assumes, but what power the master has conferred upon him. This is the meaning of the expression the "scope of the employment." This authority may be conferred by express words, or derived by implication from words or acts. The servant will have such incidental powers as are usual and reasonable to carry into effect the substantive power granted. Thus, if the rules of an employer require the servant to remove from his premises one who is intoxicated, the servant has the incidental power to determine whether a person supposed to come under the rule is in fact intoxicated. If he commits an error of judgment in deciding the point, the master will be responsible to a person thereby injured. It would be quite different if he knew he was sober, for in that case the servant would be plainly acting beyond the scope of his employment. There was at one time an attempt made by the courts to establish a distinction between wilful and negligent acts. This distinction involved a fallacy, and has been abandoned. The prevailing view now is that it is quite immaterial whether the act be negligent or wilful, the true test of liability in all cases being "the scope of the employment." The acts done will be in some instances of such a nature that they will be evidence of acting within the scope of employment to be submitted as a question of fact to a jury. The instances to which these rules have been applied are very numerous, and some of them may be cited as illustrations. It has been decided that a master is civilly responsible for the fraud of a servant acting in the course of his employment,' even though the act is of so gross a nature as to be a felonious crime.2 He is also liable for such torts as false imprisonment 3 (a) or malicious prosecution (even though the employer be a corporation),* or an assault and battery,5 or arrest and taking into custody on a charge turning out to be unfounded; also for the unlawful conversion of property. Likewise he is responsible for the negligence of his servants. This embraces the most common class of cases, and very frequently occurs in the use of machinery or the 1 Coleman v. Riches, 16 C. B. 104. 2 Osborn v. Gillett, L. R. 8 Exch. 88. Goff v. Great Northern R'way Co., 3 El. & El. 672. ♦ Edwards v. Midland R'way Co., L. R. 6 Q. B. D. 287. (a) If the act of the servant is not in furtherance of his master's interests, but for the supposed benefit of the community le. g., procuring an arrest), the master is 5 Walker v. South Eastern R. R. Co., L. R. 5 C. P. 640. 6 Moore v. Metropolitan R'y Co., L. R. 8 Q. B. 36; Eastern Co. R'y Co. v. Broom, 6 Exch. 314. 7 Giles v. Taff Vale R'y Co., 2 E. & B. 822. not liable. Mulligan v. N. Y. & Rockaway Beach Ry. Co., 129 N. Y. 506; Abrahams v. Deakin [1891], 1 Q. B. 516. driving and management of carriages and other vehicles, etc. In all such cases, the leading inquiry will be whether the act was done within the scope of the servant's employment.1 A few illustrations will suffice. If the servant of a coal merchant, in delivering coal, should take up a plate on the sidewalk in a highway into which to shovel the coal, without warning a passer-by, and the latter, while exercising due care, should fall in and be injured, the master would be liable, as the act was done. within the scope of the servant's employment, though done negligently. So the act of a driver of an omnibus in striking a passenger with his whip is presumptively an act of negligence for which the master is responsible.3 So the employment of a tipsy man, who commits an act of negligence, is negligence by the master, for which he is responsible. Under this principle the master might be responsible for an illegal act, done apparently within the scope of the servant's authority.5 If, however, the act done be without the scope of the employment, the master is not liable. The action in that case will only lie against the servant. Some illustrations are subjoined. A master having a private lavatory directed his clerks not to use it. In his absence, one of them violated this direction, and left the water flowing through the faucet so that an adjoining owner was injured. The master was not liable. (a) Again, a servant driving a carriage along a highway, wilfully drove against another carriage. The master was not liable. Where also an injury was caused to a third person by a servant using due care, as, for example, where horses under his charge ran away without his fault, the master was not liable. Reference should now be made to a class of cases where a servant, though in the general employment of a master, leaves the service temporarily to subserve some purpose of his own; or, it may be, for the time being is relieved from actual service by the master. In cases such as these, the acts of the servant cannot be said to be done within the scope of his employment. Although, in 1 Moebus v. Herrmann, 108 N. Y. 349. 2 Whiteley v. Pepper, L. R. 2 Q. B. D. 276. 8 Ward v. General Omnibus Co., 42 L. J. N. s. (C. P.) 265. ♦ Wanstall v. Pooley, 6 Cl. & F. 910 n. (a) The master would be liable if the lavatory were for the use of the clerks in 5 Att'y-Gen'l v. Siddon, 1 C. & J. 220. 6 Stevens v. Woodward, L. R. 6 Q. B. D. 318. 7 M'Manus v. Crickett, 1 East, 106. 8 Holmes v. Mather, L. R. 10 Exch. 261; Crofts v. Waterhouse, 3 Bing. 319. the course of their employment. Ruddiman v. Smith, 60 L. T. N. s. 708. one sense, he may be in his master's service, the act in question is not performed in his service, but is his own act as truly as if he were not a servant at all. Accordingly, a master is not liable, even though the servant was without authority making use of his master's property,-as, for example, driving his vehicles. Thus, where a wine merchant sent his servant to deliver wine and bring back empty bottles, and on his return he drove off in a different direction on a journey of his own, the master was adjudged not to be liable for his acts.1 If the facts of the case show that the relation between two parties is rather that of bailor and bailee than of master and servant, there will be no liability for negligence on the part of the proprietor. Accordingly, if one owns a cab which he lets to a driver for a weekly payment, the horse, harness, and whip being provided by the driver, the owner of the cab having nothing to do with the business except to receive the weekly payment, he will not be the master of the driver.2 It might be a case of master and servant if the owner of the cab had supplied the horse as well.3 (4) The master must owe a duty to the person injured by the servant, in order that such person may have an action against the master on account of the servant's negligence. This point is well illustrated by a case where a person got into a cart driven by a servant, but without the permission of the owner, and was driven so carelessly that he was thrown out and injured. The master was held not to be liable. The same conclusion was reached where one, by the consent of a conductor of a freight train on a railway, rode on a car without payment of fares, passengers being forbidden by the regulations of the company from riding on such a train.5 It is a settled principle of the common law of England that if trustees are appointed by statute to do certain acts of a public nature, — e. g., to lay out and repair highways, — and they employ servants, the trustees are not responsible, nor are the funds which they administer chargeable, for injuries caused by the negligence of the servants. The great rule of the law of master and ser 1 Storey v. Ashton, L. R. 4 Q. B. 476; Rayner v. Mitchell, L. R. 2 C. P. D. 357; Mitchell v. Crassweller, 13 C. B. 237. Sleath v. Wilson, 9 C. & P. 607, to the contrary, is not followed. 2 King v. Spurr, L. R. 8 Q. B. D. 104. 8 This was so ruled in Powles v. Hider, 6 E. & B. 207, and Venables v. Smith, L. R. 2 Q. B. D. 279. In these cases the owner was held liable as a master for the driver's negligence. Some remarks therein as to the effect of certain Acts of Parliament on this question have been latterly disapproved and need not be stated. 4 Lygo v. Newbold, 9 Exch. 302. 5 Eaton v. D. L. & W. R. R. Co., 57 N. Y. 382; Morris v. Brown, 111 N. Y. 318, 330. vant-respondeat superior-is not applicable.1 The trustees are only liable for personal negligence or omission of duty.2(a) The knowledge of the servant may in certain cases be imputed to the master so as to make him liable for negligence, even though there were no actual neglect on his part. There are, for example, frequently cases in law where it is essential to an action for negligence to prove that knowledge of a certain state of facts existed, and that, after this knowledge, due care and caution was not exercised. To make out this knowledge, it may be sought to show that the servant had it, and that he was under the circumstances so identified with the master that his knowledge was legally that of the master. An instance is an action against the master for keeping a vicious dog, whereby the plaintiff was injured. If it be proved that the servant having charge of the dog had knowledge of its vicious disposition, the master will be held to have the knowledge, and therefore to be liable. The servant must, however, have the animal in charge. It will not be sufficient to bring home the knowledge of vicious propensities to other servants, unless to one who had such general management or control as to include the charge of the animal. SECTION IV. Rights of the Master against Third Persons. These may be summed up as a right to be indemnified for loss of service occasioned by their wrongful acts. The leading acts of this kind are torts committed upon the servant, such as assault and battery and false imprisonment, also enticement from service, and seduction of a female servant. (1) Torts committed against the servant. There may be two rights invaded in such a case: one, that of the servant himself, who may sue for the personal wrong; the other, that of the master for the loss of service sustained by him. Thus, if the servant were wrongfully imprisoned, be it but for an hour, the mas 1 Harris v. Baker, 4 M. & S. 27; Humphreys v. Mears, 1 M. & R. 187; Hall v. Smith, 2 Bing. 156; British Cast Plate M'frs v. Meredith, 4 Term R. 794; Duncan v. Findlater, 6 Cl. & F. 894. 2 Hall v. Smith, supra; Hannon v. Agnew, 96 N. Y. 439; Walsh v. Trustees of N. Y. & B. Bridge, Id. 427, 439. (a) A public charity has been held not subject to the law of respondeat superior where due care is exercised in the selection of its servants. McDonald v. Mass. General Hospital, 120 Mass. 432; Fire Ins. Patrol v. Boyd, 120 Pa. St. 624; Van 8 Baldwin v. Casella, L. R. 7 Exch. 325. Stiles v. Cardiff Steain Nav. Co., 33 L. J. N. s. (Q. B.) 310. But see Applebee v. Percy, L. R. 9 C. P. 647, for a more relaxed rule. Tassell v. Manhattan, etc. Hospital, 39 ter would have a cause of action.1 No action will lie for injuries causing the servant's immediate death.2 If the servant were injured by a culpable failure on the part of a carrier to carry him safely, the master would in general have no cause of action, because he is not a party to the contract of transportation. If, however, the injury had been occasioned by the cars of another company negligently colliding with those on which the servant was travelling, the cause of action would not be on contract, and the master could sue.4 (2) Seduction of a female servant. This subject has already been considered in its application as between father and daughter. Only a few words are necessary in reference to an action by a master, not a father and not standing in loco parentis. A master may maintain this action for loss of service, though not related by blood. The measure of damages in this class of cases will in general be confined to the loss actually sustained, though it has been decided in the case of an adopted daughter who was also a servant that damages beyond the mere loss of service might be awarded.6 (3) Enticement of a servant. A master has an action against one who, knowing of the relation between him and his servant, entices the latter to leave him. If the enticer did not know the relation at the time, he will be liable if he continue to employ the servant after knowledge. (a) In such cases the contract between master and servant must be a valid one, and may be either express or implied.9 The cause of action for enticement consists in wrongfully and maliciously breaking off the relation between the master and the servant, to the injury of the former. It has been supposed by some jurists that the action was derived from the provisions of a statute passed in the reign of Edward III.,10 called the "Statute of Laborers," and that it must be confined to servants of an inferior grade, referred to in that statute.11 It is now settled in the English courts that it will include persons in general who have entered into a contract to render exclusive personal service, even of a high grade, such as that required of a singer of operatic music. The 1 Woodward v. Washburn, 3 Den. 369. 2 Osborn v. Gillett, L. R. 8 Exch. 88. 8 Alton v. Midland Railway Co., 19 C. B. N. s. 213. Berringer v. Great Eastern Railway Co., L. R. 4 C. P. D. 163. 5 Fores v. Wilson, Peake, 55. 6 Irwin v. Dearman, 11 East, 23. Blake v. Lanyon, 6 Term R. 221. 8 Sykes v. Dixon, 9 A. & E. 693. 9 Evans v. Walton, L. R. 2 C. P. 615. 10 25 Edw. III. Stat. I. 11 See the learned opinion of COLERIDGE, J., in Lumley v. Gye, 2 Ell. & B. 216, at pp. 254-269. (a) De Francesco v. Barnum, 63 L. T. N. s. 514. |