§ 404. Employer's liability to third persons. The doctrine of respondeat superior applies only to acts of an agent performed in the general scope of his employment.1 The liability of corporations for the torts of their servants or agents, performed in the scope of their employment, is the same as that of a private person,2 and if the servant goes outside of his employment and without regard to his service, acting with malice, or in order to effect some purpose of his own, wantonly causes damage to another, the master, in such case, is not responsible for the acts of his servant. But where a third person is injured by the negligent act of a servant, done in the regular course of his employment, the master is liable for such an injury, although he did not authorize or know of the servant's act or neglect, or even if he disapproved of or forbade the same. And the master is liable for the acts of a third party assisting his servant, when the act is done with his consent and for the servant or by reason of his 1; Cook v. Parkam, 24 Ala. 21, 34. As to how far rule of contributory negligence will be affected by surrounding circumstances, see Wesley City Coal Co. v. Healer, 84 Ill. 126. 1 Pinkerton v. Gilbert, 22 Ill. App. 568; Farber v. Mo. Pac. Ry. Co., 32 Mo. App. 378; Ardesco Oil Co. v. Gilson, 10 Mor. Min. Rep. 669. 2 But the act must have been performed either under express or implied authority. Satterfield v. W. U. T. Co., 23 Ill. App. 446. 3 Mars v. Ills. & H. Canal Co., 54 Hun, 625; 28 N. Y. S. R. 228. The liability of the master does not relieve the servant from the responsibility for his own neglect and they are usually liable as codefendants and can be so sued. Wright et al. v. Compton, 53 Ind. 337; 2 Mor. Min. Rep. 189. If the act is one that is unlawful, negligence is presumed. Ante, idem. Servant liable for results of his own negligence, both to employer and to third parties. Ewing v. Jansen, 57 Ark. 237; South Chicago Co. v. Workman, 64 Ill. App. 383; Beard v. Horton, 86 Ala. 202; Harriman v. Stowe, 57 Mo. 93. 4 Ellegerd v. Auckland, 43 Minn. 352; 45 N. W. 715; Cook v. Houston Direct Nav. Co., 76 Tex. 353; 13 S. W. 475. wish or desire; and where the injury results from the negligent use of explosives, or dangerous appliances, as the greatest degree of care and diligence is requisite in the handling of such agencies, the master would be liable for such an injury, and the legal duty of using them in a careful and skilled manner, could not be shifted from the master to his servants, so as to exonerate the master from the negligent act of his servant.2 § 405. Termination of service. - The usual grounds given in the text-books on the subject, for the discharge of an employee, are disobedience to the orders of the employer; conduct grossly immoral, and such negligence in the discharge of the duties of the employee as would prejudice the business of the employer. It has been held in the earlier cases that in order to justify the employer to terminate the service, before the expiration of the period stipulated for in the contract of hiring, the employee mustbe guilty of acts which come within one of these three subdivisions, but this view has been controverted in some of the later decisions, and the better doctrine now obtains, which allows the employer to discharge the employee for any acts of misconduct, whether the 1 James v. Muehlebach, 34 Mo. App. 5.2. But see Mangan v. Foley, 33 Mo. App. 250. 2 Pittsburg &c. Cɔ. v. Shields, 47 Ohio St. 387. A company or individual owner is responsible for an injury resulting from a failure to keep a mine and works properly protected. Lake Sup. Co. v. Erickson, 10 Mor. Min. Rep. 39. But only reasonable efforts are required to prevent an explosion from fire damp or gas. Berns v. Coal Co., 27 W. Va. 285. 3 Gonsolis v. Gearhart, 31 Mo. 585; Beggs v. Fowler, 82 Mo. 599; Boss Furn. Co. v. Glasscock, 82 Ala. 452; McCormick v. Demary, 10 Neb. 515. * Speck v. Phillipps, 5 M. & W. 279; Fillieul v. Armstrong, 4 Ad. & El. 557. employee is guilty of moral turpidity or not.1 The contract of hiring, whether for a definite, or an indefinite period, is not held to deprive the employer of his authority to terminate the service, if sufficient cause exist for him to discharge the employee, and when the service is terminated upon sufficient cause, the discharge of the employee has been held to operate as a forfeiture of his right to recover his future wages. But this opinion is not borne out by the weight of authority and the better view undoubtedly is that the employee could recover on a quantum meruit for the value of his services, even though he had been guilty of such improper conduct as to justify his employer to rescind the contract and terminate the service.3 But it has been also held, with much fairness, that if an employee, for a definite period, is improperly discharged before the termination of his service, he can recover as for the full contractual period. However, all such actions would necessarily be on a general count for work and labor done and not a special contract, except where the full remuneration was asked, for the action of debt would only lie where the certainty of the sum demanded appeared." 1 Gonsolis v. Gearhart, supra; 14 Am. & Eng. Enc. Law, p. 788 et sub. 2 Cases supra; Elsee v. Gotward, 5 J. R. 143; Sylses v. Dixon, 9 A. & E. 963. 3 Kirk v. Hartman, 63 Pa. St. 97; 11 Mor. Min. Rep. 450. But that servant had been in other employment or refused similar work could be shown in mitigation of damages and prevent a recovery as for the whole contract period. Saxonia Min. Co. v Cook, 7 Colo. 569. * King v. Steiren, 8 Wright, 99; Kirk v. Hartman, 11 Mor. Min. Rep. 450. 5 Kirk v. Hartman, 63 Pa. St. 97. 6 Buller's Nisi Prius, 167. If the contract is entire and the servant quits the employment, then he cannot recover. Isaacs v. McAndrews, 9 Mor. Min. Rep. 690. SECTION 406. Taxation in general. 407. Limitations upon legislative power. 411. Relative duties of lessor and lessee. 412. Mines on public land exempt in most States. 413. Limits of exemption. 414. Exemption does not extend to mines on private land. 416. Same-Taxation of corporate business. 417. Priority of tax lien. 418. Remedies for illegal taxation. § 406. Taxation in general. - Generally speaking, a tax is a charge, or assessment, in the nature of a forced contribution, levied by the government for its own support, upon the persons and property of the people within. the State or district. There is no limitation upon the power of the government in selecting the subjects of taxation, and almost all species of property may be subjected to taxation.2 The State may select, without limitation, the occupations and character of property upon which a tax may be imposed, and in the exercise of its discretion the legislature of a State may exempt certain property from taxation.3 A tax may be levied upon any property lying within the boundaries of a State, whether it 1 Tiedeman's Pol. Pow., Sec. 1; Cooley on Taxation, Sec. 12. 2 Is a matter for legislative department. Stanley v. Little Pittsburg Co., 14 Mor. Min. Rep. 214. 3 State v. North, 21 Mo. 464; People v. Coleman, 3 Cal. 46. In some States there is a constitutional inhibition against such exemptions. See Constitution Missouri. belongs to a citizen or an alien, for the proceedings for the enforcement of the levy are in the nature of actions in rem, against the property, and not in personam against the proprietor.1 The obligation to pay taxes is one of the duties of the citizen, and except as regards real property the duty rests, generally, upon the fact of domicile and citizenship. A tax upon personalty must be assessed at the place of the owner's residence, and a personal tax cannot be assessed against a non-resident, nor can his property be taxed when its situs is beyond the boundaries of the State.2 § 407. Limitations upon legislative power. It has been claimed by eminent authority, that there is hardly any limitation upon the power of the legislature to determine the rate and objects of taxation, and it is true that the only limitation upon the power of the legislature to select the different subjects of taxation is that imposed by the United States Constitution and the constitutions of the different States.3 The power of taxation is essential to the existence of every government, and as the power comes originally from the people, they give to the government the right to tax both themselves and their property. But it is provided by the constitutions of the different States that the taxation must be of 1 Cooley on Taxation, 360; idem, 278–279. 2 Commonwealth v. Cameron (Mo. App.), 2 West. 144. "Stock of a mining company is to be taxed as of the place where its works are situate or the greater part of its operations conducted. Where it was disputed as to which county had the right to tax, and the company has sought to enjoin its collection against one of those counties, the bill must allege affirmatively that the company is liable to taxation in the other county." Garrett County v. Franklin Coal Company, 45 Md. 473; M. M. D. 369. 3 Tiedeman's Lim. of Pol. Pow., p. 472. 4 Ante, idem. |