. Sixth Ave. R. Co., 62 N. Y. 180, 20 Am. Rep. 480; ]ackson v. Second Ave. R. Co., 47 N. Y. 274, 7 Am. Rep. 448. But if a servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly commits a trespass, or causes damage to another, the master is not responsible; so that the inquiry is whether the wrongful act is in the course of the employment, or out it, sideof and to accomplish a purpose foreign to it. In the latter case the relation of master and servant does not exist so as to hold the

master for the act. Croft v. Alison, 4 B. & Ald. 590; \Vright v. VVil

cox, supra; Vanderbilt v. Richmond Turnpike Co., 2 N. Y. 479, 51 Am. Dec. 315; Mali v. Lord, 39 N. Y. 381, 100 Am. Dec. 448; Fraser

v. Freeman, 43 N. Y. 566, 3 Am. Rep. 740; Higgins v. \Vatervliet T. 7 Co., 46 N. Y. 23, Am. Rep. 293; Rounds v. D., L. & VV. R. Co., 64 N. Y. 129, 21 Am. Rep. 597; Isaacs v. Third Ave. R. Co., 47 N. Y.

122, 7 Am. Rep. 418. The latter case has been questioned, not for the reason that an er roneous rule of law was adjudged, but upon the ground that the case was supposed not to be within the operation of the rules which were

there held applicable to the facts of it. It was doubtless a border case, and may seem to infringe upon some of the other reported cases; but the true test of liability of masters for the acts of servants was recog nized and aﬁirmed in that case, and whatever dissent there may be from the judgment, by reason of a difference of opinion upon the facts, the case cannot be regarded as seeking to overrule, qualify or in any respect change the doctrines of any well-considered case. The court there held the act of the conductor of the cars wholly illegal, and entirely inde

pendent of his employment by the defendant, and outside of it, and that

it was not committed in the performance of his duty to the defendant.

It was decided upon the authority of Vanderbilt v. Richmond T. Co., and kindred cases. That case. and Limpus v. Omnibus Co., supra, are not unlike in circumstances, but in the one the master was held, and in the other excused from liability for the consequences of the servant's \

Ch. 5) LIABILITY or CONSTITUENT T0 THIRD PERSON 703 acts; but the harmony of the law is in no degree disturbed by a seem ing inconsistency of the two cases. At the time of the collision with the plaintiff the driver of the ice cart was in the actual service and employ of the defendant, and in the act of driving through the streets of _the city, and at that time and place was in the course of his employment and the performance of his duties to his employer. He was, in passing through Fourth avenue with his ice cart, within the scope of the express authority conferred upon him and in the performance of the precise service for which he was em ployed. The evidence would have authorized the jury to ﬁnd that the collision with and consequent injury to the plaintiff was the result of the careless and reckless driving of the defendant’s servant, and was therefore an act for which the defendant was directly responsible, unless the fact was proved to the satisfaction of the jury that the servant willfully and maliciously, and to effect some purpose of his own outside of his employment, committed the injury; in other words, that at the time of the injury, and in the act of its commission, the relation of master and servant did not exist; and to sustain the nonsuit the evidence must have been so conclusive that the jury could not have found a verdict for the plaintiff. The only evidence other than of the fact that the servant drove the ice cart at an unusual speed through the street, and negligently against the carriage of the plaintiff, was upon the cross-examination of the plaintiff’s servant who was by his side in the carriage, who after stating facts tending to show gross careless ness on the part of the defendant’s driver, in answer to the question: “Then he drove into you purposely?” answered: “It seems so; it looks like it; I could make nothing else of it ;” which was followed by this other question: “He must have turned right into you then, and there is no other way unless it is dpne purposely,” to which the answer was, “'Well, I could not tel1.” At most, and leaving out of view the answer to the last interrogatory, it was but the expression of an opinion by the witness that the colli sion was intentional or willful, which was a fact to be determined by the jury and not by the witness, and did not, as an opinion, go to the other material fact, that it was or was not committed in the icourse of the employment of the driver, and to gratify some personal malice or to accomplish some purpose of his own. But as the opinion of the witness its whole effect was destroyed by the answer to the last ques tion, that he could not tell whether the act was intentional or merely negligent. The whole evidence of the witness only tended to show gross carelessness on the part of the driver of the ice cart, and that was the most that the witness intended by the answer to either ques tion. Vi/hen the defense is that the wrongful act was not within the general scope of the servant’s employment, and so,_not within the ex press or implied authorization of the master, it is for the court to pass upon the competency of evidence and for the jury to give effect to it. 704 armors am) coxsrzousxcrzs or THE RELATION (Part 3

Seymour v. Greenwood, supra; Courtney v. Baker, 60 N. Y. 1 ; ]ack son v. Second Ave. R. Co., supra; Rounds v. D., L. & W. R. Co., supra. It was error to take the question from the jury. Stress is laid upon the original answer of the defendant, put in evi dence for some unexplained and incomprehensible purpose by the plaintiff, and by which it is now urged the plaintiff is estopped. The admissions of the answer were not necessary to prove the relation be tween the defendant and the driver of the ice cart, and that the latter was in the service of the former, as that had been admitted upon the trial, and the further allegation that the servant “willfully, and not negligently nor carelessly, drove said ice cart against the carriage of said plaintiff, and caused some injury thereto,” is the statement relied upon when used by the plaintiff as estopping him from claiming that the act was one for which the defendant was responsible. Ordinarily a party is not bound by the admission of his adversary, of which he gives evidence, but is at liberty to use it so far as it makes in his favor, and to disprove the residue——that is, he is not estopped by it. The fact that the admission is in a pleading does not change its char-acter or ' ' create an estoppel. The answer admitted the injury, and it was for the jury, upon the evidence, to say whether the true cause was assigned by the answer. But the answer does not exclude all presumption of liability on the part of the master, and therefore did not preclude a recovery by the plaintiff. The act may have been “willful,” and yet committed in the course of the employment, and within the authority of the defendant, and the contrary is not averred as it should have been in order fully to defend the action and exclude all presumption of liability. Shea v. Sixth Ave. R. Co., supra; Seymour v. Greenwood, supra; Limpus v. London Genl. Omnibus Co., supra; Weed v. Panama R. Co., 17 N. Y. 362, 72 Am. Dec. 474; Sanford v. Eighth Ave. R. Co., 23 N. Y. 343, 80 Am. Dec. 286. It is not made to appear by the answer that the servant committed the act wholly for a purpose of his own, disregarding the object for which he was employed, and not intending by the wrong ful act.to execute it. It is consistent with the answer that the act was done in the execution of the authorityggiven him, and for the purpose of performing the directions of the defendant. There was clearly no estoppel, and there was evidence taken in connection with the answer upon which the jury might have found that the act was a negligent or even a reckless act, in the course of the employment of the servant, and one for which the defendant was responsible. The answer did not conclude the plaintiff, and the case was one for the jury. The judgment must be reversed and a new trial granted. All concur, Judgment reversed. \

rump Ch. 5) LIABILITY or consrrrunm cro ransom 705

FLEISCHNER v. DURGIN.”

(Supreme Judicial Court of Massachusetts, 1911. 207 Mass. 435, 93 N. E. '801, 33 L. R. A. [N. S.] 79, 20 Ann. C218. 1291.)

Action by Otto Fleischner against Charles E. Durgin. Verdict for defendant, and plaintiff brings exceptions. Exceptions overruled. Rooo, J. The plaintiff while in the exercise of due care and travel ing on Dartmouth street opposite the Public Library in Boston was injured by the negligence of one Freeman, who was driving the defend ant’s motor car. Freeman was not in the general employ of the defend ant, but on the day in question had been asked by him to drive the car from the Stevens garage in the town of Brookline to the shop of one Burlingame, also in Brookline and less than a mile away, for some re pair. Later in the day Freeman took the car, drove ﬁrst to Coolidge Corner, a square in Brookline, not on the way to the Burlingame shop, where he had lunch. Then with a friend he drove the car about six miles further out of the way from the garage to the Burlingame shop to a shop in Boston for the purpose of getting a chain for his own uses. He had started to return to Brookline and was bound for the Burlin game shop when the accident occurred. The defendant gave no direc tions to go to Coolidge Corner or to Boston, and this ride was taken without his knowledge. Freeman had worked at the Stevens garage where the defendant kept his motor car, and once before had driven it to Boston, but under what circumstances does not appear. The principles which govern the rights of the parties are settled. The master is liable for the act of a servant in charge of his vehicle when the latter is acting in the main with the master’s express or im plied authority, upon his business and in the course of the employment for the purpose of doing the work for which he is engaged. The master is not liable if the servant has abandoned his obligations, and is doing something not in compliance with the express or implied authority given, and is not acting in pursuance of the general purpose of his occupation or in connection with the doing of the master’s work. Under this rule the employer has been held responsible for. wrongs done to third persons by his driver during incidental departures from the scope of the authority conferred by the employment and upon com paratively insigniﬁcant deviations from direct routes of travel, but within the general penumbra of the duty for which he is engaged. Hayes v. Wilkins, 194 Mass. 223, 80 N. E. 449, 9 L. R. A. (N. S.) 1033, 120 Am.‘ St. Rep. 549.

2° Compare Hayes v. Wilkins, 194 Mass. 228, 80 N. E, 449, 9 L. R. A. (.\'. S.) 1033. 120 Am. St. Rep. 549 (1907), in which the deviation by the servant was slight; Storey v. Ashton, L. R. 4 Q. B. 476 (1869), per Cockburu, C. J.; Rich berger v. Am. Exp. Co., 73 Miss. 161, 18 South. 922, 31 L. R. A. 390, 55 Am. St. Rep. 522 (1895), overruling earlier Mississippi cases. Gonn.Pa.& A. (20 En.)—45 706 , EFFECTS AND cousmounncas or THE RELATION (Part 3

The employment of Freeman was limited to a speciﬁc and short trip within a town. He took the car several miles out of the way, which a crowded was six or seven times as far asihe ‘had a right to go, to part of a large city on an errand wholly of his own, and had only just commenced to return at the time the act occurred for which dam ages are sought in this action. He was acting in disregard of his in structions, and wholly outside his employment, and for a purpose hav ing no relation even remote to the business of the master. The extent of the excursion which he undertook on his own account was so dispro portionate to the length of the route he was authorized to go that it cannot be minimized to a deviation. It was in fact the chief journey. There is nothing to indicate that the defendant had any hint or ground for suspicion of this unwarranted use of his property. Under such circumstances he cannot be held liable. McCarthy v. Timmins, 178 Mass. 378, 59 N. E. 1038, 86 Am. St. Rep. 490; Storey v. Ashton, L. R. 4 Q. B. 476; Mitcliell v. Crassweller, 13 C.'B. 237. Exceptions overruled. ii. HIGBEE CO. v. JACKSON.

(Supreme Court of Ohio, 1920. 101 Ohio st. 15. 12s N. E. 61, 14 A. L. R. 131.)

JOHNSON, ].“° Under the circumstances of this case, was the in jured infant entitled to invoke the rule respondeat superior? The answer to this question disposes of the entire case. The trial court having sustained the motion for a directed verdict at the close of plaintiffs testimony, it is elementary that every material fact which plaintiﬁ”s evidence tended to prove must be taken as proven. The essential facts shown are that the driver of the defendant’s truck, who was accompanied by a helper, was driving westerly in Euclid avenue about 7 :30 in the evening. He had made his last delivery, and in obedience to instructions from the company was then taking the truck by direct route to the garage, to be stored for the night. At a crossing of the avenue, known as “Quarry Track,” plaintiff and a companion asked permission to ride, which the driver gave them. This was in violation of the driver’s express instructions. They got on the running board; the plaintiff standing near the driver, on the left side, holding onto the windshield and seat. While in this position the driver increased the speed of the truck to some 35 miles an hour. He over took a touring car ahead of him, which had passed him a short time before, going in the same direction. Without slacking his speed he turned his truck onto the wrong side, the south side, of the road, di rectly in the course of and meeting a horse and wagon, which was be

80 The statement of facts. part of the opinions of Johnson and Jones, JJ., and the concurring opinion of Wanamaker, J ., are omitted. ~i GonD.Pa.&. A.(2n En.) Ch. 5) LIABILITY or CONSTITUENT TO THIRD PERSON 707 ing driven easterly. The horse and wagon were rightfully and properly near the curb on the south side. The truck struck and crushed the wagon, caught and jammed the boy, and seriously injured him. The speed of the truck and its position on the street are conceded to have been in violation of statute and of an ordinance of the city. The doctrine of respondeat superior had its origin in considerations of public policy. Out of the necessities of new social and economic conditions it has been developed and extended; and its growth and application have been inﬂuenced and directed by these conditions. The rule itself, and its development, is an example of the process by which the judgment of society as to what is necessary to the public welfare has from time to time been expressed in juristic forms. In the early times some authorities expressed doubt as to whether it could be in voked against corporations, and for a long time its proper application in cases of willful, malicious, or wanton injury was denied. But in the presence of the requirements of the countless activities and changed methods in modern these limitations are no asserted, enterprises longer i and have not been for many years. It is a fundamental principle that, in order to create a liability in a principal for the acts of an agent, the acts complained of must have been committed while the servant was acting within the scope of his employment. It must be shown, ﬁrst, that the agent was at the time engaged in serving his principal; second, that the act complained of was within the scope of the agent’s employment; and, even if this is shown, it must also appear that the agent, in doing the act complained of, violated some duty that the defendant owed to the plaintiff at the time. The law holds the master for what the servant does or omits in conducting the master's business, because the master has voluntarily .substituted the management and supervision of the servant for his own. For the purpose of this hearing plaintiff in error concedes that the driver of its truck, while taking it to the garage in obedience to instruc tions, violated the statute and the ordinance of the city in the manner set forth; that his conduct was willful and wanton, and was the cause of the collision with the horse and wagon. But plaintiff in error con tends that when the driver gave permission to the boys to ride on the truck he stepped outside the scope of his employment, and completely severed the relationship of principal and agent so far as the plaintiff is concerned, and that anything he did thereafter, so far as the plaintiff is concerned, would in no way create a liability upon the principal, though the acts were negligent or willful. No defense is made for the conduct of the driver in connection with the entire matter. But the company contends that in granting permis sion to the boys to ride he had no authority to do so. That is conceded. The grant of permission, so far as the company is concerned, was a mere nullity. The violation by the driver of his instructions in this respect affected the right of the plaintiff to be upon the truck. The 708 armors AND consnounncns or THE RELATION (Part 3

most that can be said is that he had no such right, and that when he got upon the truck he was a trespasser, so far as the defendant company was concerned. But if it beconceded that he was on the truck as a tres passer, it must also be conceded that he was entitled to the rights of a trespasser. . After that situation was created, and while it existed, if the

driver, with full knowledge of it, acting in the course ofhis employ ment and within the scope of his employment, was guilty of willful and wanton conduct, which was the proximate cause of injury to the

plaintiff, the defendant is liable. Now, were the willful and wanton acts of the driver done within the course of his employment and within the scope thereof? Let us

test it with reference to the owner of the horse and wagon. The driver, taking the truck over the direct route to the garage in obedience

to instructions, runs it in violation of the statute and of the ordinance, and collides with and injures the horse and wagon, whose driver was without fault. We apprehend there would be no question that the company would be liable to the owner of the horse and wagon. Why? Because the driver, while in the scope of his employment, violated a duty which the company owed to the owner of the wagon; that is, the duty to exercise ordinary care to avoid injuring his property. No one would say that the fact that the company had instructed the driver to exercise ordinary care, and not to operate the truck in violation of law it it (if had done so), would relieve of liability. Such a view would nullify the rule of respondeat superior. is So here, while the plaintiff upon the truck as a trespasser, with

the rights of a trespasser, the same wanton and willful conduct, the

same violation of the statute and the ordinance, is the proximate cause ‘ of his injury. The difference between the two is that in' the case of the owner of the wagon the defendant had the afﬁnmative duty to exercise ordinary care to avoid injury to him and his property, while as to the plaintiff trespasser the defendant had the negative duty not to injure

him by its wanton and willful conduct. In Cleveland Terminal & Valley Rd. Co. v. Marsh, 63 Ohio St. Z36, at page 245, 58 N. E. 821, it is at page 824 (52 L. R. A. 142), said: “A trespasser who is upon the company's premises wrongfully, and a mere volunteer, stands upon substantially the same footing, and are entitled to recover only for such negligence as occurs after the servants of the company discover their perilous situation; that is, for willful or intentional injury.”

In B. & O. S. W. Ry. Co. v. Cox, Adm’x, 66 Ohio St. 276, 64 N.

E. 119, 9O Am. St. Rep. 583, it is held in the syllabus: “An action to recover for an injury occasioned by negligence, the element of willful ness being absent, will not lie, unless there exists between the defendant a and the person injured relation out of which there arises a duty of the former to exercise care toward the latter.” These and other Ohio cases are merely the statement of a rule everywhere approved. See Ch. 5) LIABILITY or CONSTITUENT T0 THIRD PERSON 709

Powers v. Harlow, 53 Mich. 507, 19 N. NV. 257, 51 Am. Rep, 154, per Judge Cooley. Quite a number of authorities are cited by the plaintiff in error in which recovery was denied, but an examination of them discloses that none of them rested the claim of liability on the willful and wanton conduct of the defendant. The plaintitf’s _claim in each case rested on the failure to exercise ordinary care. In Driscoll v. Scanlon, 165 Mass. 348, 43 N. E. 100, 52 Am. St. Rep. 523, much relied on, the driver invited the boy on the wagon and al lowed the boy to drive, while he himself went to sleep. In managing the lines the boy lost his balance and fell under the wagon. No act of the driver brought about the fall of the boy. In Schulwitz v. Delta Lumber Co., 126 Mich. 559, 85 N. W. 1075, the boy got on the wagon of defendant after it was unloaded and held onto an unright pole. As the wagon passed over rough places, the pole was jogged out of its socket, and plaintiff fell from the wagon. Re covery was sought because of the negligence of the teamster in permit ting the boy to ride, but no willful or wanton act of the driver brought about the injury. In Collins v. City of Chicago et al., 187 Ill. App. 30, plaintiff was permitted by the driver to ride on the rear step of defendant’s‘ ice wagon, following which was another horse and ice wagon of the com pany. Collins was thrown from the wagon because of a jar on one of the wheels, and was injured by the second wagon. He based his action on negligence. The second proposition of the syllabus reads: “Where a person injured while riding on a wagon is a trespasser, the owner of the vehicle owes no duty to him, other than to not injure him wantonly or willfully.” In.Foster-Herbert Cut Stone C0. v. Pugh, 115 Tenn. 688, 91 S. W. 199, 4 L. R. A. (N. S.) 804, 112 Am. St. Rep. 881, also much relied on, the plaintiff, with other boys, boarded the stone wagon on the invita tion of the driver. The court say: “After riding a short distance they began one after another to dismount, and in undertaking to do likewise the deceased either fell or jumped to the ground between the wheels.” The action was one for negligence. It will be noted that no act of the driver caused the injury. It must be remembered that this is not a suit for lack of ordinary care, but is based on wanton and willful acts which caused the injury. No case has been called to our attention which holds that the mere giving of unauthorized permission by a driver to an infant relieved the employer from liability for willful and reckless acts of the employé, which were done in the course and scope of his employment, and which were the proximate cause of injury.“ * * *

$1 Compare Dover v. Mayes Mfg. Co., 157 N. O. 324, 72 S. E. 1067. 46 L. R. A. (N. S.) 199 (1911). where the injury was due to mere negligence of the serv ant. See, also, Ploof v. Putnam, 83 Vt. 252, 75 Atl. 277. 26 L, R. A. (N. S.) 710 nrrncrs AND consnounucas or THE RELATION (Part 3

JONES, ]. [Dissentingon the ground that the court rested its judg ment] upon the theory that, although the invitation extended t0 the boys may have been without the scope of authority, still, the em ployé having exceeded his authority, the infant could then have been regarded as a trespasser, to whom the employer owed a duty of not injuring him by wanton negligence upon the part of the employé. This feature of the case begs the entire question, and eliminates from the case one cardinal element which is necessary to impose liability upon the employer. This elementary principle is that the act of the employé must be within the scope of his employment. If the theory of the Court of Appeals were correct, it could as well be said that a liability would likewise accrue if Komko had departed from his course of employment and driven the boys to the city lake front for their own convenience, and injured them on the way. The fallacy lies in considering the negligent driving of the employé solely as the causal act producing the injury. The act of driving was within the scope of Komko’s employment, it is true. But it was the unauthorized act—that of giving an invitation to the boys to ride—which was without the scope of Komko’s employment. The record discloses and it is not disputed, that this employé had been given explicit instruc tions not to let any one ride on the truck. The unauthorized act of invitation produced the train of events that followed, and the reckless driving was consequential. In the case of Driscoll v. Scanlon, supra, the same theory of liability was argued and presented as in this case. The teamster had invited a boy to ride with him upon a dump cart. The teamster asked the infant to take the reins, while he fell asleep. It was there argued that the court might look only to the later moment, when the plaintiff was under

251, 138 Am. St. Rep. 1085 (1910); Turner v. American Dist. Telegraph dz Messenger Co., 94 Conn. 707, 110 Atl. 540, 10 A. L. R. 1079 (1920); Barrett v. Minneapolis, St. P. & S. S. M. Ry. Co., 106 Minn. 51, 117 N. W. 1047, 18 L. R. A. (N. S.) 416, 130 Am. St. Rep. 585 (1908); Blake v. Ferris, 5 N. Y. 48, 55 Am. 304 (1851); Dry Dock, E. & "R. Co., Dec. Cohen v. B. B. ' 69 N. Y. 170 (1877). - The historical development of the rule of respondent superior is traced in the learned opinion of Jaggard, J’., in Penas v. Chicago, M. & St. P. Ry. Co.. 112 Minn. 203, 127 N. W. 926, 30 L. R, A. (N. S.) 627, 140 Am. St. Rep. 470 (1910). and in the articles by Professor Wigmore in 7 Harv. Law Rev. 383, and by Mr. Justice Holmes in 4 Harv. Law Rev. 345, 5 Harv. Law Rev. 1. The confusion resulting from a failure to recognize that the basis of the rule has shifted is well illustrated in the leading case of Rounds v. Delaware L. & W. R. Co., 64 N. Y. 129, 21 Am. Rep. 597 (1876), which in the same paragraph grounds the rule on two inconsistent theories, as is well pointed out by the able annotator of 27 L. R. A. 162. Often it is not easy to reconcile decisions in the same jurisdiction. Compare Ducre v. Sparrow-Kroll Lumber Co., 168 Mich. 49. 133 N. W. 938, 47 L. R. A. (N. S.) 959 (1911), with Moﬂit v. White Sewing Machine Co., 214 Mich. 499, 183 N. W. 199 (1921). The distinctions are often very ﬁne. Brown v. Boston Ice Co., 178 Mass. 108, 59 N. E. 64-1. 86 Am. St. Rep. 469 (1901). In such cases the matter might Well be left to the jury. Nelson Business College Co. v. Lloyd, 60 Ohio St. 448, 54 N. E. -171, 46 L. R. A. 314. 71 Am. St. Rep. 729 (1899).

—-< w-‘I Ch. 5) LIABILITY or consrrruunr ro -rump mason 711 the wheels, and not to the unauthorized act of the teamster in in viting him to drive; but judge Holmes, of the Massachusetts court, disposed of that contention by saying in his opinion: “The driver's slumber was so intimately connected with»the unauthorized act that it is impossible to separate the two. The driver would not have been asleep, and the plaintiff would not have fallen, but for the driver's unauthorized act, and if the plaintiff had not been driving.” The following is the syllabus in that case: “If a driver of a cart invites an infant to drive with him, either for pleasure or to take his place in driving while he sleeps, and the infant falls from the cart and it, is run over by the act is outside the driver’s authority and his master * * * is not liable to the infant.”

__.__.4

MORIER v. ST. PAUL, M. & M. RY. co.

(Supreme Court ot Minnesota, 1884. Minn. 351, 17 N. W. 952, 47 Am. Rep. 3% _ 79 .)

MITCHELL, the evidence in case some I. All this tends to prove that

section men, under the charge of a section foreman, were, in the em

ployment of defendant, engaged in repairing its railroad near defend ant’s farm, on the twenty-ﬁrst of October, 1882. While engaged in such work they usually returned to their boarding—house for dinner, but on this day, their work being at some distance, they took their dinner with them. At noon, when they quit work to eat, they built

a ﬁre, or rekindled one which some other person had kindled, on de fendant’s right of way, for the purpose of warming their coffee. After eating dinner, they resumed their work, negligently leaving the ﬁre unextinguished, which spread in the grass and ran on to plaintiff’s

land and burned his hay. There is no evidence that the defendant

was boarding these men, or that it was any part of its duty to prepare

or cook their meals. Neither is there anything tending to show that

the defendant either knew or authorized the kindling of a ﬁre for any

such purpose, either on this or any other occasion. Nor is there any

evidence that it was the duty of these section men to exercise any supervision over the right of way, or to extinguish ﬁres that might be ignited on it. So far as the evidence goes, their employment was exclusively in repairing the railroad trackf l The doctrine of the liability of the master for the wrongful acts of

his servants is predicated upon the maxims, “respondeat superior” and

“qui facit per alium facit per se.” In fact, it rests upon the doctrine

of agency. Therefore, the universal test of the master’s liability is whether there was authority, express or implied, for doing the act; it that is, was one done in the course and within the scope of the in servant’s employment? If it be done the course of and within the scope of the employment, the master will be liable for the act, whether I

712 nrrncrs AND consnonnncns or THE nmnxrron (Part 3 negligent, fraudulent, deceitful, or an act of positive malfeasance. Smith, Mast. & Serv. 151. But a master is not liable for every wrong which the servant may commit during the continuance of the employ ment. The liability can only occur when that which is done is within the real or apparent scope of the master’s business. It does not arise when the servant steps outside of his employment to do an act for himself not connected with his master’s business. Beyond the scope of his employment the servant is as much a stranger to his master as any third person. The maste'r is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of\his employment. A master is not responsible for any act or omission of his servant which is not connected with the business in which he serves him, and does not happen in the course of his employment. And in determining whether a particular act is done in the course of the servant’s employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time when the injury was inflicted, acting for himself, and as his own master, pro tempore, the master is not liable. If the servant step aside from his master’s busi ness, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities. 2 Thomp. Neg. 885, 886; Serg. & R. Neg. §§ 62, 63; Cooley, Torts, S33 et seq.; Little Miami R. Co. v. Wetmore, 20 Ohio St. 401 ; Storey v. Ashton, L. R. 4 Q. B. 476: Mitchell v. Crassweller, 13 Com. B. 236: McClenaghan v. Brock, 5 Rich. (S. C.) 17. It would seem to follow, as an inevitable conclusion, from this, that on the facts of this case the act of these section men in building a fire to warm their own dinner was in no sense an act done in the course of and within the scope of their employment, or in the execution of defendant’s business. For the time being they had stepped aside from that business, and in building this fire they were engaged exclusively in their own business, as much as they were when eating their dinner, and were for the time being their own masters as much as when they ate their breakfast that morning or went to bed the night before. The fact that they did it on defendant’s right of way is wholly im material, in the absence of ‘any evidence that defendant knew of or authorized the act. Had they gone upon the plaintiE’s farm ahd built the fire the case would have been precisely the same. It can no more be said that this act was done in the defendant’s business, and within the scope of their employment than would the act of one of these men in lighting his pipe, after eating his dinner, and carelessly throwing the burning match into the grass. See Williams v. jones, 3 Hurl. & C. Z56. The fact that the section foreman assisted in or even di rected the act does not alter the case. In doing so he was as much

in Ch. 5) LIABILITY or co.\'s'rrruns'r 'ro rump PERSON 713

his own master and doing his own business as were the section men. Had it appeared that it was part of his duty to look after the premises generally, and extinguish fires that might be ignited on them, his omission to put out the fire might possibly, within the case of Chap man v. N. Y. P. R. Co., 33 N. Y. 369, 88 Am. Dec. 392, be considered the negligence of the defendant. But nothing of the kind appears, and the burden is upon plaintiff to prove afiirmatively every fact necessary to establish defendant’s liability." Order reversed, and new trial granted.

-1-11 ' r CRAKER v. CHICAGO & N. W. RY. CO.

(Supreme Court of Wisconsin, 1875. 36 Wis. 657, 17 Am. Rep. 504.) Action for insulting, violent, and abusive acts alleged to have been done to plaintiff, a young schoolteacher, by the conductor of one of defendant’s trains while she was a passenger. For hugging and kiss ing plaintiff the conductor had been convicted on a criminal charge of assault and battery and ﬁned $25. Defendant had discharged him from its employ, and expressed regrets to plaintiff. Verdict and judg ment for $1,000 damages. Defendant appealed. . RYAN, C. I.” I. We cannot help thinking that there has been some useless subtlety in the books in the application of the rule respondeat superior, and some unnecessary confusion in the liability of principals for willful and malicious acts of agents.- This has probably arisen from too broad an application of the dictum of Lord Holt, that “no master is chargeable with the acts of his servant but when he acts in the execution of the authority given to him, and the act of the serv

SS Accord: Hardemau v. Williams, 150 Ala. 415, 43 South. 726, 10 L. R. A. 7N. S.) 653 (1907). See, also, Zulkee v, Wing, 20 Wis. 408, 91 Am. Dec. 425 (1866), holding that respondeat superior does not apply between master and servant, but only between strangers. There is no dispute as to what the rule of respondeat superior is, but much as to when it applies. Compare with the principal case Lucas v. Mason, L R. 10 Exch. 251 (1875), and Smith v. Keal, L. R. 9 Q. B. Div. 340 (1882). See. also, the opinion of Hoar. J., in Howe v. Newniarch, 12 Allen (Mass) 49 (1866), , In England interesting discussions have developed in a series of cases in which the owner of a carriage hired job horses and a coachman from a job man, and was sued for injuries due to the negligence of the coachman. The most important discussion is in the celebrated case of Laugher v. Pointer. 5 B. & O. 547 (1826), disapproving Bush v. Steinman, 1 Ilos. 8: P. 407 (1799). There was great dispute among the judges, and in the King’s Bench the court was equally divided. The opinion oi! Littledale, J., approved itself to later judgcs, and the rule was settled in Quarman v. Burnett, 6 M. & W. 499 (1840), and in Milligan v. Wedge, 12 Ad. & El. 737 (1840). The master’s liability for damage from ﬂre started by a servant has been considered in a long line of cases, beginning with Tubervilie v. Stampe, 1 Ld. Raym. 264 (1698). The principal cases are cited in a note in Ann. Cas. 1914A, 1102, annotating Seybold v. Eisle, 154 Iowa, 128, 134 N. W. 578, Ann. Cas. 1914A 1097 (1912). $8 The statement of facts is abridged. Z14 EFFECTS AND consniounncns or THE Reunion (Part 3 ant is the act of the master.” Middleton v. Fowler, 1 Salk. 282. For this would seem to go to excuse the master for the negligence as well as for the malice of his servant. One employing another in good faith to do his lawful work would be as little likely to authorize negligence as malice, and either would then be equally dehors the employment. Strictly, the act of the servant would not, in either case, be the act of the master. It is true that so great an authority as Lord Kenyon denies this in the leading case of McManus v. Crickett, 1 East, 106, which has been so extensively followed, and again, in Ellis v. Turner, 8 Term, 531, distinguishes between the negligence and the willfulness of the one act of the agent, holding the principal for the negligence but not for the willfulness. It is a singular comment on these subtle ties that McManus v. Crickett appears to rest on Middleton v. Fowler,

the only adjudged case cited to support it, and that Middleton v.

Fowler was not a case of malice, but of negligence; Lord Holt hold ing the master in that case not liable for the negligence of his servant in such circumstances as no court could now doubt the master’s lia bility. In spite of all the learned subtleties of so many cases. the

true distinction ought to rest, it appears to us, on the condition wheth er or not the act of the servant be in the course of his employment, as

is virtually recognized in Ellis v. Turner. But we need not pursue the subject. For, however that may be in

general, there can be no doubt of it in those employments in which the

agent performs a duty of the principal to third persons, as between

such third persons and the principal. Because the principal is responsi

ble for the duty, and if he delegate it to an agent, and the agent fail is it to perform it, immaterial whether the failure be accidental or willful, in the negligence or in the malice of the agent; the contract

of the principal is equally broken in the negligent disregard, or in

the malicious violation, of the duty by the agent. It would be cheap

and superﬁcial morality to allow one owing a duty to another to

commit the performance of his duty to a third, without responsibility for the malicious conduct of the substitute in performance of the duty.

If one owe bread to another and appoint an agent to furnish it, and

the agent of malice furnish a stone instead, the principal is responsible

for the stone and its consequences. In such cases, malice is negligence. Courts are generally inclining to this view, and this court long since affirmed it. In Railroad Co. v. Finney, 10 Wis. 388, Dixon, C. ]., says: “It was insisted by the counsel for the plaintiffs in error that in no case

could a right of action arise against the principal, for the willful and

malicious misconduct of the agent, unless it was previously authorized or subsequently ratiﬁedby him. On careful examination of this posi

tion, we are satisﬁed that it is incorrect. The case of Weed v. P. R. R.

Co., 17 N. Y. 362, 72 Am. Dec. 474, will be found to be a clear and It well-reasoned case upon the subject. was there held that it was no

defense to an action against a railroad corporation, for its failure to

is Ch. 5) LIABILITY or coxsrrrurmr TO THIRD mason 715 transport a passenger with proper dispatch, that the delay was the willful act of the conductor in charge of the train. The rule estab lished by that case, as we think with much reason, is that, where the misconduct of the agent causes a breach of the obligation or contract of the principal, there the principal will be liable in an action, whether such misconduct be willful or malicious, or merely negligent. The action, though undeniably in tort, is treated virtually as an action ex contractu, and governed by the same rule of damages, unless the malice or wantonness of the agent is brought home and directly charged to the principal. In this case the contract between the plain tiff and defendant was that, in consideration of his having paid to them the fee demanded, they were carefully to transport him in their cars from Madison to Edgerton. It is no defense for their breach of this contract that‘ it was occasioned by the willful act of their agent. The corporation was incapable of executing it, except through i the medium of its agents. If in doing so they violate it, no matter from what motive, their acts are the acts of their principals, who hold them out to the world as capable and faithful in the discharge of

their duties. In no other way could the company be held to a per formance of its contracts." This was, perhaps, obiter in that case;

but, with a single qualiﬁcation, presently made and not material in

this connection, we fully reafiirm it in this case. In Bass v. Railway Co., 36 Wis. 463, 17 Am. Rep. 495, speaking of railroad oflicers in charge of passenger trains, we said: “They act on the peril of the corporation and their own. Indeed, as that ficti tious entity, the corporation, can act only through natural persons.

its officers and servants, and as it, of necessity, commits its trains absolutely to the charge of oﬁicers of its own appointment, and pas sengers of necessity commit to them their safety and comfort in transitu, under conditions of such peril and subordination, we are disposed to hold that the whole power and authority of the ‘corpora

tion, pro hac vice, is vested in these officers, and that, as to passengers on board, they are to be considered as the corporation itself, and that the consequent authority and responsibility are not generally to be straitened or impaired by an arrangement between the corpora tion and the ofiicers; the corporation being responsible for the acts of the officers in the conduct and government of the train, to the passengers traveling by it, as the ofiicers would be for themselves,

if they were themselves the owners of the road and train. We con sider this rule essential to public convenience and safety, and sanc tioned by great weight of authority.” \/Ve have carefully reconsidered all that was said in Bass v. Railway Co., and realﬁrm the doctrine

of that case. And what it was there said, -in-the passage cited, we

were disposed to hold, we now hold, with a single qualiﬁcation which we will presently make and need not notice here. So far as they relate to the duties of railroad companies to their l

716 EFFECTS AND cousuounncns or THE RELATION (Part 3 passengers, and their responsibility for the officers ot their trains, Railroad Co. v. Finney and Bass v. Railway Co. are in perfect ac cord, though the latter case carries’ the principle more into detail; but both rest on the same principle. In Bass v. Railway Co. we had occasion also to consider somewhat the nature of the obligations of railroad companies to their passengers under the contract of carriage; the “careful transportation” of Rail road Co. v. Finney. On the authority of such jurists as Story, ]., and Shaw, C. ]., we likened them to those of innkeepers. And, speaking of female passengers, we said: “To such, the protection which is the natural instinct of manhood towards their sex is specially due by common carriers.” In Day v. Owen, 5 Mich. 520, 72 Am. Dec. 62, the duties of common carriers are said to “include everything calculated to render the transportation most comfortable and least annoying to passengers.” In Nieto v. Clark, 1 Clifford, 145, Fed. Cas. No. 10,262, the court says: “In respect to female passengers, the contract proceeds yet further, and includes an implied stipulation that they shall be protected against obscene conduct, lascivious behavior, and every immodest and libidinous approach." Long before, Story, _T., had used this comprehensive and beautiful language, worthy of him as jurist and gentleman, in Chamberlain v. Chandler, 3 Mason, 242, Fed. Cas. No. 2,575: “It is a stipulation, not for toleration merely, but for respectful treatment, for that decen cy of demeanor which constitutes the charm of social life, for that at tention which mitigates evils without reluctance, and that promptitude which administers aid to distress. In respect to females, it proceeds yet further; it includes an implied stipulation against general ob scenity, that immodesty of approach which borders on lasciviousness, and against that viianton disregard of the feelings which aggravates every evil.” These things were said, indeed, of passage by water, but they apply equally to passage by railroad. Commonwealth v. Power, 7 Metc. (Mass.) 596, 41 Am. Dec. 465. These were among the duties of the appellant to the respondent, when she went as passenger on its train; duties which concern public welfare. These were among the duties which the appellant appointed the conductor to perform for it, to the respondent. If another person, officer or passenger or stranger, had attempted the indecent assault

which the conductor made upon the respondent, it would have been the _duty of the appellant, and of the conductor for the appellant,

to protect her. If a person, known by his evil habits and character as likely to attempt such an assault upon the respondent, had been

upon the train, it would have been the duty of the appellant, and of the conductor for the appellant, to the respondent, to protect her against the likelihood. Stephen v. Smith, 29 Vt. 160; Railroad Co. v. Hinds, 53 Pa. 512, 91 Am. Dec. 224; Commonwealth v. Power, supra; Nieto v. Clark, supra; and other cases cited in Bass v. Rail way Co. Ch. 5) LIABILITY or CONSTITUI-INT 'ro THIRD PERSON 717

We do not understand it to be denied that if such an assault on the respondent had been attempted by a stranger, and the conductor had neglected to protect her, the appellant would have been liable. But it is denied that the act of the conductor in maliciously doing himself what it was his duty, for the appellant to the respondent, to prevent others from doing, makes the appellant liable. It is contended that, though the principal would be liable for the negligent failure of the agent to fulﬁll the principa1’s contract, the principal is not liable for the malicious breach by the agent, of the contract which he was ap it, pointed t'o perform for the principal; as we understand that if one hire out his dog to guard sheep against wolves, and the dog sleep a a is while wolf makes away with sheep, the owner liable; but if

the dog play wolf and devour the sheep himself, the owner is not liable.

The bare statement of the proposition seems a reductio ad absurdum. is The radical difficulty in the argument that it limits the contract.

The carrier’s contract is to protect the passenger against all the world;

the appellant’s construction is that it was to protect the respondent

against all the world except the conductor, whom it appointed to

protect her, reserving to the shepherd’s dog a right to worry the sheep. No subtleties in the books could lead us to sanction so vicious an absurdity. The contract of carriage was very surely the contract of appellant,

not of the agent who sold the ticket. It rested with the appellant to it perform by agents of its own choice, on its own responsibility. It chose the oﬁ‘icers of the train. with the conductor at their head, to per was form its contract for it. Where the corporation and by whom represented, as to this contract and this passenger? Not surely in some foreign boardroom, by directors making regulations and ap pointing agencies for the corporate business. They could not perform

this contract. Not surely in some distant office, by a superintendent or manager issuing the orders of the directors to his subordinates. He could not perform this contract. Quoad this contract and this

passenger, the corporation was present on this train to keep it and to care for her, represented by the ofﬁcers of the train, who possessed, pro hac vice, the whole power and authority, and were the living em bodiment of the ideal entity which made the contract, was bound to it, keep and is appellant here to contend that 'it has no responsibility for the ﬂagrant violation of the contract, which the respondent paid

it to make and to keep, by its sole present representative appointed to it keep on its behalf. Like the English crown, it lays its sins upon

its servants, and claims that it can do no wrong. We cannot bend down

the law to such a convenience. The appellant tortiously broke this it contract as surely as made it; committed this tort as surely as it made the contract. We are unwilling to waste time or patience in discussing the con ductor’s violation of the appellant’s contract with the respondent. a a a Every woman has right to assume that passenger car is not 718 EFFECTS AND cousaounncns or THE RELATION (Part 3

brothel, and that when she travels in it, she will meet nothing, see nothing, hear nothing, to wound her delicacy or insult her woman

hood. It is enough to say that the appellant's contract of careful carriage with the respondent was not kept, was tortiously violated, by the officer appointed by the appellant to keep it. And so the appel it lant seems at the time to have regarded it. It is very certain that

had a right to dismiss the conductor, as it did promptly and most properly, rescinding his contract of employment for violation of his duty. For that person violated his contract with the appellant, by violating the appellant’s contract with the respondent. He "sinned in the course of his employment against the appellant and the respondent alike; in one and the same act broke his own contract with the ap

pellant, and the appellant’s with the respondent. .

We cannot think that there is a question of the respondent's right a to recover against the appellant for tort which was a breach of the contract of carriage. We might well rest our decision on principle.

But we also think that it is abundantly sanctioned by authority. Rail road Co. v. Finney, Boss v. Railway Co., Weed v. Railroad Co., Nieto v. Clark, Railroad Co. v. Hinds, and Railroad v. Rogers, 38 Ind. 116, 10 Am. Rep. 103: Railroad Co. _v. Derby, 14 How. 468, 14 L.

Ed. 502; Moore v. Railroad Co., 4 Gray (Mass.) 465, 64 Am. Dec. 83;

Ramsden v. Railroad Co., 104 Mass. 117, 6 Am. Rep. 200: Maroney

v. Railroad Co., 106 Mass. 153, 8 Am. Rep. 305; Coleman v. Rail

road Co., 106 Mass. 160; Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311; Railroad Co. v. Vandiver, 42 Pa. 365, 82 Am. Dec. 520; Rail road Co. v_ Anthony, 43 Ind. 183; Railroad Co. v. Blocher, 27 Md.

277; Railroad Co. v. Young, 21 Ohio St. 518, 8 Am. Rep. 78; Sherley

v. Billings, 8 Bush (Ky.) 147, 8 Am. Rep. 451; Seymour v. Green & 7 wood, 6 Hurl. N. 359; Bayley v. Railroad Co., L. R. C. P. 415. There are cases, even of recent date, which hold the other way. But we think that the great weight of authority and the tendency of deci sion sanction our position. * * * [Omitting the discussion of the measure of damages, which held the master liable in compensatory damages, but not for exemplary unless he shared the malice of the servant damages, :] ’ Iudgment afﬁrmed.”f

B4 Accord: Bryan v. Adler, 97 Wis. 124, 72 N. W, 368. 41 L. R. A. 658, 65 Am. St. Rep. 99 (1897); Palmerl v. Manhattan Ry. Co., 133 N. Y. 261, 30 N. E. 1001, 16 L. R. A. 136. 28 Am. St. Rep. 632 (1892); Barker v, Chicago, P. & St. L. R. Co., 243 Ill. 482, 90 N. E. 1057. 26 L. R. A. (N. S.) 1058, 134 Am. St. Rep. 382 (1909). Compare Bonaparte V. Wiseman, 89 Md. 12, 42 Atl. 918, 44 L. B. A, 482 (1899).

~ _____ Ch. 5) LIABILITY or CONSTITUENT TO THIRD ransom 719

ANDERSON v.: STATE.

(Supreme Court of Ohio, 1872. 22 Ohio St. 305.)

Indictment for selling intoxicating liquor to a minor in violation of the statute. The liquor was sold by a clerk who managed the saloon for defendant. The evidence was that defendant gave the clerk strict orders to obey the statute, and that the liquor was sold without the authority or knowledge of defendant. \VHiTE, ]."'5 The correctness of the rulings of the court below de pends on the construction to be given to a provision of the act of May 1, 1854, providing against the evils resulting from the sale of intoxicating liquors. S. & C. 1431. The provision in question de clares that it shall be unlawful for any person or persons, by agent or otherwise, to sell intoxicating liquors in the cases speciﬁed in the act. To bring a person within the operation of the act, the elements which constitute the offense must attach to him. He must make the sale. It is immaterial whether he does it directly or indirectly. The object in using the phrase, “by agentior otherwise,” was to show ex pressly and unequivocally-that the act was intended to embrace every means that the person charged might employ in effecting the illegal sale. .In giving construction to the statute, the court below applied the rule in civil cases, which holds the principal, as to third persons, liable for the acts of his agent done within the general scope of his authority, irrespective of actual instructions that were unknown to the person dealing with the agent. In such case, as between the principal and a third person dealing with the agent on the faith of his apparent au thority, the law conclusively presumes the actual authority of the agent to be what it openly appears to be; while, as between the prin cipal and agent, the extent of the actual authority may be shown. The rule as to the conclusive effect of the prima facie or apparent authority of an agent ought not to be applied to the enforcement of a criminal statute where such statute is fairly susceptible of a different construction. The accused, in such case, has the right to rebut the presumption of prima facie agency, which the evidence makes against him, by showing, if he can, that the criminal act was, in fact, committed without his authority and against his instructions. Strictly speaking, the legal relation of principal and agent does not exist in regard to the commission of criminal offenses. All who par ticipate in the commission of such offense, are either principals or accessories. In offenses less than felony all are principals. But when it in fact appears that the person accused in no way participated in the commission of the criminal act, he ought not, by construction, to be made punishable for it.

85 The statement of facts is abridged. 720 armors AND cousnouaucns or ran RELATION (Bart 3

Of course, the directions to the clerk or agent forbidding the sale must be in good faith to be of any avail. For, however notorious or formal such directions may be, they can have no effect if they are merely colorable. The fact of agency is to be determined by the real

understanding between the principal and agent. _ Our holding in this case is sustained by the decision of the Supreme Court of Connecticut in Barnes v. State, 19 Conn. 399, and by that of the Supreme Court of Massachusetts in Commonwealth v. Nichols, 10 Metc. 259, 43 Am. Dec. 432. judgment reversed, and cause remanded for a new trial.“ - is McCLUNG v. DEARBORNE.

(Supreme Court of Pennsylvania. 1890. ~134 Pa. 396, 19 Atl. 698. 8 L. R. A. 204, 19 Am. St. Rep. 708.)

Action on the case by William McClung against George E. Dear borne. judgment for defendant. Plaintiff appeals. WILLIAMS, J. Dearborne is a dealer in cabinet organs and other musical instruments. It is his habit, and it ‘seems to prevail quite generally among dealers in similar articles, to sell on the installment

plan to those who desire it, taking an instrument in the nature of a lease from the purchaser. The several installments of purchase money are to be paid as rent. If they are paid, the article becomes the prop erty of the so-called “lessee.” If not paid, the vendor reserves the right to seize and retain the article. Fox was an employé of Dearborne, whose business was to hunt up instruments on which one or more installments were unpaid, whether in the hands of the original purchasers or their vendees, in order that they might be seized or replevied by Dearborne. He had sought and obtained admission to the house of McClung by means of falsehood, and secured the number and description of the cabinet organ in the

parlor. His employer allqged that it was an instrument which he

had sold or leased to a customer two or three years before, and on which unpaid installments were due. Fox expressed conﬁdence in his

ability to invade McClung’s home a second time, and bring off the

organ, without a breach of the peace. An expedition was ﬁtted out,

consisting of two men and a team, under the direction and control of Fox, for this purpose. Before they set out, they were instructed by Dearborne not to commit an assault and battery on any person, and not to break the law. They went to McClung’s house, secured ad

" Accord: Seibert v. State, 40 Ala. 60 (1866). principal not liable criminally unless he participated in the act or consented to it. People v. Parks. 49 Mich. 333, 13 N. W. 618 (1982), criminal responsibility must fall on the actual 2 wrongdoers. Rex v. Huggins, Strange, 883 (1731); Fogg v. Boston & L. R. 148 Mass. 513, 20 N. E. 109, 12 Am. St. Rep. 583 (1889), ratiﬁcation of Corp" I a bel. Ch. 5) LIABILITY or CONSTITUENT 10 THIRD PERSON 721‘ mission to the parlor by a false pretense, and began the removal of the organ. Mrs. McC]ung and her son, who happened to be at home, tried to resist, but were at once overpowered, and the organ and its belongings carried off. The scene is described by one of the witnesses thus: “I came down and saw Mr. Fox. He was holding my mother up against the parlor door. I came forward, and my brother came out, and asked what all this meant. He said: ‘]ust this: if you interfere with my business, * * * I will shoot you dead,’-—and reached in his back pocket, He said: ‘I came to take this organ out of here. If you interfere with my business, I will shoot you.’ Then my brother said: ‘You do not take this organ out of this house. Show your authority. If you don’t, you take it over my corpse.’ * * * Then he clinched my brother. * * * Then the two colored men came in, and began knocking us about. * * * I then went to the corner and saw a ' policeman, and asked him to come down. He came down, and Fox said: ‘Arrest this man (meaning my brother), and I will appear" against him in the morning.’ They arrested my brother, and he was taken to the station.” This action was brought by McClung to recover damages for this high-handed and hostile invasion of his home. . On the trial the learned judge of the court below told the jury that the conduct of Fox “was without mitigation, and deserving of the severest condemnation,” but that whether Dearborne was responsible for it or not depended on the instructions he gave him when he started‘ out on the expedition. The correctness of this instruction is the point on which this appeal depends. The general doctrine laid down by the learned judge, that every man is liable for his own trespass only, must not be taken too literally; for one must be held to do that which he procures or directs another to do for him, as well as that which he does in his own person. “Qui faci per alium, facit per se." Servants and employés are often without the means to respond in damages for the injuries they may inﬂict on others by the ignorant, negligent, or wanton manner in which they conduct the business of their employer. The loss must be borne in such cases by the innocent sufferer, or by him whose employment of an ignorant, careless, or wanton servant has been the occasion of the injury; and, under such circumstances, it is just that the latter should bear the loss. But the master is not liable for the independent trespass of his servant. If a coachman, while driving along the street with his mas ter’s carriage, sees one against whom he bears ill will at the side of the street, and leaves the box to seek out and assault him, the master would not be liable. Such an act would be the willful and independent act of the coachman. It was done while in his master's service, but not in the course of that service. But if the coachman sees his enemy sitting on the box of another carriage, driving along the same highway, and he so guides his own team as to bring the carriages into collision, Gooo.Pn.& A. (20 En.)—46 722 armors AND cousmoouncns or rnn nnnarron (Part 3

whereby injury is done, the master is liable. The coachman was hired to drive his master's horses. He was doing the work he was employed to do, and for the manner of his doing it the master is liable. VVood, Mast. & Serv. § 277. It would be no defense to the master to prove that he had given his coachman orders to be careful and not drive against others. It was his duty not only to give such orders, but to see that they were obeyed. It will be seen, therefore, that it is the character of the employment, and not-the private instructions given by the master to his servant, that must determine the measure of his liability in any given case. An excellent illustration is afforded by the case of Garretzen v. Duenckel, 50 Mo. 104. The defendant was a gunsmith. In his absence from his store a clerk was waiting upon a customer who wanted to buy a riﬂe. The customer desired to see it loaded, and would not buy unless this was done. The orders of the defendant to his clerk were that he should not load a' riﬂe in the store. The customer was so it, earnest in desiring it that the clerk loaded and by accident it was

discharged, the ball injuring the plaintiff, who was sitting at a window on the opposite side of the street. The defendant set up his orders to it his clerk as a defense, but did not prevail. The court said: “There

is no pretense that he [the clerk] was endeavoring to do anything for himself. He was acting in pursuance of authority, and trying to sell a a gun,—-to make bargain for his master; and, in his eagerness to subserve his master’s interests, he acted injudiciously and negligently." In the case now before us, Dearborne sent Fox and his helpers to the house of McClung for the purpose of seizing and bringing away the organ. He says: “I told him totake the men and team'when he was ready, and to bring the organ in, but to be careful and not to have any row about it.” Black, who drove the team, testiﬁes: “Mr. Dearborne told Fox to go down and get this organ on South Sixteenth

street; to get it as peaceable as possible, and not to have any assault and battery, or any disturbance whatever.” These directions show that Dearborne knew that the errand on which he sent his employés was one that was likely to result in trouble, and would require to be man

aged with great coolness and care, in order to avoid collision and a breach of the peace.

But, however the rule may be held in regard to the criminal liability

of the master under such circumstances, it is very clear that he can not escape liability civilly by virtue of his instructions to his servant

as to the manner of doing an act which the servant is to undertake on his behalf. He knew that the invasion of McClung’s house in the manner contemplated was likely to excite indignation and resistance on the part of the inmates, and that what ought to be done might have to be determined under excitement, and without time for consultation or reﬂection by his employés. Under such circumstances, he puts them

in his own stead, and he is bound by what they do in the effort to do Gonn.Pn.& A. (20 En.)

~€ -—~~__ Ch. 5) LIABILITY or CONSTITUENT TO THIRD PERSON 723 the thing, which was committed to them. Sanford v. Railroad Co., 23 N. Y. 343; Railway Co. v. Rosenzweig, 113 Pa. St. 519, 6 Atl. Rep. 545; Railroad Co. v. Donahue, 70 Pa. St. 119; Hays v. Millar, 77 Pa. St. 238; Garretzen v. Duenckel, supra. The defendant was bound nof only to give proper instructions to his servants when sending them on such an errand, but he was bound to see that his instructions were obeyed. In the leading English case of Seymour v. Greenwood, 6 Hurl. & N. 359, (referred to at some length in \Vood, Mast. & Serv. § 297,) it is said: “If the act is done within the scope of the servant’s employment, and is done in the master’s service, an action lies against the master, and he is liable even though he has directed the servant to do nothing wrong.” Here Fox and his helpers were sent to bring away the organ. The acts complained of were committed in the course of, and as a means to, the accomplish ment of that for which they were sent. Let it be conceded that they were instructed to do no wrong, and that they did what they were warned not to do. The master is nevertheless liable. \»Vhen he sends them upon an errand that exposes them to resistance and danger, and the excitements consequent upon the presence of such a state of things, he must take the chances of their self-control and ability to obey. If he finds the risk inconveniently expensive, he may conclude to respect the homes of inoffensive citizens, and rely on his legal remedies for the recovery of any property to which he may claim title hereafter. The jury should have been told that the defendant was liable for what the learned judge aptly characterized as an “unjustifiable outrage" by his employés, and they should have been allowed to assess adequate damages for the breach of the plaintiff's close, if the entry was forcible, and for all the injury done him by any and all the defendant's serv ants while engaged in the business of seizing and carrying away the organ. All the circumstances may be considered in fixing the com pensation to be awarded to the plaintiff. Judgment reversed, and a - venire facias de novo awarded. . ,_.i__

. COMMONWEALTH v. STEVENS.

(Supreme Judicial Court of Massachusetts. 1891. 153 Mass. 421, 26 N. E. 992, 11 L. R. A. 357, 25 Am. St. Rep. 647.) C. ALLEN, I. The defendant was a druggist, and was authorized by his license to sell intoxicating liquors for certain purposes, but not to minors. One of his clerks made a sale to a minor, and the principal question at the trial was whether the defendant was criminally re sponsible therefor. There was evidence that he had instructed all of his clerks not to make sales to minors, nor indeed to any person under 25 years of age. The learned‘ judge before whom the case was tried instructed the jury that, if they were satisﬁed that these instructions 724 urrncrs AND consnounucms or THE RELATION (Part 3

were given by the defendant, but that the clerks were to determine the question of minority sim‘ply from the appearance of the customer, and that the defendant authorized and permitted them to sell without fur ther inquiry, if they believed such person to be 25 years of age or up wards, and that the clerk who made the sale in this case applied this test, and in good faith sold to this customer, then the defendant would be liable, even if he had no personal knowledge of this sale, because the servant in such case was carrying on the defendant’s business in the way he directed, and obeying his instructions, and that under such cir cumstances the act of the servant would be the act of the master. The correctness of this instruction is the principal question before us. The question in this precise form has not before arisen, so far as we know. In several cases there has been a consideration of the infer ences of agency, in making a particular sale, which may be drawn from a general employment to sell liquors in the defendant’s place of busi ness, and the efiect of such employment in overcoming evidence tend ing to show that the defendant instructed his servant not to sell to minors, or in leading to the conclusion that such instruction, if given, was not given in good faith. But in these cases the question is not dis cussed whether the master would be criminally responsible for a sale made by a clerk to a minor by mistake, ‘under the su'pposition that the minor was an adult, both master and servant intending in good faith that no sale should be made to a minor. Com. v. Rooks, 150 Mass. 59, 22 N. E. 436; Com. v. Houle, 147 Mass. 380, 17 N. E. 896; Com. v. Hayes, 145 Mass. 289, 14 N. E. 151. In the case now before us it was ruled that criminal responsibility on the part of the master exists in a case where the clerks were ex pected to determine the question of minority simply from the appear ance of the customer; but we cannot see that this particular method of determining the question of minority has any legal significance, ex cept as bearing upon the good faith of the master or the servant. If theclerks had been instructed not to be satisfied with the personal ap pearance of the customer, but in all cases to put a direct inquiry as to his age, or even to require further evidence, mistakes might nevertheless be made, although in.such cases the clerks would still be carrying on the master’s business in the way prescribed by the master. If the clerks are permitted to be satisfied with a slight test, this, indeed, would'be a proper subject for consideration in determining whether the instructions not to sell to minors were given and acted upon in good faith. But in the present case the instructions to the jury allowed them to convict the defendant, even though the jury should find that he had in good faith given instructions not to sell to minors, and though the clerk had in good faith endeavored and intended to follow those instructions, but had innocently made a mistake in judging of the purchaser’s age from her appearance. The question was not submitted to the jury to determine as a matter of fact whether the permitted mode of determining the age was a rea Ch. 5) LIABILITY or CONSTITUENT TO THIRD PERSON 725 sonable one or not, or, whether it indicated bad faith or negligence on the part of the defendant in the mode of conducting his business. That might have been proper for their consideration, but it cannot be afiirm ed as a matter of law that the test was unreasonable, or that it indi cated bad faith or negligence. The court cannot lay it down as a rule for the guidance of the jury that the master ought to require further evidence. In many cases, perhaps in most, a mere inspection of the ‘pur chaser might be sufficient. Com. v. Emmons, 98 Mass. 6. VVhile a broader rule prevails in respect to a master’s civil responsi bility for the acts of his servant or agent ordinarily, he is not held re sponsible criminally, unless he in some way participates in, counte nances, or approves the criminal act of his servant. Ordinarily, if a servant does a criminal act in opposition to the master’s will and against his orders, though by mistake, the master cannot be held criminally responsible. This rule is of general application, though subject to some real or apparent exceptions. Com. v. Nichols, 10 Metc. (Mass) 259; Com. v. \Vachendorf, 141 Mass. 270, 4 N. E. 817; Com. v. Briant, 142 Mass. 463, 8 N. E. 338; Com. v. Stevenson, 142 Mass. 466, 8 N. E. 341 ; Com. v. Hayes, 145 Mass. 289, 295, 14 N. E. 151; State v. Smith, 10 R. I. 258 ; Anderson v. State, 22 Ohio St. 305. This rule has been held applicable to cases of sales to drunkards and slaves. Barnes v. State, 19 Conn. 398; State v. Dawson, 2 Bay, 360; Hipp v. State, 5 Blackf. 149. The case of Com. v. Uhrig, 138 Mass. 492. does not go so far as to hold that one may be convicted of an illegal sale, for the unauthorized act of his servant, but only that after such sale by his servant he may be convicted of keeping a liquor nuisance. This, of course, is because he is responsible for the character of the place kept by him. But, even in re spect to this doctrine, it is necessary to bear in mind the limitations indi cated by-other decisions. Com. v. Patterson, 138 Mass. 498; Com. v. Hayes, 150 Mass. 506, 23 N. E. 216; Com. v. Hagan, 152 Mass. 565, 26 N. E. 95. There are some criminal and some penal cases which ‘perhaps may be deemed to be exceptions to the general rule. The usual illustrations are indictments for libel or nuisance, and informations -and complaints for the breach of statutory regulations for securing public order; and it is obvious that in some of these instances criminal responsibility is imposed for carelessness or negligence on the part of the master. In Com. v. Morgan, 107 Mass. 199, 203, which was an indictment for libel, this court said: “Criminal responsibility on the part of the principal, for the act of his servant, or agent in the course of his employment, im plies some degree of moral guilt or delinquency, manifested either by direct participation in or assent to the act, or by want of proper care and oversight, or other negligence in reference to the business which he has thus intrusted to another.” See, also, Queen v. Holbrook, 3 Q. B. Div. 60, 4 Q. B. Div. 42, involving a construction of the English statute respecting libel. 726 EFFECTS AND coxsnoonncms or THE RELATION (Part 3

Several English cases of informations for penalties are collected in Smith, Mast. & Serv. 312 et seq., which have the appearance of trench ing somewhat upon the general rule, unless fairly distinguishable upon the ground there stated, that they partake more of the nature of civil proceedings to recover a debt due to the crown. For a case of public nuisance, where the master was held criminally responsible for his servant’s acts, see Queen v. Stephens, L. R. 1 Q. B. 702. Without dwelling upon cases like these further than merely to show that they have not been overlooked, it does not appear to us necessary or rea sonable to extend criminal responsibility for the act of a servant so far as to include a case like the present. "The servant himself is no doubt responsible because he has made a sale, however innocently, which the law forbade him to make. But if he reasonably and honestly believed the purchaser to be of adult age, and that the sale might lawfully be made, his statutory guilt should not be imputed to the defendant. Though the defendant would have been responsible for his own mis take, if the sale to the minor had been made by him, it seems to us to be carrying the doctrine of criminal responsibility for the act of another quite too far to convict him by reason of an honest mistake on the part of his clerk, provided the jury should ﬁnd that the master sincerely and honestly intended that his instructions should be followed in good faith, and that he was not negligent or careless in the selection of his clerks, or in the regulations and precautions which he prescribed for their guidance. See Mullins v. Collins, L. R. 9 Q. B. 292, per Quain, ]., and also per Blackburn, ]. The testimony of Palmer as to the number of sales of intoxicating liquors registered on the defendant’s books was com'petent to be con sidered, as bearing upon the question of the reasonableness of the pre cautions taken by the defendant to prevent sales to minors. Exceptions sustained."

8'1In People v. Roby, 52 l\I_ich. 577, 18 N. W. 365, 50 Am. Rep. 270 (1884), Cooley, O. J.. points out that the statute may impose criminal penalties irre spective of intent. See, also, the leading case of Com. v. Nichols, 10 Metc. (Mass) 259, 43 Am. Dec. 432 (1845); Crane v. Bennett. 177 N. Y. 106, 69 N. E. 274, 101 Am. St. Rep. 722 (1904), a case of libel; Carroll v. State, 63 Md. 551, 3 Atl. 29 (1885). Ch. 5) LIABILITY or CONSTITUENT 'ro THIRD reason 727

DUNKLEY v. FARRIS.

(Court of Common Pleas, 1851. 11 C. B. 457.)

Field, in Easter Term, obtained a rule calling upon the plaintiff and Mr. Lewis, his attorney, to show cause why the writ of summons, and the copy and service thereof, and all subsequent proceedings, should not be set aside, and why the plaintiif’s attorney should not pay the costs of the application. The ground of the motion was, that the writ had been issued without the seal of the court—that which purported to be the court seal, being nothing more than an impression taken from the seal upon another writ. The matter having been referred to one of the masters to inquire into the circumstances under which the alleged fraud had been committed, Mr. Ray now reported to the court, that the semblance of a seal had been impressed upon the writ in question by placing it in contact with a seal which had just been- put upon another writ; but that this had been done by the clerk, without the knowledge of Mr. Lewis, his em ployer. ]ERv1s, C. I. There are many acts of a servant for which, though criminal, the master is civilly responsible by action. The defendant certainly ought not to bear his own costs; still less should the plaintiff, who has had conﬁdence in Lewis, suifer from his want of caution in employing a dishonest clerk. Although, therefore, we acquit Mr. Lewis of participation in the fraud, which we have reason to suspect to have been of frequent occurrence, we think he must ‘personally bear the costs. CREsswELL, J. The writ was served by the direction of Mr. Lewis. The defendant was obliged to come to the court to -set it aside. Lewis isthe only person upon whom we can impose the costs; and, however hard it may be upon him, there is no help for it. TALFOURD, ]. The service of the writ was an act done in the prose cution of the attomey’s duty; it was therefore his act. By making Mr. Lewis pay the costs of setting aside the proceedings, we are not to be understood as imputing any blame to him. But we have no alterna tive. Rule absolute accordingly. 728 manners AND CONSEQUENCES or TH]-I RELATION (Part 3

SOUTHERN RAILWAY CO. v. JAMES.

(Supreme Court of Georgia, 1903. 118 Ga. 340. 45 S. E. 303, 63 L. R. A. 257.)

Action by H. James against the Southern Railway Company. Judg ment for plaintiff, and defendant brings error. Affirmed. SIMMONS, C. J.“ It appears from the’ record that Saunders was the yardmaster, in East Rome, of the Southern Railway Company. He employed Ford as night watchman of the company, to look after the property and interests of the company in the East Rome yards, and for the purpose of arresting trespassers who were stealing or attempting to steal rides on the trains of the company which passed through those yards. It was also the duty of Ford to attend the switch lights in the yards. On the night of July 19 or 20, 1899, Ford caught James, the defendant in error, on the top of a box car, it being the purpose of James to steal a ride on the train. Ford ordered him to get down. He obeyed, and Ford arrested him. James resisted to such an extent that Ford had to call in assistance. Ford then started with James to the calaboose of the town, where it had been the custom to confine pris oners of this character. Ford testified that he made the arrest for the company, and as its employé. On the way to the calaboose James broke away from Ford and ran. Ford commanded him to halt, but James kept running. The night was dark, and Ford then, according to his own testimony, fired in about the direction in which James had run, not to hit him, but to frighten him, and cause him to stop, so that Ford could “arrest him and lock him up.” The bullet from Ford's pistol struck James in one of his legs, which had to be amputated above the knee. James brought suit against the railroad company for the injuries thus received, and the jury, on the trial of the case, returned a verdict in his favor for $500. The company moved for a new trial upon several grounds. The motion was overruled, and the company excepted. a * at Having shown that Ford wbs authorized to arrest and imprison, the next question to arise is whether the company is liable for the injury which James sustained as aconsequence of the shot from Ford's pistol. The Code section cited above declares that the master is liable for the torts of the servant within the scope of the master’s business, whether such torts be negligent or willful. This seems to be the settled law in all the jurisdictions in this country in which the common law prevails. Where a master instructs a servant to do a lawful act, and the servant, while engaged in the master’s business, and intending to do the act au thorized, is reckless in the performance of the act, and inflicts injury on another, the master is liable. Webb’s Pollock on Torts, lO3. So, if the servant, acting in the way of his employment, and on his master’s ac

I 88 Part of the opinion is omitted.

——— g * 7 7 m a __ i~ Ch. 5) . LIABILITY or CONSTITUENT T0 THIRD PERSON 729

count, willfully and deliberately commit a wrong, the master is liable. Id. p. 109. See, also, Reinhard on Agency, §§ 485, 486. The rule is thus well stated by Hoar, ]., in Howe v. Newmarch, 12 Allen, 49, 56: “The master is not responsible as a trespasser unless by direct or implied authority to the servant he consents to the wrongful act. But if the master give an order to a servant, which im'plies the use of force and violence to others, leaving to the discretion of the serv ant to decide when the occasion arises to which the order applies, and the extent and kind of force to be used, he is liable if the servant, in executing the order, makes use of force in a manner or to a degree which is unjustiﬁable. And in an action of tort in the nature of an action on the case the master is not responsible if the wrong done by the servant is done without his authority, and not for the purpose of executing his orders or doing his work. So that if the servant, wholly for a purpose of his own, disregarding the object for which he is em

ployed, and not intending by his act to execute it, does an injury to

another not within the scope of his employment, the master is not liable.

But if the act be done in the execution of the authority given him by his master, and for the purpose of performing what the master has direct ed, the master will be responsible, whether the wrong done be occasioned

by negligence, or by a wanton or reckless purpose to accomplish the master’s business in an unlawful manner.” In the case now under consideration, the servant had full authority

from the master to arrest the plaintiff. If made in a proper way, this arrest would have been entirely lawful. Indeed, the arrest was properly

made, and was a lawful arrest. Acting still within his authority, and being still within the law, the servant undertook to imprison the person

he had arrested. To do this it was necessary to take him to the cala boose, where he was to be confined. So far the servant was clearly within his authority, and did nothing which was illegal. In endeavoring, however, to take the prisoner to the place of confinement, when the prisoner broke away and ran, the servant negligently, recklessly, and wantonly fired in the prisoner’s direction in order to frighten him into halting. The authority to make the arrest and to confine the prisoner implied the authority to use spch force or violence as was necessary.

The servant, through a want of judgment and discretion, used an un justiﬁable amount and character of force and violence. He did so in an attempt to execute the authority to arrest and im'pris0n, and the mas

ter is liable for the injury thus wrongfully inflicted upon the plaintiff. Counsel for the plaintiff in error laid much stress on the fact that a the shooting of the plaintiff was criminal act, and argued that it was, therefore, an act which could not be authorized. The arrest and im prisonment of persons violating the statute against stealing rides on railroad trains were, however, lawful acts, which could be authorized, and which were in fact authorized. The crime committed by the serv ant was in his injudicious attempt to execute this la_wful authority in an unlawful manner. It was the means adopted by the servant for the 730 urrncrs AND cousnounucns or THE RELA'1‘ION_ (Part 3 purpose of performing the authorized work of the master. The civil liability of the master is not affected in such a case by the fact that the servant has rendered himself criminally liable. If the criminal act of the servant was done within the range of his employment, and for the purpose of accomplishing the authorized business of the master, the lat ter is liable. Applying_these rules of law to the present case, there was evidence from which the jury could ﬁnd that the defendant was liable for the injuries inflicted upon the plaintiff. See 20 Am. & Eng. Enc. L. (2d Ed.) 169-176; Noblesville, etc., Road v. Gause (Ind.) 40 Am. Rep. 224, and note; Smith v. L. & N. R. Co. (Ky.) 23 S. W. 652, 22 L. R. A. 72; note to Goodloe v. Railroad Co. (Ala.) 54 Am. St. Rep. 71; Higgins v. W. T. & R. Co., 4-6 N. Y. 23, 7 Am. Rep. 293; Cooley on Torts (2d Ed.) 626 et seq.; Addison on Torts (Wood’s Ed.) 46, § 36; 1 jaggard on Torts, 251 et seq. Judgment aﬁirmed.”

3° Accord: Dyer v. Munday, [1895] 1 Q. B. Div. 742. See, also, Fields Y. Lancaster Cotton Mills, 77 S. C. 546, 58 S. E. 608, 11 L. R. A. (N. S.) 822, 122 Am. St. Rep. 593 (1907), discussing punitive damages. As to the master's liability for a crime beyond the scope of the servant's employment, see Davis v. Houghtellin, 33 Neb. 582, 50 N. W. 765, 14 L. R. A. 737 (1891); Lynch v. Florida Cent. & P. R. Co., 113 Ga. 1105, 39 S. E. 411, 54 L. R. A. 810 (1901). Fam/ilu Purpose Doctrine.—The family automobile has given rise to a line of cases as to the liability of the head of the family for negligent or criminal use of the automobile by members of the family. The cases are sharply in conﬂict. See the prevailing and dissenting opinions in Arkin v. Page, 287 Ill. 420, 123 N. E. 30, 5 A. L. R. 216 (1919); Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227 (1910); Hays v. Ho gan, 273 Mo. 1, 200 S. W. 286, L. R. A. 19180, 715, Ann. Cas. 1918E, 1127 (1917), overruling earlier Missouri cases; Doran v. Thomsen, 76 N. J. Law 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677 (1908). For the father’s liability, Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. (N. S.) 59 (1913). But compare Doran v. Thomsen, supra, with Missell v. Hayes, 86 N. J. Law, 348, 91 Atl. 322 (1914), where a distinction is taken be tween the case where the son uses the family automobile for a pleasure drive for the family and guests of his father. and the case where the son is driving the same persons as his guests. It is for the jury to determine which is the fact in the given case. Statutes have been upheld which impose liability on the owner of an automobile for injuries occasioned by its negligent operation by any person whatever by the express or implied consent or knowledge of the owner. Stapleton v. Independent Brewing Co., 198 Mich. 170, 164 N. W. 520. L. R. A. 1918A, 916 (1917). » Some statutes dispose of the question as involving the relation of bailor and bailee, instead of master and servant. Wolf v. Sulik, 93 Conn. 431, 106 Atl. 443, 4 A. L. R. 356 (1919). Ch. 5) LIABILITY or CONSTITUENT TO THIRD mason 731

TICKELL v. READ.

(Court of King's Bench, 1773. Loﬁft, 215, 98 Eng. Rep. 617.)

Action of assault and battery; defendant pleads the general issue, not guilty, and also a special plea in justiﬁcation, that he assisted his servant, whom the ‘plaintiff was beating. Contended, that the law will not justify a master interposing on an assault against his servant, by assaulting the person who beats the servant, as it does a servant in like case interposing for his master, because it was the duty ‘of the servant, who was hired to serve and be assistant to his master’s person, but not so the master to the servant. On the other hand it was contended to this effect nearly: The duty of master and servant was reciprocal, and if the servant owed to the master ﬁdelity and obedience, the master owed to the servant protection and defense, and might, therefore, well justify by his plea. LORD MANsF1ELD.“° I cannot tell them a master, interposing when his servant is assailed, is not justifiable, under the circumstances of the case, as well as a servant interposing for his master; it rests on the relation.“ * * *

BIRKETT v. POSTAL TELEGRAPH CABLE CO.

(Supreme Court of New York, Appellate Division, Fourth Department, 1905. 107 App. Div. 115, 94 N. Y. Supp. 918, atﬁrmed 186 N. Y. 691, T9 N. E. 1101.)

One Harrington, agent and manager of defendant company at Penn Yan, had systematically overcharged plaintiff for telegrams and ap propriated the excess amounts to his own account to the extent of $2,480.24. The agent confessed and absconded. Birkett now sues the company to recover the overcharges. SPRING, J. The rule of law governing this case is elementary. A principal is liable to a third person for the misconduct of his agent committed in the line of his employment, even though the offense was in excess of his authority, “and the principal did not authorize, justify, or know of it.” Nowack v. Met. St. Ry. Co., 166 N. Y. 433-440, 60 N. E. 32, 54 L. R. A. 592, 82 Am. St. Rep. 691; Iarvis v. Manhattan Beach Co., 148 N. Y. 652-657, 43 N. E. 68, 31 L. R. A. 776, 51 Am. St. Rep. 727 et seq. Conceding this rule of law, the appellant contends that Harrington was not in the line of his employment in making false entries in the

40Part of the opinion is omitted. 41 In Seaman v. Cuppledick, Owen, 150, 74 Eng. Rep. 966 (1615), a charge of assault and battery is justiﬁed in defense of a servant, sell. that plaintiﬂ had assaulted his servant and would have beaten him. But Williams, contra, though a servant may justify in defense of his master. Leeward v. Basilu, 1 Ld. Raym. 62 (1696), would leave the master to his action for loss of serv ice. 732 EFFECTS AND consnounucas or ran nnnarron (Part 3

accounts rendered to the plaintiff. Harrington had general superin tendence of the defendant’s ofﬁce in Penn Yan. He had the exclusive handling of its funds at that village. He was charged with the rendi tion of the accounts to the plaintiff, and with collecting for the tele grams and cablegrams sent by the plaintiff and upon which there were charges for transmission. He was acting within the scope of his agen cy in receiving the money for the beneﬁt of the defendant. If the plaintiff had paid the exact amount due, and Harrington had misap

propriated it, the plaintiff could not have been compelled to respond over again on account of the misconduct of ‘Harrington. Of course. Harrington was not authorized to collect mohey of the plaintiff for

telegrams never transmitted; but it was his duty to collect the sums actually due for their transmission. If he collected more than was due, he did that because of his agency. The agent, in his dealings with the plaintiff, turned out to be dishonest while acting in that capacity. His delinquency does not exonerate the defendant to the plaintiff, who relied upon the manifest authority of Harrington. The principal can not so easily evade liability for the misdeeds of its agent. The general

line of employment is ﬁxed by the agency, and in whatever an agent does to an innocent third person within that general line, although ul

tra vires, he represents his principal.“ If a conductor uses undue vio a lence in removing a passenger from train, the railroad company is lia ble. The company does not authorize the conductor to handle the pas

senger harshly; but it does empower him in certain cases to eject the

42 The rule applies even though the principal forbade the acts, or disapprov ed of them, provided they were within the course of his employment. Phila

delphia & R. R. Co. v. Derby, 14 How. 468, 14 L. Ed. 502 (1852); Rhomberg v. Avenarius, 135 Iowa, 176. 112 N. W. 548 (1907): Dupre v. Childs, 52 App. Div. 306, 65 N. Y. Supp. 179 (1900). It applies in case oi! trespass by the agent, Meir v. Hopkins, 16 Ill. 313, 63 Am. Dec. 312 (1855), to his frauds. Chetwood v. Berrian, 39 N. J. Eq. 203 (1884); Barwick v. English Joint Stock

Bank, L. R. 2 Exch. 259, 36 L. J. Exch. 147, 16 L. T. Rep. (N, S.) 161, 15 W. R. 877 (1867), to conversion of the property of the third person, Rhomberg v. Avenarius, supra, to a libel against the third person, Citizens’ Life Assur. Co. v. Brown, A. C. 423, 73 L. J. P. C. 102. 90 L. T. Rep. (N. S.) 739, 20 T. L. R. 497. 53 W. R. 176 (1904). As to liability of the principal for slanders uttered by the agent, see Singer Mfg. Co. v. Taylor, 150 Ala. 574, 43 South.

210, 9 L. R. A. (N. S.) 929, 124 Am. St. Rep. 90 (1906), as to his neglect, de ceit, or other wrongful act, Locke v. Stearns, 1 Metc. (Mass) 560, 35 Am. Dec.

382 (1840), per Shaw, C. J ., limiting it however to the civil, and not the crim inal liability of the principal as do the cases generally. See Higgins v. Wa

tervliet Turnpike Co., 46 N. Y. 23, 7 Am. Rep. 293 (1871); Bank of Palo Alto v. Pac. Postal Tel. Cable Co. (C. C.) 103 Fed. 841 (1900), and even to crimes in which intent is not an ingredient, such as illegal sale of liquors. George v, Gobey, 128 Mass. 289, 35 Am. Rep. 376 (1880). Where, however, the princi pal does not participate in the tort, he is not liable in punitive damages. Mai v. Soc. Concordia, 71 Conn. 369, 42 Atl. 67, 71 Am. St. Rep. 213

(1S€él9E)i;(_'k6l‘. . Modern cases extend the rule to willful and malicious acts of the agent. Cf Johnson v Barber, 10 Ill. 425, 50 Am. Dec. 416 (1849) (as to malice), and & Pressley v. Mobile G. R. Co. (C. C.) 15 Fed. 199, 4 Woods, 569 (1SS2). For an interesting account of the historical development ot the tort liability of principal the the for acts of the agent, and of the principle upon which it rests, see Kingan & C0. v. Silvers, 13 Ind. App. 80, 37 N. E. 413 (1894). Q Ch. 5)- LIABILITY on CONSTITUENT T0 THIRD PERSON 733

passenger, and it must be held civilly responsible for whatever the con ductor does in carrying out the authority ‘intrusted to him, even though he oversteps his instructions. The rule here applicable is founded on the old maxim that the principal is responsible for his agent, not the innocent third person. The plaintiff was furnished with the tariff books of the defendant, and by examination of each statement with the tariff rates could have ascertained that he was being cheated. It is urged that he was negli gent in failing to make these examinations, and should not, therefore, be permitted to recover. The plaintiff was not obliged to act on the assumption that Harrington was defrauding him. The defendant had placed its agent in the responsible position of manager of its business. It vouched for his integrity to its patrons. They had a right to assume he was honest, and were not called upon to enter into any inspection of the items of his accounts, for the purpose of discovering either fraud or mistake. The judgment should be -aﬁirmed, with costs. Judgment affirmed, with costs. All concur.

MACKAY v. COMMERCIAL BANK OF NEW BRUNSWICK.

(Privy Council Appeals, 1874. L. R. 5 P. C. 394. 43 L. J. P. G. 31, 30 L. T. Rep. [N. S.] 180, 22 W. R. 473.) Lingley, a timber merchant of New Brunswick, was accustomed to consign cargoes to Messrs. Mackay of Liverpool, drawing bills on them which he indorsed to*defendant bank. In August, 1888, he drew several bills, two of which, by his fraud, were not drawn on any car goes. On receiving his letter of notiﬁcation, plaintiffs cabled him to remit defendant’s guarantee of the bills, or they would refuse all. VVhen the message arrived. Lingley had made over all his property to trustees and absconded. The message was taken to Sancton, cashier and manager of the defendant, who cabled back, “Sent last mail.-— Lingley." The Mackays being thus deceived, paid the bills, and now bring deceit against the bank. Verdict directed for plaintiff, new trial granted by the Supreme Court of New Brunswick, from which this appeal is taken Sir MONTAGUE E. SMITH“ delivered the judgments of their Lord ships: * * * The Court appear to treat the question whether or not Sancton was acting within the scope of his authority (there be ing no conﬂicting evidence as to the general nature of his authority) as a question of law, and hold that Mr. justice Weldon, instead of di recting the jury that the sending of the telegram was within the scope of Sancton’s authority, ought to have directed them that it was not. The only question of fact which they direct to be submitted to the jury is, whether or not the sending it was sanctioned by the directors.

48 Part of the opinion is omitted. 734 EFFECTS AND consnoumscns or run RELATION (Part 3

Their Lordships regard it as settled la\v that a principal is answer able where he has received a benefit from the fraud of his agent, act ing within the scope of his authority. This doctrine has been laid down by Lord Holt in Hern v. Nichols, 1 Salk. 289, supra, p. 760; by Lord Ellenborough in Alexander v. Gibson, 2 Camp. 355; by Parke, B., in Cornfoot v. Fowke, 6 M. & \V. 373, although, under the peculiar circumstance of that case, he held the defendant not liable; also by Parke, B., in Moens v. I-Ieyworth, 10 M. & VV.; by Tindal, C. ]., de livering the judgment of the Exchequer Chamber in Wilson v. Fuller, 3 Q. B. 77 ; and again by the Court of Exchequer in Udell v. Ather ton, 7 H. & N. 172, 30 L. I. Ex. 317, where, it is true, the Court was divided in its judgment, but where Baron Martin, who held that the plaintiff had not proved his case, stated the question to be, “Was the agent’s situation such as to bring the representation he made within the scope of his authority ?” There are,‘however, some cases to be found apparently at variance as to the interpretation and the adaptation to circumstances of this doctrine. It is seldom possible to prove that the fraudulent act com plained of was committed by the express authority of the principal, or that he gave his agent general authority to commit wrongs or frauds. Indeed it may be generally assumed that, in mercantile transactions, principals do not authorize their agents to act wrongfully, and conse quently that frauds are beyond “the scope of the agent’s authority” in the narrowest sense of which the expression admits. But so narrow a sense would have the effect of enabling principals largely to avail them selves of the frauds of their agents, without suffering losses or incur ring liabilities on account of them, and would be opposed as much to justice as to authority. A wider construction has been put upon the words. Principals have been held liable for frauds when it has not been proved that they authorized the particular fraud complained of or gave a general authority to commit frauds; at the same time, it is not easy to define with precision the extent to which this liability has it, been carried. The best definition of in their Lordships’ judgment,

is to be found in the case of Barwick v. English ]oint Stock Bank, L.

R. 2 Ex. 259, when the judgment of the Exchequer Chamber was de livered by one of the most learned Judges who ever sat in \'Vestminster Hall. In that case the plaintiff was induced to continue to supply oats a to customer of the bank, a contractor with the Government, on a guarantee from its manager to the effect that the customer’s cheque in the plaintiff's favour, in payment for the oats supplied, should be paid on receipt of the Government money, in priority to any other payment “except to this bank.” The manager fraudulently concealed from the plaintiff that the customer was indebted to the bank in £12,000.: the result was that the plaintiff was induced to advance money to the customer on a guarantee which turned out to be worthless, and which the manager must have known to have been worthless when he gave it. The declarations contained, among other counts, one for deceit, 1

Ch. 5) LIABILITY or CONSTITUENT T0 THIRD PERSON 735

in which the fraud of the manager was laid as the fraud of the bank, on which count alone the judgment is based. Baron Martin hav ing directed a nonsuit, a venire de novo was ordered by the Exchequer Chamber, whose judgment was delivered by Mr. justice \/Villes. He expressed himself as follows :-—“With respect to the question whether a principal is answerable for the act of his agent in the course of his master’s business, and for his master’s beneﬁt, no sensible distinction can be drawn between the case of fraud and the case of any other is, wrong. The general rule that the master is answerable for every

such wrong of the servant or agent as is committed in the course of the service and for the master’s beneﬁt, though no express command

or privity of the master be proved. The principle is acted upon every

day in running down cases. It has been applied also to direct trespass to goods.” After enumerating other instances of its application, he it proceeds :—“In all these cases may be said, as it was said here, that

the master had not authorized the act. It is true he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which that agent

has conducted himself in doing the business which it was the act of

‘“ * * * his master to place him in.” For these reasons their Lord ships will humbly recommend Her Majesty that the judgment of the

Supreme Court be reversed, and the order directing a new trial be discharged.

44 Whether the tort was for the principal‘s beneﬁt is often the test. Bar

wick v. Eng. Joint Stock Bank, L. R. 2 Exch. 259. 36 IJ. J’. Exch. 147. 16 L. T.

Rep. N. S. 161. 15 W. R. 877 (1867) a leading case: Moir v. Hopkins. 16 Ill. 313, 63 Am. Dec. 312 (1855); Garretzen v. Duenckel. 50 Mo. 104, 11 Am. Rep. 405 (1872). The liability is especially clear it the principal enjoys the fruits of the agent’s wrong. Wright v. Calhoun, 19 Tex. 412 (1857). Or if the agent was acting to protect the prlncipal's property or rights. Palmeri v. Manhattan By. Co., 133 N. Y. 261, 30 N. E. 1001, 16 L. R. A. 136, 28 Am. St. Rep. 632 (1892). The agent must he acting for his principal and not for himself. Brit. Mut. Banking Co. v. Charmwood Forest Ry. Co., 18 Q. B. D. 724, 52 J. P. 150, 56 L. J. Q. B. 449, 57 L. T. Rep. (N. S.) 833, 35 W. R. 590 (1887). But see

McCord v. Western Union Tel. Co., 39 Minn. 181. 39 N. W. 315, 1 L. R. A.

143. 12 Am. St. Rep. 636 (1888), holding that the rule which fastens a liability upon the master to third persons for the wrongful and unauthorized acts of his servant is not conﬁned solely to that class of cases where the acts com plained of are done in the course of the employment in furtherance of the master's business or interest, though there are many cases which fall within that rule. Mott v. Ice Co., 73 N. Y. 547; Savings Inst. v. Bank, S0 N. Y. 168, 36 Am. Rep. 595; Potulni v. Saunders, 37 Minn. 517, 35 N. W. Rep. 379. Accord: Bank of Palo Alto v. Pac. Postal Tel. Cnbic Co. (C. C.) 103 Fed. 841

(1900); Bank of Batavia v. New York. L. E. & W. R. Co., 106 N. Y. 195, 12

N. E. 433, 60 Am. Rep. 440 (1887): contra. Friedlander v. Texas & P. Ry. Co.,

130 U. S. 416, 9 Sup. Ct. 570. 82 L. Ed. 991 (1889). In the inst two cases an agent, in fraudulent collusion with a third person, issued bills of lading for which he received no goods. _ » Many cases are, or are treated as. cases of master and servant. instead of principal and agent. The same principle governs each relation. Such are the leading cases of P. & R. R. Co. v. Derby. 14 How. 468, 14 L. Ed. 502 (1852) and nearly all the early cases in England. For extended discussion of the term “course of employment.” see St. Louis,

I. M. & S. Ry. Co. v. Grant, 75 Ark. 579, 88 S. W. 580. 1133 (1905). The lia 1 . ‘ \

8736 zarrrwrs AND consequences or ran ennarton (Part 3

' MIDDLETON v. FOWLER.

(Court of Kings Bench at Nisi Prius, 1698. 1 Salk. 282.)

An action upon the case upon the custom of the realm was brought against the defendants being masters of a stage-coach; and the plain tiff set forth, that he took a place in the coach for such a town, and that in the journey the defendants by their negligence lost a trunk of the plaintiff's. Upon not guilty pleaded, upon the evidence it appeared, that this trunk was delivered to the person that drove the coach, and

he promised to take care of it, and that the trunk was lost out of the

'coachman’s possession; and if the master was chargeable with this action, was the Holt, C. was of that this action

question. ]. opinion,

did not lie against the master, and that a stage-coachman was not with a a in the custom as carrier is, unless such as take distinct price for carriage of goods“ as well as persons, as waggons with coaches; and

though money be given to the driver, yet that is a gratuity, and cannot

bring the master within the custom; for no master is chargeable with the acts of his servant, but when he acts in execution of the authority

given by his master, and then the act of the servant is the act of the master; and the plaintiff was nonsuited. Vide Rep. B. R. Temp. Hard. 85, 194. Comyns 25.

STICKNEY v. MONROE.

(Supreme Judicial Court of Maine. 1857. 44 Me. 195.)

Case for diverting water from the plaintiff's mill. * * * is TENNEY, C. ].‘“ It alleged in the writ, that the defend ant dug up and removed the rocks and earth from the natural bed of

the Schoodic river, to a great depth, and by digging up and removing the bank and bed of the river as aforesaid, and by using the new and enlarged water gates as aforesaid, did divert the water of the river from the usual and natural course, etc., to the great nuisance and dam age of the plaintiffs.

The jury were instructed upon this part of the case, that if the de fendant commanded or authorized his tenant, Tinker, to do the blast is ing and digging, which it alleged diverts the water from the plain tiffs’ shore saw mill, or ratiﬁed and approved of such acts, after they

were done, and they did in fact divert the water, and occasion a dam age to the plaintiffs’ said mill, he would be liable for such damage; but

if he had no knowledge of such acts, and did not command or author bility of the principal extends to CO1‘pOI'at10HS whose agents commit torts while in the course of their employment. Scofield Rolling Mill C0. v. Ga., 54 Ga. 635 (1875). 45 The holding of Lord Holt that the carrier assumes no liability us to baggage unless he takes a distinct price for it is, of course, not the law to-day. “Part of the opinion is omitted. Ch. 5) LIABILITY or CONSTITUENT T0 THIRD PERSON 737 ize them, nor ratify or adopt them, and had no actual knowledge of them, he would not be liable for this injury; nor could Lowell's power of attorney put into the case, nor his general agency in relation to the defendant’s mill property, if the jury are satisfied that such general agency is proved, authorize Lowell to dig or excavate the bed of the river, so as to divert the water, nor authorize him to bind the defend ant, by giving Tinker liberty to do so. Special inquiries were put to the jury: First, did the defendant authorize or ratify the digging and blasting and deepening of the chan nel done by Ferdinand Tinker; and, second, what amount of damage was done to the shore saw mill of the plaintiffs, by reason of the dig ging and blasting of the rocks and deepening of the channel by Ferdi nand Tinker? To the first question, the jury answered in the negative; and to the second, the sum of seven hundred dollars, to the date of the writ. The parties agreed, that the whole verdict is to be copied as part of the case, including the special findings in answer to the questions pro posed, and if the verdict for the plaintiffs is not set aside, on account of errors of the judge, or under the motion, judgment is to be|entered according to the legal rights of the parties. From this we understand that the whole evidence is submitted to the court, and if from that, it is satisfied that the defendant is answerable for the excavations made in the bed of the river, the damage found for that cause is to be added to the verdict returned, and judgment to be rendered thereon. The acts of a general agent, or One whom a man puts in his place to transact all his business of a particular kind or of a particular place, will bind his principal, so long as he keeps within the scope of his au thority, though he may act contrary to his private instructions; and the rule is necessary to prevent fraud, and encourage confidence in dealing. 2 Kent’s Com. (5th Ed.) 620; Lobdell v. Bahn, 1 Metc. (Mass.) 202 (1840) ; Story on Agency, § 126, and note (1). , “The principal is held liable to third persons, in a civil suit for frauds. deceits, concealments, misrepresentations, torts, negligences, and other malfeasances and omissions of duty in his agent, in the course of his employment, although the principal did not authorize, justify, or participate in, or indeed know of such misconduct; or even if he forbade them or disapproved of them.” “In every such case, the principal holds out his agent as competent and fit to be trusted; and thereby, in effect, he warrants his fidelity and good conduct in all mat ters of his agency.” Story’s Agency, § 452. And as an illustration of the principle, a carrier will be liable for the negligence of his agent, by which the goods committed to his custody are damaged or lost. Ib. i § 453. But although the principal is thus liable for torts and negligences of his agent, yet we areto understand the doctrine, with its just limi I tations, that the tort or negligence occurs in the course of the agency. Gonn.Pn.& A.(2n Eo.)—47 l

738 EFFECTS AND consequences 011' THE RELATION (Part 3

For the principal is not liable for the torts and negligences of his agent in any matter. beyond the agency, unless he has expressly authorized them to be done, or he has subsequently adopted them for his own use and beneﬁt. Ib. § 466, also section 455. The principal is not responsi ble for injuries done by the person employed by him as an agent, which he has not ordered and which were not in the course of the duty de volved upon such person. In all such cases the proper remedy is against the immediate wrong doer, for his own misconduct. Ib. § 319. By the common law, “he that receiveth a trespasser, and agreeth to a trespass, after it is done, is no trespasser, unless the trespass was done to his use, or for his beneﬁt, and then his agreement subsequent

amounteth to_ a commandment; for in that case Omnis ratihabitio re trotrahitar et mandato as quissarator” (aequiparatur). Coke, 4 Inst. 317. The evidence shows, that in the management of the mill property at Calais, in the building of one of the mills upon the dam, upon which the Washington and the Madison are situated, and in the repairs made upon the defendant’s mills from time to time, and the supervision of their operations, and the receipt of rents therefor, in connection with the fact that the defendant had his residence in Boston, and was not personally at Calais for many years in succession, Lowell was at least held out to the world as the defendant’s general agent, in the charge of the property aforesaid. But it is manifest that the scope of this agency was limited to the business of keeping the mills in a proper con dition, leasing the same, and receiving the rents therefor.“ It does not appear, that previous to the excavations complained of in this action, he had undertaken to make such an alteration in the bed of the river, as to cause a diversion of the water of the same from the wheels of other mills, to the injury of the owners thereof, or that he had done any unlawful act under his agency, commanded before or ratiﬁed after it was done, by the defendant. It is true, that Lowell is shown by the evidence to have authorized the defendant’s lessee. Tinker, to have made alterations in the chan nel of the river, provided no injury should be done thereby to any one, and when informed by the plaintiffs of the excavations made by Tink er, and when he saw them, he made no objections to the further prose cution of the work. But at that time the lease to Tinker had four years and one half to run, and the lessee was entitled, on request, to have the same extended, and the defendant cannot be affected by these facts. From a full view of all the evidence in the case, there is nothing showing that these excavations‘ were made for the use and beneﬁt of

47 Outside the course of his employment. the agent is as much a stranger to the principal as is any third person. Larson v Fidelity Mut. Life Assui-., 71 Minn. 101. 73 N. W. 711 (1898): S0. Ry. Co. v. Chambers, 126 Ga. 404, 55 S. E. 37, 7 L. R. A. (N. S.) 926 (1906); Galveston. H. 8: S. Ry. C0. v. Currie, 100 Tex. 136, 96 S. W. 1073. 10 L. R. A. (N. S.) 367 (1906), approved in Grand Temple, etc., Order v. Johnson (Tex. Civ. App.) 135 S. W. 173 (1911). Gonn.Pa.& A. (21) En.) Ch. 5) LIABILITY or CONSTITUENT TO ramp mason 739 the defendant, and that they were done by Lowell, or authorized by him, in the execution of his agency, as he was held out by the defend ant; and under the special ﬁndings of the jury, and the law applicable to the facts, the defendant cannot be held liable for this portion of the injury alleged by the plaintiffs. * * "‘ ' Judgment upon the verdict.ii SECTION 3.—FOR THE DECLARATIONS, REPRESENTA TIONS, ANDADMISSIONS OF THE REPRESENTATIVE '

STANDARD OIL CO. v. LINOL CO.

(Supreme Court of New Jersey, 1907. 75 N. J. Law, 294. 68 Atl. 174.) GARRISON, J. This was an action on a book account brought by “Standard Oil Company,” a corporation of New Jersey. The defend ant filed a set-off to sustain which it was essential to show that the “Standard Oil Company of New York,” a corporation of New York, had acted as and was, in fact, the agent of the plaintiff in ordering the goods for the price of which the set-ofi" was filed. The main at tempt of the defendant toward the establishment of this fact was the offer to prove the statements or declarations made by the various per sons with whom it had dealt in the transaction in question. All of these offers were properly overruled. Agency cannot be proved by the declarations of one assuming to act in that capacity. Until the declarant is shown to be the agent of a party to the suit, his declara tions (including his declaration that he is such agent) are inadmissible. Law, 235, 61 378. Brounfield v. Denton, N. J. Atl. _72 a After specific ruling to this effect upon a question put to a wit ness that was on the stand, the state of the case shows that “the de fendant thereupon stated that he desired to show facts and circum stances in the course of the dealings between the alleged plaintiff and

defendant from which as a whole it might be inferred that the New ark concern was the agent for Standard Oil Company of New York.”

“The court adhered to its former ruling, and refused to admit the testimony.”

If the statement of a desire by the defendant be taken as equivalent to an offer of proof, the“ ruling, in effect, was that, if the desire was

to bind a party to the suit by declarations of persons assuming to act

as its agents, it was within the ruling already made. If the defendant desired to adduce testimony that did not fall within this ruling, an offer to that eﬁect should have been made in such form that the court might determine whether the new offer differed in principle from