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Goddard . Grand Trunk R. R. Co., 57 Mich. 212; Rich v. Bryant, 106 Mass. 180; Cracker v. C. & N. W. R. 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 . Wakefield, 12 Allen, 580. If the act of the servant is within the general scope of his employment, the master is equally liable whether the 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. v. 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 per aluim facit 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 if 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. :. 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. v. Jackson, 81 Ind. 19; Jeffersonville, etc., R. R. Co. v. Rogers, 38 Ind. 116; Express Co. v. Patterson, 73 Ind. 430; Wabash Ry. Co. v: Savage, 110 Ind. 156; Ry. Co. v. 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 employment of the agent: Indianapolis, etc., Ry. Co. v. Anthony, 43 Ind. 183.
In Noblesville, etc., . Gause, 76 Ind. 142, it is said: Counsel have cited cases declaring the familiar rule that a master is responsible for the acts of the servant, only when the latter is acting within the scope of his employment; but this was an unnecessary work, for the general rule is too well settled and understood to need support from adjudged cases.”
If a servant does a wrongful act without the authority, and not for the purpose of executing the orders or doing the work of his master, the latter is not responsible therefor; but if the act be done 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, 49.
By the civil law the liability was confined to the person standing in the relation of paterfamilias to the wrongdoer: Dig. lib. 9, tit. 3. But by the English law the liability is more extensive.
In McManus v. Crickett, 1 East. 106, Lord Kenyon, C. J., after quoting Chief Justice Holt in Middleton v. Fowler, Salk. 282, to the effect, "that no master is chargeable with the acts of his servant, but when he acts in the execution of the authority given him," 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 that which his own malice suggests, he no longer acts in pursuance of the authority given him, and, according to the doctrine of Lord Holt, his master will not be answerable for such act." See Turberville v. Stamp, 1 Ld. Ray, 264.
A master, however, is not responsible for the wrongful act of his servant unless that act be done in the execution of the
authority given by his master. Beyond the scope of his employment he is as much a stranger to his master as any third person, and therefore his act cannot be regarded as the act of his master: Lamb ?. Palk, 9 C. & P. 629; Garth v. Howard, 8 Bing. 451; Wilson 7. Rankin, 34 L. J., Q. B., 62; McGowan v. Dyer, L. R., 8 Q. B. 141.
A master is liable for injury caused by the wanton and violent conduct of his servant in the performance of an act within the course of his employment: Seymour v. Greenwood, 7 H. & H. 356; Croft . Alison, 4 B. & Ald. 590; Limpus v. Omnibus Co., 1 H. & C. 526; and such act only binds when done by the authority or consent of the master: Ward v. Evans, 2 Salk. 441; Lyons v. Martin, 8 Ad. & E. 512; Gregory v. Pipe, 9 B. & C. 591.
In Drew v. Peer, 93 Pa. 234, Thayer, P. J., instructed the jury that "the defendant is responsible for any loss or damage suffered by himself in consequence of the misconduct of the defendant's agents. It did not require an express direction to her agents to commit this injury to make her responsible." The instruction was affirmed by the Supreme Court, the facts in this case being almost identical with those of Dickson . Waldron.
The following quotations are taken from the celebrated Doctor Fraser's work on the Scottish law of Master and Servant, as illustrative of the question in that country:
Quasi delicts have been defined by the Roman jurist, facta illicita sola culpa sinc dolo admissa. They are acts which arise from carelessness, negligence, rashness, or want of skill, by which injury has been sustained, without any criminal intention on the part of the doer.
"If a servant does a wrongful act without the authority, and not for the purpose of executing the orders or doing the work of the master, the latter is not responsible in damages therefor; but if the act be done in the execution of the authority given by the master, and for the purpose of performing what he has directed, he is responsible whether the wrong done be occasioned by negligence, or by a wanton and reckless purpose to accomplish his business in an unlawful manner.
"The liability of the master for the servant's quasi delicts rests partly on the same principle with his liability for his servant's contracts:-viz., that expressed in the maxim, qui facit per alium facit per se,—partly on views of expediency, and partly also on the following grounds: The master is presumed to select the servant from a knowledge of, or at least a belief in his skill, steadiness, and care. He places him in a position in which he acquires a relation to the public which he would not otherwise hold,--a position entailing responsibilities which, but for their being thus delegated to another, the master would have to discharge for himself. Also, he entrusts him with the charge of property often calling for carefulness in its management, to avoid accident to others; and thus puts it in his power, by carelessness or rashness, to inflict injury on others to an extent that would not otherwise exist. For these and similar reasons the laws of most countries have sanctioned a departure, where the relation of master and servant exists, from the general principle, cupla tenet suos auctores. Page 150.
"First, it may be observed that the master is of course liable to answer for any injury caused by the servant in the direct execution of his express orders. With regard to this class of cases there is no difficulty; the connection between the wrong and the authority from which the act flowed is immediate, and sufficiently obvious.
"But, secondly, it falls to be remarked that, to make the master liable, no such immediate connection between his command and the act out of which the injury results is requisite. It is sufficient, in order to entail such responsibility on the master, that the servant was at the time acting under the general mandate implied in his contract of service-that he was doing his master's work, or even that he was at the time employed in an operation which might fairly be held to fall within the scope and sphere of his duties as servant, even though the master may have been utterly ignorant that his servant was engaged in that particular duty at the time.
Two well marked exceptions to, or rather limitations of the rule, are to be noticed as now well settled by a series of decisions.
"The first of these is, that the rule only applies where the injury caused by the servant, for which it is sought to make the master answerable, arises out of something done by him while acting strictly within the scope and limits of his employment while discharging the duties for which he has been engaged under his contract with his master. The reason of this exception is, that the master's liability, having its origin in implied mandate, can have no place where the limits of that mandate are exceeded.
"The second exception is, that the rule applies only where the relation of master and servant exists in a strict and proper sense between the offending party and him whom it is sought to make responsible for the act. Where this is not the case, there is no room for applying the maxim, respondeat superior.” Page 151.
"The rule which is now established is, to quote the words of Willes, J., in Barwick v. The English Joint Stock Bank-an action against a bank for fraudulent misrepresentation on the part of its manager—' that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved :'" Macdonell, Master and Servt. 258.
"A master is liable for the wrongful act of his servant, to the injury of a third person, where the servant is engaged at the time in doing his master's business, and is acting within the general scope of his authority, although he is reckless in the performance of his duty, or through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances, goes beyond the strict line of his duty, and inflicts unnecessary and unjustifiable injury:" Wood, Mast. and Servt. (2d Ed.) 589.
A master is liable for the act of his servant done in the course of his employment: Helyear v. Hawke, 5 Esq. 72. '
As to the servant's tort and negligence, the universal rule is, that the master is responsible in damages to third persons for the act of his servant occasioning an injury, whether the act is of omission or commission, in conformity to or in