John Macdonell.

The law of master and servant. Part I.--Common law. Part II.-- Statute law online

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porter to remove a barrel from his J. C. P. 99.
■warehouse; the master porter em- (o) (1881), L. R. 8 Q. R. 104.

ployed his own men and tackle, (p) (1858), E. B. & E. 899 ; 28

and, through the ripgligence of the L. J. Q. B. 52.
men, the barrel fell and injured the


negligence of the crew in mooring the tug. It was held
tliat the crew remained the servants of the defendants, and
that they were answerable.

A person is not liable for the acts of those whom
he has not chosen to serve him, and whose services he
is bomid by statute or otherwise to accept.

This is exemplified in regard to pilots. Siiip-owners being
compelled in certain circumstances to take them on board
and give them the charge of their ships, are not made
to suffer for a pilot's mistakes or carelessness (q). It is
sometimes a question of difficulty to know when the employ-
ment of a pilot is imperative, but if a vessel be under the
care of a compulsory pilot he is not regarded as the servant
of the owner. Indeed, the 388th section of the Merchant
Shipping Act of 1854, 17 & 18 Vict. c. 104, expressly
declares that " no owner or master of any ship shall be
answerable to any person whatever for any loss or damage
occasioned by the fault or incapacity of any qualified pilot
acting in charge of such ship, within any district where the
employment of such pilot is compulsory by law."

(r/) Licrcij V. Inriram (1840), 6 M. still iiitimateil his view that at

k W. 302. (Owner not liable when Conimon Law the owners would not

ship under conduet of a licensed hi' liable. See also llifxhic v.

pilot. This case turned chiefly on Btncsfii'Id (1817), 7 Taunt. 309 ; Thr

6 Geo. IV., c. 125. "The master, AVW/./w (18(33), Br. & Lush. 199 '; r/tr-

however well (lualified to conduct the lona (1807), L. K. 1 P. C. 426 •' The

ship himseli", is bound, under a Velasquez (1867), L. \\. 1 P. C. 494.

penalty, in a ^reat measure to SoniewJiat inconsistently, the owner

divest himself of its control, and to has sometimes been reciirded as liable

give up the charge to the ])ilot. Asa for t!ie contributory" negligence of

necessary consequence the master the jiilot. See judgment of Lord

and owners are exempted from re- Ulackburn in SJiniij/U v. Talcastlc

sponsibility for acts resulting from (1881), L. R. G App. 217. It is to

the mismanagement of the ])ilot.") be observed that the e.xemption does

dnicral Stmm Navif/a/io>i, Cu. v. not apply when the jiilot has to be

Jiritisk ami Colonial Steam Navit/a- sidecteil out of a limited class •

tioa Co. (1868), L. 11. 3 Ex. 330 ; Martin v. TciDprrlcif (1S43) 4 o'

(1869), L. \i. 4 Ex. 238. The 15. 298 ; and .see also The Gin/

main question here was, whether Manncrinfj (1882), L. K. 7 P. D.

tlie employment of the pilot was T>2 and 132, as to a case in which the

compulsory at the .spot wiiere the pilot has not control of the navigation,
collision took place. ATartin, H. ,


In like manner the captain of a man-of-war is not ac-
countable for the acts of his officers (r). So, too, as explained
ill Stone V. Garhurifjld (u), a bailiff, steward, or manager is
not liable for the acts of the servants whom he appoints.

In Qiiariimn v. Burnett (r), it is observed by Parke, B. ,
that " the liability by virtue of the principle of relation
of master and servant must cease where the relation itself
ceases to exist ; and no other person than the master of such
servant can be liable, on the simple ground that the servant
is the servant of anotlior, and his act tlie act of another ;
consequently, a third person entering into a contract with
a master, which does not raise the relation of master and
servant at all, is not thereby rendered liable." Such ex-
pressions, however, must not be understood to interfere with
the general rule that principals are answerable for the acts
of their agents within the scope of their employment.
Thus litigants may be liable for the acts of their solicitors
in the course of litigation {y), and merchants for the conduct
of their factors or agents (~). The responsibility of masters
is but an application of a general rule (ct).

Masters are liable to tliii'd persons for the conse-
quences of negligence in employing incompetent

This question has usually arisen in actions brought by
servants against masters when the defence of common employ-

(r) Nichohon v. Mowi.snf (183S), S;ilk. 289; on the other hand, Luca^

15 East, 384; hut see as to liiilnlity v. Mason (1875), L. E. 10 Kx. 251.
of master of a merchant-ship, wlio is {n) As to this point, see Haselcr v.

for some purposes regarded as owner, Lcmoyne (1858), 28 L. J. C. P. 103 ;

Maude and Pollock, 4th Ed. i., 155 ; remarks of IJramwcll, P)., at p. 344, in

Story on Agenc.y, sec. 317. Udell v. Atherlon (1861), 30 L. J.

(u) (1795), 6 T. R. 411. Ex. ; Lindley on Partnership, vol. i.

{x) (1840), 6 M. k W. 499, 509 ; 253 ; Wharton on Agency, .sec. 19 ;

Stone V. Carticrigld, 6 T. R. 411. Story on Agencj'', sec. 308, aiid Mr.

{y) Collctt V. Foder (1857), 2 H. k Green's note to sec. 451. Probably

IT. 356 ; and compare Smith v. Keal the correct view is that the servant

(1882), L. R. 9 Q. B. D. 340. is one kind of agent, the extent of

(s) Grammar v. Nixon (1725), 1 whose authority is to be inferred from

Str. 653; Hern v. Nichols (1701), 1 the nature of his emijloyment.



ment is in question. It may, however, arise otherwise;
being liable to fellow workers who suffer from their negli-
gence or recklessness in employing men who have no skill,
masters are not less liable to strangers (h).

A master is liable for the acts of his servant done
in execution of his express orders.

This liability is criminal as well as civil. The act which
the master has ordered is for all purposes his. In an early
case Mr. Justice Foster thus explained the criminal responsi-
bility of a master, who orders his servant to do that which is
unlawful. " A. biddeth his servant hire somebody, no matter
whom, to murder B., and furnisheth him wath money for that
purpose ; the servant procureth C, a person whom A. never saw
nor heard of, to do it ; is not A., who is manifestly the first
mover or contriver of the murder, an accessory before the

{h) Wilson V. Merry (1868), L. E.
1 S. c<lc D. 326. If a master
negli<;eiitly sufl'ered a volunteer, who
was incompetent to engage in his
work, anil some one was thereby in-
jareil, no doubt the master would be
liable. In Wansbdl v. Pouley (1841),
6C. &F. 910, n., the Queen's Bench
decided that a corn-factor, whose
business was managed in his absence
by his sister, was liable for tlie
negligence of a tipsy servant, whom
she had sent with corn to a customer.
Sec iilso Whmtlnj v. Patrick (1837),
3 M. & W. 650. In liis Leading
Cases, p. 657, Mr. Bigelow observes
that "a servant who merely liires
laliourers for the performance of the
master's work is not in tlie situation
of a sub-contractor, and cannot be
held liable for damages caused l)y
the negligence of smdi labourers."
He thinksan action would lie against
tlie HKister; Addison, Torts, 101
(5th cil.) ; Stonrv. Carticr)'i/U{\7i)5),
(JT. \i. 411 ; Wilson v. I'do (1821),
() Moore, C. P. 47. It lias, in fact,
been broadly laid down that, if a
servant employs another person to

do his work, or assist him therein,
the master is liable for an injury
resulting from such person's acts
(■Wood, 588). No doubt, in Booth
V. Mister (1835), 7 C. k P. 66,
Lord Abinger ruled in an action for
injuries by the driver of a cart —
the evidence being that the defend-
ant's servant was in the cart, but
that a person not his servant was
driving — that it W'as the same as if the
defendant's servant had driven. But
lie reserved the point, and it was
never argued. InAlthorfv. JFoJfc, 8
Sm. N. Y. 355, the defendant had set
liis servant to shovid snow and ice off
the roof of a house. The servant
procured the assistance of A. B.
was injured by the fall of the ice ;
it did not appear wlicther the
ice was thrown by the servant or A. ;
the defendant held responsible (two
judges dissenting). One of the judges
based his decision on the ground that
the servant wasentitled to procure aid.
It is submitted that the jioint ought
to turn on the question whether he
was acting witliin tlie scojie of liis
authority in employing A.

master's liability to TIIIRI) PERSONJS. 273

fact?" Answer, ''if present, he is a principal, if absent an
accessory before tlie fiict " (c). On similar grounds, a Laker,
who knew that a servant put into bread alum, contrary to
the 36th Geo. III. c. 22, s. 3, and the 37th Geo. Ill, c. 98,
s. 21, was held to be properly indicted for selling bread
which contained so much alum as made it injurious to
health (d). If the employer makes use of an agent who
is ignorant of the criminal character of an act, the former
is liable ; if both arc aware that the act which they do is
illegal, both are liable. The general principle prevails that
a man can be made criminally responsible only for an
act which he has himself committed or ordered. " Who-
ever actually commits, or takes part in the actual com-
mission of a crime, is a principal in tlio first degree,
whether he is on the spot when the crime is committed
or not ;" and " whoever aids or abets the actual commission
of a crime, either at the place where it is committed,
or elsewhere, is a principal in the second degree in that
crime " (e). Some important exceptions have spi'ung up.
Masters maybe criminally liable for libels published by their
servants acting within the scope of their employment, even
though they are no parties to the publication. The pro-
prietor of a newspaper, for example, may be absent at the
time of the publication of a libel ; he may be totally ignorant
of it, and morally innocent ; the editor or other servant may
have acted negligently ; but at Common Law the proprietor
was 'prima facie liable. Thus in R. v. Ahnon (/) the owner
of a book-shop was indicted for the sale of a libellous
pamphlet of the nature of which it did not appear that he
was aware, and in R. v. Walter {g), decided in 1799, Lord
Kenyon ruled that the proprietor of a newspaper was answer-

(c) Foster, C. C. 125. druggist employed an unskilful assist-

{d) R. V. Dixon (1814), 3 M. c^ S. ant, and customers were thereby

11 ; 4 Camp. 12. poisoned.

(e) Stophen's Digest of Criminal (/) (1770), 5 Bur. 2686.

Law, pp. 22 & 23. Of course a master {g) 3 Esp. 21 ; also R. v. Gutch

might be guilty of manslaughter (1829), Mood and Mol. 432.

for the acts of servants ; e. g. if a


able criminally for the acts of his servant though he lived
in the country and had nothing to do with the conducting
of the newspaper.

This is, however, subject to sec. 7 of the ic 7 Vict. c. 96,
which says : " And be it enacted, that whensoever, upon the
trial of any indictment or information for the publication of
a libel, under the plea of ' not guilty,' evidence shall have
been given which shall establish a presumptive case of
publication against the defendant by the act of any other
person by his authority, it shall be competent to such
defendant to prove that such publication Avas made without
his authority, consent, or knowledge, and that the said
publication did not arise from want of due care or caution
on his part " (//).

There is another class of cases, hard to define, in which
masters have been made to answer in criminal or quasi
criminal proceedings, for acts the knowledge of which was
not brought home to them. In interpreting certain statutes,
particularly those relating to revenue purposes, Courts have
disregarded the presumption that a person is criminally
liable for no acts but his own, on the ground that, though
penal in their conse({uence.s, the proceedings Avere sub-
stantially civil ; that it was a master's duty to prevent
breaches of the law liy his servants; or that the statutes
Avould be rendered inoperative if a master were not punished
for their acts. It is too late to question the legality of these
decisions, however difficult it may be to reconcile some of
them with the principle that tnens rea is necessary to con-
stitute a criminal offence. The 3o & 36 Vict. c. 04, s. 16,
made it an offence for" any licensed person " to supply any
liquor to a constable on duty. It was argued in one case
that a licensed victualler ought not to be convicted under this
section when liquor was supplied by a servant without his
master's knowledge. That was not the view of the Court ; it

(^i) E. V. Ilolbrool: (1877), L. R. 3 L. T. .^.:{0 : L. It. 4 (.,». i;. 1). 42; 48
Q. B. D. 60 ; 47 L. J. Q. 1!. ^o ; 37 L. J. CJ. Li. 113 ; 39 L. T. 53(3.



•was thought enough that the servant kne\v(<). In tlic subse-
quent case of Bosley v. Davies (k), proceedings were taken
under sec. 17 of the same Act against a publican as a
" hcensed person " who " suffered any gambling," &c. The
Court decided that actual knowledge of the offence by
the master was not necessary ; but that there must be some
evidence that he or his servants connived at what was going
on. This interpretation was adopted in Redgate v. Hannes (I).

(i) Mullens V. Collins : sec note (/).

(^•) Ditto.

(l) See below. The following are
the chief cases : — Mastkr Liahle —
A.-G. V. Stranyfortk (1721), Bunb.
97. (The Crown lost duties on wine
by mistake of clerk of one of five
partners ; defendants liable.) A.-G. v.
Burgers {Il-IQ), Bunb. 223 (Pengelly,
C.B., ruled that, if several pcrsonswere
concerned either in partnership or
otherwise, the Crown might come
against anj- one of them for the
whole penalty, it (non-payment of
duty) being in the nature of a tort. )
Mitchell V. Torup (1766), Parker,
227. (Tea imported by sailors without
knowledge of owners ; shiji forfeited.)
R. V. Di.ron (1814), 4 Camp. 12; 3
M. & S. 11 ; see note [d). A.-G.
V. Sidclon (1830), 1 C. & J. 220 ; 1
Tyr. 41. (Dealer in tobacco convicted
of harbouring and concealing tobacco,
which was, in fact, concealed by his
servant. Adcocnte-Gcncral v. Grant
(1853), 15 T. 980. (Clerk to a
distiller sold a cask of whisky to one
•who had no licence to sell spirits ;
sent it to the purchaser with permit ob-
tained for another; an oHence within
2 Will. IV. c. 16, for which employers
liable.) Michell v. Brown (1858),
29 L. J. M. C. 53. (Owner of a vessel
convicted under 11th sec. of 54 Geo. 3,
C. 159, which makes it i\n offence to
throw out of any vessel iuii navigable
river ballast, &c., though owner not
on board at the time of the offence.)
Hmvells v. Wynne (1863), 15 C. B.
N. S. 3 ; 32 L. J. M. C. 241. (See
Mines Regulation Act, 35 k 36 Vict.
C. 76, s. 51 k 52.) Sr/irle v. AV?/-
nolds (1866), 7 B. & S. 704 ; 14 L. T.
N. S. 518. (Appellant not liable for

disobedience of his foreman to .order of
inspector to disinfect certain pre-
mises, Coc:kburn, C. .T. ; apprllant
liable, Mellor, J.) Core v. James
(1871), L. K. 7 Q. B. 135. (To con-
vict baker under 6 & 7 VVm. IV.
c. 37, s. 8, for putting alum in bread,
knowledge necessary ; but the know-
ledge of the servant will suffice to
make master liable.) Barnes v.
Akroi/d (1872), L. R. 7 <>. B. 474 ;
41 L. J. M. C. 110. (Occui)iers
of factory liable under IS & 19 Vict,
c. 121, s. 12, and 23 & 24 Vict. c. 77,
s. 13, for a nuisance bj- emission of
smoke caused by their servants.)
Mullins V. Collins (1874), L. R. 9 Q.
B. 292 ; 43 L. J. M. C. 67 ; 29 L. T.
N. S. 838. (A licensed victualler
liable, under 35 & 36 Vict. c. 94, s.
16, sub-s. 2 ; although he had no
knowledge that his servant had
sujtplied drink to a constable on
duty.) Bosley Y. Davies {IS7 5), L. R.
1 Q. B. D. 84 ; 45 L. .J. M. C. 27 ;
33 L. T. N. S. 528. (Appellant
charged with "suffering " gaming on
his licensed premises ; case sent back
to the justices with an intimation
* that, though actual knowlerlge of
card-playing on the part of the appel-
lant or his servants need not be
siiown, some circuinstiinces must be
proved from whicii it could be in-
ferred tliat they connived at what
was going on.) Bediiatr v. Baync^
(1876), L. R. 1 Q. B. D. 89. (Ap-
pellant cliarged under section 17 of
the Intoxicating Li(),uors Licensing
Act, 1S72, 35 & 36 Vict. c. 94, with
"suffi'riiis" giming to be carried on
in an hotel : justices inferred that the
appellant knew that gaming was in-
tended to be carried on, and took

T 2



Looking to the variety of the decisions collected below, all
that can be said is that there is a i^nind facie improbability
against criminal liability in the absence of mens rea ; that
the Legislature may, nevertheless, for public reasons, impose
penalties on those who do not prevent as well as those who
commit certain offences ; and that the words of each statute
must determine whether a master is chargeable for acts
which are unknown to him.

Employers have frequently been held criminally answerable
for nuisances committed by their servants. Thus in R. v.
Medley (m) the directors of a gas company were indicted
jointly with their servants, who conducted the works, for
turning refuse into a stream. Denman, C. J., directed the
jury to find the defendants guilty, though they were ignorant
of what had been done. Perhaps some of such decisions
were given at a time when the difference between criminal
and civil responsibility had not been precisely determined.

jiaiiis not to know what her guests
were doing. ) jMaster not Liable.
—Harrison v. LcajKr (1862), 5 L. T.
X. S. 640. (Owner of a steam thresh-
ing niachiiu' not liable when his
servant put it, without his master's
orders and contrary to the High-
way Act, too near the road.) Oupfry
V. Burto7i (IS70), 39 L. J. M. C. 141.
(A. kept a refreshment room, and
liad a notice as to penalties incurred
for supplying'refre.shnients to ])ersons
not travelleis during prohibited
hours ; Ins servajit neglected to (pies-
tion certain strangers ; "(iross negli-
gence or want of j)recaution in this
matter would be evidence of guilt,
but there is nothing of the sort here,"
Wille.s, .1.) .\lr/io}s \. Hall (lS7^i),
L. K. 8 V. P. 322. (To convict a
person of an ofl'ence under order made
in virtue of Contagious Diseases
f Animal) Act, knowledge that animal
is diseased, necessary. ) Ji. v. Hand-
Ini (1864), 9 L. T. N. .S. 827. (To
sustain conviction under b k Q Vict,
c. 99, ss. 8 & 13, for employment f)f
females in mines, knowledge or
acrjuicsccnce must be proved.) II.
V. WiVroys (1866), 4 1!. (3rd series)

656. (Sale of beer from cart on
highway by a servant employed to
deliver beer, for which orders had
not previously been given at the
brewery : no ])art of the duty of the
servant to sell beer ; no evidence of
servant's knowledge.) Dickevson v.
Flctrhcr (1873), L. K. 9 C. P. 1 ;
43 L. J. M. C. 25. (See Mines
Pegulation Act, 23 & 24 Vict. c. 151,
.ss. 10 & 22.) Baker V. Carter (1878),
L. K. 3 Ex. D. 132. (See Coal Mines
liegulation Act, 1872, s. 51.) Under
the "Wine and Beer House Acts, 1869
and 1870 (32 & 33 Vict. c. 27, s. 12,
and 33 & 34 Vict. c. 29, s. 15),
masters are liable for acts of ser-
vants.) See also //caj-Jic v. Garton
(1859), 28 L. J. M. C. 216; It v.
Bishop (1880), L. P. 5 (>. 15. D.

(wO (1834), 6 C. & P. 202. See
also R. V. Stephen (\%m), L. R. 1
i}. B. 702. (Owner of works carried
on by his agents, indictable forc.-uising
nuisance by depositing rubbish in a
])nblic navigalde river, though the
defendant had prohibited the work-
men from so depositing the rubbish.)

master's liability to thiiu) persons. 277

Perliaps, too, they arc justified by the fact that proceed iii'^s
for nuisances are in substance, though not in form, civil.

Under this class of cases may be ranged those of which
Gregory v. Piper {n) is a type. That was a case in which
a servant, though careful and skilful, could not carry out the
orders of his master without doing tlic mischief which was
complained of A servant Avas ordered to lay down a
quantity of rubbish near the plaintiff's wall and gates —
which could not be done without some of the rubbish touch-
ing the wall or gates ; the defendant was made answerable
for the inevitable or natural consequences of his instructions.

Innkeepers are at Common Law liable to their guests for
loss of luggage, kc, caused by the negligence or larceny of
their servants (o). But it is an answer to show that the
guest has been guilty of gross negligence which has contributed
to his loss (p). When a guest at an inn went to bed leaving
his door ajar, and some one entered in the night and stole
money from the pockets of his trousers which he had left on
a chair, it was held that the proper question for a jury, was
whether the loss would have occurred " if the guest had used
the ordinary care that a prudent man may be reasonably
expected to have taken under the circumstances " {(f). The
27 & 28 Vict. c. 41, s. 1, limits the liability of an innkeeper
to i^30, except when the goods or property shall have been
lost, stolen, or injured through the wilful act, default, or
neglect of the innkeeper or any servant in his employ, or
shall have been deposited wdth the innkeeper expressly for
safe custody (?').

At Common Law common carriers are liable not only for
the negligence but also for the frauds and larceny of their

(«.) (1829), 9 V,. k C. 591. Co. (1871), L. K. 6 C.P. 515 ; 40 L. J.

(o) Kent V. IShuckard (1831), 2 B. C. P. 93 ; 25 L. T. 93. See IHxoa

k Ad. 803. V. Birch (1873), L. II. 8 Ex. 135 ;

(p) Cahje's Case, 8 Rep. 32 a. ; 42 L. J. Ex. 135 ; 28 L. T. 360 ;

Eiohmond v. Smith (1828), 8 15. k 21 W. R. 443. (Salaried manager

C. 9. not innkeeper. ) See as to defects in

((7) CashiUv. Wright (1856), 6 E. notice, Spice v. Bacon (1877), L. R.

k B. 891 ; 2 Jur. X. S. 1072. 2 Ex. D. 463 ; 46 L. J. (,). B. 713 ;

(r) Oppcnlceimx. White Lion Hotel 36 L. T, 896; 25 W. R. 840.


servants («). Though their liability for felony on the part
of their servants has been disputed, it follows from the fact of
their being- insurers. The 11 Geo. IV. & 1 Will. IV. c. 68,
s. 8, expressly says, " nothing in this Act shall be deemed to
protect any mail contractor, stage coach proprietor, or other
common carrier for hire, from liability to answer for loss or
injury to any goods or articles whatsoever arising from the
felonious acts of any coachman, guard, bookkeeper, porter, or
other servant in his or their employ, nor to protect any such
coachman, guard, bookkeeper, or other servant, from liability
for any loss or injury occasioned by his or their own personal
neglect or misconduct (0-"

A master is answerable for the negligence or other
tortious conduct of his servant in doing the class of
acts which Ik^ Avas ordered or authorised to do.

In dealing with cases of negligence or other misconduct
on the part of servants coming within this category, the law
has pursued a middle course. It would, on the one hand, be
Avholly unreasonable to hold a master answerable for acts of
his servants, the connection of which with their service
was fortuitous, or exceedingly remote. No prudent man
would venture to employ another if such were an incident
of the contract of hiring and service. On the other hand,
the responsibility of masters would be slight, the
remedies of injured persons would be worth little, if a
master wcjre liable only for acts Avhich he had expressly
or by implication ordered. Between these two extremes, a
line has been drawn ; and probably the exact character of
tiie employer's responsibility cannot be more accurately
defined than it is by Willes, J., in words frequently quoted

(s) Brown on Law of Carriers, D. 692. As to what will be evidence

.,_ 58. of stciiliufj by servant, sec (7rcat

(l) As to who arc servants, sec JFesteni Ry. Co. v. Jiimcll (18.56),

Mnchu V. London .t Soafh-WcsUiii 18 C. 15. .'')7r> ; i\\\A McQueen \ . Great

lly Co (1848), 2 Ex. 415; 12 Jur. Wcdcrn Rii. Co. (1S7.'>), L. K. 10 Q.

501 ; 17 \.. .1. Ex. 271 ; and Way v. B. 569 ; 44 L. J. Q. B. 130.
iJrrat Eaxtn-n Ry. Co., L. R. 1 Q. B.


with judicial approval. " He (the employer) has put the
agent in his place to do that class of acts, and he must be
answerable for the manner in which the agent has conducted

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