John Macdonell.

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

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himself in doing the business which it was the act of his
master to place him in " (u). Servants are liable to err and
to abuse their position. Masters must take the risk of
mistakes ; they will not be heard to say, " I told my coach-
man to drive slowly ; I am not answerable if he dro\e too
fast." A groom who was riding his master's horse, and who
was desirous of overtaking his master, spurred it recklessly
as he passed a waggon ; the horse kicked and struck the
wairo-oner (x) ; the master was liable for this reckless act. A
coal-merchant sends his carman to deliver coals at the house
of a customer ; the carman allows the coal-hole in the pave-
ment to be open and unguarded ; a passer-by, faUing into
the opening, is hurt ; the coal-merchant is responsible (y).
A servant negligently leaves a horse and cart in the street ;
a passer-by strikes the horse ; an accident occurs ; the
master is liable (:;). So where a person was induced to
continue to supply oats on credit to a customer of a bank
on the strength of the representation of the manager, wdio
fraudulently concealed the fact that a certain guarantee
must be of no value, the bank was held answerable for his
fraud (a).

It matters not what were the instructions given to the
servant as to the manner in which he ought to do his duty ;
it matters not that a servant has abused his authority,
exceeded or deviated from his instructions ; it will be no
defence in proceedings against the master that his servant
has done wrongfully that which he was ordered to do pro-
perly. Thus it is no answer in an action against a company
for infringement of a patent that its servants acted against

(w) Barivick v. English Joint R. 2 Q. 15. D. 276.
Stock Co. (1867), L. E. 2 Ex. 259 ; 36 (c) llUdgcr. Goodvin (18.31), .". C.

L. J. Kx. U7. & P. 190.

(.i-) iVor^Av. 6';«i7/i (1861), 4 L. T. [a) Barwick v. E)ir/Ii,sh Joint

N. S. 407 ; 10 C. B. N. S. 572. Stock Co., see uotc («)•

(y) Whitehy v. PrpjKr (1877), L.



280 THE LAW OF MASTER AND SERVANT.

the express orders of the directors (6). It is immaterial,
except so far as it helps to define the servant's duties, that he
received precise instructions or that he was directed to be
careful. The maxim respondeat superior would be nullified
if an employer could escape liability by merely enjoining
care or caution. In short, it is the nature of the employ-
ment and not that of the particular instructions which deter-
mines the master's liability. Whatever arrangement he
makes with his servants, the law will hold that " there is
an implied authority to do all those things that are neces-
sary for the protection of the property entrusted to a person,
or for fulfilling the duty which a person has to perform " (c).
Tliis was strikingly exemplified in the case of Limj^us v.
General Omnibus Co. (<I), to Avhich reference has already
been made.

The defendants' drivers had printed instructions "not on
any account to race with or obstruct another omnibus, or
hinder or annoy the driver or conductor thereof in his busi-
ness." A driver in the service of the defendants drove his
omnibus across the road in front of a rival omnibus and over-
turned it. " I pulled across him," said the drivei', " to keep
him from passing me, to serve him as he had served mo."
Mv. Justice Wightman thought the defendants not liable, the
act being wholly wilful and unjustifiable on the part of the
servant, and quite beyond the scope of his employment.
But the rest of the Court was of opinion that the act having
been done while the servant was acting in the course of his
master's service and for his benefit, the master was liable.
Speaking of the instructions given to tlie driver, Mr. Justice
Willcs observed, " I beg to say, in my opinion those instruc-
tions were perfectly immaterial. If they were disregarded,
the law casts upon the master the liability for the acts of

(//) Belts V. Dc Vllrc (18C8), L. I{. Lii/ijius v. General OmnUms Co.

r? C'li. 441 ; and comi>aie Slcvtn.sy. (18G'2), 32 L. .1. Kx. 35; 1 JI. & C.

Woodward (1881), L. R. 6 Q. B. D. 52(5 ; Jktyhv v. Manehesier, Sheffield,

318. and Lineal ii lly. V„. (1873), L. K. 8

(c) I5la.,klmni, .1., iti Alien v. C. P. 148, 472.
London <t Svatk jyestcm Jiy. Co. (d) See last note.

(187<i), L. K. (5 (I IJ., 1). 69 ; sec



master's liability to tiiiui) rF.usr.N's. 281

his servant in the course of his cmplo^^ment, and tlio law is
not so futile as to allow the master, by giving secret in-
structions to a servant, to set aside liis own liability. I
hold it to be perfectly immaterial that the master directed
the servant not to do the act which he did. As well might
it be said that if a master employing a servant told him that
he should never break the law, he might thus absolve himself
from all liability for any act <jf his servant, though in the
course of the employment."

It is a consequence of the same principle that a master
will be answerable for things done by a servant if they be
performed in an emergency, and if they be usually per-
formed by such servants. Thus, in Gqff' v. Great Northern
Railway Company (e), the defendants were found liable
in an action for false imprisonment brought by a passenger
who had been given into custody by a superintendent of the
line, on a charge of travelling without a ticket with intent to
avoid payment. The question in each case appears to be, does
the servant represent the master ? And it will be assumed
that the former has the powers which, looking to the ordinary
course of business and general usage, naturally belong to one
in his position.

Speaking of this class of cases, in The Bank of New South
Wales V. Owston (/), Sir Montague Smith says, " the result of
the decisions in all these cases is, that the authority to arrest
offenders was only implied where the duties which the officer
was employed to discharge could not be efficiently performed
for the benefit of his employer, unless he had the power to
apprehend offenders promptly on the spot ; though it was sug-
gested that possibly a like authority might be implied in the
supposed cases of a servant in charge of his master's property
arresting a man Avho he had reason to believe was attempting
to steal, or had actually stolen it. In the latter of these

(e) (1861) 30 L. J. Q. B- 148 ; 6'i7r.s (1S67), L. R. 2 Q. B. 534.
V. Taff Vale lly. Co. (1852), 2 E. & (f) (1879), L. K. 4 App. 270 ; 48

B. 882 ; and compare Poul.ton v. L. J. P. C. 25 ; 40 L. T. N. S. 500.
London, and South- JVcslcrn Ry. Co.



282 THE LAW OF MASTER AND SERVANT.

cases it is part of the supposition tliat the property might
be got back by the arrest ; but in such a case, the time, place,
and opportunity of consulting the employer before acting,
would be material circumstances to be considered in determin-
ing the question of authority." He added, " an authority to be
exercised only in cases of emergency, and derived from the exi-
genc)'^ of the occasion, is evidently a limited one, and before it
can arise, a state of facts must exist which shows that such exi-
gency is present, or from which it might be reasonably supposed
to be present. If a general authority is proved, it is enough to
show, commonly, that the agent was acting in what he did, on
behalf of his principal. But in the case of such a limited
authority as that referred to, the question whether the emer-
gency existed, or might reasonably have been supposed to
exist, arises for decision ; and that question raises issues beyond
the mere facts that the agent acted on behalf of and in the
supposed interest of the principal. Were it otherwise, the
special authority would be equivalent to a general one."

In some cases the Courts appear to have laid down the rule
that, although a master is answerable for the consequences of a
lawful act negligently done by his servants, he is not answer-
able for the consequences of an unlawful act done AvilfuUy.
In Lyons v. Martin (g), a servant who was authorised to
merely distrain cattle damage feasant, drove a horse from
the highway into the master's close and there impounded it.

In Bollnghroke v. Local Board of Swindon (/t), a person
to whom the defendants had entrusted complete powers for
the management of a sewage farm, wrongfully went upon the
plaintiff's farm and did various acts in order to facilitate the
flow of drainage along a ditch which separated the plaintiff's
from the defendants' land. In both these cases, tlie masters

(g) (1838), 8 A. & E. 512. Sec MnHin may lie cited JVahlir v. Duke

also Gordmi v. Rolt (1849), 4 Ex. of llurhunjhr (l^tlUvch, l%-2'2.), IS.

365 ; 7 D. & L. 87 ; IS L. J. Ex. 432. :5C7 ; on appeal (lOtli February, 1825),

(This turned on a point of i)leadinf; 1 W. S. 1, which decided that a pcr-

— the di.stinction Letweeu case and son was not liable ibr a breaeli of an

trespass — and it is sometimes under- interdict, wliidi was committed with

stood to determine more than it his knowledge! by a servant,
actually did.) In favour o[ Lyons v. (//) (1874), L. K. 9 C. 1'. 575.



MASTKU'S LIABILITY TO THIRD PERSONS. 283

were exonerated from responsibility. These decisions or, at all
events, certain expressions in the judgments arc, it is sub-
mitted, not reconcilablo with recognized authorities. In Sey-
mour V. Greenwood (t), and Bayley v. Mdiichester, Sheffi.eld,
and Lincolnshire Ry. Co. (/•), the conduct of tl»o defendants'
servants in forcibly removing passengers was unlawful. All
frauds committed by servants in the course of their busi-
ness are unlawfid. Yet employers are answerable for such
conduct. No doubt, in Lyons v. Martin, Lord Denman
and Patteson, J., laid stress upon the fact that the conduct
of the servant was unlawful in itself. But these dict(( — which
were questioned by Crompton, J., in lA'mpus v. Goieral
Omnibus Co. (l) — were probably unnecessary for the decision ;
the conduct of the servant not being incidental to his duties.
The fact that an act is wilful oi- unlawful maybe important in
determining whether it is within the scope of employment ;
but it is submitted that the circumstance does not necessarily
absolve the master.

Another test, often suggested, is that, in order to render
his master liable, the conduct of the servant must be to his
master's benefit. Generally, no doubt, there must be a con-
currence of two things in order to make a master liable — the
act must be done in the course of his service and for his
benefit {m). If a servant were, without the knowledge of his
employer, to take his master's carriage and horse and go on
business of his own, and damage were thereby to result, an
action would not lie against the master. So, too, if a footman
were, as he conceived in the interest of his employer, to drive
his carriage, the latter would not be answerable foi- the con-
sequences. But cases are conceivable in which, without any
intention on the part of the servant to benefit the master, hv.
would incur liability. A,, for example, is employed to warn



((■) (1861), 30 L. J. Ex. 189 and (m) Llmpits v. Ocnr.ml Omnibus

327 ; 7 H. & N. 3.53. Co., 1 H. & C. at p. 540, referring

(k) (1873), L. R. 8 C. P. 148. to Huzzey v. Field, 2 C. M. & R.

(I) (1862), 82 L. J. Ex. 34 ; 1 11. 432.
& C. 526.



284 THE LAAV OF MASTER AND SERVANT.

persons who go over a crossing near a sharp curve of the
approach of a train. He forgets to do so, he falls asleep
or gets drunk, and B. is run over; A.'s employers would
he, it is conceived, answerable for misconduct certainly not
intended to benefit them. It is different when the servant
has ceased to act as a servant ; when his conduct is no more
a necessary or natural consequence of his employment than
the act of any stranger ; when he is doing that which any
stranger might as naturally do ; and, in short, when he acts
as he does, not because he is a servant but because he is evil
disposed.



A master will be liable for a servant's acts if the
servant does what he was ordered to do in a roundabout
way, or if, in carrying out his master's orders, he
does incidentally something on his own behalf.

This class of cases, which approximate to those already
named, turns on questions of degree ; and it is difficult to lay
down a rule Avhich will not include too much or too little. The
last part of the above statement of the law may be too wide.
A few illustrations will show the tendency of the decisions. In
one instance (u), a cart driven by a servant of the defendant,
knocked down and injured the plaintiff in the City of
London. It was proved by the defendant that the business
of the servants was to go from Burton Crescent Mews to
Finchley, and that tlie spot at which the accident took place
was out of the way. In summing up the case to the jury, Baron
Parke left the question thus : " If the servants, being on their
master's business, took a detour to call upon a friend, the
master will be responsible. If you think the servants lent
the cart to a person who was driving without the defendant's
knowledge, he will not be responsible. Or, if you think that

(n) Jod V. Morisvn (1834), (3 C. k V. 501.



master's liability to third persons. 285

the young man who wus driving took the cart surreptitiously,
and was not at the time employed on his master's business,
the defendant will not be liable. The master is only liable
where the servant is acting in the course of his employment.
If he was going out of his way, against his master's implied
commands, when driving on his master's business, he will
make his master liable ; but if he was going on a frolic of his
own, without being at all on his master's business, the
master will not be liable." When a servant, contrary to his
master's orders, went out of his way to deliver a parcel of his
own, and in returning injured the plaintiff, the master was
held liable (o). On the other hand, a master was not made
answerable for the negligence of a servant who, having
finished his business and returned home, started on a separate
journey for a purpose of his own without his master's know-
ledge {'p).



A master is not responsible for the acts of ser-
vants which are unconnected with and not incident
to their service, and which are not done in the course
of their employment.

Every act by a servant, as has already been stated, is not in
law that of his master. He may be bent on his own private
ends ; he may be engaged on hie own and not his master's
business ; he may be acting wholly outside the scope of his
duties ; he may cease to act in any way as a servant. His
conduct may not pertain to or be a natural consequence of

(o) SlcnJ.h V. Wilson (1839), C. Storey v. Asliton (1S69), L. R. 4

& P. 607. Erskino, .!., makes the Q. B. 476 ; 38 L. J. Q. B. 223. lu

question turn on wlietlier or not the Rmjner v. Mitchell (1877), L. R. 2

servant was "intrusted" with the C. P. D. 357, a carman .started,

control of the carriage, and his for a purpose wholly unconnected

language is virtually repeated by with his master's business, to deliver

Coleridge, C.J. ; see also note (;>), a coffin at the house of a relative,

infra. but, in the course of tlie joiirney,

(/<) Mitchell V. Cressivcller (1853), picked up two of his master's casks :

13 C. B. 237 ; 22 L. J. C. P. 100 ; held that the master was not liable.



286



THE LAW OF MASTER AND SERVANT.



his duties or of the confidence reposed in liini (q). It
would lie wholly unjust to throw upon the employer the
responsibility fur acts done in those circumstances. The two
cases commonly quoted in illustration of this limitation are
McManus v. Crickett (r) and Croft v. Alison (n). The
evidence in the former case Avas that a servant of the
defendant had wilfully driven a chariot against the plaintiff's
chaise ; and the Court held that an action of trespass did not
lie ao-ainst the master. In the latter, the facts were that
the plaintiff's carriage became entangled with the defendant's
through the negligence of the defendant's driver, and that the
defendant's driver wantonly struck the ]:)laintiff's horses with
his whip, so that they started and injured the plaintiff's
carriage. In these circumstances the defendant was held not
liable. So, too, when a clerk to a firm of solicitors went
contrary to orders into a lavatory intended exclusively for the
use of one of the partners and allowed a tap to run, the



(q) In Angell and Ames, on Corpo-
rations, s. 388, the rule is thus
expressed: ""When a servant (piits
sight of the ohject tor which he is
employed, and, without having in
view his regular duties, pursues a
course suggested by malice, he no
longer acts in jiursuimce of the
authority given him. The dividing
line is the wilfuhuss of the act ;
and there is no case whore tlie ]irin-
cipal has been made iialile for a wil-
ful trespass committed by a servant,
because commanded and approved by
a general agent." The authors refer
to Vandf.rl)iU v. Eichvionrl Turnjdke
Co., 2 Const. -17!). This statement,
which is often substantially repeated,
is too wide.

(r) (1800), 1 East, 106.

(s) (1821), 4 15. & Aid. 590. The
Court drew the following distinc-
tion .• " If a servant dnving a
carriage, in order to ellcat some ])ur-
])ose of Iiis own, wantonly strike tlie
horses of another piTson, and jiroduce
tlie accident, the master will not be
liable. But if, in order to perform
his master's orders, he strikes, but



injudiciously, and in order to extri-
cate himself from a dilKculty, that
will be negligent and careless con-
duct, for which the master will be
liable, being an act done in jmrsuance
of the servant's emjdoyment." See
also Lamb v. PaJk (1840), 9 C. & P.
629. (A van standing at the door
of A.'s shop from which goods were
being removed. A.'s gig stood be-
hind the_ van. 15. 's coachman got
oir his box and laid hold of the van-
horse's head. A ]iacking-case lell
from the van and Iiroke the .shafts
of the gig: Iield by Gurney, IJ.,
that B. was not liable, as the
coarhman was not at the time
acting in the service of B.) "With
McManus \. Crirkdt comjiare Dal-
rymplc v. McGill (1813), Home, 3^7.
(A master not liable for act of ser-
vant, who, without orders, took a
horse of a neighbour, and rode it so
hard that the liorse was permanentl)'
injured.) These ca.scs seem incon-
sisti nt with Linipvs v. Gemral
Oiiu\ilins Co., land J'age v. Defries
(18GC), 7 15. k S. 137.



master's liability to Tlliur) I'KHSONi^. 287

defendants were held not to be liable for the damage done
to the premises of the plaintiff (t). The same conclusion
was arrived at in William v. Jones (u), the facts of which
were these : defendant's servant, a carpenter, was employed
in making a signboard in plaintiff's shed. The carpenter, in
liohting his pipe, negligently set fire to the shed. The
master was not liable.

In Allen v. Tlte London and South- Western Ry. Co. (6),
a ticket clerk in the service of the defendants, erroneously
suspecting that a person had attempted to rob the till, gave
him into custody after the attempt. In an action for false im-
prisonment against the company, the plaintiff failed on the
ground that the clerk had no authority to take steps to punish
an offender. " There is a marked distinction," said Black-
burn, J., " between an act done for the purpose of protecting
the property by preventing a felony or of recovering it back,
and an act done for the purpose of punishing the offender
for that which has already been done. There is no implied
authority in a person having the custody of property to take
such steps as he thinks fit to punish a person who he
supposes has done something with reference to the property
which he has not done. The act of punishing the offender is
not anything done with reference to the property, it is done
merely for the purpose of vindicating justice. . . . There is an
implied authority to do all those things that are necessary
for the protection of the property entrusted to a person, or
for fulfilling the duty which a person has to perform." So
in Edwards v. London and North- Western Ry. Co. (c), it
was decided by the Court of Common Pleas that a foreman
porter had not from his position implied authority to give
into custody a person reasonably suspected of stealing the
company's property, though the porter happened to be in
charoje of the station at the time. The facts of Walher v.



{t) Stevens v. Woodward (1881), (6) (1870), L. R. 6 Q. B. 65 ; 40

L. R. 6 Q. B. D. 318. L. J. Q. B. 55 ; 19 W. R. 127.

{u) (1864-65), 3 H. & C. 602 ; 33 (c) (1870), L. R. 5 C, P. 445.
L. J. Ex. 297.



288 THE LAW OF MASTER AND SERVANT.

South-Western Ry. Co. ((?) show the fineness of the distinctions
upon which tlie Courts proceed. It was decided that the
defendants were not answerable for the act of their servant, a
constable, in giving the plaintiff into custody on a charge of
assaulting the defendants' servants after a struggle was
over and when the plaintiff was walking quietly away. On
the other hand, the Court thought it might be within the
scope of the authority of a servant, who was a constable, to
give into custody while a struggle was going on and before
it was over, a person who, it was said, refused to (|uit the
company's premises, or had assaulted the company's servants.
In Moore v. Metroiiolitaii Ry. Co. (e), the company were held
liable for the act of an inspector of one of their stations who
gave plaintiff into custody on a charge of fraud, on the
ground that the defendants were empowered under sec. 104
of their Act to arrest persons committing frauds under sec.
103, and that it might be presumed, in the absence of
evidence to the contrary, that the inspector as representa-
tive of the defendants had authority to arrest. All these
cases are applications — though not very obvious or perhaps
consistent — of the principle stated by Blackburn, J., in Allen
V. London and South-Western Ry. Co. (/'), that " there is

((/) (1870), L. ]{. 5 C. P. 640. tlio iipj,'li.i,'07ice of a servant, oven if
(c) (1872), L. K. 8 Q. 15. 36 ; 42 the .servant lias been e.xpressly told
L. J. Q. B. 23 ; 27 L. T. N. S. 579. not to publish the particular libellou.s
See ai.so (rojf v. Grnal Northern Jli/. nuitter. A banker is liable for a
Co. (1861), L. R. 2 Q. B. 584; Van fraud of a cashier, wHh-Ii is coni-
dcn Hijnde V. Ulster Bi/. Co. (1871), mitted in some matter connected
5 Ir. 6. L. 328. with his duties, even thouijli the
(/) Page 69. Many decisions state fraud be contrary to the wishes of
that the test is wliether the servant the banker. It is only by straining
has "authority." This term is the language that we can say in such
.source of much confusion. It means cases that a person had implied
either (1) express authority given authority to do that which he was
by a principal to an agent ; (2) con- expressly forbidden to do. See L'/ink
duct which would leave ])ersons to of New Sonth JFah's v. Owsfon, L.
believe an agreement was authorized K. 5 Ap. 4. It is, in fact, basing
by his ])rincipal ; and (3) in regard the master's and emjiloyer's liability
to torts, conduct which is inci- on a legal fiction, to make it turn
dental to and .somehow connected on a (juestion of authority. The
with the duties of the agent or term has, no doubt, jiroduced mis-
servant. A news])aper ])roprietor conceptions. A whohMdass of dicta,
is at Common Law liable, as has noW doubtful or overruled, may be
been stated, for libels published by traced to its use. A somewhat similar



jlvstkr's liability to tiiird peusons. 289

an implied authority to do all those things that are necessary
for the protection of the property entrusted to a person, or
for fulfilling the duty which a person has to perform."



A master will b(^- liable for the tortious acts of liis
servant when assiuiiiujz; to act for liim if the master
adopts or ratifies them.

The principle is thus stated in Wilson v. Tumnwn (r/) : " An
act done for another by a person not assuming to act for
himself but for such other person, though without any
precedent authority whatever, becomes the act of the principal,
if subse(iuently ratified by him, whether it be for his detri-
ment or advantage, and whether it be founded on a tort or a
contract, to the same extent and with all the consequences
Avhich follow from the same act if done by his previous
authority."

The act must be done for and on behalf of the master {h).
What is evidence of ratification is a (question of fact. In
order that ratification be proved, there must be a knowledge
of the fact to be ratified and an intention to ratify.



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