Gist of the action of con tort. 1 Raynı: 374 that of Savile v. Roberts, that an act which, if done by one alone, constitutes no ground of action on the case, cannot be spiracy is the made the ground of such action by alleging it to have been done by and through a conspiracy of several." And, e converso, if the act is unlawful when committed by one, it will be unlawful when committed by a combination of several; as in the case of a conspiracy (carried out) for a malicious prosecution. 6 M. & G. 205. Distinction between con spiracy criminally and civilly. For example, in Gregory v. Brunswick it was held that an action lay against several for a conspiracy, carried out, to hiss an actor off the stage. Mr. Ball [Leading Cases, p. 164] points out as the ground, that it is a distinct tort maliciously to interfere with another's trade or occupation; and that the conspiring would in fact be the evidence of malice, which it might be difficult to prove in the case of a single member of the audience. The concession made by Mr. Ball against this last case being a cause of action, assuming it to be proved, seems, however, unnecessary if the prior assumption is accurate. The distinction between conspiracy in criminal law and the common law action against two or more for combining to commit a tort, thereby becoming joint tortfeasors, was I Saund: 228. pointed out in Skinner v. Gunton and others. It was argued that here is an action of conspiracy which charges the defendants that, per conspirationem inter eos habitam, they caused a plaint to be levied, and the now plaintiff to be arrested thereon, and all the defendants except one (namely, Gunton) are acquitted, and therefore this action fails; for one defendant cannot conspire alone: "and although the plaintiff might have had an action upon the case against the three defendants, or one defendant only," yet he had chosen "an action of conspiracy." But the Court held nevertheless that “it was an action on the case, and therefore the plaintiff should have judgment against the defendant whom the verdict is found against, although the other two defendants are acquitted. For the substance of the action was the undue arresting of the plaintiff, and not the conspiracy." We proceed now to consider other special cases of joint tortfeasors, which arise out of the relations of master and servant, principal and agent, and contractor and sub-contractor. § 5. PRINCIPAL AND AGENT-MASTER AND SERVANT. Important to inquire if relation actually exists. In their main features the principles which regulate the liability of a principal for the torts of his agent, and of a master for the torts of his servant, are identical; a liability which is usually expressed by the maxim qui facit per alium facit per se. And, first, it is naturally of the greatest importance to establish the existence of either relation between the party against whom the action is brought and the actual tortfeasor. If this fails the action can only end in a nonsuit. As in Lucas v. Mason. During a disturbance at a public meet- L. R. 10 Ex: ing, the chairman cried out "Bring those men forward:" and the stewards, acting on the suggestion, brought the wrong man forward and ejected him. In an action against the chairman for the assault, the Court held that it was impossible to say that any such relation existed; and judgment was therefore given for the defendant. They held also that the words could not be construed into a command, so as to bring the chairman within the rule that where the trespass is the necessary and direct consequence of an order given for its committal, the person who gives the order is liable as much as if he did it himself. Thus in Glynn v. Houston, 2 M. & G. an action for assault and false imprisonment against the 337. Governor of Gibraltar, some soldiers under the command of the Military Secretary searched a house for a Spanish General, and putting a sentry at the door of the plaintiff's house refused him egress. There being evidence that the search was made under the Governor's authority, he was held liable. Simple illustration of liability. 2 Lev: 172. 2. 25 Esp: 262. 35 Esp: 36. (i.) Consideration of master's liability where the authority is to do a specific act. 1 In illustration of the simple case of the liability of the master or principal, the following decisions may be cited. Michael v. Alestree, where the servant was sent to train some unruly horses in Lincoln's Inn Fields, and in so doing ran over the plaintiff. The master was held liable. In all the carriage cases, which will be examined more particularly hereafter, the master of the coachman was held responsible for the damage occasioned by his negligence: the difficulty in 12 M. & Ry: the cases arising always as to determining who was in reality the master at the time of the accident. Simple instances also occur in Smith v. Lawrence, Sammell v. Wright, Dean v. Branthwaite, and Morley v. Gaisford. So too the master is liable if the servant has executed his orders with unnecessary violence or wantonly: Seymour v. Greenwood; and also although he has performed his duty with ordinary care but has unavoidably disobeyed his instructions, and the tort is the necessary or unnecessary consequence of them. As where the servant was told to lay a quantity of rubbish near a neighbour's wall, but so that it might not touch it. The restriction being difficult to comply with, some of it ran against the wall, and the master 9 B. & C. 951. was held liable: Gregory v. Piper. 4 1 2 H. Bl: 442. 7 H. & N. 355. Liable if order executed with restriction is But although the master is responsible for the negligence of his servant, while executing his orders, it is not true to say that he is responsible for all the acts of his servant: and an inquiry is therefore necessary as to the master's liability where the servant has exceeded his orders, or has done something without any order at all; this inquiry is generally couched in the words "was the act within the scope of the servant's employment or authority?" In some cases the circumstances themselves afford a very simple solution of the difficulty. For example, where the master is present at the time of the accident his presence may under certain circumstances justify the assumption that he had control over the servant, or that he acquiesced in his acts. As in Chandler v. Broughton, where the master was 1 C. & M. 29. sitting on the box of the carriage with the servant when the collision happened. (See also McLaughlin v. Prior.) [post, p. 83.] Not liable for direct act of malice. 590. Now although as we have seen the master is responsible if his order is carried out with unnecessary violence, it being held to be still within the scope of the servant's employment, he is not responsible if the trespass is the result of some direct act of malice on the part of the servant, which would disconnect it with the work upon which he was employed, although it occurred during the time in which he was being employed. For example, if in driving, whether the master be present or not, the servant wantonly strike another's horses, the master is not liable; but if in order to perform his master's orders he strikes but injudiciously, and in order to extricate himself from a difficulty, that will be negligence within the scope of his employment, and the master will be liable: Croft v. 4 B. & Ad: Alison. This point was also decided in McManus v. Crickett, in which the judgment of Holt, C.J., in Middleton v. Fowler was cited with approval. No master is chargeable with the acts of his servant but when he acts in the execution of the authority given him. Now when a servant quits sight of the object for which he is employed, and without having in view his master's orders, pursues that which his own malice. suggests, he no longer acts in pursuance of the authority given him, and his master will not be answerable for such act. As in the example given in Noy's maxim: "If my servant contrary to my will chase my beasts into the soil of another, I shall not be punished; or if I command my servant to distrain and he ride on the distress, he shall be punished, not I." I East 106. Salk: 282. It is important to keep this principle quite distinct from that laid down in Limpus v. General Omnibus Co. The facts of 1 H. & C. that case were shortly as follows: the driver of the defendant company's omnibus, being instructed to do the best he could Illustration of 526. scope of employment. [ante, p. 55.] for his master in the way of picking up fares, was also directed to drive steadily and not to interfere with any other omnibus driver; he, however, pulled across a rival omnibus in order to obstruct its conductor in getting passengers, and in so doing drove against and upset it. Wightman, J., thought these facts brought the case within Croft v. Alison; but the rest of the Court (Williams, Crompton, Willes, Byles, and Blackburn, JJ.) thought that they did not, and held the defendant company liable. The judgments proceed on two distinct lines of argument. First, what was done happened in the course of the driver's employment: the mere fact that instructions are given and are disobeyed will not excuse the master from liability; we have already seen examples of this. And on this point it is to be noticed a distinction exists between this case and McManus v. Crickett: the wilful act there was the wrecking of the plaintiff's carriage, here it was Master liable the driving across it (" nursing" technically).* Secondly, the driver was employed to get as much money as he could for his master, in rivalry with other omnibuses: what he did was clearly in rivalry, and therefore again within the course of his employment; moreover, what he did was done for his master's benefit. I East 106. if act is in furtherance of his interests. [An action lies in respect of this nursing. The form it takes is, however, for an injury to the individual arising from an obstruc way (cf: p. 153: Green v. London bus Co., 29 L. J: The question put to the jury by Martin, B., was: Did the tion to the high: driver act recklessly in his service, and do what he did for the interest of his master? This was approved by Blackburn, J., who enunciated the following propositions. The master is liable for an act of his servant even if it is wilful provided it was within the scope of the servant's employment, and in the execution of the service for which he was engaged. If it was an act of his own and in order to effect a purpose of his own; or if it was not to further his master's interest, but from private spite, then the master is not liable. [post, p. 59.] This principle will be found to be very analogous to that laid down in a series of railway cases proceeding on the authority given to a company's servants to arrest people under certain circumstances. |
