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policy: Samuel v. Oliver (Ill.), 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.

DEPARTMENT OF TORTS.

EDITOR-IN-CHIEF,

MELVILLE M. BIGELOW, Esq.,

R. D. S.

Assisted by

BENJAMIN H. LOWRY,

ALEXANDER Durbin LauER.

PATRICK C. B. O'DONOVAN.

DICKSON V. Waldron.' SUPREME COURT OF INDIANA.

The 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 Metropolitan 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 doorkeeper, 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 FOR 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 modern jurisprudence, until to-day the true criterion of the master's liability is embodied in the answer to the question, "Is the act complained of within the scope of the servant's authority?" If so, the master is liable; otherwise, not.

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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 contemplated, and something which, if he should do it lawfully, he might do in the employer'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 employment. In the case of Ware v. Barataria, 15 La. 169, it was held that where an agent lost sight of the object for which he 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 collect tolls, and the offence complained of by plaintiff was an assault and battery 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 whilst in his service and within the scope of his authority.

The principle is true even if the tort be committed in disobedience to the master's orders: R. R. Co. v. 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 defendant's servant was porter, and having entered the palace car to ask permission to wash his hands. The court held that the assault was something which the ser

policy: Samuel v. Oliver (Ill.), 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.

DEPARTMENT OF TORTS.

EDITOR-IN-CHIEF,

MELVILLE M. BIGELOW, Esq.,

R. D. S.

Assisted by

BENJAMIN H. LOWRY,

ALEXANDER DURBIN LAUER.

PATRICK C. B. O'DONOVAN.

DICKSON V. WALDRON.' SUPREME COURT OF INDIANA.

The manager of a theatre is responsible for the acts of a special policr who was appointed for the theatre, at the special request of the manage by the Board of Metropolitan Police Commissioners, and who w employed and paid solely by such manager: 34 N. E. Rep. 506, affirme

The manager is liable for an assault and battery on an offensive pat: by the special police, when acting as doorkeeper, since such act within the scope of his employment in his master's business: 34 N Rep. 506, affirmed.

LIABILITY OF A THEATRE MANAGER FOR ASSAULT COMMI
BY A SPECIAL POLICEMAN.

The liability of a master for an assault and battery mitted by his servant is based on the common law pɛ "Qui facit per aluim facit per se," the theory being master in selecting his servants must do so with pr caution, and must select persons capable of fulfilli

'Reported in 35 N. E. Rep. 1, Nov. 24, 1893.

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vant's employment did not contemplate, and was not, therefore, within its scope: Williams v. Palace Car Co., 40 La. Ann. 87. In the case of Turner v. Western, 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 frequently 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 done to passengers.

"The general doctrine with reference to master and servant, employer and employce, is, that when the employee 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. 547.

In McKinley v. The C. & N. W. R. R. Co., 44 Iowa, 314, an action was brought to recover damages for an assault by defendant's brakeman on plaintiff while latter was attempting to enter a passenger car at Howard Junction, Wisconsin, on March 22, 1872. Seevers, 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 wilful or criminal acts of the employee done in the course of his employment, 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 done in the course of his employment, the intent with which it was done 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 employer 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 review them." See Turner v. North Branch R. R. Co., 4 Cal. 494; G. Western R. R. Co. v. Miller, 19 Mich. 305: Finney v. R. R. Co., 10 Wis. 395; Brooks v. Penna. Cent. R. R. Co., 57 Pa. 339; St. Louis, etc., R. R. Co. v. Dalby, 19 Ill. 353; R. R. Co. v. Wetmore, 19 Ohio, 110; Isaacs v. R. R. Co., 47 N. Y. 122;

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