Master not servant liable where borrows his property. 476. The principle of non-liability for a servant's wilful act in the above driving case, is sometimes said to depend on the consideration that for the time being the servant must be supposed to have borrowed the carriage: and although this may appear to be somewhat crude, there are a series of cases in which the servant has undoubtedly borrowed his master's carriage, and in which the master has been consequently exonerated from liability. In Joel v. Morrison the rule was 6 C. & P. 501. said to be that if a servant borrowed his master's cart for his own business, the master would not be liable; but that if when he was out on his master's business he made a detour on his own, the master would still be liable. A somewhat narrow distinction lies between this case and Storey L. R. 4 Q. B. v. Ashton, in which a wine merchant's carman and clerk went out in a van to deliver wine and return with empties. On their way home, having finished their work, they went out of their way on the clerk's business. An accident happened through the carman's negligence, and it was held that the master was not liable. The question was said to depend not on the mere fact of taking a longer road, which of itself would not be sufficient to remove the act from the scope of employment, but on how far the deviation could be called a separate journey. A still stronger example is to be found in Rayner 2 C. P. D. v. Mitchell. A carman without permission took his master's cart out for his own business; having finished that, he collected a few empties, which was within his usual employment, and while he was so employed, an accident happened. Having started on his own business, the Court held that he was clearly acting beyond the scope of his employment. In Venables v. Smith the true relation of a cab proprietor to the driver, although apparently that of bailor and bailee, was held to be that of master and servant, with authority to use the cab entirely at the driver's own discretion. Consequently when an accident happened while the driver was returning to stable, but when he had gone a little further to a tobacconist's, the proprietor was held liable. 357 279. 2Q. B. D. Case of a cab driver and proprietor. Another instance of the application of the rule that the master is not liable for an act of his servant the doing of which had emanated entirely out of the servant's brain is the 8 A. & E. 512. case of Lyons v. Martin. The servant had authority to distrain cattle damage feasant; he drove some beasts from the highway into his master's close and then distrained them. The master was held not liable. For if he is not liable when the original act of the servant is not unlawful (as merely borrowing his master's cart), à fortiori he is not liable when the act is unlawful, as in this case. [ante, p. 54.] But master cannot limit his liability by issuing orders which cannot be obeyed. L. R. 3 Ch: 441. Liability where authority is to do a certain class of acts. But on the other hand, as it was held in Gregory v. Piper, the mere fact that the master has endeavoured to limit his liability by issuing orders which it is almost impossible for the servant to obey will not excuse him. Betts v. De Vitre affords a good illustration of this. The action was for infringement of patent. The master, knowing that they were running very close, had issued express orders to the workmen not to infringe the plaintiff's invention; these orders had nevertheless been disobeyed. The Court held that although the disobedience might have been unknown to the master, yet he was liable, because the infringement had occurred in the course of the performance of proper duties by the workmen. "Those who have the control," said Lord Chelmsford," of the working are responsible for the acts of subordinates; and it is not sufficient for them to order that the work shall be done so that no injury shall result, they are bound to see that their orders are obeyed." (ii.) Consideration of master's liability where the authority is to do acts of a certain class. So far we have considered only cases in which there has been authority to do an express act and this authority has been exceeded. The question becomes more complicated when the authority is to do a certain class of acts, and it has to be determined whether the act done falls within that class. Some examples drawn from a group of railway cases will best illustrate the principles on which the master's liability depends. They are actions brought against the company for a false imprisonment by one of its servants. Where se vant how to act, master liable, if he has au thorised the exercise of discretion. 36. The liability depends upon an authority expressly given in the bye-laws or instructions to arrest or detain people under certain circumstances, the general principle being that if the person has been arrested under circumstances falling must decide within this authority, and the charge is unfounded, the action. will lie against the company; they are liable for the mistake, because the servant is clothed with an authority to decide as the exigency arises what shall be done; but if the circumstances do not fall within this authority, then that the action will not lie against the company. Thus in Moore v. Metro- L. R. 8 Q. B. politan Ry. Co. the station-master, wrongly assuming that a passenger had not paid his fare, detained him. There was authority to act in such a manner, and therefore the plaintiff succeeded against the company. But in Walker v. South L. R. 5 C. P. Eastern Ry. Co., a constable in the company's service gave a person into custody after a scuffle in the station-yard. His instructions were that he was to give no one into custody if the scuffle were over before he interfered. The verdict was for the company, because there was no authority to do what was done, nor any authority to exercise a certain discretion in the matter. And, again, in Poulton v. London & South L. R. 2 Q. B. Western Ry. Co., where the detention was for non-payment of the fare for a horse, the plaintiff failed against the company. Not only was there no authority to the servant to act in such a manner, but such authority could not have been given, for the company had no power to do what their servant did, and therefore there could be no implied authority. 640. 534. Not liable if act is one which master himself could not commit. 148. In Goff v. Great Northern Ry. Co. the general principle 30 L. J: Q. B. governing these cases was laid down: where a company has on the spot a person acting as their agent, that is evidence to go to the jury that he had authority from them to do all those things on their behalf which are right and proper in the 7 H. & N. 355. Non-liability does not depend on absence of the precise act. exigencies of their business: all such things as somebody must make up his mind on behalf of the company whether they should be done or not: if he makes a mistake or commits an excess while within the scope of this authority his employers are liable. So in Seymour v. Greenwood, where the guard of an omnibus had authority to remove offensive passengers from his omnibus in the exercise of that authority he had committed an excess: the Court held the master liable, because in giving the conductor such an authority, he necessarily gave him authority to determine whether any passenger had misconducted himself. It is very essential to notice that in all these cases where the company has been held not liable, the decision has proceeded on the broad ground that the act was not within the scope of the servant's authority (in one case, because no authority could be implied to do an act which the master authority to do himself could not do), and not on the narrow ground that there was no authority given to commit the wrongful act. As many of the cases point out, a certain latitude of decision as to the expediency of the act must be left to the servant, and by this decision his master is bound. A few cases will be found (e.g. Bolingbroke v. Swindon Local Board) in which the non-liability of the master has been expressly determined on this narrow ground that there was no authority to commit the actual act of trespass: these cases cannot now be considered as good law. 575. L. R. 8 C. P. Bayley v. Manchester Ry. Co. emphasizes this important dis148. tinction. The plaintiff was pulled out of a train by a porter who thought (erroneously as it turned out) that he was in the wrong train: he fell and was injured. It was the porter's duty to prevent people travelling in a wrong train, and he thought he was doing his duty in getting a passenger out by the means he adopted. It was proved that he had express orders not to remove passengers: but the two orders were somewhat conflicting, and, while acting in the performance of the general duty cast upon him, he neglected the particular direction as to the mode of doing it. He was held still to be acting within the scope of his employment and the company was liable. The following rule was laid down: "When a servant is acting within the scope of his authority, and in so acting he does something negligent or wrongful, the employer is liable, even though the acts done be the very reverse of that which the servant was directed to do." The rule in this section is therefore the same as in the ` preceding section, with this addition, that the determination whether the act comes within the authority is practically left with the servant. Master may be liable for acts the oppo site of what he has ordered. (iii.) Consideration of master's liability where the authority is general, or in the absence of express authority. In the first two divisions of the subject it is clear that it is immaterial whether we use the expression master and servant, or principal and agent, the only question being the amount of authority given. The same remark applies to this third division, the difficulty of determining the true limit of authority being, however, rather more difficult in the case of a servant than in the case of an agent. It will be understood that the questions coming under this third division are, the liability generally of a master for the acts of his servant irrespective of actual authority; and the liability of a principal for the acts of an agent employed to represent the principal, where the authority is general to do all acts necessary to the conduct of his business. In Allen v. London & South Western Ry. Co. a ticket clerk in charge of the till gave a person into custody whom he suspected of having attempted to rob the till. The Court considered that the clerk had an implied authority to do anything to protect the company's property; and that if he could not prevent the theft otherwise than by acting as he did, it would have been within the scope of his employment. But what he did being simply to punish the offender for a sup |
