Intimations are subject to the material qualification, that the

acts designated ' wilful,' are not done in the course of the ser-

Vice, and were not such as the servant intended and believed

to be for the interest of the master." The general rule is

said in that case to be, " that for the acts of the servant,

В» M'Maiius V. Crickett, 1 East, 106; Wright v. Wilcox, 19 Weud.

(N. Y.) 313.

'^ Seymour r. Greenwood, 7 II. & N. 355; Liinpus r. London General

Omnibus Co., 1 II. & C. 52(3; Iliggiiis c. Watervlirt Turnpike Co., 46

N. Y. 23; Rounds v. Delaware, &c. R., 01 N. Y. 12!); Hoffman v. N. Y.

Cent., &c. R., 87 N. Y. 25 ; Howe v. Xewmarch, 12 Allen (Mass.) 49.

8 Rounds I'. Delaware, &c. R., supra.

* 19 Wend. 343.

В« 47 N. Y. 122. 73 N. Y. 543.

FOR TORTS OF SERVANT. 307

within the general scope of his employment, while engaged in

his master's business, and done with a view to the further-

ance of tliat business and the master's interest, the master

will be responsible, whether the act be done negligently, wan-

tonly, or even wilfully." And such is now the recognized

rule in New York.^

A contract relation may strengthen the case as against the

master. Thus, if the master is under contract to deliver pure

milk and his servant out of malice adulterates it, the master

is liable for the consequences.^

That the servant disobeyed the orders of the master is

never a sufficient defence.^ It must be shown further that he

ceased to act for the master and in the course of the employ-

ment.* This is a question of fact and must frequently be

submitted to the jury.^

Assault. If in removing a trespasser the servant uses an

excess of force or puts the trespasser in unnecessary danger,

tlie master is liable for all damages sustained provided the

servant was acting within the course of the employment and

in the furtherance of it.'' But if the servant was exercising

his implied authority for private ends of his own, as to extort

money, tben the master is not liable.^ And if a brakeman

accept a bribe to permit a trespasser to ride upon the train

and afterward eject the trespasser, the latter will have no

action against the railway company since he and the brake-

man are joint trespassers.^

If a street-car driver wilfully and maliciously drives his car

against a vehicle which is obstructing the track, it is a ques-

tion of fact whether he does this in the course of the employ-

^ Bounds V. Delaware, &c. R. supra.

2 Straiiahan v. Coit, 55 Oh. St. 398 ; post, В§ 253.

8 Philadelphia, &c. R. v. Derby, 14 How. (U. S.) 468 ; Fitzsimmons w.

Railway Co., 98 Mich. 257.

* Andrews v. Green, 62 N. II. 436.

5 French v. Cresswell, 13 Ore. 418.

В« Rounds V. Delaware, &c. R., 64 N. Y. 129.

^ Illinois Central v. Latham, 72 Miss. 33.

8 Brevig r. Chicago, &c. Ry., 64 Minn. 168. See also Keating v. R.,

97 Mich. 154 ; Chicago, &c. R. v. West, 125 111. 320.

308 LIAJJILITY OF MASTER

meat in order to get a clear track or whether he does it for

private spite and malice.^ So also where a janitor having

charge of a room wilfully shoved a ladder upon which a work-

man was standing, it is a question of fact whether the janitor

did this in order to facilitate his work for the master or out

of personal spite and malice.''^ Some cases may be so clearly

outside the scope of the employment that the court will nut

submit the question to a jury.^ Others may be so clearly

within the scope of the employment that the court will so

decide. Between these extremes are all the doubtful cases in

which the question is to be decided by the jury.^