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sible for willful and tortious acts of their servants committed outside of the scope of their employment.'
So where the act of the servant, whether a trespass or otherwise, is without the authority, either expressly conferred upon the servant or implied from the nature of the employment, and character of duties, causes injury to others, the master is not held answerable. It is said that the implied authority in the servant is limited to those acts which the master could himself do if personally present, and if, in the performance of such acts, the servant misconducts himself the master will be liable for his acts."
Some expressions in the opinions of the judges which would exonerate a railroad company from liability for excessive force or error of judgment in the performance of an act by a conductor within his general authority, it is admitted, are open to criticism as not in harmony with the later authorities, and would not probably be regarded as sound, although they are supported by the earlier cases and by the elementary authorities."
The supreme court of New York held that for willful injury done by a servant the master was not liable and adopted the rule of Lord Kenyon that "when a servant quits sight of the object for which he is employed and without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him." The principle is the same whether the wrongful act of the servant is malicious or merely wanton and reckless. So, in an action for injuries where a boy, leaving a car, was willfully and wantonly struck by the driver and thereby thrown from the car and the wheel passed over him, injuring him, it was held that the car owners were not liable for the act of the driver in striking the boy, but only for the driver negligently driving over him. If a servant does some
Lafitte v. New Orleans City & L. R. Co. 12 L. R. A. 337, 43 La. Ann. 34. Poulton v. London & S. W. R. Co. L. R. 2 Q. B. 534. The case of Hibbard v. New York & E. R. Co. 15 N. Y. 455, is an illustration of the same principle.
3 McManus v. Crickett, 1 East, 106, and authorities cited.
Wright v. Wilcox, 19 Wend. 343. See also Porter v. Chicago, R. I. & P. R. Co. 41 Iowa, 358. See Isaacs v. Third Ave. R. Co. 47 N. Y. 122; Pittsburg, A. & M. Pass, R. Co. v. Donahue, 70 Pa. 119; McKeon v. Citizens R. Co. 42 Mo. 79; Central R. Co. v. Peacock, 12 Cent. Rep. 867, 69 Md. 257. 'Pittsburg, A. & M. Pass. R. Co. v. Donahue, 70 Pa. 119.
thing he is not employed to do, the master, it is said, is not liable.' But a master, it is conceded, is liable for the results of the willful misconduct of his servant if within the scope of his authority.* It is said a street railway company is not liable for the wrongful arrest of a passenger at the instance of its conductor, who was not acting within the scope of his authority, where it has not adopted the action of the conductor and did not know of the arrest.'
§ 106. Modern Rule of Liability for Wanton Violence of Employes.
The modern rule is stated' in a case where the plaintiff was a passenger on one of defendant's horse cars having no conductor, the driver being the only person in charge of the car and acting both as driver and conductor. While plaintiff was in the car a newsboy jumped on it, and was ordered off by the driver. The boy got off. The driver stopped his car, tied the reins around the brake handle, climbed over the front of the dash board, and ran after the boy, caught him and beat him. The passengers interfered to protect the boy. Afterwards the driver returned to the car and started it, but being excited began to abuse the passengers calling them bastards, etc., and finally entered the car, seized plaintiff, knocked his head against the panel of the window, at the same time striking him across the head with the butt end of his whip, thus beating the plaintiff severely. The passengers again interfered and the driver drove his car on. There was some evidence tending to show that the driver was under the influence of liquor. It was said in that case that the defendant had entrusted the execution of the contract to the driver of the car and the plaintiff was under his protection and any breach of contract committed by the driver was a breach committed by the defendant. As any injury arising from the mere negligence of the servants would have rendered the driver liable, the same act
'Mitchell v. Crassueller, 13 C. B. 237.
'Pittsburg. A. & M. Pass. R. Co. v. Donahue, 70 Pa. 119; Central R. Co. v. Peacock, 12 Cent. Rep. 867, 69 Md. 257; Lakin v. Oregon Pac. R. Co. 15 Or. 220.
'Cunningham v. Seattle Electric R. & P. Co. (Wash.) Jan. 12, 1892.
'Stewart v. Brooklyn & C. R. Co. 90 N. Y. 588.
would be equally a breach if done willfully and maliciously, and that it is an immaterial matter whether the breach of the contract results from the negligence or willfulness of the defendant's agent. The recovery is had for the injury suffered by the passenger while in the defendant's car, and it is not the motive which induced it, that constitutes the gist of the action. No reason exists for holding the master liable for the negligence of the servants in his employment which does not, with equal force, preclude him from alleging intentional default of the servant as an excuse for not performing the duty which he has undertaken. In the former case the negligence of the servant is the master's and that is the ground of the master's liability; in the latter the act of the servant is the act of the master, the motive of the servant making no difference in the character of the master's default in doing his duty. The action is for the failure to carry safely and without injury and it is no defense to show that the failure was the result of the willful and malicious act of the servant.'
The rule which would make the carrier liable when the act resulting in the injury was carelessly or unintentionally done, and exonerate him when the injury was the result of the intentional act of the servant, would lead to the most absurd results. By such rule a stage company who placed a lady passenger under the protection of its driver to be carried over its road would be liable if, by his unskillful driving, he upset the coach and injured her; but if, taking advantage of his opportunity he should assault and rob her, the carrier would go scot free. If the porter of a sleeping-car, employed to guard the car while the passengers sleep, should himself fall asleep or abandon his post or allow a pickpocket to enter and rob the passengers the company would be liable; but if the guardian himself should turn pickpocket, and rifle the pockets of the passengers, the company under such a rule, would not be responsible for his acts. The carrier selects its own servants and agents and must be held to warrant that they are trustworthy as well as skillful and competent. Judge Story states the rule that in every such case the principal holds out his agent as competent and fit to be trusted, and therefore, in effect he warrants his fidelity and good conduct in all matters within
Weed v. Panama R. Co. 17 N. Y. 362.
the scope of his agency.' Recent cases state this liability in the broadest and strongest language; and, without going beyond the actual decisions, it may be said that the carrier is liable for every conceivable wrongful act done to a passenger by its train hands and other employés while they are engaged in transporting him, no matter how willful and malicious the act may be, or how plainly it may be apparent from its nature that it could not have been done in furtherance of the carrier's business. But for personal injury done by the employé of a common carrier to a passenger, if the employé is free from liability therefor the carrier is not liable.'
In most of the cases in which an injury done by an employé has been the cause of the litigation, the defense has been, not that the act of the employé was lawful, but that it was a wanton and willful act on his part, outside the scope of his employment, and therefore something for which his employer was not responsible. And if the act was of that character, the general rule is that the employé alone, and not the employer, is responsible. But owing to the peculiar circumstances which surround the carrying of passengers, a more stringent rule of liability has been cast upon the employer; and he has been held liable although the assault was wanton and willful, and outside the scope of the employment. Generally masters "are responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for his misconduct in those things that do not respect his duty to them." But because of the contractual relation between a carrier and its passengers the former is liable for every unjustifiable assault upon the latter by its servants in charge of their transportation.*
'Story, Bailm. §§ 450-456; Stokes v. Saltonstall, 38 U. S. 13 Pet. 181, 10 L. ed. 115.
Peary v. Georgia R. & Bkg. Co. 81 Ga. 485; Harrison v. Fink, 42 Fed.
New Orleans & N. E. R. Co. v. Jopes, 142 U. S. 18, 35 L. ed. 919.
Louisville & N. R. Co. v. Whitman, 79 Ala. 328; Sherley v. Billings, 8 Bush,
In Stewart v. Brooklyn & C. R. Co. the court says that it was not called to the mind of the court in the Isaac's case that the liability of the master is different where the master owes a duty to the person wronged by the servant.
"So, when a railway company puts a conductor in charge of its train, and he purposely and wrongfully ejects the passenger from the cars, the railway company must bear the blame and pay the damages. As between the company and the passenger, the right of the latter to compensation is unquestionable." Why? Not because the company authorized it expressly or impliedly, but because it was the duty of the company to treat him properly, and carry him safely; and it makes no difference what was the conductor's motive for doing the act, how exclusively personal it may have been, or how foreign to the master's business then in hand, of transporting the passenger, if the act was in violation of the master's duty to the passenger, which it was the conductor's duty to discharge and perform as the master's servant and in the master's place. And the same principle applies to other acts in the same circumstances, such as assault and battery.'
In Stewart v. Brooklyn & C. R. Co., where the plaintiff was a passenger on one of the defendant's street cars, and was unjustifiably assaulted and beaten by the driver, it was held in an action to recover damages therefor that it was liable; that the rule relieving a master from liability for a malicious injury inflicted by his servant when not acting within the scope of his employment, does not apply as between a common carrier of passengers and a passenger; that such a carrier undertakes to protect the passenger against any injury arising from the negligence or willful miscon
Am. Rep. 185. The last case practically overrules Isaacs v. Third Ave. R. Co. 47 N. Y. 122, 7 Am. Rep. 418, which held that the street car company was not liable for the act of the conductor in pushing from the platform, while the car was in motion, a passenger who wished to alight on the ground; that it was without the scope of his authority. Cooley, Torts, (2d ed.) 626, and cases cited.
Stewart v. Brooklyn & C. R. Co. 90 N. Y. 588, 43 Am. Rep. 185; Bryant v.