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defendant, that the phrase in question refers to the entire conduct.

Again, the finding is that Blackwell "was in the service. of the defendant at the time of the accident." This may mean simply that at the time of the accident his term of service had not expired and that he had not been discharged, or it may mean that in making the detour he was and continued to be in the execution of the master's business within the scope of his employment. We shall, for the purposes of the discussion, assume that the former meaning is the correct one.

Whether then upon the facts found the master is responsible for the negligence of the servant is the important question. The general rule of law applicable in this class of cases is accurately and comprehensively stated in Stone v. Hills, 45 Conn., 47, as follows:-"For all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible; for acts which are not within these conditions the servant alone is responsible."

Of these "conditions" of liability, the one under which the present case seems to fall, if it falls under any of them, is the one for acts done "in the execution of the master's business within the scope of his employment." This rule or "condition" of liability is in itself simple and intelligible enough, but in determining whether any particular case falls within it or not difficult and troublesome questions may arise. "The cases which have arisen upon this subject have from the earliest times been productive of much astute and interesting discussion in courts of law, and eminent judges have differed widely in their decisions. It has always been a matter of extreme difficulty to apply the law to the ever varying facts and circumstances which present themselves." Rayner v. Mitchell, L. R., 2 Com. Pleas Div., 357.

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In reality, however, the difficulty here spoken of arises in ascertaining whether the act was done in the execution of the master's business within the scope of his employment, which as we shall see is ordinarily a question of fact, and not in applying the rule when that fact has been ascertained. This fact once determined, the rule can be easily applied, but the rule cannot at all aid in the determination of the fact. The rule tells us that the master's liability depends upon whether the acts were done in the execution of his business within the scope of his employment, but it does not help us to determine whether they were or not so done.

In like manner the general rule of construction is that the intent of the parties shall prevail. This tells us what to do when the intent has been ascertained, but affords no aid in a particular case in ascertaining what the intent is. Whether then the act of a servant, for which it is sought in a particular case to hold the master responsible, was done in the execution of the master's business within the scope of the employment or not, must from the nature of things in most cases be a question of fact to be determined as such by the jury or other trier, because no general rule of law has been or probably can be laid down the application of which will determine the matter in all cases. Sometimes, however, this question is determined by the court as a matter of law. But in by far the greater number of cases where the question of the master's responsibility turns, as in the present case, principally upon the mere extent of deviation by the servant from the strict course of his employment or duty, it has been generally held to be one of fact and not of law.

In such cases it is, and must usually remain, a question depending upon the degree of deviation and all the attendant circumstances. In cases where the deviation is slight and not unusual, the court may, and often will, as matter of law, determine that the servant was still executing his master's business. So too, where the deviation is very marked and unusual, the court in like manner may determine that the servant was not on the master's business at all, but on his Cases falling between these extremes will be regarded VOL. LXIII.-11

own.

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as involving merely a question of fact, to be left to the jury or other trier of such questions.

Thus, in Phelon v. Stiles, 43 Conn., 426, the deviation by the servant from the strict course of his duty was so slight that this court, as matter of law, held the master liable; while in Stone v. Hills, 45 Conn., 44, the deviation was so marked and unusual that it refused to hold the master responsible.

On the other hand, where a servant, contrary to his duty, and solely for a purpose of his own, drove his master's horse and cart a quarter of a mile out of the way, the question whether in and while so doing he was in the execution of his master's business within the scope of his employment, was left to the jury as a question of fact. Whatman v. Pearson, L. R., 3 Com. Pleas, 422. "Whether the servant is really bent on his master's affairs or not is a question of fact, but a question which may be troublesome." Pollock on Torts, side p. 71. In the following cases, among many others, this question was decided as one of fact. Kimball v. Cushman, 103 Mass., 194; Redding v. So. Car. R. R. Co., 3 So. Car., 1; Rounds v. Del., Lack. & Western R. R. Co., 64 N. York, 129; Cormack v. Digby, 9 Irish Rep., Com. Law Series, 557; Burns v. Poulson, L. R., 8 Com. Pleas, 563.

In cases of deviation the authorities are clearly to the effect that a mere departure by the servant from the strict course of his duty, even for a purpose of his own, will not in and of itself be such a departure from the master's business as to relieve him of responsibility. "Not "Not every deviation of the servant from the strict execution of his duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master's responsibility. But where there is not merely deviation but a total departure from the course of the master's business, so that the servant may be said to be on a frolic of his own,' the master is no longer answerable for the servant's conduct." Pollock on Torts, side p. 76.

In the case of Joel v. Morrison, 6 Car. & Payne, 501, the jury were told that if the servant with his master's horse and

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cart made a detour in order to call upon a friend, or if when driving on his master's business he went out of his way against his master's implied commands, the master remains liable for the servant's negligence while extra viam; but that "if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable."

If the servant in going extra viam is really engaged in the execution of the master's business within the scope of his employment, it is immaterial that he joined with this some private business or purpose of his own. Thus in Patten v. Rea, 2 Com. Bench, N. S., 605, the servant started out on business of the master, and also to see a doctor on his own account. While on his way to see the doctor he negligently drove against a horse and killed it, and the master was held responsible.

In Sleath v. Wilson, 9 Car. & Payne, 607, the master was held liable for the negligent act of his servant, who, after having set his master down, drove around to deliver a parcel of his own, and did not drive directly where he had been ordered to go. See the case also of Cormack v. Digby, supra, upon this point. In Story v. Ashton, L. R., 4 Q. B. Cases, 476, Chief Justice COCKBURN says:-"I think that if a driver while acting in his master's business were to make a slight deviation to carry some business of his own into effect, in such a case the master might be liable, and that the question would be one of degree as regards the extent of the deviation. *** I am far from saying if the servant when going on his master's business took a somewhat longer road, that owing to the deviation he would cease to be in the employment of the master so as to divest the latter of all responsibility; in such cases it is a question of degree as to how far the deviation could be considered as a separate journey.

In Whatman v. Pearson, supra, the servant with the horse and cart of the master, contrary to express orders went a quarter of a mile out of his way purely for a purpose of his own, and the master was held responsible. In Mitchell v. Crassweller, 13 Com. Bench., 237, MAULE, J., said :—“ The

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master is liable even though the servant in the performance of his duty is guilty of a deviation, or a failure to perform it in the strictest and most convenient manner."

In some of its aspects the case of Quinn v. Power, 87 N. York, 535, is somewat similar to the case at bar. There a boatman at a certain town on the Hudson river applied to the pilot in charge of a ferry boat, asking to be put on board of a canal boat then in mid-stream. The pilot, without compensation and apparently out of mere "good nature," agreed to do so. Similar acts had occasionally been done before, but without the knowledge or express authority of the master. To reach the canal boat the pilot diverged from his regular course, and while so out of his course, through the negligence of those in charge of the ferry boat, a collision with a canal boat occurred. In behalf of the master it was urged that his servants, when the collision occurred, were not acting in his business or within the scope of their employment, but in the execution of an independent purpose of their own not connected with the master's business. But upon this point the court said :-"We do not concur in this view of the transaction. At most it appears to us a case where the servant, while acting in the master's business, and within the scope of his employment, deviated from the line of hist duty to his master and disobeyed his instructions. When this ferry boat left the dock at Athens it started for its terminus at Hudson. It took freight and passengers to transfer across the river. Servants and boat, as the latter moved out into the river, were doing the master's business and acting in the line of duty and of employment. There was a usual track or route by which the boat crossed. It may even have been selected and dictated by the owner. In deviating from it the servants might disregard the instructions of the master, but they were none the less engaged in the master's business of transporting passengers from Athens to Hudson because they did not follow the usual route or pursued another or even a forbidden track. They were still doing their employer's work, though in a manner contrary to his instructions. If they stopped the boat in the middle