SAME MASTER AND SERVANT.

75. Liability for torts, as affected by the relation of master and servant, may for convenience be treated under the following heads:

(a) Master's liability to third persons for torts of servant. (b) Master's liability to servant.

(c) Servant's liability to servant.

(d) Servant's liability to master.

(e) Servant's liability to third persons.

SAME-MASTER'S LIABILITY TO THIRD PERSONS.

76. The master is liable to third persons for torts of his servant only when the relationship of master and servant exists, and liability attaches to the master in any one or more of the five ways in which liability may attach to a defendant.116

Unless the relationship involved in a third person's attempt to fasten liability on a defendant is that of master and servant with respect to the wrong complained of, then the case does not fall within this category.117 As has been seen, liability for tort may in general arise in one or more of five ways,-from personal commission, consent, relationship, instrumentality, and estoppel. It may assist in understanding a confused subject to apply this idea to cases of master and servant. In the first place, the master may assist the servant in performing a tortious act, and thus become, by personal participation, a joint tort feasor with him. Little trouble arises from so simple a case. Accurately speaking, here the master is not liable for his servant's tort; all the wrong is his own. In the second place, when a master authorizes his servant (or even an independent contractor) 118 to undertake a contract to do a tortious

116 Ante, c. 1.

117 Accordingly, the first matter subsequently considered is the establish ment of relationship of master and servant.

118 Ante, pp. 233, 234, "Independent Contractor." Exception where thing contracted to be done is tortious.

thing, the master is liable. This class of cases presents some questions not so easy of solution.119 The liability which arises from ratification of an unauthorized wrong of a servant rests on similar principles. 120 In the third place, liability may arise from relationship of master and servant and of master to plaintiff (a third person) in an action against the master for the servant's tort.121 In the fourth place, the instrumentality of the master may impose a duty on him, for the violation of which by his servant in connection with such instrumentality the master may be held liable.122 And, in the fifth place, a master may so conduct his business and so profit by his servant's fraud that the law will not allow him to deny responsibil ity for the employe's wrong.

As a matter of fact, the four elements-consent, relationship, instrumentality, and estoppel-are, as cases arise in actual practice, very much confused, as sources of liability, both in fact and in the theory of law. Therefore, after consent proper has been considered, liability because of relationship (incidentally involving instrumentality) will naturally come up for attention. Liability because of instrumentality proper is determined by principles of negligence and of the duty to insure safety. Its consideration will therefore be postponed until those subjects come up in logical order as specific wrongs.

77. The doctrine of respondeat superior applies only where the peculiar relationship here to be described as that of master and servant is shown to exist.123 It may be created expressly by agreement of parties or inferred from all the circumstances of a given case.

119 Post, p. 245.

120 Ante, c. 1, "Ratification or Adoption."

121 Post, pp. 261-263.

122 Post, pp. 264, 265.

123 The early law knew only "servants." "Agent" is a later branching off of the same class. "Agent," as a commercial term, first appears in Marlowe and Shakespeare. Whatever distinction there may be between these terms, the relationship of master and servant, principal and agent, employer and employé,

The relationship must be established before the doctrine respondeat superior will be applied.124 It has been seen that the employer is not ordinarily liable for the tort of an independent contractor or of his servant, but as to the liability of the independent contractor to third persons for the torts of his servant the same question arises.125 The relationship is based on the peculiar contract of the master and servant. Mere contract of bailment does not create it.126 The contract is usually express; but the consent involved may be also implied, ordinarily by the jury.127 The privity does not exist.

and the like, may be safely treated here as identical. 4 Harv. Law Rev. 361; 5 Harv. Law Rev. 6-9; 28 Am. Law Rev. 18; Murray, Dict. “Agent"; Innis, Torts, 58.

124 Thorpe v. New York Cent. & H. R. R. Co., 76 N. Y. 402; Dwinelle v. New York Cent. & H. R. R. Co., 120 N. Y. 117, 24 N. E. 319; Pennsylvania Co. v. Roy, 102 U. S. 451; Wood v. Cobb, 13 Allen (Mass.) 58; Kimball v. Cushman, 103 Mass. 194; Ward v. New England Fibre Co., 154 Mass. 419, 28 N. E. 299; Welsh v. Parrish, 148 Pa. St. 599, 24 Atl. 86; Wilson v. Clark, 110 N. C. 364, 14 S. E. 962. But see Linnehan v. Rollins, 137 Mass. 123, Burd, Lead. Cas. 68; Reagan v. Casey, 160 Mass. 374, 36 N. E. 58; Walker v. Hannibal & St. J. R. Co. (Mo. Sup.) 26 S. W. 360. Ejection of a trespasser from a car by a person carrying a lantern does not show relationship of master and servant. Corcoran v. Concord & M. R. Co., 6 C. C. A. 231, 58 Fed. 1014. Defendant constructed a proper gate. A horse was put into adjoining field. A stranger opened gate. Defendant not liable for injury to horse escaping. Peoria, etc., R. Co. v. Aten, 43 Ill. App. 68.

125 Thus, it has been held that a contractor is not liable for an injury caused by bricks falling from a properly constructed wall, after its completion, through the intentional or negligent act of an employé not acting. within the scope of his employment, though proper scaffolding or guards: to prevent brick falling have not been erected. Mayer v. Thompson-Hutchison Bldg. Co. (Ala.) 16 South. 620; Thompson-Hutchison Bldg. Co. v. Mayer, Id.

126 Sproul v. Hemmingway, 14 Pick. 1; Stevens v. Armstrong. 2 Seld. 435; Rapson v. Curbitt, 9 Mees. & W. 710; Carter v. Berlin Mills, 58 N. H. 52; Powles v. Hider, 6 El. & Bl. 207; Venables v. Smith, 2 Q. B. Div. 104, 279; King v. Spurr, 8 Q. B. Div. 104; Schular v. Hudson River R. Co., 38 Barb. 653.

127 Cases sent to jury to determine question of relationship: Button v. Chicago, M. & St. P. R. Co., 87 Wis. 63. 57 N. W. 1110; Reens v. Mail & Exp. Pub. Co., 10 Misc. Rep. 122, 30 N. Y. Supp. 913; Sandifer v. Lynn, 52 Mo. App. 553; Evansville & T. H. R. Co. v. Claspell (Ind. App.) 36 N. E. 297; Reagan v. Casey, 160 Mass. 374, 36 N. E. 5S; Consolidated Coal Co. v. Bruce LAW OF TORTS-16

where the relationship has been terminated by either party. There fore, if a discharged employé maliciously misplaces a switch and wrecks a train, the company may not be liable.128

Ordinarily a servant may not make another person a servant of his master,129 but he may have authority so to do expressly or by implication from the nature of his position, the customary performance of his duty, or by ratification of his conduct by his master.130 Necessity may also justify appointment of subagent.131

(Ill. Sup.) 37 N. E. 912. Cases when courts held no relationship of master and servant: Dean v. Railway Co., 98 Ala. 586, 13 South. 489; Flynn v. Campbell, 160 Mass. 128, 35 N. E. 453; Catlett v. Young, 143 Ill. 74, 32 N. E. 447; Hardy v. Railway Co. (N. J.) 31 Atl. 281; Kansas City, M. & B. R. Co. v. Phillips, 98 Ala. 159, 13 South. 65; Tennessee C., I. T. R. Co. v. Hayes, 97 Ala. 201, 12 South. 98; Sagers v. Nuckolls, 3 Colo. App. 95, 32 Pac. 187; Gaines v. Bard, 57 Ark. 615, 22 S. W. 570; Jones v. Iron Co., 96 Mich. 98, 55 N. W. 684; Tousignant v. Iron Co., 96 Mich. 87, 55 N. W. 681. Where railroad employés organize a voluntary fire company, and the railroad company furnishes apparatus for the use of the firemen, permits them to drill at regular intervals during work hours without deducting time, and allows the chief, a machinist, an hour each week to inspect the shops as a precaution against fire, it is the chief's duty, in case of fire, to aid in extinguishing it, and in so doing he acts as an employé. Collins v. Cincinnati, N. O. & T. P. Ry.

Co. (Ky.) 18 S. W. 11.

128 East Tennessee, V. & G. R. Co. v. Kane (Ga.) 18 S. E. 18.

129 Morgan v. Smith (Mass.) 35 N. E. 101; Catlett v. Young, 143 Ill. 74, 32 N. E. 447; Dimmitt v. Railway Co., 40 Mo. App. 663; Glynn v. Houston, 2 Man. & G. 337; Lucas v. Mason, L. R. 10 Exch. 251.

130 Evansville & T. H. R. Co. v. Claspell. 8 Ind. App. 685, 36 N. E. 297. Cf. Bowler v. O'Connell, 162 Mass. 319, 38 N. E. 498 (whether servant or policeman); Brill v. Eddy, 115 Mo. 596, 22 S. W. 488; Southern Pac. Co. v. Hamilton, 4 C. C. A. 441, 54 Fed. 468; St. Louis, I. M. & S. Ry. Co. v. Hackett, 58 Ark. 381, 24 S. W. 881; Norfolk & W. R. Co. v. Galliher, 89

131 Benner v. Bryant, 79 Tex. 540, 15 S. W. 491. Cf. Sevier v. Birmingham, S. & T. R. Co., 92 Ala. 258, 9 South. 405. Where a factory owner is represented by an overseer, who allows a card grinder to give orders to other employés, or imposes on the card grinder work which he cannot do without assistance, and at his call an employé leaves his ordinary work, and assists him, such employé and the owner stand in the relation of servant and master while such assistance is being rendered. Patnode v. Warren Cotton Mills, 157 Mass. 283, 32 N. E. 161. 14 Am. & Eng. Ene. Law, 810, note 3; Mechem. Ag. § 749: Wood, Mast. & Serv. 306. As to where contract of service ends, and as to its continuity, see 32 Cent. Law J. 337.

While in many cases there may be no doubt that the relationship of master and servant exists, it is often no easy matter to determine who may be the proper person to be charged with liability as master. In many cases of this kind the master is to be determined by inspection of contract. Thus, where one sold and delivered fireworks, and sent a man to assist in their exhibition, the purchasers were held, under construction of the contract, not to have been the master of such person, and therefore not liable for the explosion resulting from such person's negligence. "The master is the person in whose business he is engaged at the time and who has the right to direct and control his conduct." 132

Va. 639, 16 S. E. 935; Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, and 35 N. E. 1; Tolchester Beach Imp. Co. v. Steinmeier, 72 Md. 313, 20 Atl. 188; Golden v. Newbrand, 52 Iowa, 59, 2 N. W. 537; Jewell v. Grand Trunk Ry. Co., 55 N. H. 84; Haluptzok v. Great Northern R. Co., 55 Minn. 446, 57 N. W. 144; Cumberland Val. R. Co. v. Myers, 55 Pa. St. 288; Wichtrecht v. Fasnacht, 17 La. Ann. 166; McDaniel v. Railway Co., 90 Ala. 64, 8 South. 41. For complaint failing to show volunteer to be servant, see Hart v. Railway Co., 86 Wis. 483, 57 N. W. 91; and, generally, see Simons v. Monier, 29 Barb. 419; Suydam v. Moore, 8 Barb. 358; Mayor v. Bailey, 2 Denio, 433; Randleson v. Murray, 8 Adol. & E. 109; Wheatly v. Patrick, 2 Mees. & W. 650. But in certain cases a principal or an agent may not be liable for torts of subagent; and so one superintending the construction of a building, as agent of the contractor, is equally liable with his principal for an injury to a third person, resulting from a failure to erect proper scaffolding to prevent the fall of bricks, or from the negligent construction of the wall. Mayer v. ThompsonHutchison Bldg. Co. (Ala.) 16 South. 620; Thompson-Hutchison Bldg. Co. V. Mayer, Id.

132 Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381. Compare Colvin v. Peabody, 155 Mass. 104, 29 N. E. 59. Compare Knight v. Fox, 5 Exch. 225, with Blake v. Thirst, 2 Hurl. & C. 20. That a packing company designates, in a contract to manufacture and ship goods, the particular person whom it intends putting in charge, does not relieve it from liability for the neglect or incompetency of such person, on the theory that he has thus become the agent of both parties. Paige v. Roeding, 96 Cal. 388, 31 Pac. 264. Where plaintiff was injured by the negligence of a truck driver in the employment of defendant, but who was on that day serving another company under a contract which defendant had made with the latter to furnish it daily with a horse, truck, and driver, defendant, and not the other company, is liable for the injury. Quinu v. Complete Electric Const. Co., 46 Fed. 506. Where the owner of a building, at the request of the contractor who was at work thereon, furnished a man to run the elevator for the use of the contractor, the elevator man is still the