Ity." 2 But if the express authority is given to one servant,

and is expressly forbidden to all others, the oj)inion has been

expressed that, as to trespassers at least, the presumption that

the others had an implied authority would be rebutted.^

It is to be noted that these cases cannot proceed upon the

doctrines of estoppel since no one is misled to his damage

by the appearance of authority.^ The primary (juestion is

whether the servant is acting in " the course of the employ-

ment," and in answering this it is proper to take account of

any implied authority to act as he did.

§ 250. — (5) Acts for master "a benefit.

A negligent act is not ordiuai-ily intentional and the dam-

age is inadvertent. Hence in negligence cases the inquiry

rarely proceeds beyond the problem whether the act or omis-

sion was in the course of the employment. In wilful torts,

however, the damage is advertent and the inquiry is directed

to the additional ])oint whether the act was intended for the

master's benefit. If so intended by a servant in the course of

liis employment the master is liable.^ It is conceivable that

1 Hoffman v. X. Y. Cent, &c. K,., 87 N. Y. 25. Contra, International,

&c. Ry. V. Anderson, 82 Tex. 516; Chicago, &c. 11. v. Brackman, 78 111.

Ajip. 141, and cases cited.

^ West Jersey & Seashore R. v. Welsh, 62 N. J. L. 635, 663.

8 Brevig v. Chicago, &c. II., 64 Minn. 168, 174-175.

* A nte, §§ .5, 52 a.

6 Poxt. В§ 252.

Q^K © ^~;^(0-^,^^•c^-

FOR TORTS OF SERVANT. 305

a sei'vant may intend to be negligent, that is he may know

that he is not using the care proportioned to the circum-

stances, without intending to produce damage thereby. In

such a case the inquiry may be proper whether the servant

intended to further his master's, or his own, interests by such

wilful departure from the standard of care.^ It is clearly the

law that all acts done by the servant in the course of the

employment and in the furtherance of it, that is supposedly

for the master's benefit, will, if they result in damage to third

persons, render the master liable.^

§ 251. — (6) Acts for servant's benefit.

Whore an act is clearly for the servant's benefit the negli- ^

gent performance of it resulting in injury to a third person

will not render the master liable, because, in such case, the

servant is outside the course of the employment.^ But where

the act is so closely connected with the master's affairs that,

though the servant may derive some benefit from it, it may

, fairly be regarded as within the course of the employment,

the master will be liable.*

In case of wilful torts it is said that if the tort is not for

the master's benefit, the master will not be liable,^ but this is

subject to exceptions and qualifications heretofore ^ and here-

after'^ noted. ^

В§ 252. (IV.) Wilful or malicious torts : (1) in furtherance of

the employment.

In the case of wilful or malicious torts it is easier to estab-

lish that the servant has departed from the course of his

1 Philadelphia & Reading R. v. Derby, 14 IIow. (U. S.) 468 ; Weed u.

Panama R., 17 N. Y. 362.

2 Barw ick v. English Joint Stock Bank, L. R. 2 Ex. 259 ; Evans v.

Davidson, 53 Md. 245. Post, В§ 252. For cases on fraud and deceit see

ante, §§ 151-157.

^ Morier v. St. Paul, &c. R., 31 Minn. 351 ; ante, В§ 244.

* Quinn v. Power, 87 N. Y. 535 ; Ritchie v. Waller, J3 Conn. 155 : atite,

В§ 244.

6 Atite, В§ 154.

6 Ante, §§ 155-157.

7 Post, §§ 252-254.

20

306 LIABILITY OF MASTER

employment for ends of his own than in the case of merely

negligent torts. Some early cases, indeed, lent color to the

idea that the proof of wilfulness or malice would itself con-

clusively establish that the servant had quit sight of the

object for which he was emj)loyed and entered upon some

independent end suggested by his own malice.^ Later cases

have, however, overthrown this obviously incorrect notion and

establislied the rule for wilful torts that the master is liable

if such wilful acts are committed within the course of the

employment and in furtherance of it.^ It is noticeable that

the cases establishing the general rule were those between

passenger and carrier, but the rule now extends beyond this

relation. In the case of wilful as well as negligent torts the

test is, was the servant acting for his master and within the

course of the employment?'^ In such cases there is usually

an authority to do a certain thing, as to remove a trespasser,

and the wrong consists in an excess of force or other im-

proper method. Clearly in such cases the servant is acting

for the master, and in the course of the employment, and the

master is liable.

In New York the doctrine of Wriglit v. Wilcox'^ was fol-

lowed down to and including Isaacs v. Third Avenue Railroad

Co.^ but was soon after qualified in accordance with the mod-

ern rule. It is said in Mott v. Consumers' Ice Co.,^ speaking

of the language employed in the earlier cases, that " These