or misconduct in those things which do not concern his duty to his master, and which, when he commits, he steps out of the course of the service. (a)1 But it was considered, in M'Manus v. Crickett, (b) to be a question of great concern, and of much doubt and uncertainty, whether the master was answerable in damages for an injury wilfully committed by his servant, while in the performance of his master's business, without the direction or assent of the master. The court of K. B. went into an examination of all the authorities, and, after much discussion and great consideration, with a view to put the question at rest, it was decided that the master was not liable in trespass for the wilful act of his servant, in driving his master's carriage *260 against another, without his master's direction or assent.

The court considered that when the servant quitted sight of the object for which he was employed, and without having in view his master's orders, pursued the object which his own malice suggested, he no longer acted in pursuance of the authority given him, and it was deemed, so far, a wilful abandonment of his master's business. The case has received the sanction of the supreme courts of Massachusetts and New York, (c) on the ground that there was no authority from the master, express or implied, and the servant in that act, was not in the employment of his master (d) 2

(a) Lord Kenyon, in Ellis v. Turner, 8 Term Rep. 533. Parker, Ch. J., in Foster v. The Essex Bank, 17 Mass. Rep. 508-510. Richmond Turnpike Co. v. Vanderbilt, 1 Hill's N. Y. Rep. 480.

(b) 1 East, 106.

(c) 17 Mass. Rep. 508-510. Wright v. Wilcox, 19 Wendell, 343. Croft v. Alison, 4 Barnew. & Ald. 590, S. P.

(d) In Brady v. Giles, 1 Moody & Robinson, 494, Lord Abinger held it to be a question of fact for a jury, whether the servant was acting as the servant of the party

& Eq. 448. Armstrong v. Cooley, 5 Gilman R. Church v. Mansfield, 20 Conn. 284. Phil. & R. Southwick v. Estes, 7 Cush. 385. Thames Steam

1 Mitchell v. Crass weller, 16 Eng. L. 509. Wolfe v. Mersereau, 4 Duer, 473. R. R. Co. v. Derby, 14 How. U. S. 468. boat Co. v. Housatonic R. Co. 24 Conn. 40.

2 The same principle was applied in Vanderbilt v. The Richmond T. Co. 2 Comst. R. 479. In this case the president of the company, who was also its general agent, approved of the trespass complained of, (and even encouraged its commission,) yet it was held that the company was not liable, for its agents had no authority to authorize the doing of an unlawful act.

If a servant employs another servant to do his business, and in doing it, the servant so employed is guilty of an injury, the

hiring or of the owner. But in Chandler v. Broughton, 1 Crompton & Meeson, 29, it was held that if the owner of a carriage is sitting aside of his servant who drives, and the horse runs away and injures others, trespass lies against the master as being his act. The master is liable as a co-trespasser, if he is perfectly passive without any interposition when the driver was doing the wrong. A passive acquiescence is inferable. M'Laughlin v. Pryor, 1 Carr. & Marshman, 354. By the New York R. Statutes, 3 edit. vol. i. 874, the owners of every carriage running or travelling upon any turnpike road or public highway, for the conveyance of passengers, are made liable, jointly and severally, for all injuries and damages done by any person in their employment as a driver, while driving such carriage, whether the act occasioning such injury or damage be wilful or negligent, or otherwise, in the same manner as such driver would be liable. This stringent provision has a salutary tendency to secure the selection of competent and careful drivers. The dividing line, said Judge Cowen, between an act of the servant in the employment of his master, for which the master is or is not liable, is the wilfulness of the act. But though the master be liable for the servant's negligence to the injury of another, when doing a lawful act in his service, he is not liable if the act be wilfully unlawful, unless shown to be done by the master's authority. Lyons v. Martin, 8 Adolp. & Ellis, 512. Nor is the master who uses due diligence in the selection of his servants, answerable to one of them for an injury received by him in consequence of another's carelessness while both were engaged in the same service. There is no express or implied contract or principle of policy ap plicable to the case as between two servants in the same service, and giving an action against the master for an injury by one to the other. Farwell v. B. & W. Railroad, 4 Metcalf, 49.2

I See a similar statute in Illinois. Rev. Stat. c. 93, § 6. Tuller v. Voght, 18 Ill. 277. * See the following cases confirmatory of this doctrine. Priestley v. Fowler, 3 M. & Wels. 1. Brown v. Maxwell, 6 Hill, 594. Hutchinson v. Yorke, &c. Railway Co. Law Journal Rep. 296, Sept. 1850. Wigmore v. Jay, id. 300. Murray v. S. C. R. Road, 1 McMullen R. 385. Coon v. S. & U. R. R. Co. 6 Barb. S. C. R. 231. Affirmed on appeal, 1 Selden R. 492. Albro v. Agawam Co. 6 Cushing R. 75. Sherman v. Rochester & Sy. R. Co. 15 Barb. R. 574. Lloyd v. The Mayor, 1 Selden R. 369. Mears v. Com. of Wilmington, 9 Ired. R. 73. Hayes v. W. R. Corp. 3 Cush. 270. King v. B. & W. R. R. Corp. 9 Cush. 112. Ryan v. Cumberland V. R. Co. 23 Penn. 384. Homer v. Ill. Central R. Co. 15 Ill. 550. But the master must have exercised reasonable care in the selection of the servant; Wiggett v. Fox, 36 E. L. & Eq. 486; Tarrant v. Webb, 37 E. L. & Eq. 281: for in this as in other cases he is liable for any injuries to the servant, while in his employment, which have been caused by his neglect. Paterson v. Wallace, 28 E. L. & Eq. 48. Marshall v. Stewart, 33 id. 1. Keegan v. Western R. Corp. 4 Seld. 175. McMillan v. Saratoga R. Co. 20 Barb. 449.

It seems that the rule is not different though both servants are not in a common employment. Gillshannon v. Stony Brook R. R. Corp. 10 Cush. 228. But in Ohio, this doctrine is qualified, and a railroad company was held liable where the injury was caused by the negligence of a superior servant. Little Miami R. R. Co. v. Stevens, 20 Ohio, 415. This rule is approved in Indiana. Gillenwater v. Madison R. Co. 5 Porter, 339. Fitzpatrick v. New Albany R. Co. 7 id. 436; and see Walker v. Bolling, 22 Ala. 294.

master is liable. Thus, in Bush v. Steinman, (a) A. contracted with B. to repair a house, and B. contracted with C. to do the work, and C. contracted with D. to furnish the materials; and the servant of D. brought a quantity of lime to the house, and placed it in the road, by which the plaintiff's carriage was overturned; it was held that A. was answerable for the damage, on the ground that all the sub-contracting parties were in the employment of A. But to render this principle applicable, the nature of the business must be such as to require the agency of subordinate persons, and then there is an implied authority to employ such persons. (b)1

(a) 1 Bos. & Pull. 404. Randleson v. Murray, 8 Adolp. & Ellis, 109, S. P. See, also, Burgess v. Gray, 1 Manning, Granger, & Scott, 578. A., the owner and occupier of premises adjoining the road, employed B. to make a drain, and the workmen under him placed gravel on the highway, by which C. was injured, and A. was held liable for it. The possessor of fixed property must be responsible for the acts of those he employs. But the principal is not liable to one agent or employee for damages occasioned by the negligence or misconduct of another agent or employee, for the relation of master and servant, or principal and agent, creates no contract of duty, that the servant or agent shall suffer no injury from the negligence of others, employed by him in the same business or service. Story on Agency. The S. Court in Georgia, in Scudder v. Woodbridge, 1 Kelly, 195, limit this rule to free white agents, and it is not applicable to slaves. The principal is in that case liable from necessity, resulting from interest to the owner and humanity to the slave.

(b) In Laugher v. Pointer, 5 Barnew. & Cress. 547, the K. B. were equally divided in opinion on the nice and difficult question, whether the owner of a carriage was liable for an injury to the horse of a third person, by the negligent driving of the carriage, when the owner had hired the pair of horses of a stable-keeper to draw it for a day, and the owner of the horses had provided the driver. In Quarman v. Burnett, 6 M. & W. 499, in the Exchequer, 1840, the same question arose, and it was decided that the owner of the carriage was not liable. Mr. Baron Parke observed, in this case, that he concurred with the view of the subject taken by Lord Tenterden and Mr. Justice Littledale, in the case of Laugher v. Pointer, and which case, as Judge Story observed, in his Treatise on Agency, § 4536, n., had exhausted the whole learning on the subject.2

1 On the subject of injuries arising from negligence, it is said, in Beers v. Housatonic R. R. Co. 19 Conn. R. 566, that the plaintiff is not prevented from recovering, unless he might, by the use of ordinary care, have avoided the consequences of the defendant's negligence. If by ordinary care he might have avoided injury, he is the author of his own injury. See, also, Davies v. Mann, 10 Mees. & Wels. R. 546.

2 The difficulty in deciding this class of cases consists in determining who is to be regarded as the master of the wrongdoer; whether he is the master who directs the work to be done, or he who, having engaged to do the work, sends his own servant to fulfil the engagement. In the language of Parke, B., (Quarman v. Burnett,)" that person is un

It is said that the master may give moderate corporal correction to his servant, while employed in his service, for negligence or misbehavior. (a) But this power does not grow out

of the contract of hiring; and Doctor Taylor (b) justly *261 questions its lawfulness, for it is not agreeable to the ge

(a) 1 Blacks. Com. 428. 1 Hawk. P. C. b. 1, ch. 29, sec. 5; b. 1, ch. 60, sec. 23. (b) Elements of Civil Law, p. 413. The right is denied in Pennsylvania. Commonwealth v. Baird, 1 Ashmead's Rep. 267.

doubtedly liable, who stands in the relation of master to the wrongdoer." The later cases have adhered to the opinion of Mr. Justice Littledale, in Laugher v. Pointer, and hold that he is the responsible party who directs his servant to fulfil his engagement, and not he who only engages a person exercising a distinct calling, by the misconduct of whose servant the injury is caused. "Milligan v. Wedge, 12 Ad. & El. 737. Rapson v. Cubitt, 9 M. & W. 710. Allen v. Hayward, 7 Ad. & El. N. S. 960. Rich v. Basterfield, 4 Man. G. & Scott, 801. Reedie v. N. W. Railway Co. (Excheq'r) 13 Jurist Rep. 659, 1849. S. C. Law Reporter, Apr. 1850, p. 626. Weyant v. N. Y. & Harlem R. Co. 3 Duer, 360. An exception to the general rule was suggested in some of the earlier English cases, in respect to injuries caused by the negligent management of real property; and it was declared that the owner must take care that his property was so used that others are not injured, whether his property was managed by his own servants, or by contractors, or their servants. (Per Littledale, Justice, in Laugher v. Pointer, citing Bush v. Steinman, supra. Sly v. Edgley, 6 Esp. R. 6. Leslie v. Pounds, 4 Taunt. R. 649.)

But this distinction, after having been questioned in Milligan v. Wedge, and Allen v. Hayward, has been expressly overruled in the case of Reedie v. N. W. Railway Co. It was there held, that the case of Bush v. Steinman was only sustainable, if at all, on the ground of nuisance.

On the point whether the owner of real property is responsible for injuries occasioned by others not standing in the relation of servants to him, see Rich v. Basterfield, supra. King v. Pedly, 1 Ad. & El. 822. S. C. 3 Nev. & M. 627. King v. Moore, 3 Ad. & El. 184. Barnes v. Ward, Law Journal Rep. C. P. 195, July, 1850. Fish v. Dodge, 4 Denio, 311. Mayor of N. Y. v. Bailey, 2 Denio, 433, per Walworth, Ch. Overton v. Freeman, 8 Eng. L. & Eq. 479.

The doctrine of Bush v. Steinman, is not now recognized in England. Overton v. Freeman, 8 Eng. L. & Eq. 479. Reedie v. N. W. R. Co. 4 Exch. 256. Peachey v. Rowland, 16 E. L. & Eq. 442. It has been rejected in New York, Blake v. Ferris, 1 Seld. 48; and see Stevens v. Armstrong, 2 id. 435: in Massachusetts, Hilliard v. Richardson, 3 Gray, 349, where the court reviews the cases and examines the authority of Bush v. Steinman itself; and in Michigan, DeForrest v. Wright, 2 Mich. 368. It is sustained in Wis wall v. Brinson, 10 Ired. 554; and in Stone v. Cheshire R. Corp. 19 N. H. 427.

For further illustration of the question who is the responsible master, see Sproul v. Hemmingway, 14 Pick. R. 1. Stone v. Codman, 15 id. 297. Ross v. The Mayor of Madison, 1 Smith's (Ind.) Rep. 98. McCleary v. Kent, 3 Duer, 27. Sadler v. Henlock, 30 E. L. & Eq. 167. Steel v. Southeastern R. Co. 32 id. 366. Scott v. Mayor, &c. 38 id. 477. An owner of land made an excavation therein, within two feet of a public street, and used no precaution against the danger of falling into it. A person in the night-time fell into the excavation, and was injured, and it was held that the owner was not liable. Howland v. Vincent, 10 Met. R. 871.

This case can hardly be reconciled with the case of Barnes v. Ward, cited supra.

nius and spirit of the contract. And without alluding to seamen in the merchants' service, it may safely be confined to apprentices and menial servants while under age, for then the master is to be considered as standing in loco parentis. It is likewise understood that a servant may justify a battery in the necessary defence of his master. The books do not admit of a doubt on this point; but it is questioned whether the master can in like manner justify a battery in defence of his servant. In the case of Leward v. Basely, (a) it was adjudged that he could not, because he had his remedy for his part of the injury by the action per quod servitium amisit. It is, however, hesitatingly admitted in Hawkins, and explicitly by other authorities, that he may; and the weight of argument is on that side. (b) In England there seems to be a distinction between menial and some other servants, but I know of no legal distinction between menial, or domestic and other hired servants; and the better opinion is, that the master is not bound to provide even a menial servant with medical attendance and medicines during sickness." (c)

III. Of apprentices.

Another class of servants are apprentices, who are bound to service for a term of years, to learn some art or trade. The temptations to imposition and abuse to which this contract is liable, have rendered legislative regulations particularly necessary.1

262

*It is declared, by the statute law of New York, (d)

(a) 1 Lord Raym. 62. 1 Salk. Rep. 407.

(b) 2 Roll. Abr. 546. D. 1 Blacks. Com. 429. Hawk. P. C. b. 1, ch. 60, sec. 23, 24. Reeve's Domestic Relations, p. 378. In Louisiana, it is expressly declared by law, that a master may justify an assault in defence of his servant, as well as a servant in defence of his master. The right is made to rest, in the one case, upon inter

est, and in the other upon duty. Civil Code of Louisiana, art. 169.

(c) Sellen v. Norman, 4 Carr. & Payne's N. P. Rep. 80.

(d) N. Y. Revised Statutes, vol. ii. p. 154, sec. 1, 2, 4.

1 By a recent act in Maine, 10 hours' labor, in the absence of any special agreement, is made a legal day's work; but the act does not extend to monthly labor, or to agricultural employments. Acts of Maine, 1849, ch. 83. There is a similar provision in N. Hampshire. Laws of N. H. 1847, ch. 488.