vant but the letter's, is not, generally speaking, liable for harm done by the driver's negligence (g). But if he orders,

or by words or conduct at the time sanctions, a specific act of rash or careless driving, he may well be liable (h). Rather slight evidence of personal interference has been allowed as sufficient in this class of cases (i).

Temporary transfer of service. One material result of this principle is that a person who is habitually the servant of A. may become, for a certain time and for the purpose of certain work, the servant of B.; and this although the hand to pay him is still A.'s. The owner of a vessel employs a stevedore to unload the cargo. The stevedore employs his own labourers; among other men, some of the ship's crew work for him by arrangement with the master, being like the others paid by the stevedore and under his orders. In the work of unloading these men are the servants of the stevedore, not of the owner (j).

(g) Even if the driver was selected by himself: Quarman v. Burnett (1840), 6 M. & W. 499. So where a vessel is hired with its crew: Dalyell v. Tryer (1858), 8 E. B. & E. 899, 28 L. J. Q. B. 52. So where a contractor finds horses and drivers to draw watering carts for a municipal corporation, the driver of such a cart is not the servant of the corporation: Jones v. Corporation of Liverpool (1885), 14 Q. B. D. 890, 54 L. J. Q. B. 345; cp. Little v. Hackett (1886), 116 U. S. at pp. 371-3, 377.

(h) McLaughlin v. Pryor (1842), 4 M. & G. 48.

(i) Ib.; Burgess v. Gray (1845), 1 C. B. 578, 14 L. J. C. P. 184. It is difficult in either case to see proof of more than adoption or acquiescence. Cp. Jones v. Corporation of Liverpool (1885), 14 Q. B. D. at pp. 893-4, 54 L. J. Q. B. 345.

(j) Murray v. Currie (1870), L. R. 6 C. P. 24, 40 L. J. C. P. 26. Cp. Wild v. Waygood, '92, 1 Q. B. 783, 61 L. J. Q. B. 391, C. A.

Temporary transfer of service. A person availing himself of the services of another's servant becomes, for the time, his master. Wood v. Cobb, 3 Allen. 58; Burke v. Norwich R. Co., 34 Conn. 374; Stevens v. Armstrong, 6 N. Y. 435; Young v. New York, R. Co., 30 Barb. 229; Stone v. Western Transportation Co., 38 N. Y. 240.

Where A. told his servant to drive to B's, then to return by a certain route. On the servant's arrival, B. pursuaded him to go on an errand for him; it was held, that for the space of time used on the errand the servant was not A's, but B's. Stone v. Hill, 45 Conn. 44. See Sheridan v. Charlick, 4 Daly, 338; Cavanaugh v. Dinsmore, 19 N. Y. Supreme Ct. 465; Wyllie v. Pulmer, 63 Hun, 33; 17 N. Y. S. Rep. 434.

Owners of a colliery, after partly sinking a shaft, agree with a contractor to finish the work for them, on the terms, among others, that engine power and engineers to work the engine are to be provided by the owners. The engine that has been used in excavating the shaft is handed over accordingly to the contractor; the same engineer remains in charge of it, and is still paid by the owners, but is under the orders of the contractor. During the continuance of the work on these terms the engineer is the servant not of the colliery owners but of the contractor (k).

But where iron founders execute specific work about the structure of a new building under a contract with the architect, and without any contract with the builder, their workmen do not become servants of the builder (1).

explained. It is

“Power of controlling the work' proper to add that the "power of controlling the work" which is the legal criterion of the relation of a master to a servant does not necessarily mean a present and physical ability. Shipowners are answerable for the acts of the master, though done under circumstances in which it is impossible to communicate with the owners (m). It is enough that the servant is bound to obey the master's

(k) Rourke v. White Moss Colliery Co. (1877), 2 C. P. Div. 205, 46 L. J. C. P. 283. (1) Johnson v. Lindsay (1891), A. C. 371.

(m) See Maude and Pollock, Merchant Shipping, 1. 158, 4th ed.

"Power of controlling the work," explained. Upon this subject see cases cited in American notes, ante, p. 91.

Shipowners are liable for the torts of the officers in charge. Spencer v. Kelley, 32 Fed. Rep. 838; Yates v. Brown, 8 Pick. 23; The E. M. Norton, 15 Fed. Rep. 686; Korah v. Ottawa, 32 Ill. 121: St. John v. Paine, 10 How. 557; Germania Ins. Co. v. The Lady Pike, 21 Wall. 1; Chamberlain v. Ward, 21 How. 548; Ward v. Chamberlain, 21 How. 572.

But the shipowners are not liable for the personal tort of the master, that being beyond the scope of his authority. North American D. & I. Co. v. The River Mersey, 46 Fed. Rep. 686.

In Geer v. Darrow (61 Conn. 230; 23 At. Rep. 1087), it is held, that a contractor is liable for an injury resulting from improper use of construction apparatus, although not present.

directions if and when communicated to him. The legal power of control is to actual supervision what in the doctrine of possession the intent to possess is to physical detention. But this much is needful; therefore a compulsory pilot, who is in charge of the vessel independently of the owner's will, and, so far from being bound to obey the owner's or master's orders, supersedes the master for the time being, is not the owner's servant, and the statutory exemption of the owner from liability for such a pilot's acts is but in affirmance of the common law (n).

2. Next, we have

What is in course of employment. to see what is meant by the course of service or employment. The injury in respect of which a master becomes subject to this kind of vicarious liability may be caused in the following ways:

(a) It may be the natural consequence of something

being done by a servant with ordinary care in execution of the master's specific orders.

(b) It may be due to the servant's want of care in carrying on the work or business in which he is employed. This is the commonest case.

(n) Merchant Shipping Act, 1854, s. 386; The Halley (1868), L. R. 2 P. C. at p. 201. And see Marsden on Collisions at Sea, ch. 5. On the other hand there may be a statutory relation which does re

semble that of master and servant for the purpose of creating a duty to the public: King v. London Improved Cab Co. (1889), 23 Q. B. Div. 281.

What is in course of employment. There are a few cases defining what is meant by "course of employment," and many illustrating the application of the term as a limitation of the liability of the master for the torts of the servant. See Gregory's Admr. v. Ohio River R. Co., 37 W. Va. 606; 16 S. E. Rep. 819; Moore v. Columbia & G. R. Co (S. C.), 16 S. E. Rep. 781; Illinois Cent. R. Co. v. Ross, 31 Ill. App. 170; Donaldson v. Miss. & Mo. R. Co., 18 Ia. 281; Consolidated Ice M. Co. v. Keifer, 134 Ill. 481; 25 N. E. Rep. 799; Jones v. St. Louis N. & P. Packet Co., 43 Mo. App. 398; Courtney v. Baker, 37 N. Y. Superior Ct. 249; and see cases cited infra, pp.94-105.

“An act though not ordered is in the scope of employment if of such a nature as might be justified without such order, and the master is liable for its unskillful execution." Gilmartin v. New York, 55 Barb. 239.

(c) The servant's wrong may consist in excess or mistaken execution of a lawful authority.

(d) Or it may even be a wilful wrong, such as assault, provided the act is done on the master's behalf and with the intention of serving his purposes.

Let us take these heads in order.

Execution of specific orders. (a) Here the servant is the master's agent in a proper sense, and the master is liable for that which he has truly, not by the fiction of a legal maxim, commanded to be done. He is also liable for the natural consequences of his orders, even though he wished to avoid them, and desired his servant to avoid them. Thus, in Gregory v. Piper (o) a right of way was disputed between adjacent occupiers, and the one who resisted the claim ordered a labourer to lay down rubbish to obstruct the way, but so as not to touch the other's wall. The labourer executed the orders as nearly as he could, and laid the rubbish some distance from the wall, but it soon" shingled down" and ran against the wall, and in fact could not by any ordinary care have been prevented from doing so. For this the employer was held to answer as for a trespass which he had authorized. This is a matter of general principle, not of any special kind of liability. No man can authorize a thing and at the same time affect to disavow its natural consequences; no more than he can disclaim responsibility for the natural consequences of what he does himself.

Negligence in conduct of master's business. (b) Then comes the case of the servant's negligence in the perform

(0) 9 B. & C. 591 (1829).

Negligence in conduct of master's business. The American authorities agree with the statement of the text; a few of the numerous cases are Williams v. Pullman Palace Car Co., 40 La. An. 417; 33 Am. & Eng. R. Cas. 414; Atchison, etc., R. Co. v. Galins, 36 Kan. 749; Conlon v. Eastern R. Co., 135 Mass. 195; 15 Am. & Eng. R. Cas. 99; McIntire R. Co. v.

ance of his duty, or rather while he is about his master's business. What constitutes negligence does not just now concern us; but it must be established that the servant is a wrong-doer, and liable to the plaintiff, before any question of the master's liability can be entertained. Assuming this to be made out, the question may occur whether the servant was in truth on his master's business at the time, or engaged on some pursuit of his own. In the latter case the master is not liable. "If the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of his servant in doing it" (p). For example: "If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, the master will not be liable. But if, in order to perform his master's orders, he strikes but injudiciously, and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant's employment " (q).

(p) Maule J., Mitchell v. Crassweller (1853), 13 C. B. 237, 22 L. J. C. P. 100.

(q) Croft v. Alison (1821), 4 B. & A. 590.

Bolton, 43 Ohio St. 224; 21 Am. & Eng. R. Cas. 501; Northern Pac. R. Co. v. Herbert, 116 U. S. 642; 24 Am. & Eng. R. Cas. 407; Osborne v. McMasters, 40 Minn. 103; Cincinnati, etc., R. Co. v. Smith, 22 Ohio (N. S.), 227; 10 Am. Rep. 729; Luttrell v. Hazen, 3 Sneed (Tenn.), 20; Tuel v. Weston, 47 Vt. 634; Quinn v. Power, 87 N. Y. 535; Hays v. Miller, 77 Pa. St. 238; 18 Am. Rep. 445; Pickens v. Diecker, 21 Ohio (N. S.), 212; 8 Am. Rep. 55; Martin v. Richards, 155 Mass. 381; 29 N. E. Rep. 591; Brazil v. Peterson, 44 Minn. 212; 46 N. W. Rep. 331; Ellegard v. Acklund, 43 Minn. 352; 45 N. W. Rep. 715; Oil Creek, etc., R. Co. v. Keighron, 74 Pa. St. 316; Thayer v. City of Boston, 19 Pick. 511; Hays v. Gainesville St. R. Co., 70 Tex. 602; 34 Am. & Eng. R. Cas. 97; Philadelphia, W. & B. R. Co. 7. Philadelphia, etc., Towboat Co., 23 How. 209; Mobile & M. Ry. Co. v. Smith, 59 Ala. 245; Denver, S. P. & P. R. Co. v. Conway, 8 Colo. 1; Banister . Pennsylvania Co., 98 Ind. 220; Leavenworth etc., Ry. Co. v. Forbes, 37 Kan. 445; Colvin v. Peabody, 155 Mass. 104; 29 N. E. Rep. 59; Singer Mfg. Co. v. Rahn, 132 Mass. 518; 10 S. Ct. Rep. 175.