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

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effects to It., a notice was served on
prisoner to act as agent of R. in the
maiiagenient of the shop. For four-
teen days R. received the money from
U., who continued to pay prisoner his
wages during the whole period. Sub-
se(]uently R. reconveycd the estate
and effects to (J. But the deed was
not registered until after the em-
bezzlement charged against the pri-
soner. Prisoner servant of U.).

Ikxj. V. Carpenter (1869), L. R. 1
C. C. 29; 35 L. J., M. C. 169; 14
L. T. N. S. 572 ; 14 W. R. 773 (pri-
soner, who was elected assistant over-
seer by the inhabitants in vestiy,
and subsec|ueutly appointed to that
office by warrant of two justices, and
who ptirformed the duties of overseer,
well described in an indictment for
embezzlement as the servant of the
vestry, on the authority of Rc<j. v.
WcUt^, 7 A. & E. 461).

Jley. V. Jied/ord (1869), 11 Cox, C.
C. 367; 21 L.T., N. S. 5u9 (secretary
of building society who was also one
of the trustees, servant of the trus-

Hcg. V. Turner (1870), 11 Cox,
C. C. 551 ; 22 L. T., N. S. 278,
(prisoner employed to act as the
traveller of R. E., and "diligently
employ himself in going from town
to town . . and soliciting orders ; "
R. E. had full control over his time
and services. Prisoner agreed to act
as traveller ; at liberty to take orders
for others, but not without prosecu-
tor's written permission ; to be ])aid
by commission).

Ilcg. v. Bailei/ (1871), 24 L. T.,
N. S. 477 : 12 Cox, C. C. 56, (A.
employed as traveller to collect
money due on execution of orders,
and to i)ay over the money every
evening of the day or on the follow-
ing day ; he might get orders when
and where he pleased, but to be
exclusively in the employment of
prosecutors, and to give his whole
time), C. C. R.

lk'<j. V. Mai/le (1863), 11 Cox, C. C.
ir^O, (M. employed as " London
agent ; " no salary ; perfectly optional
whether he obtained orders or not ;
not bound to collect on any particu-
lar day).

r.rrj. v. Marshall (1870), 21 L. T,
796 ; 11 Cox, C. C. 490 (prisoner
employed by coal merchant ; to receive
Is. 4(/. per ton as procuration fee, and
4 per cent, for collecting, &c. ; no
salary ; at liberty to go where he
pleased for orders).

lleg. v. JS'ecjus (1873), L. R, 2 C.
C. 34 ; 42 L. J., M. C. 62 ; 28 L. T.
646 ; 21 W. R. 687 (prisoner em-
ployed to solicit orders where he
pleased ; and to be paid by commis-
sion ; received no salary ; not to hire
himself to others than prosecutor),

p p "D

' Hc<j. V. James Hall (1875), 31 L. T.
883; 13 Cox, 49, (an accountant and
debt collector employed by prosecu-
tors to collect certain specified debts
according to his discretion ; to be
paid by percentage ; jury found he
was employed as a clerk ; Court for
Crown Cases Reserved, held finding
was wrong).


ment, contracts of affreightments, contracts between principals
and brokers or factors, clients and solicitors, differ in impor-
tant respects from a contract of hiring and service. A.
contracts with B. to build a wall of a specified length and
height for a certain sum ; A. is to be free to provide the
necessary labour and materials in any manner he chooses ;
B. bargains for the result of A.'s labour and skill. Though
a contract for work and services, this is different from an
agreement by A. to build a wall for B., subject to his direc-
tions, and to labour exclusively for him during certain hours.
In English law the former is a contract of work and labour, the
latter, one of hiring and service. An artist receives a commis-
sion to paint a portrait ; a journeyman painter is employed
to paint coaches under the supervision of a foreman ; a com-
missionaire is employed to go on a special errand ; a lad is
hired to carry the messages of an establishment ; a carrier
agrees to take a parcel from one place to another ; it is a man's
duty to carry the goods of a certain firm and subject to their
directions — these are so many instances of contracts of work
and service, and contracts of master and servant. A railway
company entered into a contract for the building of cars

Rr^l. V, Foiakcs{\^75), 2 L. K., 0.
C. 150 ; 44 L. J., JI. C. C5 ; 32 L.
T. 407 ; 23 W. \i. 699 (prisoner
assisted liis father as clerk to a local
board, and in his father's absence
acted for him as clerk to the board ;
but received no salary and was not
appointed as clerk by the board. The
])risoner manaj^ed for his father the
raising of a loan for the board ; evi-
dence that ])risoner was a clerk or
servant), C. C. li.

"It is a qiiestion for a jury, whether a ]it'rson accused of embezzlement is
a clerk or servant or not," says Jlr. Justice Stepiien with reference to 24 & 25
Vict. c. 96, s. 68, and citing li. v. Nnjiis, L. K. 2 C. C. 34 ; R. v. Tite,
L. & C. 33 ; It. v. May, L. iV: C. 13, Digest 220. The (juestion who is a
sei-vant, is not in regard to civil liability entirely one for the jury ; and in
fiomc of the above eases convictions were (juashcd when persons not legally
servants were found to be smh liy juries, c.<i., 11. v. Hull, 13 Cox, (!. V,. 49.
In some iustances the question is one entirely for the judge, 11. v. Bowers,
L. 1{. 1 C. C. 41.

Sec 31 k 32 Vict, c. IIC, as to larceny by joint owners.


with a certain patent improvement. The contractor had no
licence to use the patent Avhich had to be employed if the
improvement Avere made. No action, it was held, lay
against the railway company for infringing the patent,
because the contractor carried on an independent business,
had workshops of his own, and made the cars as he saw
fit (i). Had he been subject to the directions of the com-
pany, they would have been liable for the violation of the
patent, because the relation of master and servant would
have then existed.

Some common tests of the existence of this relationship
are not perfect. Two persons are not always respectively
master and servant, because the one can discharge the
other (Jc). The hand which pays wages is not necessarily the
master's (l). A person may be entitled to exercise control
over others who work, and yet they may be not his servants,
but the servants of a contractor (on). A. may be bound to
give service exclusively to B., and yet he may not be for all
purposes B.'s servant (ii). The person who appoints or en-
gages a servant is not necessarily the master. Though the
crew of a ship are generally engaged by the captain, not the
owner, they are the servants of the latter. The relation
may exist between two persons, both of whom perform
manual work (o) ; and a man may be the servant of another.

(i) See Fcnton v. City of Lomlon trustees). See also Stone v. CarhvrigJd

Sleavi Packet Co. (1838), 8 A. & (1795), 6 T. K. 411 ; R. v. Hoseason,

E. 835 ; Recdic v. London. ,0 (1811), 14 East, 605. See Bogg v.

North Western E. Co. (1849), 4 Ex. Pcar^c, (1851), 10 C. B. 534, as to

244. public officers aiipoiuted umler Acts

(k) Rccdie v. London <b Xorth of rarliauieiit and to be paid out of

Western R. Co. rates.

{I) Willctt V. Boole (1860), 6 H. {m) Allen v. Hayward (1845). 7

k N. 26. The person wlio appoints Q. 13. 960 : 10 Jur. 92 ; 15 L. J.

is not necessarily master ; R. v. Q. B. 99. But see remarks of Deu-

Callahan, 8 C. & P. (1837) 154 (Cal- man, C. J., at p. 975.

lahan appointed by vestrj-men of the (vi) Bowcn v. Hall (1881), L. R.

parish ; rightly described as servant 6 Q. B. D. 333.

of committee "of mauagcnK-nt) ; R. (o) Ashicorth v. Stanwij- (1861),

V. Jenson (1835), 1 :Mood. 434 (clerk 3 E. & E. 701 ; Mellors v. Shaw

elected by managers of savings' bank ; (1861), 1 B. & S. 437.
rightly described as clerk to the

42 thp: law of master and servant.

though his remuneration may not be called wages, but profit
or commission (^J). In the case of actions of seduction, the
common tests of the relationship fail. By a legal fiction,
the relation of master and servant is sometimes said to exist
between parent and child, when, in any but a very vague
sense, the former is not a master, and the latter is not a
servant (5).

Difficulties frequently arise with respect to the legal position
of a servant while he works for another person than his master.
This point was considered in the Rex v. Ivinghoe {r), de-
cided in 1717. There it was said, "If I lend my servant
to a neighbour for a week, or any longer period, and he go
accordingly, and do such work as my neighbour sets him
about, yet all this while he is in my service, and may be
reasonably said to be doing my business." This principle
was applied in Holmes v. Onion (.s-). The defendant hired a
thatcher, S., to thatch for him for six weeks. During that
period, without the knowledge of the defendant, S. agreed to
thatch ricks for the plaintiff. After the work had been
begun, the defendant told the jjlaintiff that S. was his ser-
vant, and that he must be paid. At the plaintiff's request
the defendant sent a person to assist S. in thatching. In
an action against the defendant for negligence on the part
of S., it was held that S. was the servant of the defendant,
who was, therefore, responsible for his acts. In all such
cases the servant is, to use an expression of Sir William
Grant in Ghilcot v. Bromley {t), the subject of the contract
and not a party to it. The same point was again considered
in the leading cases o( Lcmgher v. Pointer (u),and Quarman
V. Burnett (.f). In the former the owner of a carriage hired
for the day a pair of horses and a driver ; the horses be-

(p) See Jlrq. v. McDonald (1861), (7) Cl.apt.r XXII.

T.. & C. 8.5 (.icfendant paid i.aitly by (r) 2 Hotts. 2-T>)l V

siihiry and partly by a ptTci-ntage on (s) (1857) 2 C. 15. K. S. 790.

profits ; a servant within 7 & 8 {t) (1806) 12 Ves. 114.

Ceo. IV., c. 29, s. 47.) Sec Re'i. v. (u) (1826) 5 B. & C. 541. J

White (18.39), 8 C. & V. 742, as to (.r) (1840) 6 M. k W. 4901 The

servant paid by gratuities. point had also been considered in


longed to a livery-stable keeper in -whose employment tlie
driver was. The plaintiff having been injured in consequence
of the negligence of the driver, the question arose whether
the owner of the carriage was liable. Two judges, Bayley,
J., and Holroyd, J., were of opinion that he was liable. Two
judges, Abbott, C.J., and Littledale, J., took the opposite
view. The point was finally decided in Quarman v.
Burnett, the facts of which were these : the owners of a
carriage, who were in the habit of hiring horses from the
same person for a day or for a drive, always had the same
driver, gave him a fixed gratuity, ami provided him with a
livery, which he kept in the hirers' hall. While he was
hanging up the livery, he left the horses. An accident
happened, and the plaintiff was injured. The Court of
Exchequer adopted the view of Abbott, C.J., and Littledale,
J. In delivering the judgment of the Court, Baron Parke
said, " It is undoubtedly true that there may be special cir-
cumstances, which may render tlie hirer of job horses and
servants responsible for the neglect of a servant, though not
liable by virtue of the general relation of master. He may
become so by his own conduct, as by taking the actual
management of the horses, or ordering the servant to drive
in a particular manner, which occasions the damage com-
plained of, or to absent himself at one particular moment,
and the like." Baron Parke proceeded to say : —

"As to the supposed choice of a particular servant, my brother Maiile
thought there was some evidence to go to the jury of the horses being
under the defendants' care, in respect of their choosing this particuhir
coachman. We feel a difficulty in saying that tliere was an}- evitlence of
choice, for the servant was the onhj regular coachman of the job-mistress's
yard ; when he was not at home, the defendants had occasionally been

Smith V. Lau'rence (1828), 2 M. & Co., L. R. 5 C. P. ; and Kiw/ht v.

K I, & Brachjv. Giles {IS55),1]SL k Fo.v, 5 Ex. 721. Would not the

Bob. 494. It may be doubted wlicther driver in Quarman v. Burnett have

the authorities are [consistent as to been regarded as the fellow-servant

this point. Compare Laugher v. of a footman of the hirer ]
Pointer with Bourkc v. Wldte Moss


driven by another man, and it did not appear that at any time since
they had their own carriage, the reguLir coaclnnan was engaged, and
they had refused to be driven by another ; and the circumstances of
their having a livery, for which he Avas measured, is at once explained by
the fact, that he was only the servant of Miss jNIortlock (the livery-stable
keeper), ever likely to drive them. Without, however, pronouncing
any opinion upon a point of so much nicety, and so little defined, as the
question, Avhether there is some evidence to go to a jury, of any fact, it
seems to us, that if the defendants had asked for this particular servant,
amongst many, and refused to be driven by any other, they would not
have been responsible for his acts and neglects. If the driver be the
servant of a job-master, we do not think he ceases to be so by reason
of the owner of the carriage preferring to be driven by that particular
servant, where there is a choice amongst more, any more than a hack
post-boy ceases to be the servant of an innkeeper, where a traveller has
a particular preference of one over the rest, on account of his sobriety
and carefulness. If, indeed, the defendants had insisted up(in the horses
being driven, not by one of the regular servants, but liy a stranger to the
job-master, appointed by themselves, it would have made all the
difference. Kor do we think that there is any distinction in this case,
occasioned by the fact that the coachman went into the house to leave
his hat, and might therefore be considered as acting by their directions,
and in their service. There is no evidence of any special order, in this
case, or of any general order to do so at all times, icifhoiit leaving any
one, at the ]i,orses' heads. If there had been any evidence of that kind,
the defendants might have been well considered as having taken the
care of the horses upon themselves in the meantime. Besides these two
circumstances, the fact of the coachman wearing the defendants' livery
with their consent, whereby they were the means of inducing third
l)ersons to believe that he was their servant, was mentioned in the course
of the argument as a ground of liability, but cannot affect our decision.
If the defendants had told the pluiutilf that he might sell goods to their
livery servants, and had induced him to contiact with the coachman, on
the footing of his really being such servant, they would have been liable
on such contract : Init this repivsentation can only conclude the de-
fendants with respect to those who have altered their condition on the
faith of its being true. In the present case, it is matter of evidence only
of the man being their servant, which the fact at once answers. We are
therefore com])elled to decide upon the (question left unsettled by the
case of Lau.rjher v. Pointer, in wliich the able judgments on both sides
have, as is observed by Mr. Justice Story in his book on Agency,
page 406, ' exhausted the whole leariung of the sulyect, and should on
that account attentively be studied.' We have considered them fully,
and we think the weight of authority and legal principle is in favour of
the view taken by Lord Tenterden and Mr. Justice l.ittledale. The
immediate cause of the injury is the personal neglect of the coachman, in


loiiving Ihe horses, wliidi were <it tlie tinie in his immediate care.
The question of ]ii\v is, whether anyone lait tlie coacliman is lial»le to
the party injured ; for the coachman certainly is. Upon the princi])le
that qui facit per aliitmfacit 2)er se, the master is responsible for the aclH
of his servant ; and that person is undoubtedly liable, who stood in the
relation of master to the wrong-doer — he who had selected him as his
servant, from the knowledge of or belief in his skill and care, and who
could remove him for misconduct, and whose orders he was bound to
receive and obey ; and wlietlier such servant has been appointed by the
master directly, or intermediately through the intervention of an agent
authorised by him to appoint servants ibr him, can make no difference.
But 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 siich servant can be liable, on the simjile
ground, that the servant is the servant of another, and his act the act of
another ; consequently, a third person entering into a contract with the
master, which does not raise the relation of master and servant at all, is not
thereby rendered liable ; and to make such person liable, recourse must be
had to a different and more extended principle, namely, that a person is
liable not only for the acts of his own servant, but for any injury which
arises by the act of another person, in carrying into execution that
which that other person has contracted to do for his benefit. That,
however, is too large a position, as Lord Chief Justice Eyre says, in the
case of Bush v. Steinman (1 Bos. & Pull. 404), and cannot be maintained
to its full extent without overturning some decisions, and producing
consequences which Avould, as Lord Tenterden observes, 'shock the
common sense of all men : ' not merely would the hirer of a post-
chaise, hackney-coach, or wherry on the Thames, be liable for the acts
of the owners of those vehicles, if they had the management of them
or their servants, if they were managed by servants, but the purchaser
of an article at a shop, which he had ordered the shopman to bring
home for him, might be made responsible for an injniy committeiJ
by the shopman's carelessness, whilst passing along the street. It
is true, that there are cases— for instance, that of Ihish v. Steinman^
Shj V. Edglcy (6 Esp. 6), and others, and perhaps amongst them may
be classed the recent case of liavdleson v. Murray (8 A. & E. 109) —
in which the occupiers of land or buildings have been held responsible
for acts of others than their servants, done ujion, or near, or in resjiect
of their property. But these cases are well distinguished by my Brother
Littledale, in his very able judgment in Laur/her v. Pointer. The rule
of law may be, that where a man is in possession of fixed property, he
must take care that his property is so used or managed, that other
persons are not injured ; and that, whether his property be managed by
his own immediate servants, or by contractors with them, or their
servants. Such injuries are in the nature of nuisances : but the same
principle which applies to the personal occupation of land or houses by


a man or liis laniily, does not apply to personal movable chattel?;, which,
in the ordinary conduct of the atl'airs of life, are intrusted to the care and
management of others, -vvho are not the servants of the owners, but who
exercise employments on their own account with respect to the care
and management of goods for anj"- persons who choose to intrust them,
with them. It is unnecessary to repeat at length the reasons given by
my Brother Littledale for this distinction, Avhich appear to us to be (|uite
satisfactory ; and the general pmpositiun above referred to, upon which
only can the defendants be liable for the acts of persons who are not
their servants, seems to us to be untenable. We ari', therefore, of
opinion, that the defendants were not liable in this case, and the rule
must be made absolute, to enter a verdict for the defendants on the
second issue."

It has sometimes been alleged that a person cannot be the
servant of two masters. " I am of opinion," said Baron
Parke, in Rex v. Goodhochj (y), " that a man cannot be the
servant of several persons at the same time, but is rather in
the character of an agent." This opinion, which seemed to
be a natural consequence of the older view of the relation,
which was in accordance with some (licta, and which was sup-
ported by decisions in regard to settlement cases, has not been
followed. A. cannot be at once the servant of B. and C, in
the sense that he is bound at the same time to obey both.
He may, however, be the servant of both in such a sense that
he may be prosecuted for embezzlement by B. or C. as a
" clerk or servant ; " that B. or C. may be liable to stranoers
for his torts ; and that, while the servant of B., he cannot
claim damages against C. for the acts of C.'s servants, inas-
much as he is in law their fellow servant. In two classes of
cases the Courts have distinctly held that a man may be the
servant of two masters. Thus it has been decided that a
person vvho is employed by more than one may be " a
clerk or servant " within the 24 & 25 Vict. c. 9(5, s. OS, and
7 & 8 Geo IV. c. 29, s. 47. In liec/imc v. JJaifu {a), a clerk

iy) (1838) 8 C. k P. 665. rcmnrks of Ravl.-y, J., in Lmtglver

(a) (1842) 2 iMood. C. C. 2f)7 ; v. J'ouiirr (1826), r, Ji. k V. 569,

2i. V. Lrcch (1821), 3 Star. 70; nndm J/an/y \. Jli//r {IS2\)), 'J V.. k

and Tile's Case (1861), L. k C. C, 603.

29, 30 L. J. M. C. 142. See also


employed by A. to sell goods for liim was convicted of em-
bezzlement, though at the same time he was employed by
other persons in otlier business ; and in Rerjina v. Carr (6)
it was also held that a traveller employed by several houses
might be properly convicted of embezzlement.

Nothwithstanding the decision in Quarman v. Burnett
above mentioned, the Courts have in several instances held
— and the tendency appears to be to hold — that a servant of

A. who goes to work with B,, is, in certain circumstances, to be
regarded as the servant of B., so far, at least, as the liability of

B. to third persons or fellow servants is concerned, He may
remain the general servant of A. ; but for some purposes he
is also the servant of B. This is best illustrated by Rourke
v. White Moss Company [c). The defendants, who wei-e tlie
owners of a colliery, had begun to sink a shaft, and had em-
ployed workmen, and among others the plaintiff. They
entered into a contract for the completion of the work with one,
Roger Whittle. He was to find and provide all labour necessary
for the sinking, and the company were to provide and place at
the disposal of Whittle the necessary engine power, ropes, and
hoppots, with two engineers to work the engine, one for the
day, and one for the night, such engineers, engine, and hoppets
beins: under the control of the contractor. Ellis Lawrence, one
of the two engineers, was in charge of the engine on the 27th
of October, 1874. He was paid by the company. By the negli-
gence of Lawrence, the plaintiff, who was one of the men em-
ployed by Whittle, was injured. The Court of Common Pleas
and the Court of Appeal were of opinion that the defendants
were not liable. The grounds on which the decision was jDlaced
will be stated fully subsequently. Here, however, may be
quoted remarks made by Cockbiirn, C. J. : " It appears to me
that the defendants put the engine and this man Lawrence
at Whittle's disposal just as much as if they had lent both to
him. But when one person lends his servant to another for

{h) (1811) R. & R. 19S. London 1- Brighton FucU. Co. (1880).

(c) (1876) L. R. 1 C. P. T). 556 ; 42 L. T. 173.
2 C. P. D. 205 ; see also Self v.



a particular employment, the servant for anything done in
that particular employment must be dealt with as the servant
of the man to whom he is lent, although he remains the
general servant of the man who lent him. Looking at the
present case, I think we must arrive at the conclusion that
Lawrence was practically in Whittle's service at the time he
Avas guilty of the negligence complained of : and this being
so, it follows that Lawrence became the fellow-servant of the
plaintiff" (d).

One may be for some purposes a servant, and for others
not. A prima donna, engaged to sing so many nights,
would not be for all purposes a servant ; obviously she would
not, for example, be a servant within the meaning of the
24 & 25 Vict. c. 96, s. (38 ; nor would she be bound to sing as
the manager chose to direct. Yet she is so far regarded as a
servant, that an action will lie for enticing her away from

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