look to the wrong-doer himself or to the first person in the ascending line who is the employer and has control over the work. You cannot go further back and make the employer of that person liable '.' He who controls the work is answerable for the workman; the remoter employer who does not control it is not answerable. This distinction is thoroughly settled in our law; the difficulties that may arise in applying it are difficulties of ascertaining the facts 2. It may be a nice question whether a man has let out the whole of a given work to an 'independent contractor,' or reserved so much power of control as to leave him answerable for what is done 3. of control. It must be remembered that the remoter employer, if at any Specific point he does interfere and assume specific control, renders himself assumption answerable, not as master, but as principal. He makes himself dominus pro tempore.' Thus the hirer of a carriage, driven by a coachman who is not the hirer's servant but the letter's, is not, generally speaking, liable for harm done by the driver's negligence. But if he orders, or by words or conduct at the time sanctions, a specific act of rash or careless driving, he may well be liable 5. Rather slight evidence of personal interference has been allowed as sufficient in this class of cases". service. One material result of this principle is that a person who is Temporary habitually the servant of 4 may become, for a certain time and transfer of for the purpose of certain work, the servant of B; and this although the hand to pay him is still A's. The owner of a vessel employs a stevedore to unload the cargo. The stevedore employs his own labourers; among other men, some of the ship's crew work for him by arrangement with the master, being like the others paid by the stevedore and under his orders. In the work of unloading these men are the servants of the stevedore, not of the owner 7. Owners of a colliery, after partly sinking a shaft, agree with a contractor to finish the work for them, on the terms, among others, that engine power and engineers to work the engine are to be provided by the owners. The engine that has been used in excavating the shaft is handed over accordingly to the contractor: the same engineer remains in charge of it, and is still paid by the owners, but 1 Willes J., Murray v. Currie, L. R., 6 C. P. 24, 27 (1870). 2 One comparatively early case, Bush v. Steinman, 1 B. & P. 404, disregards the rule; but that case has been repeatedly commented on with disapproval, and is not now law. See the modern authorities well reviewed in Hillard v. Richardson (Sup. Ct., Mass., U. S. 1855), 3 Gray 349, and in Bigelow, L. C. Exactly the same distinction appears to be taken under the Code Napoléon in fixing the limits within which the very wide language of Art. 1384 is to be applied: Sainctelette, op. cit., 127. 3 Pendlebury v. Greenhalgh, C. A., 1 Q. B. D. 36, differing from the view of the same facts taken by the Court of Queen's Bench in Taylor v. Greenhalgh, L. R., 9 Q. B. 487. Even if the driver was selected by himself: Quarman v. Burnett, 6 M. & W. 499. McLaughlin v. Pryor, 4 M. & G. 48 (1842). Ib.; Burgess v. Gray, i C. B. 578. It is difficult in either case to see proof of more than adoption or acquiescence. Murray v. Currie, L. R., 6 C. P. 24 (1870). 7 the work' is under the orders of the contractor. During the continuance of the work on these terms the engineer is the servant not of the colliery owners but of the contractor1. 'Power of It is proper to add that the 'power of controlling the work' controlling which is the legal criterion of the relation of a master to a servant explained. does not necessarily mean a present and physical ability. Shipowners are answerable for the acts of the master, though done under circumstances in which it is impossible to communicate with the owners 2. It is enough that the servant is bound to obey the master's directions if and when communicated to him. The legal power of control is to actual supervision what in the doctrine of possession animus domini is to physical detention. But this much is needful: therefore a compulsory pilot, who is in charge of the vessel independently of the owner's will, and, so far from being bound to obey the owner's or master's orders, supersedes the master for the time being, is not the owner's servant, and the statutory exemption of the owner from liability for such a pilot's acts is but in affirmance of the common law 3. What is in course of employment. Execution of specific orders. 2. Next we have to see what is meant by the course of service or employment. The injury in respect of which a master becomes subject to this kind of vicarious liability may be caused in the following ways: (a) It may be the natural consequence of something being done by a servant with ordinary care in execution of the master's specific orders. (2) It may be due to the servant's want of care in carrying on the work or business in which he is employed. This is the commonest case. (c) The servant's wrong may consist in excess or mistaken execution of a lawful authority. (d) Or it may even be a wilful wrong, such as assault, provided the act is done on the master's behalf and with the intention of serving his purposes. Let us take these heads in order. (a) Here the servant is the master's agent in a proper sense, and the master is liable for that which he has truly, not by the fiction of a legal maxim, commanded to be done. He is also liable for the natural consequences of his orders, even though he wished to avoid them, and desired his servant to avoid them. Thus, in Gregory v. Piper, a right of way was disputed between adjacent occupiers, and 1 Rourke v. White Moss Colliery Co., C. A., 2 C. P. D. 205. 2 See Maude and Pollock, Merchant Shipping, i. 158, 4th ed. 3 Merchant Shipping Act, 1854, s. 388; The Halley, L. R., 2 P. C., at p. 201. And see Marsden on Collisions at Sea, ch. 5. 4 9 B. & C. 591 (1829). the one who resisted the claim ordered a labourer to lay down rubbish to obstruct the way, but so as not to touch the other's wall. The labourer executed the orders as nearly as he could, and laid the rubbish some distance from the wall, but it soon shingled down' and ran against the wall, and in fact could not by any ordinary care have been prevented from doing so. For this the employer was held to answer as for a trespass which he had authorized. This is a matter of general principle, not of any special kind of liability. No man can authorize a thing and at the same time affect to disavow its natural consequences; no more than he can disclaim responsibility for the natural consequences of what he does himself. in conduct (6) Then comes the case of the servant's negligence in the per- Negligence formance of his duty, or rather while he is about his master's of master's business. What constitutes negligence does not just now concern us; business. but it must be established that the servant is a wrong-doer, and liable to the plaintiff, before any question of the master's liability can be entertained. Assuming this to be made out, the question may occur whether the servant was in truth on his master's business at the time, or engaged on some pursuit of his own. In the latter case the master is not liable. If the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of his servant in doing it. For example: If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, the master will not be 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 negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant's employment 2. ... or devia business. Whether the servant is really bent on his master's affairs or not Departure is a question of fact, but a question which may be troublesome. tion from Distinctions are suggested by some of the reported cases which master's are almost too fine to be acceptable. The principle, however, is intelligible and rational. Not every deviation of the servant from the strict execution of duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master's responsibility. But where there is not merely deviation, but a total departure from the course of the master's business, so that the servant may be said to be 2 1 Maule J., Mitchell v. Crasweller, 13 C. B. 237; 22 L. J., C. P. 100 (1853). Whatman 'on a frolic of his own',' the master is no longer answerable for the servant's conduct. Two modern cases of the same class and period, one on either side of the line, will illustrate this distinction. In Whatman v. Pearson2, a carter who was employed by a conv. Pearson. tractor, having the allowance of an hour's time for dinner in his day's work, but also having orders not to leave his horse and cart, or the place where he was employed, happened to live hard by. Contrary to his instructions, he went home to dinner and left the horse and cart unattended at his door; the horse ran away and did damage to the plaintiff's railings. A jury was held warranted in finding that the carman was throughout in the course of his employment as the contractor's servant 'acting within the general scope of his authority to conduct the horse and cart during the day 3' Storey v. Williams In Storey v. Ashton1, a carman was returning to his employer's office with returned empties. A clerk of the same employer's who was with him induced him, when he was near home, to turn off in another direction to call at a house and pick up something for the clerk. While the carman was driving in this direction he ran over the plaintiff. The Court held that if the carman 'had been merely going a roundabout way home, the master would have been liable; but he had started on an entirely new journey on his own or his fellow-servant's account, and could not in any way be said to be carrying out his master's employment. More lately it has been held that if the servant begins using his master's property for purposes of his own, the fact that by way of afterthought he does something for his master's purposes also is not necessarily such a 're-entering upon his ordinary duties' as to make the master answerable for him. A journey undertaken on the servant's own account 'cannot by the mere fact of the man making a pretence of duty by stopping on his way be converted into a journey made in the course of his employment ".' The following is a curious example. A carpenter was employed v. Jones. by A with B's permission to work for him in a shed belonging to B. This carpenter set fire to the shed in lighting his pipe with a 1 Parke B., Joel v. Morison, 6 C. & P. 503 (1834): a nisi prius case, but often cited with approval: see Burns v. Poulsom, L. R., 8 C. P. at p. 567. 2 L. R., 3 C. P. 422 (1868). Byles J., at p. 425. * L. R., 4 Q. B. 470 (1869); Mitchell v. Crassweller, cited above, was a very similar case. Lush J., at p. 480. It was an entirely new and independent journey, which had nothing at all to do with his employment:' Cockburn C.J., 'Every step he drove was away from his duty:' Mellor J., ibid. But it could have made no difference if the accident had happened as he was coming back. See the next case. Rayner v. Mitchell, 2 C. P. D. 357. shaving. His act, though negligent, having nothing to do with the purpose of his employment, A was not liable to B1. It does not seem difficult to pronounce that lighting a pipe is not in the course of a carpenter's employment; but the case was one of difficulty as being complicated by the argument that A, having obtained a gratuitous loan of the shed for his own purposes, was answerable, without regard to the relation of master and servant, for the conduct of persons using it. This failed for want of anything to show that A had acquired the exclusive use or control of the shed. Apart from this, the facts come very near to the case which has been suggested, but not dealt with by the Courts in any reported decision, of a miner opening his safety-lamp to get a light for his pipe, and thereby causing an explosion: where it seems clear that the employer would not be held liable 2.' mistake in rity. (c) Another kind of wrong which may be done by a servant in his Excess or master's business, and so as to make the master liable, is the ex- execution cessive or erroneous execution of a lawful authority. To establish of authoa right of action against the master in such a case it must be shown that (a) the servant intended to do on behalf of his master something of a kind which he was in fact authorized to do; (3) the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to exist, would have been lawful. The master is chargeable only for acts of an authorized class which in the particular instance are wrongful by reason of excess or mistake on the servant's part. For acts which he has neither authorized in kind nor sanctioned in particular he is not chargeable. passengers &c. Most of the cases on this head have arisen out of acts of railway Interferservants on behalf of the companies. A porter whose duty is, ence with among other things, to see that passengers do not get into wrong by guards, trains or carriages (but not to remove them from a wrong carriage), asks a passenger who has just taken his seat where he is going. The passenger answers, 'To Macclesfield.' The porter, thinking the passenger is in the wrong train, pulls him out; but the train was in fact going to Macclesfield, and the passenger was right. On these facts a jury may well find that the porter was acting within his general authority so as to make the company liable3. Here are both error and excess in the servant's action: error in supposing facts to exist which make it proper to use his authority (namely, that the passenger has got into the wrong train); excess in the Williams v. Jones, Ex. Ch., 3 H. & C. 256, 602; 33 L. J., Ex. 297 (1865); diss. Mellor and Blackburn JJ. 2 R. S. Wright, Emp. L. 76. p. 47. 3 Bayley v. Manchester, Sheffield, & Lincolnshire Railway Co., L. R., 7 C. P. 415, in Ex. Ch., 8 C. P. 148 (1872-3). |