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policy: Samuel v. Oliver (III.), 22 N. E. Rep. 499; Sampson v. Shaw, 101 Mass. 145.
An agreement by which one guarantees to another that cattle to be sold by the latter shall bring so much a head, binding himself to pay the difference if they bring less, while the owner agrees to pay the difference to the guarantor in case they bring more, is a wager on the price of the cattle, and a note given for such difference is void: Bank v. Carroll, 89 Iowa, 11; S. C., 45 N. W. Rep. 304.
R. D. S.
DEPARTMENT OF TORTS.
ALEXANDER DURBIN LAUER.
Dickson v. WALDRON.'
SUPREME COURT OF INDIANA.
Thc manager of a theatre is responsible for the acts of a special police who was appointed for the theatre, at the special request of the manager, by the Board of dietropolitan Police Commissioners, and who was employed and paid solely by such manager : 34 N. E. Rep. 506, affirmed.
The manager is liable for an assault and battery on an offensive patron by the special police, when acting as doorkecper, since such act was within the scope of his employment in his master's business : 34 N. E. Rep. 506, affirmed. LIABILITY OF A THEATRE MANAGER POR ASSAULT COMMITTED
BY A SPECIAL POLICEMAN. The liability of a master for an assault and battery committed by his servant is based on the common law principle “ Qui facit per aluim facit per se," the theory being that the master in selecting his servants must do so with prudence and caution, and must select persons capable of fulfilling the duties.
"Reported in 35 N. E. Rep. 1, Nov. 24, 1893.
he will exact under penalty of his personal responsibility for their torts.
This theory has been greatly modified in moder jurisprudence, until to-day the truc criterion of the master's liability is embodied in the answer to the question. " Is the act complaincu of within the scope of the servant's authority?"
If so, the master is liable; otherwise, not.
The test, as laid down by Cooley, is “not the motive of the servant, but whether that which he did was something which his employment contemplate_l, and something which, if he should do it lawfully, he might do in the enıployer's name:" Torts, 536. The great difficulty in applying this principle lies in defining what acts properly fall within the scope of the servant's cmployment. In the case of Ware a'. Barataria, 15 La. 169, it was held that where an agent lost sight of the object for which hc was employed and committed a wrong. thereby causing damage, the principal was no more answerable for it than any stranger, the agent in such case acting of his own will, and not in the course of his employment, or under any implied authority of his principal. The duty of defendant's servant in this case was to open and close certain river locks and colle:t tolls, and the offence complained of by plaintiff was an assault and batte.y received by him from defendant's servant under pretext of said plaintiff not having paid his toll. This ruling was followed in the subsequent case of Block v. Bannerman, 10 La. Ann. 1, where the owner of a vessel was held liable for the tortious acts of the master, committed vihilst in his service and within the scope of his authority.
The principle is true even if the tort be committed in disobcdience to the master's orders: R. R. Co. :'. Derby, 14 How. 468. In a comparatively recent case, the Supreme Court of Louisiana decided that plaintiff could not recover damages against the master for a wanton and unprovoked assault inflicted on him by defendant's servant, the plaintiff being a passenger on a train to which a Pullman Palace Car was attached, of which dcfendant's servant was porter, and having entered the palace car to ask permission to wash his hands. The court held that the assicult was something which the ser
vant's employment did not contemplate, and was not, thcrcforc, within its scope: Williams ». Palace Car Co., 40 La. Ann. 87.
In the case of Turner .. ll'estern, etc., R. R. Co., 72 Ga. 292, it was held that where one was lawfully in the cab of the freight train of a railroad treating for his passage, as had free quently been done, and was still being done at times of trial by other persons on the same train, as to an injury inflicted upon him he stands within the reason and spirit of the authorities in reference to like injuries donc to passengers.
" The general doctrine with reference to master and scrvant, employer and employce, is, that when the employec commit. ; ting the injury is not at the time executing the employer's business or not acting within the scope of his employment the employer is not responsible:" Pryor, C. J., in Winnegar's Admr. v. R. R. Co., 85 Ky: 5-47.
In Mckin!cy v. The C. & X. 11. R. R. Co., 44 Iowa, 314, · an action was brought to recover dimagres for an assault by defendant's brakeman on plaintiff while latter was attempting to enter a passenger car at lloward Junction, Wisconsin, on March 22, 1872. Scevers, C. J., delivering the opinion, said: “If we were left to determine the question upon principle, whether an employer should be held liable for the wilsul or criminal acts of the employee done in the course of his cmployment, we should have very little or no hesitation in affirming such liability, and this because the employer has placed the employce in a position to do wrong, and it being Jone in the course of his employment, the intent with which it was donc should not affect the liability of the employer whether the intent of the employee is good or ill. So long as he acts within the scope of his employment the cmployer should be bound. The decided weight and number of the authorities are in accord with this view. We need only refer to some of them without stopping to discuss or revicw them." See Turner 11. North Branch R. R. Co., 4 Cal. 494; G. Westcrn R. R. Co. v. Miller, 19 Mich. 303: Finncy v. R. R. Co., 10. Wis. 395; Brooks 21. Penna. Cent. R. R. Co., 57 Pa. 339; St. Louis, ctc., R. R. Co. v. Dalby, 19 III. 353; R. R. Co. v. Wctmorc, 19 Ohio, 110; Isaacs 2. R. R. Co., 47 N. Y. 122;
Goddard a'. Grand Trunk R. R. Co., 57 Mich. 212; Rich r'. Bryant, 106 Mass. 180; Cracker . C. & X. W. R. R. Co., 36 Wis. 657.
"A railroad corporation is liable to the same extent as an individual would be for an injury done by its servant in the course of his employment: Moore v. R. R. Co., 4 Gray, 465; Hewett v. Swift, 3 Allen, 420; Holmes x'. Wakefield, 12 Allen, 580. If the act of the servant is within the general scope of his employment, thic master is equally liable whether thc act is wilful or merely negligent: Howe v. Newmarch, 12 Allen, 49. Or even if it is contrary to an expressed order of the master: R. R. Co. r'. Derby', 14 How. 468. ... We deem it unnecessary to cite further authorities on this point. The principle lying at the foundation of the doctrine is as old as the common law, and is embodied in the maxim qui facit por aluim facil per se, and is as applicable to corporations as to individuals. Doubtless, if a servant or agent commit a tort out of the scope of his agency or employment and not connected with it, the principle would not be liable therefor unless he previously authorized or subsequently ratified the act:" Ramsden v. R. R. Co., 104 Mass. 117. Where a servant in the employment of his master does an act which he is not employed to do the master is not responsible: Towanda Coal Co. v. Heeman, 86 Pa. 418. A master is liable for the results of the wilful conduct of his servant is within the scope of his authority, or for acts done by his command or with his assent: R. R. Co. v. Wilt, 4 Whart. 142; Yerger et ux. v. Warren, 7 Casey, 319; R. R. Co. i'. McLain, 91 Pa. 442; Ry. Co. % Donahue, 70 Pa. 119; Higgins v. Turnpike Co., 46 N. Y. 23.
A corporation is liable for the wilful acts and torts of its servants done to the injury of others, within the general scope of their employment: Terre Haute, etc., R. R. Co. 7. Jackson, 81 Ind. 19; Jeffersonville, etc., R. R. Co. 7'. Rogers, 38 Ind. 116; Express Co.v. Patterson, 73 Ind. 430; Wabash Ry. Co. v: Savage, 110 Ind. 156; Ry. Co. i'. Anthony, 43 Ind. 183.
The act of the agent within the general scope of his employment is the act of the master, and if wrongful the master is liable, although the act be unnecessary to the per
formance of the master's service and was not intended for that purpose. The liability of the master does not depend upon the necessity of the act, or the intent with which it was done, but upon whether the act was wrongful and within the general scope of the empl.vyment of the agent: Indianapolis, etc., Ry. Co. i'. Anthony, 43 Ind. 183.
In Noblesville, etc., 21. Gause, 76 Ind. 142, it is said : " Counsel hic cited cases declaring the familiar rule that a master is responsible for the acts of the scrvant, only when the latter is acting within the scope of his employnicnt; but this was an unnccessary work, for the general rule is too well settled and understood to need support from adjudged cases."
If a scrvant docs a wrongful act without the authority, and not for the purpose of executing the orders or doing the work or his master, thic latter is not responsible therefor; but if the act be donc in the execution of the authority given by the master and for the purpose of performing what he has directed, he is responsible whe.her the wrong done be occasioned by negligence or by a wanton and reckless purpose to accomplish his business in an unlawful manner : Howe v. Newmarch, 12 Allen, 19.
By the civil law the liability was confined to the person standing in the relation of patcrfamilias to the wrongdoer: Dig. lib. 9, tit. 3. But by the English law the liability is niorc extensive.
In McManus v. Crickett, 1 East. 106, Lord Kenyon, C. J., aster quoting Chief Justice Holt in Middleton v. Fowler, Salk. 282, to the effect, " that no master is chargeable with the acts of his scrvant, but when he acts in the execution of the authority given hini," says : “ Now, when a servant quits sight of the object for which he is employed, and without having in view his master's order, pursues th
which his own malice suggests, he no longer acts in pursuance of the author. ity given him, and, according to the doctrine of Lord Holt, his master will not be answerable for such act." See Turber. ville v. Stamp, i Ld. Ray, 264.
A master, however, is not responsible for the wrongful act of his scrvant unless that act be done in the execution of the