Involves, however, further questions of considerable nicety

which will be treated hereafter.*

Although the immediate cause of the injury may be the act

of a servant who is outside the scope of his employment, a pre-

cedent and proximate cause may be the negligence of a ser-

Vant who is within the scope of the employment. Thus where

the master intrusts the driving of a van to A and the delivery

of parcels from it to B with instructions that A is forbidden to

leave the van and B is forbidden to drive it, and A does leave

the van and B drives it and injuries a person, the master is

liable, not for the negligence of B, for he is outside the scope

of his employment, but for the negligence of A in leaving the

van unattended.^

§ 246. — (1) Acts commanded by master.

If one commands another to commit a tort he becomes

thereby a party to the tort and liable as a tort-feasor to the in-

jured party .^ This does not rest necessarily upon any relation

of master or servant but upon the notion that the one directing

1 West Jersey & Seashore R. v. Welsh, 62 N. J. L. 655 ; post, В§ 249.

2 Burns v. Poulsom, L. R. 2 C. P. 563 ; Evans v. Davidson, 53 Md.

245 ; Pahneri v. Metropolitan Ry., 133 N. Y. 261 ; post, В§ 250.

В« Bowler v. O'Connell, 162 Mass. 319; Mulligan y. New York, &c. Ry.,

129 N. Y. 506 ; post, В§ 251.

* See post, §§252-254; ante, §§ 151-157.

6 Engelhart v. Farrant, 1897, 1 Q. B. 240 ; Williams v. Koehler, 41

App. Div. (N. Y.) 426.

В« Hen-ing v. Iloppock, 15 N. Y. 409 ; Dyett v. Hyman, 129 N. Y. 351.

For early cases on particular command, see 7 Harv. L. Rev. 384 et seq.

300 LIABILITY OF MASTER

tlic wrong is a participant in it, and he and the servant may

be sued jointly in trespass.^ In such case it is not necessary

tliat the sj)cciric act should be commanded ; it is enough that

the master has directed his servant generally to use force, or

to commit a trespass, or to do any similar act under given cir-

cumstances, and that the servant in carrying out these instruc-

tions has committed the tort complained of.^ Even where the

master commands a lawful act but the servant by mistake does

an unlawful one, the master may be held liable for the tres-

pass.^ The cases of an express command to do an unlawful

act shade imperceptibly into the cases where the command is to

conduct a certain businesG for the master and the question is

whether the particular wrongful act is within the course of the

employment.* Thus the acts of conductors or other trainmen

in expelling trespassers from railway trains may be treated

as the execution of a command or as the natural incident of

the particular employment,^

If a master is liable in trespass for an unlawful assault or

entry he is liable only for the natural consequences. Thus if

he commands his servant to break and enter another's prem-

ises for a particular purpose, he is not liable if the servant

steals personal property while there.В®

§ 247. — (2) Acts ratified by master.

The doctrine of ratification has already been fully treated.'

So far as concerns the ratification of torts it may be added

that there is a question whether a merely personal tort, stand-

ing alone, can be ratified so as to make the one ratifying it

a trespasser ah initio.^ The question, however, does not usu-

1 Hewett V. Swift, 3 Allen (Mass.), 420; Smith v. Webster, 23 Mich.

298; Ketcham v. Newman, 141 N. Y. 205.

2 Tbid.j Barden v. Felch, 109 Mass. 154.

В« Maier v. Randolph, 33 Kans. 340 ; May v. Bliss, 22 Vt. 477 ; Moir v.

Hopkins, 16 111. 313.

* AVigmore, 7 Ilarv. L. Rev., p. 399 et seq.

6 Rounds V. Delaware, &c. R., 64 N. Y. 129; Illinois Central R. v,

Latham, 72 Miss. 32.

« Searle v. Parke, 68 N. H. 311. » Ante, §§ 30-49.

8 Adams v. Freeman, 9 Johns. (N. Y.) 117 ; Dempsey v. Chambers,

154 Mass. 330, 333.

FOR TORTS OF SI'RYANT. 301

ally come up in that form. It arises when a master wishing

to take advantage of an unauthorized act of his servant,

ratifies the act and accepts its benefits, and is then sought to

be charged with some tort committed by the servant in the

performance of it.^ Thus a teamster without authority deliv-

ered for defendant a load of coal ordered by plaintiff, and in

so doing broke plaintiff's plate-glass windows. Defendant

ratified the act of delivery and it was held that he thereby

became liable for the tort connected with it.^ " Tlie defend-

ant's ratification of the employment established the relation

of master and servant from the beginning with all its inci-

dents, including the anomalous liability for his negligent acts."