H his employment for even a short time, in order to indulge his malice upon a third person, or otherwise gratify some personal end of his own, the master is not liable, but the servant only is liable, since, beyond the scope of his authority, a servant is as much a stranger to his master as any other person. 139 If the owner of a building employ a servant to remove the roof from his house, and direct him to throw the materials upon his lot where no one would be endangered, and the servant, disregarding this direction, carelessly throw the material into the street, causing an injury to a pedestrian, the master will be liable, because the act was done in the business of the master. On the other hand, if the servant, for some purpose of his own, intentionally throw the material upon a pedestrian, the master would not be liable, because the act would not be done in the master's business, but a departure therefrom by the servant to effect some purpose of his own." 140 If a servant, while driving his master's carriage, wantonly inflict injury upon a third person traveling upon the same highway, in order to effect some purpose of his own, his master will not be liable. On the other hand, if the servant injure another user of the highway, in an honest but misguided effort to extricate his master's carriage from a position of apparent difficulty or peril, the master is liable for all the consequences of his servant's act;"" but one who is the mere hirer of a horse, carriage, and driver from a liveryman is not responsible to third persons for the misconduct or unskilfulness of the driver.""" ILLUSTRATIONS. -Agreeably to the principles just stated, a painter who wilfully bespatters the walls of a house which he is employed to paint is alone liable for the damages occasioned; 14 the owner of a pleasure yacht is not liable for the action of his crew who, without his knowledge or authority, fire a salute with a cannon on board the yacht, whereby a third person is injured; a professional man, occupying 139 Schoul. Dom. Rel., Sec. 491. 1414 B. & Ald. (Eng.) 590 (1821). 144 1425 B. & C. (Eng.) 547 (1826); 71 Me. 540 (1880). 14330 How. Pr. (N. Y.) 315 (1866). 1444 Abb. Pr. N. S. (N. Y.) 297 (1867). upper apartments in a building, is not liable for the action of his clerk who, after hours, and in express disobedience of his master's orders, visits a private lavatory, and permits the water to overflow and damage the apartments below; 145 but a farmer is liable for the act of his farm hand who, in driving a trespassing cow from the field. strikes her with a stone and kills her; and a toll-gate company is liable for the act of its gatekeeper who, after the hours for collecting toll, lets down a gate and injures a traveler who was endeavoring to pass in the highway.""" 146 The proprietor of a gun store is liable for the act of his clerk who, in the master's absence and contrary to his orders, loads a gun which he was displaying to a customer, and accidentally shot a third person, on the opposite side of the street." 148 Common carriers of passengers are held to strict account for the wrongful or wilful acts of their servants. The subject is treated in another division of this work.""" A master is not criminally liable for the wrongful acts of his servant, unless he counseled or commanded them to be done, or personally participated or cooperated in their execution. Each offender against public justice must answer for himself." 180 SERVANTS' LIABILITY TO THIRD PERSONS 30. The personal liability of a servant to third persons on contracts made by him on behalf of his master is governed by the law of agency. The servant is not liable on contracts entered into by him in the name and on behalf of his master." He is liable where he failed to disclose the existence of his principal, and where he contracted in excess of his authority, or where, though his principal was fully known, he caused exclusive credit to be given to himself." 152 A servant is personally liable to third persons for his negligence, but is not liable for his mere nonfeasance, that is, for his mere failure to perform the services required of him by his master.' He is liable for his wrongful acts done in 153 1456 Q. B. Div. (Eng.) 318 (1881). 14653 Md. 245 (1879). 147 76 Ind. 142 (1881). 148 50 Mo. 104 (1872). 149 See The Law of Carriers. 150 Sm. Mast. & Servt. 143. 1514 Cush. (Mass.) 371 (1849). 154 the course of his employment, notwithstanding he was commanded by his master to perform them, for though a servant is bound to perform the lawful commands of his master, he is not bound to perform those which are unlawful." It follows, with stronger reason, that a servant is personally liable for his wrongful acts committed outside the scope of his authority. As every offender against the law must answer as a principal for his wrong doing, a servant is criminally liable for his criminal acts knowingly committed in his master's service. Therefore, one who violates the law regulating the sale of liquor cannot escape punishment by pleading that he was the mere servant of the proprietor of the establishment.' 155 31. TERMINATION OF THE RELATION The contractual relation of master and servant may be terminated by the will of the master, as by discharge, by the mutual consent of the parties, by expiration of time, or by the death of either party." The mere insolvency of the master does not, of itself, dissolve the relation. 157 156 32. Discharge and Notice.-Generally, it is the master's right to discharge his servant before the expiration of the term of service, for good and sufficient cause; the discharge must be couched in such terms as to leave no doubt in the employe's mind of the employer's desire to terminate the relation, but no set form of words is necessary.' 158 Usually the master's right to discharge his servant depends on the circumstances of each case. Where the facts are undisputed, the right to discharge is a question of law for the court to decide, and not for the jury." 159 A contract of employment for an indefinite period may be terminated by either party at any time;10 but a servant employed for a definite period cannot be discharged through a 154 Reeve Dom. Rel. 357. 155 16 Me. 241 (1839). 156 Schoul. Dom. Rel., Secs. 464, 472. 157 31 Mo. 585 (1862). 158 Am. & Eng. Encyc. Law (1st Ed.). 15983 Hun (N. Y.) 168. mere caprice, but only on fair and reasonable grounds." Where the contract of employment is for no determinate time, neither the master nor the servant is entitled to notice from the other party of his intention to terminate the relation. If there be an express contract, or a prevailing custom to the contrary, that will govern." It is now generally the custom for employers of large bodies of workmen to require their employes to give notice of an intention to leave, upon peril of a forfeiture of their wages. Such agreements are legal, and have been universally upheld by the courts.' 162 164 163 In some of the United States, where the practice of requiring such notice from the workmen is prevalent, it is provided by statute that the employer must give a like notice to the employe, upon similar penalties. In other states, railroads, express, and telegraph companies are required by statute to furnish discharged employes with a written statement of the cause of their discharge."" 33. Right of Servant to a "Character." —The master, in the absence of a special agreement, is not compelled to give his servant a "character," and the latter has no right of action against him for his refusal so to do. Any comments or criticism of the servant which the master may make to third persons are regarded in law as privileged communications, and the servant has no remedy, unless the master's statements were false and malicious." 161 143 Pa. 408 (1891). 162 35 Me. 447 (1853). 163 119 Mass. 400 (1876). 167 165 Stat. Mass. (1895), (1892). 164 Stat. Pa. (1887). THE LAW OF BAILMENTS (PART 1) INTRODUCTION DEFINITION 1. A bailment is the delivery of a thing of a personal nature, by one person to another, in trust to do something therewith, and afterwards to return it. The person giving, or owning, the thing bailed is called the bailor, and the party entrusted therewith is the bailee. GENERAL ESSENTIALS 2. The essentials of a bailment are: (1) The thing bailed must be personal property, not real estate; (2) it must come into the possession of the bailee; a mere promise to deliver is not sufficient; (3) the trust may be either express, that is, declared at the time, or implied from all the circumstances and surroundings of the transaction, or from public policy; and, (4) when the trust or object of the bailment is satisfied - when the thing to be done is completed - the article must be returned to the rightful owner. In an ordinary bailment there is no transfer of the absolute ownership of the thing bailed to the bailee, because of his contract of restitution, but a special, qualified property, together with the possession, is transferred to him. account of this qualified property the bailee, as well as the For notice of copyright, see page immediately following the title page |