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PRINCIPAL horses for the misconduct of the driver, not being his
servant, do not apply here ; for this is an action treating the defendant as a co-trespasser, and is not brought against him as a master for the misconduct of his servant. The mere fact of the defendant being one of the persons who hired the carriage and horses would not make him liable in this action; but it must be shown that he was assenting to the act from which the injury occurred to the plaintiff” (e).
If P. expressly commands A. to do a wrongful act, it is
easy to see that he is a joint wrongdoer with A. But a person may be looked upon as authorising or commanding, and therefore as directly responsible for, the commission of wrongs which he does not order. Thus, if a wrongful act on the part of a servant be a direct or necessary consequence of an act which his master has ordered to be done, his master will be directly liable for the wrongful act itself. “Suppose the case of two persons possessed of contiguous unenclosed land, and that one of them desired his servant to drive his cattle, but not to let them go upon the land of his neighbour; the master will be answerable in trespass [i. e., directly for the act], because he has only a right to expect from
(e) McLaughlin v. Pryor, 4 M. & G. 60, judgment of Erskine, J. It is of importance to distinguish the direct liability of a person who orders a wrong to be committed, and, therefore, is looked upon as a joint wrong. doer with the person through whose instrumentality the injury is done, from the indirect liability of a master for the acts of his servants. In the first case, the principal is liable, because the act complained of is his own act; in the second case the employer is liable, not because he did, or authorised, the particular act, but because his employment of a negligent servant has led to the act complained of being done. The distinction is very nearly equivalent to that between trespass and case. Wherever a master can be sued in trespass he must be considered as directly authorising the wrong done, and where he is only indirectly responsible he must be sued in case. There are, however, torts for which the principal is directly responsible, but for which the only form of action against either principal or agent is case, e. g., an action for fraud or for conversion (since trover is a species of case), see Smith, Master and Servant, 2nd ed., 207 ; Scott v. Shepherd, 1 Smith, L. C., 6th ed., 417; Sharrod v. London and North-TVcstern Rail, Co., 4 Exch. 580.
his servant ordinary, and not extraordinary, care. If PRINCIPAL the servant, therefore, in carrying into execution the orders of his master, uses ordinary care, and an injury is done to another, the master is liable in trespass. If the injury arise from want of ordinary care, the master will only be liable in case” (f); or, to put the distinction in less technical language, if P. employs A. to do an act which naturally leads to the commission of a wrong, P. is directly responsible for the wrong itself, just as if he had ordered that wrong to be committed ; whilst, on the other hand, if P. employs A. to do an act which may be done without the commission of any wrong, and A., through his carelessness or incompetence, injures T. in the course of carrying out P.'s directions, then P. is not responsible for the act itself, though, if he is A.'s master, he may be responsible for the consequences of employing an incompetent servant (g).
If, again, a wrongful act be committed by a servant in the usual course of his employment, although there be no express command on the part of his master to do the specific act complained of, yet in such case the master may be liable to an action of trespass, i.e., as being directly responsible for the act, for a command will be implied from the nature of the servant's employment (h). But the direct liability in such instances can, it is conceived, be with difficulty distinguished from a master's indirect liability for the acts of his servant done in the course of his employment (i).
(f) Gregory v. Piper, 9 B. & C. 591, 594, judgment of Littledale, J.
(9) See Rule 102. On this point the following cases should be compared :-McManus v. Cricket, 1 East, 106 ; Gordon v. Rolt, 4 Exch. 365, esp. 366, 367 ; Sharrod v. London and North-Western Rail. Co., 4 Exch. 580 ; Goff v. Great Northern Rail. Co., 30 L. J. 148, Q. B. ; Seymour v. Greenwood, 6 H. & N. 359 ; 30 L. J. 189, Ex. ; 7 H. & N. 355 ; 30 L. J. 327, Ex. (Ex. Ch.) This distinction between direct and indirect liability may appear a fine one, but is of consequence, and will be found to explain some cases in which persons are responsible for the acts of others who yet are not their servants.
(h) Smith, Master and Servant, 2nd ed., 208.
Ratification (k).—The person who ratifies a tort becomes a wrongdoer from the beginning (1). Thus, if P. ratifies the unauthorised purchase by A., his agent, of a chattel which the vendor had no right to sell, P. is guilty of conversion, although at the time of the ratification he had no knowledge of the circumstances which made the sale unlawful (m).
The following points should be noticed.
1st. In order that the principal may be bound, the tort (e. g., a trespass) must at the time when A. committed it have been intended to be done on behalf, and for the benefit, of P.; or, as it is sometimes expressed (n), in the name, and avowedly on behalf, of P. “He that
“ receiveth a trespasser, and agreeth to a trespass after it is done, is no trespasser, unless the trespass was done to his use or for his benefit, and then his agreement subsequent amounteth to a precedent commandment” (o).
2nd. The principal must, in order to be liable, unequivocally adopt the act, and it would seem, though this point is not quite clear, that the act must be ratified and adopted by him, either with the full knowledge of its being tortious, or else with the intention of adopting the act, whether right or wrong (p).
3rd. A principal may sometimes take advantage of a wrongful act done on his behalf, if it were one which, though wrongful in the person who did it, might have been lawfully done by the principal who ratifies it (q). “If A., professing to act by my authority, does that which primâ facie amounts to a trespass, and I afterwards assent to and adopt his act, there he is treated as having
(k) See p. 131, ante.
(1) Bird v. Brown, 4 Ex. 786 ; 19 L. J. 154, Ex. ; Addison, Torts, 3rd ed., 932, 933.
(m) Hilbery v. Hatton, 2 H. & C. 822 ; 33 L. J. 190, Ex.
(p) Compare Addison, Torts, 3rd ed., 932; Roe v. Birkenhead Rail. Co., 7 Exch. 36; Hilbery v. Hatlon, 2 H. & C. 822 ; 33 L. J. 190, Ex.
(9) Bird v. Brown, 4 Exch. 786 ; 19 L. J. 154, Ex.
from the beginning acted by my authority, and I become PRINCIPAL a trespasser, unless I can justify the act which is to be deemed as having been done by my previous sanction. So far there is no difficulty in applying the doctrine of ratification, even in cases of tort. The party ratifying becomes as it were a trespasser by estoppel ; he cannot complain that he is deemed to have authorised that which he admits himself to have authorised. But the authorities go much further, and show that in some cases where an act which, if unauthorised, would amount to a trespass, has been done in the name and on behalf of another, but without previous authority, the subsequent ratification may enable the party on whose behalf the act was done, to take advantage of it, and to treat it as having been done by his direction. But this doctrine must be taken with the qualification, that the act of ratification must take place at a time, and under circumstances, when the ratifying party might himself have lawfully done the act which he ratifies" (r).
RULE 102.—An employer or master is liable to be Rule 102. sued for the torts of his servant if committed in the Employer course of the servant's employment, and for his master's benefit, or in other words in the service of servant, in his master (s).
liable for acts of
If P. orders A. to commit a tort, P. is directly responsible for it, as being in effect himself the wrongdoer.
(r) Bird v. Brown, 4 Exch. 799, per Curiam. The principle, though chiefly illustrated by actions for trespass, applies to actions for other wrongs. See Addison, Torts, 3rd ed., 853, 854 ; Hilbery v. Hatton, 2 H. & C. 822 ; 33 L. J. 190, Ex. ; Giles v. Taff Vale Rail. Co., 2 E. & B. 822.
(8) See Limpus v. London General Omnibus Co., 1 H. & C. 526 ; 32 L. J. 34, Ex. (Ex. Ch.); Seymour v. Greenwood, 30 L. J. 192, Ex., judgment of Martin, B. ; Laugher v. Pointer, 5 B. & C. 547, 554 ; Quarman v. Burnett, 6 M. & W. 499; Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 (Ex. Ch.).
PRINCIPAL But a person who employs another as his servant incurs
an indirect liability of a more extensive character, for he is responsible, not only for acts which he either directly or indirectly orders, but also for all the acts or omissions which, even though the employer does not order them, are committed by his servant in the course of his service, or, in other words, which are the result of the master's employing the servant (t). “A master
• is ordinarily liable to answer in a civil suit for the tortious acts of his servant, if these acts are done in the course of his employment in his master's service. ... This rule, with some few exceptions (u), . . . is of universal application, whether the act of the servant be one of omission or commission; whether negligent, fraudulent, or deceitful (r), or even if it be a positive act of malfeasance or misconduct; if it be done in the course of his employment, the master is responsible for it ciriliter to third persons (y); and it makes no difference that the master did not actually authorise, or even know of the servant's act or neglect, for even if he disapproved of or forbad it, he is equally liable if the act be done in the course of the servant's employment”(z). “I am liable,” it has been said in the House of Lords, " for what is done by me, and under my orders, by the man I employ, for I may turn him off from that employ when I please. The reason I am liable is this, that by employing him, I set the whole thing in motion, and what he does, being done for my benefit, I am respon
(1) The liability of a master for the acts of his servant is analogous to the liability of an owner for injuries committed by animals belonging to him. Neither the master nor the owner is liable, because he has himself done the particular act complained of. He is responsible, because the wrong is the result of his having, in the one case, employed, e.g., an incompetent servant, and in the other, kept an animal of habits injurious to his neighbours.
(u) For exceptions, see p. 459 – 462, post.