William Wait.

A treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 4) online

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Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 4) → online text (page 59 of 107)
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would also be liable, if, at the time he entered into a contract, he did
not disclose his master's name, and it was not known to the party con-
tracting with him, although he was known to be a mere agent. Haih-
8ony. Roberdeau, Peake, 163; Frankly n v. Lamond, 4 C. B. 637;'
Smith's Mast. «fe Serv. 195. But where a servant has once had authority
to contract in his master's name, and the authority is revoked without
his knowledge, he would not be liable upon contracts entered into in
his master's name, in ignorance of the revocation of his authority, even
though the party with whom he contracted is remediless. iSmout v.
Ilhery, 10 Mees. & W. 1 ; Blades v. Free, 9 B. & C. 167 ; Ginochio
V. Porcella, 3 Bradf. (N. Y.) 277 ; Cassiday v. McKenzie, 4 Watts &
Serg. 282. Sec Yol. 1, 289, 290.

§ 2. Liability for fraud. The general principle, that a servant will
not be held personally liable on a contract entered into by him on be-
half of his master, has no application to cases where there is corruption


in the foundation of the contract, or it is bottomed in oppression or
immorality. Miller v. Aris, 3 Esp. 232. Thus, if a servant falsely
represents that he has authority when he has none, or, if knowing that
his previous authority has been revoked, he enters into a contract in his
master's name, he will be held to a personal liability thereon, his act in
such case being i-egarded as fraudulent (See Tryon v. Whitrnarsh, 1
Mete. [Mass.] 1 ; Polhill v. Walter, 3 B. & Ad. 114) ; and, whether liable
upon the contract or not, the party has his remedy against the servant
for the fraud. Ballou v. Talbot, 16 Mass. 461 ; Noyes v. Loring, 55
Me. 408. And see Vol. 1, 257, 258.

So, a servant who joins with and assists his master in the commission
of a fraud is civilly responsible for the consequences, though his con-
currence is unknown to the party injured ; for, all directly concerned in
the commission of a fraud are principals. Cullen v. Thomson, 4 Macq.
H. L. Cas. 441.

§ 3. Liability for torts. A servant incurs no liability to third per-
sons by reason of a failure on his part to perform his master's obligations.
Bristol, etc., Railway Co. v. Collins, 5 H. & N. 969; Montgomery
County Bank Y. Alhany City Bank, 1'^.Y. (3 Seld.) 459; Henshaw
V. Noble, 7 Ohio St. 226. For mere nonfeasance or omission of duty,
a servant is liable only to his own master, who, in accordance with the
maxim '■''respondeat superior,'''' is liable to answer for his servant's
neglect. Oidley v. Lord Palmerston, 3 Brod. & B. 275 ; Lane v.
Cotton, 12 Mod. 488. And see post, 410, art. 4, § 5. But for a mis-
feasance, or act of positive wrong, a servant is liable to third persons
injured thereby, either alone or jointly with his master. Montfor't v.
Hughes, 3 E. D. Smith (N. Y.), 591 ; Llewett v. Swift, 3 Allen, 420;
Bennett v. Ives, 30 Conn. 329. But see Parsons v, Winchell, 5 Cush.
592 ; Campbell v, Portland Sugar Co., 62 Me. 552 ; S. C, 16 Am. Rep.
603. And where a servant employs another person to assist him in his
worl*, and by the negligence or wrongful act of such person an .injury
is inflicted, all three are jointly liable. Suydam v. Moore, 8 Barb. 358 ;
Althorfv. Wolfe, 22 N.' Y. (8 Smith) 355. See Vol. 1, 264.

§ 4. Torts of government agents. See Vol. 1, 267. The govern-
ment is not liable for the torts and frauds of its agents. Nor are pub-
lic officers in a superior capacity in general responsible for the tortious
acts of their subordinate officers. It does not, however, follow that
such subordinate officers are not themselves responsible for their own
misdeeds. Thus, althougli the postmaster-general cannot be held liable
for the loss of letters in the post-office through the fault of his agents,
yet, there can be no doubt as to an action lying against the party really
ofEending. And the instances are numerous in which deputy post-


masters have been sued in damages for their own torts. Bowning v.
Goodchild, 3 Wils. 443 ; S. C, 2 W. Bl. 906 ; Stoch v. Harris, 5 Burr,
2709. And see Yol. 2, 15.

There is also a large class of cases in which public officers in a merely
ministerial capacity have been held liable to answer in an action at the
suit of the party injured, for negligence in the performance of the du-
ties cast upon them. Thus, a sheriff, whose duty in many cases,
such as the receipt, execution, and return of writs, is that of a merely
ministerial officer, is liable to be sued by the party aggrieved for any act
of irregularity, misfeasance, or nonfeasance in executing writs. Bac.
Abr., tit. Sheriff.



Section 1. Action for injuries to servant. The master's right of
action for personal injuries sustained by his servant is recognized in
many instances. Thus, he may recover for an actual battery inflicted
upon his servant {Duel v. Harding, Strange, 595), or for an injury to
his servant caused by negligent driving {Martinez v. Gerher, 3 Man.
& G. 88 ; Hall v. Hollander, 4 B. & C. 660), or arising from the bite
of a ferocious dog. Hodsoll v. Stallebrass, 11 Ad, & El. 301. And a
recovery was had in an action against a person for negligently intrust-
ing a loaded gun to a mulatto girl, who discharged it against the plain-
tiff's son and servant. Dixon v. Bell, 1 Stark. 287 ; S. C, 5 M. & S.
198. So, where a declaration in tort alleged that the defendant was a
common carrier of passengers between two places ; that the plaintiff's
apprentice was on the defendant's car on a day stated, for hire paid
by the apprentice in the absence of the master ; that by the defendants'
negligcfice in carrying the apprentice he was iiijured, and the plaintiff
thereby lost his services, it was held, on demurrer, that the declaration
disclosed a good ground of action. Ames v. Union Railway Co., 117
Mass. 541 ; S. C, 19 Am. Rep. 426. See Alton v. Midland Railway
Co., 19 C. B. (N. S.) 213. But in all these cases the right of action
grows out of the loss of service sustained by the master, and if there is
no injury in tliat respect, there can be no recovery. Id. ; Robert
Marys' Case, 9 Coke, 113. A service de facto is, however, sufficient to
support the action (see Martinez v. Oerber, 3 Man. & Gr. 88) ; and
if there is a capacity to serve, very slight evidence is sufficient to sup-
])ort the allegation of service. Sec Torrence v. Gihhins, 5 Q. B. 300 ;
Dixon V. Bell, 1 Stark. 287 ; S. C, 5 M. & S. 198.


But a master cannot maintain an action for injuries which cause the
immediate death of his servant. Oshorn v. Oillett, L. R., 8 Exch. 88;
S. C, 4 Eng. R. 464. See Vol. 2, tit. Death.

§ 2. Seduction^ enticing, or harboring servant. The action for
seduction is predicated upon a loss of service, and, by a legal fiction, it
can only be maintained where the relationship of master and servant
exists between the party bringing the action and the party seduced.
Grinnell v. Wells, 2 Dowl. & L. 610 ; S. C, 7 Man. & Gr. 1033 ; Mer-
cer V. Walmsley, 5 Har. & J. (Md.) 27 ; Ilewit v. Prime, 21 Wend.
79 ; Blanchard v. llsley, 120 Mass. 487 ; S. C, 21 Am. Rep. 535. See
post, tit. Seduction.

The action is usually brought by the parent, or one standing in the
stead of the parent ; but the gist of the action being loss of service, it
follows that it may be brought by any one who has sustained that loss.
A master may, therefore, maintain an action for debauching his servant,
though he is no way related to her in blood. Fores v. Wilson, Peake,
55 ; Ball v. Bruce, 21 111. 161 ; Irwin v. Dearman, 11 East, 23. See
tit. Seduction.

It must now be considered as settled law, that a person who wrong-
fully and maliciously, or, which is the same thing, with notice, inter-
rupts the relation subsisting between master and servant, by procuring
the servant to depart from the master's service, or by harboring him
and keeping him as a servant after he has quitted it, and during the
time stipulated for as the period of service whereby the master is in-
jured, commits a wrongful act, for which he is responsible at law.
Walker v. Cronin, 107 Mass. 555 ; Lee v. West, 47 Ga. 311 ; Bixby v,
Dunlap, 66 N. II. 456 ; 22 Am. Rep. 475 ; Jones v. Stanly, 76 N. C.
355 ; Daniel v. Swearengen, 6 S. C. 297; Caughey v. Smith, 47 N. Y.
(2 Sick.) 244 ; Pilkington v. Scott, 15 M. & W. 657 ; Syles v. Dixon,
9 Ad. & El. 693 ; Lumley-f. Gye, 2 El. & Bl. 216. And the relation of
master and servant subsists sufficiently for the purpose of such action,
during the time for which there is in existence a binding contract of
hiring and service between the parties. Id. ; Blake v. Lanyon, 6 Term
R. 221 ; Haskins v. Royster, 70 N. C. 601 ; S. C, 16 Am. Rep. 780.
And the fact that the servant is employed under a contract voidable
by him does not defeat the action for inducing away, since the wrong
consists in enticing the servant to avoid the contract. Keane v. Boycott^
2 H. Bl. 511.

But the mere attempt to entice a servant away, followed by no dam-
age, does not entitle the master to an action. Bird v. Randall, 3 Burr.
1352. See Carew v. Rutherford, 106 Mass. 1 ; 8 Am. Rep. 287. Nor
wiU an action lie for inducing a servant to leave his master's service at


tlie expiration of the time for which the servant had hired himself,
although the servant had no intention, at the time, of quitting his
master's service. NicKol v. Martyn, 2 Esp. 734 ; Boston Glass Manuf.
Co. V. Binney, 4 Pick. 425. And no action lies for seducing a servant
from his master, who has paid the penalties stipulated by his article^
for leaving him. Bird v. Randall, 3 Burr. 1345 ; S. C., 1 W. Bl.
373, 387.

Under a count for harboring or entertaining a servant, evidence of
enticement is not necessary {Dubois v. Allen, Anth. [N. Y.] 128) ; nor
is it essential that such a state of facts should exist as would sustain an
action for enticing away. Fawcett v. Beavres, 2 Lev. 63.

Societies of laborers, so long as they confine tlieir objects and ac-
tion within proper limits, and do no more as a society than each indi-
vidual member thereof might lawfully do, cannot be held to be
unlawful organizations at common law. Commonwealth v. Hunt, 4
Mete. Ill ; Snow v. Wheeler, 113 Mass. 179. But when workmen
combine to prevent others from working for another, either by force
or by persuasion, the act is unlawful and such persons are liable for all
the damages resulting, and in case the injury is irreparable in damages,
or the individuals are irresponsible and unable to respond to a judg-
ment for damages, a court of equity will interpose by injunction to
restrain them. Springhead Spinning Co. v. Riley, L. R., 6 Eq. Cas.
651. So, persons who associate themselves to coerce an employer into
paying money which he is not legally bound to pay, by threats that if
he refuses they will induce his workmen to leave his service, and
M'ill deter others from taking their places, are chargeable with an ille-
gal conspiracy ; and if their threats are carried out, the employer
aggrieved may recover damages in an action for the wrong done.
Carew v. Rxctherford, 106 Mass. 1 ; 8 Am. Rep. 287. See Common-
wealth V. Curren, 3 Pittsb. (Penn.) 143.

In an action for enticing away the plaintiff's servants, the measure
of damages is not to be ascertained at the actual loss which he sus-
tained at the time, but for the injury done him by causing them to
leave his employment. Gunter v. Astor, 4 Moore, 12. And see
Hays v. Borders, 6 111. 46.

In an action for enticing away an apprentice, the plaintiif is held to
be entitled to recover damages as for a total loss of services, if a total
loss has been in reality the conseqnence of the acts of the defendant ;
if not, then the (hunagc^s slionld be estimated according to the chances
the i)laintiff had of regaining his apprentice. McKay v. Bryson, 5
Ired. (N. C.) L. 216. See, also, Stout v. Woody, 63 N. C. 37.
But if a servant or minor child absconds from his father's house, and


enters tlie service of one who for his labor furnishes the infant a
reasonable support, not knowing that he has absconded, the parent can-
not recover for the infant's services, without deducting the amount of
the expense for such support. Iluntoon v. Hazelton, 20 N. II. 388.

§ 3. Bight to servant's acquisitions. A master deprived of the
services of an apprentice or servant, who lias been enticed away and
harbored by another master, is not confined to an action for damages
for the injury he has sustained by the loss of his servant. He may in
some cases waive the tort, and bring an action to recover the wages
due to his apprentice or servant from such second master, upon the
well-settled principle that the master shall have the advantage of his
servant's contracts as to matters within the scope of the service. Damon
V. Oshorn, 1 Pick. 481 ; Lightly v. Clouston, 1 Taunt. 112 ; Smith's Mast.
& Serv. 80. But no i-ecovery can be had, in this form, unless labor
has been performed by the servant, and the master cannot claim any
other acquisitions than such as are the result of that labor. Shanley
V. Hervey^ 20 How. St. Tr. 65, n. Nor can he claim what the servant
may have acquired during the service entirely without the legitimate
consideration of such service. Thus, if a servant, not employed to
invent, make an invention whilst in the employ of a master, the inven-
tion belongs to the servant, and the master cannot take out a patent
for it. Bloxam v. Elsee^ 1 Garr. & P. 558. And the same rule applies
to salvage money which is the result of extraordinary service ; the share
of an apprentice belongs to him and not to his master. Mason v.
Shijp Blaireau, 2 Cranch (U. S.), 240. And in the case of an appren-
tice who has enlisted in the army, the master cannot intercept the
wages due to the apprentice. The government recogni^s the employ-
ment as a personal contract with the soldier. The wages earned are
paid to him, and if he dies before payment, his administrator is the
only person entitled to receive them. United States v. JBainhridge^ 1
Mas. (C. C.) 84 ; Johnson v. Dodd, 56 N. Y. (11 Sick.) Y6.

The main advantage attending this form of action is that it may be
brought after the death of the tort-feasor, which is not the case with
an action framed on the tort. Foster v. Stewart, 3 M. & S. 191. But,
on the other hand, it is open to the objection that it admits of a set-off
and deductions. Lightly \. Clouston^ 1 Taunt 112. An action for the
tort is, accordingly, the more usual remedy, and in such action the jury
may, if the circumstances justify their so doing, give the plaintiff
greater damages than the mere wages of the servant would amount to.
Smith on Mast. & Serv. 82 ; Daniel v. Swearengen, 6 S. C. 297, 302.

§ 4. Liability for servant's acts or contracts as agents. No
power can be inferred from the relation of master and servant, strictly
Vol. lY.— 52


speaking, whereby the servant can bind his master. Moore v. Tickley
3 Dev. (N. C.) L. 244. It is only upon the ground that a servant is
the agent of his master, that a master can, in any case, be made liable
upon contracts entered into by his servant ; and this, on the principle
that the act of the servant or agent is, in fact, the act of his master or
principal, — the maxim being. Qui facit jper alium, facit jper se.
Smith on Mast. & Serv. 122. See Bac. Abr., tit. Mast. (& Serv. (K.) ;
Broom's Leg. Max. 81Y. The well-known rules of agency are, there-
fore, applicable in this connection, and as these rules have been fully
set out in a preceding title, they need not be here repeated at
length. See Yol. 1, tit. Agency. It may, however, be observed gen-
erally, that the contract of a servant, in order to be binding on his
master, must be within the scope of the authority intrusted to the serv-
ant ; that this authority may be given either expressly, or by imjolica-
tioni that a ratification by the master of the servant's acts is equivalent
to an original authority ; that the authority of a servant is co-extensive
with his usual employment ; and that the scope of his authority is to
be measured by the extent of his employment. See Vol. 1, 220,
240, 285.

§ 5. Liability for servant's torts. A master is ordinarily liable
to answer in a civil suit for the tortious or wrongful acts of his servant,
whether of omission or commission, and whether negligent, fraudulent,
or deceitful, if those acts are done in the course of his employment in
his master's service {Southwick v. Estes, 7 Cush. 385 ; Levi v. Brooks,
121 Mass. 501 ; Philadelphia, etc., R. R. Go. v. Derly, 14 How. [U. S.]
468), even though the master did not authorize or know of such acts, or
may have disapproved of or forbidden them. Id. ; Robinson v. Webb,
11 Busli (Ky.), 464 ; Snyder v. Ilannihal, etc., R. R. Co., 60 Mo. 413 ;
McGlothlin V. Madden, 16 Kans. 466. And wantonness or mischief,
causing additional bodily or mental suffering, in tlie injurious act of a
servant within the scope of his employment, will enhance the damages
as against the master. Ilaioes v Knowles, 114 Mass. 518 ; S. C, 19
Am. Rep. 383. Avte, Vol. 1, 287, 288.

A master is not, however, responsible for the wrongful act of his
servant, unless that act be done in the execution of the authority given
by the master. Beyond the scope of his employment, he is as much a
stranger to his master as any third person, and therefore his act cannot
be regarded as the act of his master. Croft v. Alison, 4 B. & Aid.
590 ; McKenziev. McLeod, 10 r,ing. 385; Larnh v. Ralk, 9 Oarr. &
P. 629; Wilson y. Reverly, 2 'N. IL 548; Chrtrch v. 21ansjield, 20
Conn. 284 ; Bard v. Yohn, 26 Penn. St. 482. Thus, an action cannot
be maintained against the owner of a bridge to recover damages for


the bite of a vicious dog belonging to the toll-keeper, if it appear that
the owner did not keep or harbor the dog in person, and did not au-
th(frize or require liim to be kept, and did not need that the dog should
be kept for the conduct or protection of the business in wliich the owner
of the dog was employed, or as his assistant as toll-keeper. Baker v.
Kinsey, 38 Cal. 631. And where a person, after purchasing of a rail-
road company a ticket as a passenger, applied to the servant charged
witli the duty of checking baggage, to have his baggage checked to his
place of destination, and by his abusive language and menacing ges-
tures toward the servant provoked a quarrel, in wliich the servant
struck him with a hatchet, it was held that the passenger could not
recover of the railroad company for the resulting injury. Little Miami
E. R. Co. V. Wetmore, 19 Ohio St. 110 ; S. C, 2 Am'. Rep. 373. But see
Walher v. SouthrEastern Railway Co., L. R., 5 C. P. 640 ; 39 L.
J. C. P. 34 >.

Whether a servant was acting in the course of his employTnent
when he committed a tortious act, is a question of fact. Redding v.
South Caroh'na R. R. Co., 3 S. C. 1 ; S. C, 16 Am. Rep. 681.

And the liability of one person for damages ^arising from the tortious
acts of another, on the principle of respondeat superior, is confined to
the relation of master and servant, or principal and agent, and does
not apply to independent contracts where the employer does not keep
control over the mode and manner of the contract work. Cincinnati
V. Stone, 5 Ohio St. 38 ; Wilson v. Alleghany City, 79 Penn. St. 272.
See, also, Yates v. Squires, 19 Iowa, 26 ; Norton v. Wiswall, 26
Barb. 618.

It has been held in Maine that a servant who sets fire to his master's
house by his master's procurement for the purpose of defrauding the
insurers is not guilty of arson, either at common law, or under a statute
making it arson to burn the dwelling-house of another. State v.
Baynes, 66 Me. 307 ; S. C, 22 Am. Rep. 569.

§ 6. Liability for servant's neglect. That the master is liable for
the servant's negligence, within the scope of the latter's employment,
is a well-established elementary rule, based upon the assumption that
the act of the servant is the act of the master {(Jourtne/y v. Baker, 5
Jones & Sp. [N. Y.] 249 ; Gleghorn v. N. Y. Cent. & Hudson R. R.
R. Co., 56 N. Y. [11 Sick.] 44.; S. C, 15 Am. Rep. 375 ; Robinson
V. Wehh, 11 Bush [Ky.], 464; Johnson v. Brxmer, 61 Penn. St. 58;
Allison V. Western, etc., R. R. Co., 64 N. C. 382 ; Laugher v. Pointer,
5 B. & C. 547 ; Pickens v. Diecker, 21 Ohio St. 212 ; 8 Am. Rep. 55 ;
Smith V. Wehster, 23 Mich. -298) ; and this without any regard to the
character of the servant for care or skill. JIays v. Millar, 77 Penn.


St. 238 ; S. C, 18 Am. Rep. M5. Thus, the owner of a raft is held liable
for any damage which may be done to the property of others upon the
river, occasioned by negligence or unskillful management of his pil<jt,
although he had employed men who were represented to be skillful
watermen. Shaw v. Eeed, 9 Watts & Serg. 72. And see Martin v.
Temperley, 4 Q. B. 298 ; Bigley v. Williams, 80 Penn. St. 107. But a
master will not be liable for an act of his servant, which would not have
constituted any cause of action against him, if done by himself. Poultoii
V. Southwestern Railway Co., L. R., 2 Q. B. 534 ; Russell v. Irly, 13
Ala. 131. And if a negligent act be done by a servant, while he is at
liberty from service and pursuing his own ends exclusively, the master is
not liable for the injury produced thereby, even if it could not have been
committed without facilities aiforded to the servant by "his relations to
his master. Mitchell v. Crassweller, 13 C. B. "237 ; Garretzen v.
Duenckel, 50 Mo. 104 ; S. C, 11 Am. Rep. 405 ; Bard v. Yohn, 26
Penn. St. 482 ; Storey v. Ashton, L. R., 4 Q. B. 476 ; Sheridan v. Char-
lick, 4 Daly (N. Y.), 338. Thus, a coachman, after having used his
master's horse and carriage in going upon an errand for his master, in-
stead of taking it to the stable, used it in going upon an errand of his
own, without his master's knowledge or consent. While doing so, he
negligently ran into and injured the plaintiff's horse — and it was held
that his master was not liable. Id. See, also, Campbell v. City of Prov-
idence, 9 R. I. 262. But see Sleath v. Wilson, 9 Carr. & P. 601 ; Joel
V. Morison, 6 id. 501. Nor is a master responsible for an injury caused
by his servant's negligence to a person who might, by the exercise of
ordinary care, have avoided the consequences of the servant's negli-
gence. It is not, however, sufficient, in order to exempt a master from
responsibility, to show that the party injured did^, by his own act, con-
tribute to the injury, but it must be shown that he did not use ordin-
ary care to avoid the consequences of the servant's negligence. But-
terjield v. Forrester, 11 East, 60 ; Clayards v. Dethick, 12 Q. B. 439 ;
Beers v. Ilousatonic R. R. Co., 19 Conn. 566. Where, however, the
party injured was a child, incapable of taking care of itself, a master
has been held liable for injury caused to the child by the negligence of
his servant, although the child itself, by its own act, brought about the
accident. Lynch v. Nuidin, 1 Q. B. 29. '^Q.Q,i)0st, tit. Najliyence.
If a servant driving hismjister's carriage along the highway carelessly
runs over a by-stander, or if a gamekeeper employed to kill game care-
lessly fires at a hare, so as to slioot a person passing on the groun<l, or
if a workman ein])loycd by a builder in building a house negligently
throws a stone or brick from a scaffold, and so hurts a passer-by, — in
all tliese cases, the person injured has a right to treat the wrongful or


careless act as the act of the master. And the law does not permit the
master to escape liability because the act complained of was not done
with his own hand. Bartonshill Coal Co. v. Heid, 3 Macq. S. C.
App. Cas. 266. In a Vermont case, the defendant put a bag containing
barley into his wagon under his shed. In two or three days thereafter,
his hired servant took the bag from the wagon, supposing it to contain
oats, and carried it to a place where he was drawing logs for his master,
to feed his horses with its contents. Finding his mistake, the servant
fed some of the barley, and then put an iron bolt that he had been using
as a device pin, into the bag and carried the bag home and put it into
the wagon where he found it, with the barley and bolt in it, without
informing his master of what he had done. Soon after, the defendant

Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 4) → online text (page 59 of 107)