1. Intentional Acts. The master is liable for the acts of his servant, not only when they are directed by him, but also when the scope of his employment or trust is such that he has been left at liberty to do, while pursuing or attempting to discharge it, the injurious act complained of. It is not merely for the wrongful acts he was directed to do, but the wrongful acts he was suffered to do, that the master must respond. When, therefore, a merchant places a clerk in his store to sell his goods, and the clerk disposes of them with false representations of their qualities, the purchaser who brings suit for the fraud need not concern himself with the question whether the fraud was directed or not. His injury does not depend upon that, and it neither affects his equity to compensation, nor the moral obligation of the merchant to respond.' So when a railway company puts a conductor in charge of its train, and he purposely and wrongfully ejects a passenger from the cars, the railway company must bear the blame and pay the damages. In this case the company chooses its servant and puts him in charge of its business, and the injury is done while performing it, and in the exercise of the power conferred. If the corporate authorities did not direct the act to be done, they nevertheless put a person of their own selec

tion in a position requiring the exercise of discretionary [*535] authority, *and by entrusting him with the authority and with the means of doing the injury, have, through his agency, caused it to be done. As between the company and the passenger, the right of the latter to compensation is unquestion

able.2

Griswold . Haven, 25 N. Y. 595. 2 Eastern Counties R. Co. v. Broom, 6 Exch. 314, 327; Goff v. Great Nor. R. R. Co., 3 E. & E. 672; Seymour v. Greenwood, 7 H. & N. 355; Bayley v. M. S. & L. R. Co., L. R. 7 C. P. 415; S. C. on Appeal, L. R. 8 C. P. 148; Moore v. Met. R. Co., L. R. 8 Q. B. 36; Philadelphia & Reading R. R. Co. v. Derby, 14 How. 468; Chamberlain v. Chandler, 3 Mason, 242; Baltimore &c., R. R. Co. v. Blocher, 27 Md. 277; Goddard v. Grand Trunk R. R. Co., 57 Me. 202; S. C. 2 Am. Rep. 39; Moore . Fitchburg R. R.

Co., 4 Gray 465; Ramsden v. Boston, &c., R. R. Co., 104 Mass. 117; S. C. 6 Am. Rep. 200; Drew o. Sixth Ave. R. R. Co., 26 N. Y. 49; Passenger R. R. Co. v. Young, 21 Ohio, (N. s.) 518; S. C. 8 Am. Rep. 78; Penn. R. R. Co. v. Vandiver, 42 Penn. St. 365; Pittsburgh, &c., R. Co. v. Donahue, 70 Peun. St. 119; Healey v. City R. R. Co. 28 Ohio, (N. s.) 23. See, further, cases of assault: Springer Tr. Co. v. Smith, 16 Lea, 498; Coggins & Chicago &c., R. R. Co., 18 Ill. App. 620; Stewart v. Brooklyn &c., Co., 90 N. Y. 588. False imprisonment

1

2. Intentional Acts: When Master not Liable. But the liability of the master for intentional acts which constitute legal wrongs can only arise when that which is done is within the real or apparent scope of the master's business. It does not arise where the servant has stepped aside from his employment to commit a tort which the master neither directed in fact, nor could be supposed, from the nature of his employment, to have authorized or expected the servant to do. To illustrate again with the case of the merchant: While he may justly be held responsible for a fraudulent sale by his clerk of the merchandise entrusted to him for sale, there could be neither reason nor justice in compelling the merchant to respond if the fraud were practiced by the

[*536] clerk in *a sale not of the merchandise, but of his own horse or watch. So if the conductor of a train of cars leaves his train to beat a personal enemy, or from mere wantonness to inflict any injury, the difference between his case and that in which the passenger is removed from the cars is obvious. The one trespass is the individual trespass of the conductor, which he has stepped aside from his employment to commit; the other is a trespass committed in the course of the employment, in the execution of orders the master has given, and apparently has the sanction of the master, and contemplates the furtherance of his interests.' In determining whether or not the master shall be held responsible, the motive of the servant in committing the act is important; for if he supposes he is acting in furtherance of the master's interest under a discretionary authority, which the master has conferred upon him, the case will generally have an aspect quite different from what it would present if it were manifest that malice were being indulged, irrespective of the master's interest.' But the motive is not conclusive. A man may purposely defraud another

1 In Crocker v. New London, &c., R. R. Co., 24 Conn. 249, the servant of the defendant, after a person had been put off the cars, kicked him in the face when he attempted to get on again. Held, to be the tort of the servant only. See, also, Evansville, &c., R. R. Co. v. Baum, 26 Ind. 70; Molloy v. New York, &c., R. R. Co., 10 Daly 453; Smith v. Memphis, &c., Co., 1 S. W. Rep. 104 (Tenn). So where one employed to guard property shoots one retreating from it. Golden v. Newbrand, 52 Ia. 59. So where a conductor stops his train, chases and seizes a boy and puts him on the train. Gilliam v. South., &c., R. R. Co., 70 Ala. 268, and where an agent issues false shipping receipts for the benefit of a firm of which he is a member and to the injury of plaintiff. Erb v. Grt. West. Ry. Co., 5 Can. S. C. R. 179. In Wright o. Wilcox, 19 Wend. 343, the master was held not liable where the servant willfully drove over another person and in

jured him. This doctrine was applied in Richmond Turnpike Co. . Vanderbilt, 1 Hill, 480; S. C. in error, 2 N. Y. 479, to a case where the mas ter of a vessel purposely ran into and injured another, and in Illinois Cent. R. R. Co. v. Downey, 18 Ill. 259, to one where the conductor of a train of cars purposely increased his speed to run into stock on the track. But the master is held liable for the willful act of his servant in driving by a team so as to hit it. Schaefer v. Osterbrink, 67 Wis. 495, and compare Fick Chicago, &c., Co., 68 Wis. 469. Compare, also, Toledo, &c., R. R. Co. . Harmon, 47 Ill. 298; Chicago, &c, R. R. Co. v. Dickson, 63 Ill. 151; S. C. 14 Am. Rep. 114; Howe v. Newmarch, 12 Allen, 49; Duggins v. Watson, 15 Ark. 118.

In case of doubt the test may well be whether he was acting bona fide in furtherance of the master's interest. Birmingham Water Works Co. c. Hubbard, 4 South. Rep. 607 (Ala.)

in selling his master's goods, that he may gratify his private malice against the purchaser; but if the master had empowered him to make the sale, he must take the responsibility of any wrong committed in making it. The test of the master's responsibility is not the motive of the servant, but whether that which he did was something his employment contemplated, and something which, if he should do it lawfully, he might do in the employer's

*Says HOAR, J.: "If the servant, wholly for a purpose [*537] of his own, disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another not within the scope of his employment, the master is not liable." "

[*538] *But "it is in general sufficient to make the master responsible that he gave to the servant an authority, or made it his duty to act in respect to the business in which he was engaged, when the wrong was committed, and that the act complained of was done in the course of his employment. The master, in that case will be deemed to have consented to and authorized the act of the servant, and he will not be excused from liability, although the servant abused his authority,or was reckless in the performance of his duty, or inflicted an unnecessary injury in executing his master's orders. The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business, or the care of his property, is justly held responsible