their dealings while the relation continues. As the control of spiritual advisers is likely to be even greater and more controlling, especially in the last illness, the reasons for such jealousy are powerful in proportion, and they should be able to show that any advantage obtained for themselves or their church or denomination was the result of free and voluntary action, and not obtained by practicing in any manner upon the fears or the hopes, or by taking advantage of spiritual or bodily weak

ness."

See Ashwell o. Lomi, L. R. 2. P. & D. 477; S. C. 4 Moak, 700; Billage v. Southee, 9 Hare, 534.

2 See Huguenin v. Baseley, 14 Ves.

273; In re Welsh, 1 Redf. Sur. Rep. 238; Lyon v. Home, L. R. 6 Eq. Cas. 655; Dent v. Bennett, 4 Myl. & Cr. 269, 277.

[*531]

*CHAPTER XVIII.

RESPONSIBILITY OF THE MASTER FOR THE WRONGS DONE OR SUFFERED BY PERSONS IN HIS EMPLOYMENT.

In a previous chapter it has been shown that when several persons participate in wrongful and injurious action, they are jointly and severally responsible for all legal consequences, and the extent of their participation, or the degree of fault attributable to each, is immaterial. The rules regulating the responsibil ity of the husband for the torts of the wife have also been given, and it has been seen that the law supposes her to be under his control, and does not suffer him to exonerate himself from responsibility by showing the contrary. The rule of presumption is adopted for this case, because it is believed the well-being of society is best subserved thereby. It has also been seen that while a corporation is responsible for its torts, those who act for it in committing them may, at the election of the party injured, be held to accountability, either as the principals or as joint wrongdoers.

Attention is now directed to a class of cases in which the law holds one party responsible for the wrongs done or suffered by another, often with no regard to his personal fault, and in many cases refusing to permit his actual fault to be disproved. The cases embraced in this class are those in which one person occupies toward another the relation of master to servant.

Who is a Servant. A preliminary remark is essential regarding the employment, in the law, of the words master and servant. The common understanding of the words and the legal understanding is not the same; the latter is broader, and comprehends some cases in which the parties are master and servant only in a peculiar sense, and for certain purposes; perhaps only for a single purpose. In strictness, a servant is one who, for a valuable consideration, engages in the service of another, and [*532] *undertakes to observe his directions in some lawful

business. The relation is purely one of contract, and the contract may contemplate or stipulate for any services and any conditions of service not absolutely unlawful. The case of an apprentice may be embraced under this head; for although he does not always bargain in respect to the service on his own. behalf, some one whom the law authorizes to speak for him does so, and the relation established is strictly one resting on an agreement for services in return for a consideration of some sort which the master is to render.

But only as between the two parties to it does the contract establish their relations and determine their rights. Whatever obligations the relation might impose on either as respects third persons, could not depend on the nature of the stipulations, but must spring from the relation itself. If one is injured by the servant of another, and the injury is in any manner connected with the fact of service, it would be immaterial to the injured party what the contract of service was, how long it was to continue, what compensation was to be paid for it, or what mutual covenants the parties had for their own protection. The liability of the master, if any, cannot depend upon circumstances with which the public has no concern; it must come from the fact that one person has placed himself under another's direction and control, in a manner that should impose on the latter the obligation to protect third persons against injuries from the acts or omissions of his subordinate. It could not at all depend on whether the master was to pay anything, nor whether the service was permanent or temporary. His control of the action of the other is the important circumstance, and the particulars of his arrangement are immaterial.

Accordingly, it has been determined that when one person, for the time being, places himself in a position of subordination to another in the business of the latter, and by what he may do in that condition of subordination a third person is injured, such third person has a right to regard him as occupying the position of a servant, and is entitled to such remedies against the superior as he would have if the contract of service in fact existed.1

'Hill. Morey, 26 Vt. 178; Potter

. Faulkner, 1 B. & Smith, 800. In Althorf v. Wolfe, 22 N. Y. 355, where one had directed his servant to re

move snow and ice from the roof of his house, and another person went up with the servant as a volunteer to assist him, and, by the carelessness

[*533] For *convenience, rather than because anything depends on an actual contract of service, he is called a servant, when the remedy of the third person is being pursued. So as a child is by the law placed under the dominion of the parent, he is, while employed by the latter about his affairs, to be regarded as a servant; and so is a mere volunteer.' And it follows, from what has been said above, that the agent in one's business, whether general or special, is in law a servant, and so is the officer of a private corporation. The officer of a public corporation in the discharge of the proper duties of his office, is not, in general, to be deemed the servant of the corporation; neither is any person who is employed in any capacity in the execution of its police regulations.

But in the management of its own property

of the latter in throwing the snow and ice into the street, a passer-by was injured, the master was held responsible. See, also, Booth v. Mister, 7 C. & P. 66.

The relation of superintendent and inmate of a hospital does not make the latter the servant of the former. Schrubbe v. Connell, 34 N. W. Rep. 503 (Wis). But if a penitentiary keeper puts a convict in charge of his premises, he makes him his servant. Ward . Young, 42 Ark. 542. If a railroad has its trains made up in the depot of another company by the latter's servants, it is liable to its passengers for the negligence of the servants. Hannibal, &c., R. R. Co. v. Martin, 11 Ill. App. 386.

Where one lets his team and driver to another, who asks for the particular driver, if in the course of the hirer's business, the servant injures a third person by a collision, the master is liable. Joslin v. Grand Rapids Ice Co., 50 Mich. 516 and cases; Huff r. Ford, 126 Mass. 24. See Ames v. Jordan, 71 Me. 540; Hofer v. Hodge, 52 Mich. 372; DeVoin v. Mich. Lumber Co., 64 Wis. 616.

Schouler, Dom. Rel. 544-5; Shearm. and Redf. on Neg. § 106; Johnson v. Ashland Water Co., 37 N. W. Rep.

823 (Wis.); Everhart v. Terre Haute, &c., R. R. Co, 78 Ind. 290; Barstow t. Old Colony R. R. Co., 143 Mass. 535; Mayton Texas, &c., R. R. Co., 63 Tex. 77; Blair v. Grand Rapids, &c., Co., 60 Mich. 124. Compare Eason . S. & E. T. Ry. Co., 65 Tex. 577. See Sherman v. Hannibal, &c., R. R. Co., 72 Mo. 62; Pittsburgh, &c., Co. v. Adams, 105 Ind. 151; Osborn €. Knox, &c., Co., 68 Me 49.

A purely charitable society, bav ing no capital stock, nor provision for making dividends or profits, is not responsible to one of its patients for the negligence of a servant selected with due care, nor for the unauthorized assumption of an attendant to act as surgeon. McDonald . Mass. Gen. Hospital, 120 Mass. 432; S. C. 21 Am. Rep. 529. Nor for an assault by an officer upon an inmate. Peny v. House of Refuge, 63 Md. 20. See Benton v. Trustees of Boston City Hosp., 140 Mass. 13.

3 See post, p.* 621. The doctrine of respondent superior does not apply to public agents charged with a duty which can be exercised only through the services of others. They are liable only for their own misconduct. Walsh . Trustees, &c., 96 N. Y. 427; Donovan v. McAlpin, 85 N. Y. 15.

a public corporation comes under the same rules with all others, and its agents are its servants.

The Master's Liability in General. When the relation is found to exist, the question of the master's liability next presents itself. And it will readily occur to every mind that the master cannot, in reason, be held responsible generally for whatever wrongful conduct the servant may be guilty of. A liability 80 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, except under the stress of necessity. Even the parent is not made chargeable generally for the torts of his child; and if he cannot justly be held responsible for the conduct of one whom the law submits to his general direction and discipline, much less could another be held liable, generally, for the acts of a servant over whom his control is comparatively slight, and who is not submitted to his disciplinary authority.

The maxim applied here is the familiar one: Qui facit per alium facit per se. That which the superior has [*534] put the inferior in motion to do, must be regarded as

done by the superior himself, and his responsibility is the same as if he had done it in person. The maxim covers acts of omission as well as of commission, and embraces all cases in which the failure of the servant to observe the rights of others in the conduct of the master's business has been injurious. It is not, limited therefore, to the cases in which the injurious conduct was directed by the master himself; for so restricted it would be of little moment. A tort which one directs or advises another to commit he is always responsible for, jointly with the guilty agent, and his liability does not depend upon the subordination of the agent, but upon the direct connection of the adviser with the wrong. A master must be responsible further, or the relation would be immaterial in the law of legal wrongs. In brief, the rules of his liability are as stated in the following pages:

A municipality is not liable for its officer's trespass without color of authority, though in his official business. Kiernan v. Jersey City, 13 Atl. Rep. 170 (N. J.). But it is for its officers' negligence in performing minis

terial as distinguished from judicial duties. Toledo v. Cone, 41 Ohio St. 149; Mulcairns v. Janesville, 67 Wis. 24: But see McCarthy. Boston, 135 Mass. 197.