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does not appear to have been contended, as of course would be done in such circumstances in the present day, that a master as a general rule was liable for the acts of his servants in their employment. The sole contention was that the master was liable in all public matters. As late as the time of Charles II. the modern doctrine was virtually denied in Kingston v. Booth (1683), Skinner, 228, where three justices of the King's Bench laid down the following rule:-"If I command my servant to do what is lawful, and he misbehave himself, or do more, I shall not answer for my servant, but my servant for himself, for that it was his own act; otherwise it was in the power of every servant to subject his master to what actions or penalties he pleased. Thirdly, if I command my servant to do a lawful act, as in this case, to pull down a little wooden house (wherein the plaintiff was and would not come out, and which was carried upon wheels into the house to trick the defendant out of possession) and bid them take care they hurt not the plaintiff; if in this doing my servant wound the plaintiff, in trespass and assault of wounding brought against me, I may plead not guilty," and give this in evidence, for that I was not guilty of the wounding; and the pulling down the house was a lawful act.'
The Doctor and Student (published 1518), at p. 237, recognises the distinction between sale to a particular person and sale generally. See also Noy's Maxims (published 1641), where it is said at p. 95, c. xliv, "If a servant keeps his master's fire negligently, an action lies against the master; otherwise, if he carry it negligently in the street. If I command my servant to distrain, and he ride on the horse taken for the distress, he shall be punished, not I. If a man command his servant to sell a thing which is defective generally to whom he can sell it, deceit lies not against him; otherwise if he bid him sell it to such a man, it does.” The doctrine stated in the text is usually said to have been first laid down in Michael v. Alestree (1677), 2 Lev. 172, 3 Keb. 650, an action on the case against a master and servant for bringing horses to train in Lincoln's Inn Fields, whereby the plaintiff was injured. Judgment was given for the plaintiff. "It shall be intended the master sent the servant to train the horses there." In the report in Ventris (i. 295), no mention is made of this point or indeed of the action being against the master, and in the report in Keble the master's liability is apparently justified by the fact that he ordered the horses to be brought to an open public place.
The modern doctrine was more clearly affirmed by Holt, C. J., in Turberville v. Stamp, Comb. 459, 1 Salk. 13, Ld. Raym. 264, in 1697, decided only a few years after Kingston v. Booth, already mentioned-which was an action against a person for allowing fire to extend beyond his close. Holt, C. J., observed, "Though I am not bound by the act of a stranger in any case, yet if my servant doth anything prejudicial to another, it shall bind me, where it may be presumed that he acts by my authority, being about my business." The same view was taken in Middleton v. Fowler (1699), 1 Salk. 282. (Nisi Prius, coram Holt, C. J.) This was an action on the case against defendants, masters of a stage coach. A trunk was delivered to their coachman; it was lost out of the coachman's possession. It seems that no money was paid to the defendants for carrying the trunk. Holt, C. J., held that an action did not lie, and the plaintiff was nonsuited. He thus laid down the rule: "no master is chargeable with the acts of his servant but when he acts in execution of the authority given by his master, and then the act of the servant is the act of the master. See also Jones v. Hart (1699), 2 Salk. 441; L. Ray. 736 (a pawnbroker's servant took a pawn; the pawner tendered the money to the servant, who said he had lost the goods; held by Holt, C. J., that action for trover lay against the master); Hern v. Nichols (1701). Holt, 462, 1 Salk. 289. For an account of the Roman law as to liabilities of masters, see Die Haftung für Fremde Culpa nach Römische Recht, von Dr. P. F. Von Wyss; Pothier, Oblig. 121; M. Sourdat's Traité de la Responsabilité.
The variety of reasons given for the existence of this liability is very surprising. (1.) The servant is the agent of his employer, and the liability of the latter is but an instance of the doctrine Qui facit per alium facit per se.
Parke, B., in Quarman v. Burnett (1840), 6 M. & W. 509; Alderson, B., in Hutchinson v. The York, Newcastle and Berwick Ry. Co. (1850), 5 Ex. 343; Lord Cranworth in Bartonshill Coal Co. v. Reid (1858), 3 Macq. 266. This reason scarcely accounts for the liability of masters for acts which they have forbidden and in circumstances in which an action would lie in case, but not trespass. (2.) "The reason that I am liable," says Lord Brougham in Duncan v. Findlater (1839), 6 C. & F. 894, 910, "is this, that by employing him (the servant) I set the whole thing in motion, and what he does, being done for my benefit and under my direction, I am responsible for the consequences and doing it"-a reason which is criticised by Parke, B., in Quarman v. Burnett, ubi sup., 510; which does not seem to apply to work not dangerous in itself, and which would justify imposing responsibility upon one who employed a contractor equally with one who employed a servant. See Best, C. J., in Hall v. Smith (1824), 2 Bing. 156, 160. (3.) "There ought to be a remedy against some person capable of paying damages to those injured: Willes, J., in Limpus v. General Omnibus Co. (1862), 3 H. & C. 526. (4.) "He (the master) is liable for an injury done to a stranger by his servant acting within the scope of the latter's authority, because the stranger has had no hand in the choice: " Bramwell, B., in Swainson v. North-Eastern Ry. Co. (1878), 3 Ex. D. 341, 348. "Masters are also answerable for the injury occasioned by the wrongs or negligence of their servants, &c. This has been established to render masters careful in the choice of whom they employ:" Pothier on Obligations, Evans' Translat. p. 72;-a reason which seems to have force only when a master has been guilty of some fault in the choice of his servants. (5.) Holt, C. J., in Hern v. Nichols, 1 Salk. 289, an action for deceit, puts the law on the ground that as somebody must suffer, it is but right the person who employed the deceiver should do so. (6.) "As in strictness everybody ought to transact his affairs, and it is by the favour and indulgence of the law that he can delegate the power of acting for him to another, it is highly reasonable that he should answer for such substitute, at least civiliter, and that his acts, being pursuant to the authority given him, should be deemed acts of the master: Bacon's Abridgment, Master and Servant. (7.) Bentham, in his Principles of Penal Law (vol. i. 383 of Works), puts the master's responsibility upon the following ground: "The obligation imposed upon the master acts as a punishment, and diminishes the chances of similar misfortunes. He is interested in knowing the character and watching over the conduct of them for whom he is answerable. The law makes him an inspector of police, a domestic magistrate, by rendering him answerable for their imprudence." The same view is thus put by M. Sainctelette: La responsabilité du fait d'autrui n'est pas une fiction inventée par la loi positive. C'est une exigence de l'ordre social": De la Responsabilité et de la Garantie, p. 124. This seems the ground on which the rule of law can be justified.
Master's civil liability for acts or defaults of servant.
McManus v. Crickett (1800), 1 East, 106. (See p. 245.)
Goodman v. Kennell (1828), 3 C. & P. 167. (Person occasionally employed by defendant as his servant took the horse of another when on defendant's business; jury found that the horse was taken with defendant's implied consent or authority; defendant liable; Court refused a new trial.)
Gregory v. Piper (1829), 9 B. & C. 591. (See p. 278, infra.)
Chandler v. Broughton (1832), 1 C. & M. 29. (Defendant sitting in a gig beside his servant, who was driving; horse ran away; action in trespass lay.)
Joel v. Morison (1834), 6 C. & P. 501. (See p. 243.)
Booth v. Mister (1835), 7 C. & P. (See p. 261.)
Sleath v. Wilson (1839), 9 C. & P. 607. (See p. 243.)
Giles v. Taff Vale Ry. Co. (1853), 2 E. & B. 822. (Plaintiff contracted to plant hedges for defendants; placed thorn plants in a piece of ground close to defendants' station. The general superintendent of the line refused to let them be removed; defendants liable in trover on the ground (Jervis, C. J.), that “it is the duty of the company, carrying on a business, to leave upon the spot some one with authority to deal on behalf of the company with all cases arising in the course of their traffic as the exigency of the case may demand.")
Patten v. Rea (1857), 2 C. B. N. S. 606. (The defendant's general manager had a horse and gig of his own. They were kept for him at his master's expense, and occasionally used in his master's business. In going with the authority of defendant upon the defendant's business with the horse and gig, he drove against plaintiff's horse. Immaterial that the manager was also going on private business.)
Goff v. Great Northern Ry. Co. (1861), 3 E. & E. 672. (Plaintiff, at
Croft v. Alison (1821), 4 B. & Ald. 590. (See p. 245.)
Mackenzie v. McLeod (1834), 10 Bing. 385. (Housemaid lighted straw in order to clean a smoky chimney; master not liable on the ground that it was no part of her duty to clean the chimney.)
Lyons v. Martin (1838), 8 A. & E. 512. (See p. 241.)
Lamb v. Palk (1840), 9 C. & P. 629. (See p. 245.)
Gordon v. Rolt (1849), 4 Ex. 365. (Defendant, a contractor for certain works, employed sub-contractor, whose men in the execution of the works but without the defendant's authority used the plaintiff's crane, and broke it; defendant not liable in an action of trespass.)
Eastern Counties Ry. Co. v. Broom (1851), 6 Ex. 314. (Servant of a railway company took plaintiff, a passenger, into custody for an alleged breach of a bye-law, &c., and carried him before a magistrate. The attorney of the company attended to prosecute; held no evidence of authority, on the ground that "it was not shown there had been any directions given to the (servants) in general to enforce the bye-laws and no evidence of ratification." This case seems not reconcilable with Giles v. Taff Vale Co. See Goff v. Great Northern Ry. Co., and Bank of New South Wales v. Owston.)
Roe v. Birkenhead Ry. Co. (1851), 7 Ex. 36. (Plaintiff, a passenger, who refused to pay an additional fare, was taken into custody by a railway servant acting under the direction of the superintendent of the station; defendants not liable. There was doubt whether the servants were really the servants of the company; Alderson, B. But the case 18 doubtful.)
the instance of ticket-collector, defendants' inspector of police, and superintendent of line, charged with travelling without a ticket with intent to defraud. 66 We think it a reasonable inference that, in the conduct of their business, the company have on the spot officers with authority to determine, without the delay attending on convening the directors, whether the servants of the company shall or shall not, on the company's behalf, apprehend a person accused of this offence.")
Seymour v. Greenwood (1861), 6 H. & N. 359, and 7 II. & N. 355. (Defendant liable for the act of his servant, a guard of an omnibus, in forcibly removing passenger whom he believed to be drunk. 66 It is not convenient for the master personally to conduct the omnibus, and he puts the guard in his place; therefore if the guard forms a wrong judgment the master is responsible.")
Limpus v. General Omnibus Co. (1862), 3 H. & C. 526. (See p. 239.)
Page v. Defries (1866), 7 B. & S. 137. (Defendants sent their barge under management of lighterman to a wharf to bring it alongside. At suggestion of foreman of wharf, the lighterman moved away from the wharf plaintiff's barge and fastened it to a pile in the river. The plaintiff's barge settled on a projection in bed of river and was injured.)
Lunt v. London and North-Western Ry. Co. (1866), L. R. 1 Q. B. 277. (Gatekeeper inviting plaintiff to pass over a railway crossing.)
Whartman v. Pearson (1868), L. R. 3 C. P. 422. (Defendant, a tractor, employed men and horses; the men were allowed an hour for dinner, but not allowed to leave the horses. One of the men left his horse unattended; it ran away; held that it was properly left to the jury to say whether driver was acting within scope of his employment, and that they were justified in finding that he was.)
Van Den Enynde v. Ulster Ry. Co. (1871), 5 Ir. C. L. 6 and 328. (A clerk of the defendants, while issuing tickets, erroneously thought he had seen a ticket in the plaintiff's hand; charged him with having stolen a
Mitchell v. Crassweller (1853), 13 C. B. 237. (See p. 243.)
Lygo v. Newbold (1854), 9 Ex. 302. (Plaintiff agreed to carry defendant's goods for her in his cart; defendant's servant, without defendant's authority, allowed plaintiff to ride on the cart; cart broke down, and the plaintiff injured.)
Murphy v. Caralli (1864), 3 H. & C. 462. (Bales of cotton stored insecurely in a warehouse by porters in the defendant's employment under the superintendence of J., the warehouse-keeper employed by the owner of warehouse; defendant not liable, the bales having been stowed under J.'s directions.)
William v. Jones (1865), 3 H. & C. 602. (See p. 246.)
Poulton v. London and SouthWestern Ry. Co. (1867), L. R. 2 Q. B. 534. (See p. 247.)
Storey v. Ashton (1869), L. R. 4 Q. B. 476. (A carman, sent with horse and cart by his employer, a wine-merchant, to deliver wine and bring back empty bottles; while returning, after business hours, he drove out of his way on business, not his master's; while he was so driving, the plaintiff was run over.)
Edwards v. London and NorthWestern Ry. Co. (1870), L. R. 5 C. P. 445. (See p. 246.)
Walker v. South Western Ry. Co. (1870), L. R. 5 C. P. 640. (See p. 246.)
Allen v. London and South Western Ry. Co. (1870), L. R. 6 Q. B. 65. (See p. 246.)
Foreman v. Mayor of Canterbury (1871), L. R. 6 Q. B. 214. (Defendants liable for negligence of servants employed in repairing road.)
Cormick v. Digby (1876), 9 Irish C. L. 557. (Defendant's steward and herd got leave to go to a neighbouring town, on business of his own, with his master's horse and cart; it was afterwards agreed that he should bring home meat for the defendant; he drove the cart so negligently as to injure the plaintiff; Court refused to hold, as matter of law, defendant liable.
Rayner v. Mitchell (1877), L. R. 2 C. P. D. 357. (Defendant's carman,
ticket; and detained him; defendants liable.)
Moore v. Metropolitan Ry. Co. (1872), L. R. 8 Q. B. 36. (See p. 247.)
Bayley v. Manchester and Staffordshire Ry. Co. (1872), L. R. 7 C. P. 415. (Plaintiff took his seat in defendants' train for Macclesfield; a porter of the defendants, supposing he was in the wrong train, violently pulled him out and injured him.)
Ward v. General Omnibus Co. (1873), 27 L. T. 761; affirmed, 28 L. T. 850. (Blow struck by driver of defendants' omnibus at driver of another omnibus; passenger in former injured; Court refused to set aside verdict for plaintiff on the ground that there was evidence of negligence in the course of employment.)
Burns v. Poulsom (1873), L. R. 8 C. P. 563. (Defendant, a stevedore, employed to ship rails, had a foreman, whose duty it was to carry the rails to the ship after the carman had brought them to the quay, and unloaded them. The foreman voluntarily got into the cart, and negligently unloaded some rails whereby the plaintiff was injured. Evidence for a jury that foreman was acting within scope of his duty so as to make stevedore liable. Brett, J., dissenting.)
Tebbutt v. Bristol Ry. Co. (1870), L. R. 6 Q. B. 73. (The stations of defendants and two other railway companies were adjoining, and the passengers of the different companies passed from one to the other, the whole area being used in common. The plaintiff, while on the platform of the defendants on his way from the terminus of one of the companies to the booking office of another, was injured by the negligence of a porter of the defendants. Defendants liable, although plaintiff not a passenger of the defendants.)
Mackay v. Commercial Bank of New Brunswick (1874), L. R. 5 P. C. 394. (Cashier of a bank who acted as manager, fraudulently induced plaintiff to accept certain bills; the defendants obtained the benefit of the bills.)
Venables v. Smith (1877), L. R. 2 Q. B. D. 279. (Cabowner liable
without his master's permission, took horse and cart out of his master's stable to deliver a child's coffin at a relative's house; he picked up two or three barrels at public-houses which defendant supplied. He drove against plaintiff's cart, and injured it.
Bank of New South Wales v. Owston (1879), L. R. 4 Ap. 270. (Action for malicious prosecution against a bank; prosecution instituted by bank manager; no implied authority from his position to institute prosecutions.)
Bolingbrooke v. Local Board, Swindon (1874), L. R. 9 C. P. 575. (See p. 241.)
Stevens v. Woodward (1881), L. R. 6 Q. B. D. 318. (See p. 245.)
Richards v. West Middlesex Waterworks Co. (1885), 15 Q. B. D. 660. (See p. 241.)
Jones v. Corporation of Liverpool (1885), 14 Q. B. D. 890. (See p. 19.)
Welch v. London and North Western Ry. Co. (1886), 34 W. R. 166. (Passenger's luggage entrusted to porter while passenger went away for an hour for purposes unconnected with transit.)
British Mutual Banking Co., Ltd. v. Charnwood Forest Ry. Co. (1887), 18 Q. B. D. 714. (The defendant company's secretary made, for his own benefit, fraudulent answers to questions as to the value of certain stock.)
Charleston v. London Tramways Co. (1888), 4 Times L. R. 629. Passenger given in charge by defendant's conductor for attempting to pass bad money; defendant company itself did not possess this power.)
Abrahams v. Deakin,  1 Q. B. 516. (See p. 246, n. (y).)
Baumwoll Manufactur, &c. v. Furness,  A. C. 8. (Ship chartered for four months; captain, officers, and crew paid by charterer; captain under charterer's orders; goods shipped under bills of lading, signed by captain and charterer's agents, who had no authority to pledge owner's credit. Captain not servant of owner.)
Gwilliam v. Twist,  2 Q. B. 84. (Driver of defendant's omnibus forbidden to drive by police; he and conductor invite stranger to drive