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• 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 expedicncy, 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, stcadiness, and care. llc 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 dclegated 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 cxist. For these and siniilar reasons the laws of most countries have sanctioned a departure, where the relation of master and servant cxists, from the general principle, cupla linit suos anctorcs. Page 150.
• First, it may be observed that the master is of coursc liable to answer for any injury caused by the scrvant 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 immcdiate, and sufficiently obvious.
• But, secondly, it falls to be remarked that, to make the nastcr liable, no such immcdiatc connection between his command and the act out of which the injury results is requisite. It is sufficient, in order to cntail 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 scrvant 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 scries of decisions.
“The first of these is that the rule only applies where the injury caused by the oriant, for which it is sought to make the master answerabie, arias out of something done by him while acting strictly within the senpe and limits of his employ. ment 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 applics only where the relation of master and senant 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, respondial superior." Page 151.
" The rule which is nou established is, to quote the words of Willcs, J., in Barwick - The English Joint Stock Bank-ın 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 bencfit, though no express command or privity of the master be proved :'" Macdonell, Master and Scrit. 2;8.
"A master is liable for the wrongful act of his servant, to the injury of a third person, where the scrvant is cngaged 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 tenper, 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, whcther the act is of omission or commission, in conformity to or in
Jisobedience of the master's order, by ncgligence, fraud, dcccit, or even wilsul misconduct so long as it was in the course of the employment: Brownc, Dom. Rel. 136.
The master is not liable for a wrongful, wilful, and unlawful, act of his servant toward a third person, although the servant prosesses to be acting in the master's employment, if the act is entirely independent and outside of and having no proper connection with the employment: Browne, Dom. Rel. 138.
.I master is ordinarily liable to answer in a civil suit for the tortious or wrongful acts of his servants is those acts are donc in the course of his cmployment in his master's service. The maxims applicable to such cases being respondeat superior and qui facit per alium, facit per se: Smith, Master and Servant, 322.
This rule is universal in its application and whether the act be negligent, fraudulent or deceitful, or cven an act of positive malscasance or misconduct, if donc in the course of his employment, the master is responsible civiliter to third persons: Story, on Agency, 452; Paley, on Agency, 294; Pothier, on Oblig. (Evans) 456.
In conclusion, I will cite the following rule laid down by the eminent Judge Cooley, cited with approval by the Supreme Court of Louisiana in the case of Williams v. Palace Car Co., supra : " It will readily occur to every mind that the master cannot, in reason, be held responsible generally for whatever wrongful conduct a servant may be guilty of. A liability so extensive would make him guarantor of the servant's good conduct, and would put him under a responsibility, which prudent men would hesitate to assume."
PATRICK C. B. O'DoxovaN.
DEPARTMENT OF CORPORATIONS.
CLIXTON ROGERS WOODRUTT, MAURICE G. BELKNAP, H. BOVEK SCHERWERHORX.
DEWEY ET AL. v. TOLEDO, A. A. & V. M. Rr. Co.' SUPREME
Court of Michigas.
The purchase by a railroad company of stock in another company whose line is not parallel, for the purpose of acquiring the latter's right of way, is valid unler llow. (Mich.) Slat., 3403, authorizing any rail. road company which had in good faith entered upon the construction of its road and become unable to complete the same, to sell the road and its rights and franchises to any other railroad company not having the sanie terminal points and not being a competing line. The Power Of Oxe Railroad COMPANY TO PURCHASE Srock
IS ANOTHER. The rapid tendency towards consolidation of smaller .ailroad companies into great systenis, now progressing in the United States, makes the question of the legality of a course not unfrequently practiced for such a purpose, one of much
A corporation is a creature of the Act of Incorporation and as such has no other powers than are expressly granted or are necessary to effect the ends and objects of its existence. The charter being a contract between thc public and individuals must be strictly construed. Each right the corporation possesses need not be specially cnumerated, but no
can be inferred other than for purposes directly conferred: The New Orleans, etc., Co. v. Dock Co., 28 La. Ann. 173; Franklin v. Lewiston Institution for Savings, 68
'Reported in si N. W. Rep. 1063.
The right of a railroad company over its funds cannot be construcd according to the rules applicable to literary, scientific and religious corporations. Such corporations require authority to invest their money in order to maintain themselves and preserve whatever may be given them. In such charters the power, if not expressly mentioncd, is implied, that they may successfully engage in the enterprises for which they are organized and render what funds thcy have produce tive.
At common law the directors of one railroad company have no authority to invest their capital or profits in the stock of anothier. Railroad corporations are chartered to transport passengers or merchandise, and are bound to apply all the monies and property of the company for that purpose. Investing their sunds in that of other corporations is not within the scope of the business for which thcy arc incorporated: Munsell 2. Midland, cte., R. R. Co. (1863). 1 1. & M. 130: Woods 2. Memphis, ctc., R. R. Co., 5 Ry, & Corp. L. J. 372; llazcihurst ;. The Savannah, ctc., R. R. Co., 43 Ga. 13; Llaver v. New York, etc., R. R. Co., 19 Abb. N. Cas. 4;6; MacIntosh v. Flint, etc., R. R. Co., 34 Fed. Rep. 582; The Central, ctc., R. R. Co. i'. The Penna. R. R. Co., 36 N. J. 14. 473; Solomens a'. Laing, 12 Beav. 339; The Great Northern Ry. Co. ». The Great Eastern Countics Ry. Co., 21 L. J. Ch. 837; The New Orleans, ctc., Steamship Co. v. Occan Dry Dock Co., 28 La. Ann. 173; The Great Western Ry. Co. 2. The Metropolitan Ry. Co., 32 L. J. Ch. 382; Milbank 2. New York, etc., R. R. Co., 64 How. Pr. 20.
“ livery charter of a private corporation is a contract, first between the State and the corporation—to which cach is sol. cmnly bound—the State that it will not impair the obligationthe corporation that it will perform the objects of its corporation and keep within the powers granted to it; secondly, betweci the stockholders themselves. The stockholders are bound to consent to the management of the affairs of the corporation by thc majority, and by the by-laws which the majority makes. And the whole on the other hand agrec with cach other that they will apply the funds of the company to the