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PART VIII.

OF THE RELATION OF MASTER AND SERVANT.

I. OF THE LIABILITY OF THE MASTER FOR THE WRONGFUL ACTS OF THE SERVANT.

§ THE MASTER IS LIABLE FOR ALL TORTS COMMITTED BY HIS

SERVANT.

Provided

1. The servant is at the time acting in the execution of his master's business.

(i) Illustration. North was going on foot along a road in Southwark with a waggon and horses. Smith was riding, with his groom behind him, in the contrary direction. As the groom passed North, he touched his horse with the spur. The horse kicked out, and struck and injured North. In an action by North against Smith, it was held that Smith was liable for the act of his servant. (a)

(ii) Illustration. Ashton was a wine merchant in the Minories, who sent a clerk and a carman with a horse and cart to deliver wine at Blackheath. They delivered the wine, and received back some empty bottles; and it was then the duty of the carman to return to Ashton's offices, deliver the bottles, and take the horse and cart round to the stables. Instead of

(a) North v. Smith, 10 C. B. 572.

2.

doing this, it being after business hours, the carman, at the request of the clerk, when he had crossed London Bridge, went to the City Road to the clerk's house; and thence to fetch a cask from the clerk's brother-in-law at Barnsbury. While on the way to Barnsbury they ran over Storey. In an action by Storey against Ashton it was held, that the latter was not liable, as the carman had practically started on a fresh journey on his own account; and was not acting in the course of his employment as a servant.(b) He is, at the time, acting within the scope of his employment for purposes of his master.

(i) Illustration. The local board of Swindon

had a sewage farm, of which Buchan was the manager. He had ample powers to manage the farm in the most beneficial way. A ditch divided the farm from the land of Lord Bolingbroke; and with the view of rendering the ditch more efficient for drainage purposes, Buchan committed a trespass on Lord Bolingbroke's land, pared away the bank of the ditch, and cut the underwood and trees on Lord Bolingbroke's side. In an action by Lord Bolingbroke against the Board, it was held that Buchan had not acted within the scope of his employment, and the Board was not liable.(c)

(b) Storey v. Ashton, L. R. 4 Q. B. 476; see Mitchell v. Crassweller, 22 L. J. C. P. 100.

(c) Lord Bolingbroke v. The Local Board of Swindon, L. R. 9 C. P. 575.

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(ii) Illustration. McCleod was tenant to McKenzie of a house in Scotland [where the tenant is, by law, liable to his landlord, if the premises are burnt down by the negligence of the tenant's servants.] McCleod's housemaid, finding she was unable to light the fire in one of the rooms, by reason of the chimney smoking, and thinking the mischief arose from an accumulation of soot, proceeded to clean the chimney by burning furze and straw in it; in consequence of which the house was burnt down. In an action by McKenzie against McCleod the court held that the servant's duty was to light the fire, and not clean the chimney; and that the defendant was not liable.(a)

[NOTE. The master is not absolved by the fact that the servant was acting in disobedience to orders. Illustration. The London General Omnibus Company had given strict orders to its drivers not to hinder or annoy other omnibuses. The driver of one of its omnibuses, in Knightsbridge, wilfully drove across another omnibus belonging to Limpus, came into collision with, and overturned it. In an action by Limpus against the company was held that the company was liable.(b)]

it

3. The master is not obliged by law to employ a

particular person [as, for instance, a pilot.](c)

(a) McKenzie v. McClecd, 10 Bing. 385. As to what comes within the scope of employment" of a servant, see Stevens v. Woodward, 6 Q. B. D. 318. (b) Limpus v. General Omnibus Company, 1 H. & C. 526.

(c) Bennet v. Moita, 7 Taunt. 258.

§ Where a man employs a sub-contractor to do work for him, he is not responsible for the negligence of the sub-contractor's servants. (d)

Provided

1. The work is lawful.

Illustration. The Sheffield Gas Company con-
tracted with Watson Brothers to make
trenches along the streets of Sheffield, and
lay down gas pipes. Watson Brothers ac-
cordingly carried out the work, and in doing
so carelessly left a heap of stones and earth
on the footway, over which Jane Ellis fell
and broke her arm.
Neither the company
nor Watson Brothers had any legal excuse
or authority for breaking up the road, and
the heap was in fact a public nuisance. In
an action by Ellis against the company, the
court held that they were liable.(e)

2. He does not intermeddle himself.

Illustration. Gray employed Palmer to construct a drain from certain premises to the main sewer in the street, and applied, himself, to the local authority for leave to break up the road. Palmer's servants left a heap of gravel by the side of the road.

On com

Gray, the

plaint made by a constable to
latter said he would remove it as soon as he
could; and Palmer employed a man to cart
away a portion of the gravel, and charged
the expense to Gray. Burgess, who was
driving along the road, drove over the heap,
and was thrown out of his cart and injured.

(d) Reedie v. London and North-Western Railway Company, 4 Ex. 344. (e) Ellis v. Sheffield Gas Company, 2 E. & B. 767.

In a second interview with the constable, Gray said he could produce evidence to show that the accident occurred through Burgess' own carelessness. In an action by Burgess against Gray, it was held that there was evidence that Gray had not abandoned the entire control of the work to Palmer, and that he was liable. (a)

3. The work is not such, that if done improperly, damage must necessarily be expected to result

from it. Illustration.

Bower and Peate owned two adjoining houses, and Bower was entitled to have his house supported by Peate's land. Peate employed a contractor to pull down and rebuild his house, and to excavate the foundation; who, by not sufficiently shoring up the earth, caused a settlement, which injured Bower's house. In an action by Bower against Peate, the court held that it was no defence for Peate to say that he had engaged a competent contractor to do the work, as a man is bound himself to see to the doing of what is necessary to prevent mischief, where in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted to prevent them.(b)

[NOTE. § Where the injury arises directly from the act contracted to be done, the contractor

is liable.

§ But where it arises from something col

(a) Burgess v. Gray, 1 C. B. 578.

(b) Bower v. Peate, 1 Q. B. D. 321; see Hughes v. Percival, 8. App. Cas. 443.

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