John Macdonell.

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

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Masters are liable for • the frauds or other torts
of their servants to the extent to which they are
benefited thereby.

This is affirmed in many cases, and it is necessary to refer

question arose in trials for embezzle- Ke.v v. Siaith (1823), K. & K. 516 ;

ments by servants nnder 39 (ieo. III. Rco: v. Bccchcy (1817), R. k. R. 319.
c. 85. It was necessary to show that (;/) (1843), 6 Scott, N. R. p. 904.

the servant had, " liy Virtue of such See Eastern Counties Ry. Co. v.

employment," received or taken into Broom (1851), 6 Ex. 314; Hoc v.

possession the chattel which he was Birkenkrnd (1851), 21 L. J. E.K. 90 ;

charged with misajniropriating. See 7 Ex. 36.

as to decisions under this section, (/<) Wilson v. Barker (1833), 4 B.

Rex V. Mellisk (1805), R. & R. 80 ; & Ad. 616.



290 TIIK LAW OF MASTEU AND SERVANT.

here only to Lord Selborne's judgment in Houldswwth v.
City of Glasgoii' Bank (^) ; and Lord Cranworth's judg-
ment in Addie v. The Wrstern Banl- of Scotland (k).



Companies are not liable for the acts of their
servants if the acts are not sncli as the comiDanies
could be entitled to do.

Under this head fall several decisions, of which the most
important is Poidton v. London and South-Wesfern Ry.
Co. (/). A station master demanded payment for carriage of
a horse, arrested the plaintiff, who refused to pay, and kept him
in custody for a time. The plaintiff brought an action for
false imprisonment. The company had no power under
their Act to arrest a person for non-payment of carriage of a
horse, and the Court held that the action would not lie, on
the ground, as stated by Blackburn, J., " that an act was
done by the station master completely out of the scope of his
authority, which there can be no possible ground for sup-
posing the railway company authorised him to do, and a
thing which could never be right on the part of the
company to do."



Public officers under Government are not respon-
sible for torts committed by their servants.

Thus in the well-known case of Lane v. Cotton (m),
the Postmaster-General, it was held, incurred no responsi-
bility for the loss of letters in the office by reason of the
no'difrence of a servant ; and in Whitfield v. Lord Le

(i) h. R. 5 Ap. 317. (/) (1867), L. R. 2 Q. B. 534 and

(k) L. R. 1 H. of L. (8c.) 154 ; 540.

]fackai/ V. Commercial Bank of JS'rw (w) 1 Lord liayiu. CJG; 12 Mod.

Brunswick (1874), L. K. 5 P. C. 394. 473.



master's LTABrUTY TO Til I III) T'F.RSONS. 2f)l

JDespenser (n), decided in ITTS, it was held tliat case di<] not
lie against the Postmaster-General for a bank note which
was stolen by one of the sorters out of a letter put into
the Post Office. The principles upon which a master or
employer is held answerable for the acts of servants do not
apply to the Crown. " If the master or employer is answer-
able upon the principle that qui fecit iwr aliuvi facit per ,se,
this would not apply to the sovereign, -who cannot be
required to answer for his own personal acts. If it be said
that the master is answerable for the negligence of his
servant, because it may be considered to have arisen from
his own misconduct or negligence in selecting or retaining
a careless servant, that principle cannot npply to the sove-
reign, to whom negligence or misconduct cannot be imputcfl,
and for which, if they occur in fact, the law afitbrds no
remedy" (o).

Sometimes the Legislature has expressly relieved Govern-
ment officials from liability for the acts of their subordinates.
See as to this, 0' Grady v. Carchuell, in which the defendant,
Secretary of State for War, was held not personally liable
in an action for breach of contract entered into by hiiu
on behalf of the War Department (p).

This exemption does not exj,end, as was held in Sutton v.
Clarke {q) and Hall v. Smith {r), and other cases, to trustees
and other bodies which perform statutory duties, and tlie
profits of which are appropriated to public purposes (s).



A master is not liable for injuries caused by his

(ji) Cowper, 754 ; A^icJwlson v. Commissioners of Woods and Forests. )

Moumey, 15 East, 384 ; see Story on As to the liability of a sheritl" for the

Agency, 319. acts of a bailitF, see Wood v. Finnis

(o) CantcrbnniY.AttornrAj-Gmeral (1852), 7 Ex. 363.

(1843), 1 Phili 306. (Petition of (p) (1873), 21 W. R. 340.

right against the Crown by the (q) (1815), 1 j\Iarsh. 429.

Speaker of House of Commons for (r) (1824), 2 Bing. 156.

loss of furniture, plate, pictures, (.«) Mersey Dock Trustees v. Gihbs

by a fire alleged to have been caused (1866), L. R. 1 H. of L. 93 ; 35

by the negligence of servants of the L. J. Ex. 225.



202 TOE LAW OF JIASTER AND ^>ERVAXT.

servant's negligence if they might liavc been
avoided by reasonable care on the part of the person
injured.

What constitutes such contributory negligence as will
disentitle a plaintiff to recover is a question which does not
belong exclusively to the Law of Master and Servant, and it
need not be here discussed (t).



APPENDIX A.



It is sometimes said that the present law as to the liability of a

-master for the torts of his servants is a relic of the time when

services were performed, as a rule, by slaves or villeins who were the

propertv of their masters, and for whose acts they were naturally held

responsiVile. This plausible view is not home out by the authorities. No

clear trace of the modern doctrine is to be found in early authorities,

such as Bracton. One of the few passaji;es in his treatise bearing on the

subject is the iollowin.ti (de Corona, f. 158), where, discussing wroTigs

committed bv servants^ he puts this case : " But what if the serA'ant of

any one, in the absence of his lord, has seized the cattle of any tenant of

his lord, and tlie tenant himself complains concerning the servant

that he has seized his cattle unjustly, and detained them against bail and

surety, and that servant has called the Court of his had to warrant, and

the Coui't has warranted to him concerning the service / The servant

shall be released and the Court shall answer for his own act. But

cannot the Court answer without the lord, when the service touches

the lord himself? Yes, so that the judgment be amended. But if the

cattle be seized without a judgment of the Court, and have been

claimed by the lord himself when he was iiresent, and he himself has

refused them on bail and not surety, each shall be liable, as it apjiears,

the one for the seizure and the other for the refusal of release. And

although his lord himself has avowed the seizure of his servant, he does

not acquit the servant, but he charges himself, and each is liable for the

act of the servant, the servant because he seized it, and the lord doubly,

because he avows the act of his servant, and because he refuses (the

release of the thing seized)." "Likewise let it be, that nothing has

been done by the Court, nor by the lord of the Court, but only by the

H) Laxv. Darlinqlonnf^:^),^'. 1^ <(• South Western Ry. Co. (1857), 2
. - , Ex. 1). '28 ; 48 L. J. Q. B. 143 : II. k N. 424 ; 2G L. J. Ex. 349.
49 L. J. Ex. 105 ; Ellis v. London



MASTKli's INABILITY TO TIIIKD I'KKSONS. 20:}

servant, as if the servant witliout the h)ril or witliout tlie CdUit, ha.s
levied a tax upon the tenants of liis hji'd as villeins wlio ai-e free, or
who say tliat they are perchance, wlieii they are serfs, and afterwards,
when lie has of liis own authority made a distress, and the cattle upon
the coni])laint of the tenant have been released by the visecjunt upon
bail and surety, and a complaint has been made only respecting the
servant without the hu'd, it is asked whether the servant can or ought
to answer without the lord, and to bring the case to judgment without
him? In which case, it will have to be inquired from the lord, whether
he will avow the act of liis servants or not, but if not, then the lord
may amend it, but if he has avowed, or not amended it, he makes the
injury his own, if there has been any injury." Neither in that
passage nor any other, as lar as I know, in Bi-acton, is there anything
to show that a master was regarded or liable tor the conduct of his
villein Avhen acting with(uit orders. Apparently the master was liable
lor the acts of his \'illeins when he had ratitied them, or what is the
same, had availed himself of Avhat was done or refusetl to release wliat
had been seized by them. I am not aware of any case in the Year Books, or
any passage in Plowden's Reports, Rastell, or Fitzlierbert, which clearly
lays ilown the doctrine now acce])ted. No doubt, instances are to be
found in which actions were brought (for example, i>V(//(»j(i v. Fitujlam, 2
H. lY., fol. 18, pi. ti), against masters for the acts of their servants on a
custom of the realm. Thus a person was held answerable for the spread
of tire when it was due to his guest or servant : C'owells Institutes, 201,
and actions on the case lay against innkeepers for the loss of goods by their
servants. That the law was not understood as it is now will be seen
from the following citations from KoUe's Abridg. Action on Case, 95 :
" If a servant, who is my merchant, sells an unsound horse or other
chattel at a fair to a man, no action lies against the master for the deceit,
for he did not command the servant to sell this to any onein jjartkular :"
y Hen. VI., 53.

Other authorities might be cited to show that a master was not
supposed to l)e liable if a servant abused his authority. Thus Pophaui,
C. J., lays it down in JFalthavi v. Muhjar, Moore, 776 (3 James I.),
that " where a master sends his servant to do an unlawful act he
shall answer for him if he made a mistake in doing the act. But
where he sent him to do a lawful act as here to take the goods of the
enemies of the king, and he takes the goods of a friend, the master shall
not answer. If a master send his servant to market to buy or sell, and
lie rob or kill by the way, the master shall not answer, but if he sent
him to beat one, and he kill or mistake the person and kill another,
the master is a murderer." Dodderidge argued that tlie master was
answerable in all public matters. In this case the question was whether
the owner of a vessel with letters of marque to seize Spanish sliijis was
responsible to the subjects of a friendly State whose ship had been wrong-
fully taken. It does not appear to have been contended, as of course
would be done in such circumstances in the jjresent day, that a master as
a general rule was liable for the acts of his servants in their employment.
The sole contention was that the master was liable in all public
matters. As late as the time of Charles II. the modern doctrine was
virtually denied in Kingston v. Booth (1G83), Skinner, 228, where
three justices of the King's Bench laid down the following rule : — " If I
command my servant to do what is lawful, and he misbehave himself,
or do more, 1 shall not answer for my servant, but my servant for him-



294- THE LAW OF PIASTER AJiD SKRVANT.

self, for that it was liis own act ; otherwise it was in the power of every
servant to siibjeut his master to what actions or jjenalties he pleased.
'I'hinlly, if I coinniand luy servant to do a lawful act, as in this case, to
jiull down a little wooden' house (wherein the plaintitf was and would
not come out, and which was carried ujion wheels into the house to trick
the defendant out of possession) and bid tiiem take care they hurt not
the plaintiff ; if in this doing my servant wound the plaintiti', in trespass
and assault of wouiuling brought against me, I may jilead 'not guilty,'
and give this in evidence, for that 1 Avas not guilty of the Avounding ;
and the pulling down the house was a lawful act."

The Doctor and Student (published 1518), at p. 237, recognises
tlie distinction between sale to a jiarticular person and sale generally.
See also Noy's Maxims (published 1G41), Avhere it is said at ]). !J5, c. 44,
" If a servant keeps his master's fire negligently, an action lies against the
master; otherwise, if he carry it negligently in the street. If 1 com-
mand my servant to distrain, and he ride on the horse taken for the
distress, "he shall be punisheil, not I. If a man command his servant
to sell a thing which is defective generally to whom he can sell it, deceit
lies not against him ; otherwise if he bid him sell it to such a man, it
does." The doctrine stated in the text is usually said to have been tirst
laid down in Micluul v. Akstree, 2 Lev. (167(5), 172, 3 Keb. C50, an
action on the case against a master and servant for bringing horses to
train in Lincoln's Inn Fields, whereby the plaintitf Avas injured. Judg-
ment Avas given for the plaintiff. " It shall be intended the master
sent the servant to train the horses there." In the report in Ventris
(i. 295), no mention is made of this point or indeed of the action being
against the master, and in the report in Keble the master's liability is
apparently justilied by the fact that he ordered the horses to be brought
to an open i)ublic ])lace. The modern doctrine Avas more clearly athrnud
by Holt, C. J., in Turhernlle v. >Staviji, Comb. 45!), in 1()98, decided
only a few years after Kingston v. Bootlt, already mentioned — Avhicli Avas
an action against a person ibr alloAving fire to extend beyond his close.
Holt, C. J., observed, " Th(.ugh I am not bound by the act of a stranger
in any case, yet if my servant doth anything prejudicial to another,
it shall bind" me, Avhere it may be presumed tliat he acts l)y niy
authority, being about my business." The same view Avas taken in
MidtUdon V. Fowler (1(599), 1 Salk. 282. {Nid I'rins, coram Holt, C.J.)
This Avas an actic)n on the ciu<e against defendants, juasters of a stage coacli.
A trunk Avas delivered to their coachman ; it Avas lost out of the coach-
man's ])ossession. It seems that no money Avas paid to the defendants
hir carrying the trunk ; Holt, C. J., held that an action did not lie, and
the plaintitf Avas nonsuited. He thus lai<l doAvn tlie rule : ''no master is
chargeable Avith the acts of his servant but Avhen he acts in cxcrution of
the autlioritif given Ijy his master, and then the act of the servant is the
act of the niaster." See also Jones v. JIart (1(599), 2 Salk. 441 ; L. Ray.
736 (a pawnbroker's servant took a ])a\vn ; tlie paAvner tendered the
money to the servant, avIio said he had lost the goods ; lield by Holt,
C. J.," that action for trover lay against the master) ; Han v. Nichols,
Holt, 46.

For an account of the Roman hiAv as to liabilities of masters, see
Die Haftnwj Jiir Frcmde Cnlpa nach ROmische Ikcht, von Dr. V. F.
Von Wyss ; Pothier, Oblig. 121 ; AI. Sourdat's Traite de la Itespoiis-
idjilite.

The variety of reasons given for tlu' existence of this liability is very



MASTKU'S LIAlilLJ'JT TO TlJJliD I'EIISOKS. 295

surprisiiif^. (1.) The servant is tlic agent of his employer, and tin-
liability of the latter is but an instance nf the doctrine Qui fucit 'per
idiuiib fucit per se. Alderson, B., in JIutchiitson x. The Yorl:, Ncwc((stle,
and JJcruick A'//. Cu., 5 Ex. '.i4'.i ; Lord Cranworth in Jjurtvitnliill (Joal
ft). V. h'cidj 3 Macij. 266. This reason scarcely acccnmts for tlie liability
<jf masters for acts Avliich they have forliickU-n and' in circumstances in
whicli an action would lie in case, hut not trespass. (2.) "The reason
that I am lialjle," says Lord Brougham in Duncan v. Findlatcr, U (_'.
& F. 910, "is this, that by employing him (the servant) I set the whole
thing in motion, and what he does, being done for my benefit and under
my direction, I am resjiunsibh', for the consequences and doing it" — a
reason which does not sei;m to ripply to work not dangerous in itselt,
and which would justify imposing rcsiJonsibility u2)on one who employed
a contractor equally with one who employed a servant. See Best, C. J.,
in Hall v. Smith, 2 Bing. 160. (3.) " There ouglit to be a remedy against
some person capable of paying damages to those injured : " Willes, J., in
Liinpus V. General Omnihua Cu. (4.) " He (the master) is liable for an
injury done to a stranger by his servant acting within the sco})e of the
hitter's authority, because the stranger has had no hand in the choice : "
Bramwell, B., in Sicainsoii v. Xorth-Juistcrn llij. Vu. ; a reason which
seems to have force only when a master has been guilty of some fault in
the choice of his servants, (o.) Holt, C J., in Hern v. Nichols, 1 Salk.
289, an action for deceit, puts the law on the ground that as some-
body must sulfer, it is but right the person who employed the
deceiver should do so. (6.) "As in strictness everybody ought
to transact his affairs, and it is by the favour and indulgence of
the law that he can delegate the power of acting for liim to another,
it is highly reasonable that he should answer for such substi-
tute, at least civilitcr, and that his acts, being pursuant to the autlujrity
given him, should be deemed acts of the master : " Bacon's Abriilgment,
^Master and Servant. (7.) Bentham, in his Principles of Penal Law
(vol. i. 383 of Works), jnits the master's resjionsibility upon the following
grounds : " The obligation imposed iqson tlie master acts a.s a punisli-
ment, and diminishes the chances of silnilar nusfortunes. He is interested
in knowing the cliaracter and watching over tlu- conduct of them for
"whom he is answerable. The law makes him an inspector of jjolice, a
domestic magistrate, by rendering him answerable for their inqaudence."
This seems the ground on which the rule of law can be justified.



APPENDIX B.

Tli<fullcncin(j are the chief cases on the snhjcct : —

Liability. No Lt.vuility.

aoodmanv. KcHnell{i82S),lU. 2IcMaiuis y. Cricket t {ISOO), 1

& P. 241 ; 3 C. & P. 167. (Person East, 106. (See p. 286.)

t)Ccasionally employed by defen- Croft v. Alison (1821), 4 B. &

dant as his servant took tlie horse Aid. 590. (See p. 286.)

of another when on defendant's Machnzie v. McLeud (1834), 10



296



THE LAW OF MASTEl? AND SKllVAKT.



Liability.
Itusiiies.s ; jury found that \\iv
liorse was takt-n with deteiKhant's
iin[ilie(l consent or autliority ; de-
i'eiKhint liable ; Court refused a
new trial.)

Grerjonj v. J'iper (1829), 9 B. &
C. 591. (Seep. 277.)

Chandler v. Jh-oin/htnu (18.32),
■J C. & M. 29. (Defendant sitting
in a gig beside his servant, who
v.-us driving ; horse ran away ;
action in tresjjass lay.)

Joel V. Mormm (18:34), G (,'. & P.
")01. (See 11. 284.)

Booth V. MiMer (1835), 7 C. & P.
66. (See p. 277.)

Skath V. ^ri/soH (1839), 9 C. & P.
607 ; 2M.& R. 181. (See \^. 285.)

Giles V. Taff Vale liij. Co. (1853),
2 E. & B. 822. (Plaintiff con-
tracted to plant hedges for de-
fendants ; placed thorn jdauts in
a piece of groxmd close to defen-
dants' station. The general super-
intendent of the line refused to
let them be removed ; defendants
liable in trover on the ground
(Jervis, C. J.), that "it is the
duty of the company, carrying
on a business, to leave ui)on the
.spot some one with authority to
deal on Ijehalf of the company
with all cases arising in the course
of their traffic as tlie exigency of
the ca.se may demand.")

Patten, v. Rea (1857), 2 C!, B.
N. S. 606; 3 Jur. N. S. 892 ;
26 L. J. C. P. 235. (The de-
fendant's general manager had a
horse and gig of his own. They
were kept for him at his master's
e.\j)ense, and occasionally used in
his master's business. In going
witli the aullunitv of defendant
ii]»on the defendant's business with
tlu' liorse and gig, he drove against
])laintiff's horse. Immaterial that
tlu; manager was also going on
]>rivate l»usines.s.)

Coif V. Creat Nortlurn Ibj. Co.
(1861), 3 E. & E. 672; 30 li. J.
g.B. 148. (Plaintiff, at the instance
of ticket-collector, defendants' in-



No Liability.
Bing. 385. (Housemaid lighted
straw in order to clean a smoky
chimney ; master not" liable on
the ground that it was no part of
her duty to clean the chimney.)

Liions v. Martin (1838), 8 A. &
E. 512 ; 3 N. it P. 509. (See
p. 282.)

Lamb v. Palk (1840), 9 C. & P.
629. (See p. 286.)

Conhm v. Holt (1849), 4 Ex.
365 ; 7 1). & L. 87 ; 18 L. J. Ex.
432. (Defendant, a contractor for
certain works, employed sub-
contractor, whose men in the
execution of the works but without
the defendant's authority used
the i)laintiff's crane, and broke it ;
defendant not liable in an action
of trespass.)

Easttrn Counties Ry. Co. v.
nrooni (1851), 6 Ex. 314. (Ser-
vant of a railway company took
plaintiff, a passenger, into custody
for an alleged breach of a liye-
law, &c., and carried him before a
magistrate. The attorney of the
company attended to ])rosecute ;
held no eWdence of authority, on
the ground that " it was not
shown there had been any direc-
tions given to the (ser\ants) in
general to enforce the l)ye-laws
and no evidence of ratification."
This case seems not reconcilable
with Giles \. Taf Vale. Co. See
Goff v. Great Northern Rij. Co., and
Jhink of Xeic Sontli IVales v.
Uu-ston.)

Roe v. JJirkeiihcad li'ii. Co. (1851),
7 Ex. 36. (Plaintiff, a passenger,
who refused to pay an additional
fare, Avas taken into custody by a
railway servant acting under the
direction of the suiKrintendent of
the station ; defendants not liable.
There was doubt whetlier the
servants wei'e really the servant.s
of the comjiany ; Alderson, B.
But the case is doubtful.)

Mitrhrll V. Craswcller (185.3), 22
L. J. C. P. 100; 13 C. B. 237.
(See p. 285.)



master's liability to tiiiiu) persons.



207



LlAHILITY.

sptrtor ol'jiolicc, iind sujieiintcu-
di'iitoniiu'.c'liarged witli tiiivcllin^-
"witlioiit 11 ticket witli intent to de-
fraud. " We tliink it a reasomible
inference that, in the conduct of
•their business, tlie c(ini]>any have
iin tlie spot otticcrs Avitli authority
to determine, TS'ithdnt the dehiy at-
tending on convening the diiectors,
whetlier tlie servants of the com-
jiany shall or shall not, on the
company's behalf, ai3}irehen(l a
2>erson accused of this otfence.")

Scijviour V. Checinoood (1861),
6 H. & N. 359, and 7 H. & N.
355 ; 8 Jur. N. S. 24 ; 30 L. J.
Ex. 189 and 327 ; 9 W. E. 785 ;
4 L. T. N. S. 833. (Defendant
liable for the act of his servant, a
guard of an omnibus, in forcibly
removing passenger whom he be-
lieved to be drunk. " It is not con-
venient for tlie master iiersonally to
condnct the omnibus, and he puts
the guard iuhisjilace ; tlierefore if
the guard forms a wrong judgment
the master is responsible.")

Limjniii v. (ji'iu'rid Oinrnhvs Co.,
(1862), 3 H. & C. 526. (See p. 280.)

Parje V. lkfri<'>< (1866), 7 1). & S.
137. (Defendants sent their barge
nnder management of lighterman
to a wharf to bring it alongside.
At suggestion of foreman of wharf,
the lighterman moved .away
from the Avliarf plaintiff's barge
and fastened it to a pile in tlie
river. The plaintiff's barge settled
on a projection in bed of river and
M^as injured.)

Lunt V. London and Nortli-
TVestern Bif. Co. (1866), L. R. 1 Q.
B. 277 ; 35 L. J. Q. B. 105. (Gate-
keeper inviting jilamtitf to pass
over a railway crossing.)

Whartmnn v. Peanvii (1868\ L.
E. 3 C. r. 422. (Defendant, a
contractor, employed men and
liorses ; the men were allowed an
hour for dinner, but not allowed
to leave the horses. One of the
men left his horse unattended ; it
r;^ii away ; held that it was



No LlATJII.lTV.
Li/ijo V. Neu-bold (1854), 9 Ex.
:502'; 2C. L. 449 ; 23 L. J. Ex.
108. (Plaintiff agreed to cany
defendant's goods for her in his
cart ; defendant's .servant, without
defendant's authority, alloweil
]i]aiiititf to ride on the cart ; cart
broke down, and tlie plaintiff in-
jured.)

Murjilnj V. Cimdli. (1864), 3 11.
& C. 462. (Bales of cotton stored
insecurely in a warehouse by
porters in the defendant's employ-
ment under the superintendence
of J., the warehouse-keeiier em-
ployed by the owner of warehouse ;
defendant not liable, the bales
having been stowed under J.'s
directions.)

Williaiii V. Jones (1865), 33 L.
J. Ex. 297 ; 3 H. & C. 602. (See
p. 287.)

Poulton V. London and Soutli-
Wedern Ihi- Co. (1867), L. E. 2
Q. B. 534. ' (See p. 290.)

morey v. A.^h(ou (1869), li. E. 4
Q. B. 476 : 38 L. J. Q. B. 223 ;
17 W. R. 727 ; 10 B. & S. 337.
(A carman, sent with horse and
cart by his employer, a Avine-
meichant, to deliver wine and
bring back em])ty bottles ; while
.returning, after business hours, fie
drove out of his way on busines.s,
not his master's ; while he was so
driAing, the plaintiff was run over.)



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