It is not a bar to the plaintiff's recovery that he provoked

the assault. The primary question is whether the servant

was impelled by the purpose of furthering his master's affairs.

If so the master is liable, although the provocation may be

given in evidence in mitigation of damages.^ If not, then the

master is not ordinarily liable,^ though tiie relation of carrier

and passenger may vary the result.''

Arrest. Cases of unlawful arrest involve nice questions

as to implied authority. If the arrest is supposedly in the

master's interests and in the course of the emi)loyment, the

master is liable,^ but if in the interest of the public, then,

although the occasion for the arrest may arise in the course

of the employment, the master is not liable.^ Thus, if a

1 Cohen v. Dry Dock, &c. R., 69 N. Y. 170; Baltimore, &c. R. v. Tierce,

89 Md. 495.

2 Nelson Business College Co. v. Lloyd, CO Oh. St. 418.

8 Johanson v. Tioneer Fuel Co., 72 Minn. 405; Rudgeair v. Reading

Traction Co., 180 Pa. St. 333; Brown v. Boston Ice Co. (Mass.), 59 N, E.

644 ; Grimes v. Young, 51 N. Y. App. Div. 239.

4 Dyer v. Munday, 1895, 1 Q. B. 742 ; Bergman v. Hendrickson, 106

Wis. 434.

6 Bergman v. Hendrickson, supra.

6 Scott V. Central Park. &c. R., 53 Ilun (N. Y.), 414. But see Weber

V. Brooklyn, &c. R., 47 App. Div. 306.

"> Post, В§ 253.

8 Palmeri v. Manhattan Ry., 133 N. Y. 261 ; Staples v. Schmid, 18 R. I.

224 ; Smith r. Munch, 65 Minn. 256.

В» Mulligan v. N. Y. & R. B. Ry., 129 N. Y. 506 ; Abrahams v. Deakin,

1891, 1 Q. B. 516.

FOR TORTS OF SERVANT. 309

ticket-agent causes an arrest in order to secure good money

in place of what he considers bad money, this is in the

master's interest ; but if he causes an arrest in consequence

of a warning by the police, he is acting in the interest of the

public.^ The distinction seems to be that a servant may have

an implied authority to protect his master's interests by caus-

ing the arrest of a person who is believed to be infringing

them, but that he has no implied authority to seek to punish

such a person after the attempt has ceased.^ To lock in a

passenger who refuses to pay his fare or give up his ticket

is an act done for the master, and within the course of the

employment.^

Whether a servant has any implied authority to cause an

arrest must depend upon the nature of his duties. " The

authority to arrest is only implied where the duties which an

agent is employed to discharge could not be properly dis-

charged without the power to arrest offenders promptly and

on the spot." ^ It has been held that a clerk in a store has no

such implied power to arrest and search a customer suspected

of having stolen the employer's goods.^ But this seems

clearly incorrect in the light of subsequent decisions.**

In some jurisdictions it seems to be held that a servant

must have express authority from the master to cause an

arrest, or to set the criminal law in motion.'^

Other ivilful torts. A master is liable for libel,^ malicious

prosecution,^ deceit,^*^ infringement of patent,^^ or other wilful

1 Mulligan v. N. Y. & R. B. Ry., 129 N. Y. 506 ; Abrahams v. Deakin,

1891, IQ-B. 516.

2 Allen V. London & S. W. Ry., L. R. 6 Q. B. 65.

8 Farry v. Great Northern Ry., 1898, 2 Ir. 352.

* Ashton V. Spiers, 9 Times Law Rep. 606.

6 Mali i;. Lord, 39 N. Y. 381.

^ See criticism in Staples v. Schmid, 18 R. I. 224; Knowlesy. Bullene,

71 Mo. App. 341 ; Fortiine v. Trainor, 47 N. Y. St. Rep. 58 ; aff'd. 141

N. Y. 605 ; Mallach v. Ridley, 6 N. Y. St. Rep. 651; 15 lb. 4.

' Turnpike Co. v. Green, 86 Md. 161.

8 Andres v. Wells, 7 Johns. (N. Y.) 260; Bruce i'. Reed, 104 Pa. St. 408

9 Reed v. Home Savings Bank, 130 Mass. 443.

10 Ante, В §В§ 151-157.

11 Sykes v. Howarth, L. R. 12 Ch. Div. 826.

310 LIABILITY OF MASTER

or malicious wrongs committed by the servant and within the

course of the employment. It has sometimes been held that

a master is liable for such torts only wlicn expressly com-

manded or ratified,^ and it was once thought that corporations

could not be liable for torts involving wilfulness or malice ;2

but these notions have practically passed away with a better

understanding of the true ground for such liability.^

§ 253. — (2) Wilful or malicious injuries to passengers.

A carrier is under a high degree of duty, vohmtarily as-

sumed, to passengers, and among these duties is the obliga-

tion to protect them from all misconduct on the part of its

servants. Tiie ordinary limits of liability for wilful and

malicious acts do not bound this obligation. Whether the

servant is acting for the master or for himself the master is

liable for all wilful or malicious injuries inflicted by the ser-

yant upon the passenger.^ Some cases fail to make this dis-

tinction between the liability of a master for the malicious

torts of servants toward third persons generally and toward

third persons to whom the master owes a special duty,^ but

the weight of authority is now decidedly in favor of such a

distinction, and in New York the contrary decisions have

been overruled.^

It is necessary in order that the doctrine be applicable that the

relation of carrier and passenger should actually exist. It is

often a nice question whether the relation has begun or has been

terminated, but this lies outside the scope of this subject." It

1 Wallace v. Finberg, 46 Tex. 35.

^ 5 Thompson on Corporations, В§ 6275 et seq.

8 Philadelphia, &c. R. v. Quigley, 21 IIow. (U. S.) 202 ; Goodspeed v.

East Iladdam Bank, 22 Conn. 530.

* Stewart v. Brooklyn, &c. R., 90 N. Y. 588 ; Dwinelle r. N. Y. Cent.

& II. R. R., 120 N. Y. 'll7 ; Craker v. Chicago, &c. R., 36 Wis. 057 ; Haver

V. Central R., 62 X. J. L. 282.

6 Allen V. Railway Co., L. R. 6 Q. B.65 ; Isaacs v. R. Co., 47 X. Y. 122.

В« Stewart v. R. Co., 90 X. Y. 588.

T See INIcGilvray r. West End Ry., 164 Mass. 122 ; Wise v. Ry. Co.,

91 Ky. 537; Central Ry. v. Peacock, 69 Md. 257; Peeples v. Ry., 60 Ga.

281 ; Krantz v. R, 12 Utah, 104.

FOR TORTS OF SERVANT. 3H

may continue even after the passenger has once left the prem-

ises if lie afterwards returns for his baggage.^

This doctrine also has some application beyond the special

relation of carrier and passenger in cases where by contract

the master has voluntarily undertaken a particular duty

toward a definite person, and has intrusted the discharge of

the duty to a servant.^

That the liability of a carrier for wilful attacks upon pas-

sengers stands upon a different footing from the ordinary

liability of a master for the torts of his servant is further

illustrated by the fact that a carrier is liable to a passenger

for the assault upon him by another passenger if, after due

notice, the carrier does not take proper measures to protect

the passenger so menaced or assaulted.^

If, however, a passenger provokes an assault by indecent

and insulting language, it seems he may lose the high degree

of protection involved in the relation of carrier and passenger,

and, in such case, he can recover only if the servant was

acting within the scope of the employment. Thus, if a pas-

senger provokes a servant of the carrier to an assault outside

the scope of the employment, the master is not liable.^ But

if one provokes a servant to an assault within the scope of

the employment, the master is liable.^

§ 254. — (3) Misuse of dangerous instrumentalities.

If the master intrusts the care and use of an inherently

dangerous instrumentality to a servant, he remains liable for

any want of care on the part of the servant and also for any

в– wanton, malicious, or mischievous use of the instrument by

the servant.^

1 Daniel v. R., 117 N. C. .592. Cf. Little Miami R. v. Wetmore, 19

Oh. St. 110.

2 Stranahan, &c. Co. v. Coit, 55 Oh. St. 398.

8 Flint V. Xorwich, 34 Conn. 554; Lucy v. Ry., 64 Minn. 7; Putnam

V. R. Co., 55 N. Y. 108 ; Meyer v. Ry., 54 Fed.' R. 116 ; Pittsburg, &c.

Ry. V. Pillow, 76 Pa. St. 510; Chicago & Alton R. v. Pillsbury, 123 HI. 9,

4 Scott V. Central Park, &c. R., 53 Hun (N. Y.) 414. But see Weber

V. Brooklyn, &c. R., 47 N. Y. App. Div. 306.

5 Bergman v. Hendrickson, 106 Wis. 434.

В« Pittsburgh, &c. R. v. Shields, 47 Oh. St. 387.

312 LIABILITY OF MASTER

Tlie typical case is tlic misuse of torpedoes intrusted by a

railway company to the care of trainmen. These are supplied

for use in case of fog. If a trainman makes a use or misuse

of tlicra for his own ends, as to celebrate a public holiday or

to have sport with timid persons, is the railway company

liable for any damaije suffered therein' by third persons? It

has been held that it is liable, upon the ground that the

servant having been intrusted with the safe keeping of the

dangerous instrumentality, the master is liable for a want of

care whether such want of care is due to negligence or wilful-

ness. The duty of the servant is not only to use the torpedoes

when requisite, l)ut to keep them safely when not in use. In

taking them from the place where they are kept, and, in mere

caprice, using them for his own ends, he violates the duty of

safe keeping and renders the master liable.^

This doctrine has not met with universal approval, and

other torpedo cases have been decided upon a strict applica-

tion of the doctrine that the master is liable for a wilful or

malicious act only when the servant does the act for the

master in the course of the employment.^

If the torpedoes are taken by a servant, as a fireman, to

whose care they are not confided, the master would not be

liable.^

Another somewhat similar class of cases is that in which

an engineer blows his whistle or lets off steam merely for

the purpose of frightening horses, and not in the furtherance

of any business or duty of the master. The almost universal

opinion is that the master is liable under such circumstances.

If the servant is engaged in operating the instrumentality

intrusted to him and while so engaged wilfully perverts the

agency to the purpose of wanton mischief, it is all the same

as if he had produced the same result by negligence or

inattention.*

1 Hid.

2 Smith V. N. Y. Cent. & 11. R. R., 78 Hun (N. Y.) 524.

8 Chicago, &c. R. v. P^pperson, 26 111. App. 72.

* Toledo, &c. Ry. i\ Harmon, 47 111. 298; Chicago, &c. Ry. v. Dickson,

63 111. 151; Bittle v. Camden & Atl. R., 55 N. J. L. 015; Georgia R. v.

FOR TORTS OF SERVANT. 313

Where an engineer in order to frighten passengers on a

street car started his engine suddenly and thereby caused a

passenger to jump and injure herself, it has been held that

the engineer was acting outside the scope of his duties and

the company was not liable.^ This conclusion is contrary to

the cases cited above and appears to lose sight of the prin-

ciples upon which those cases were decided. It has also

been held that a hand-car is not dangerous enough to be

brought within the rule.^ If the servant is not authorized

to run the locomotive, clearly his running it for ends of his

own would be outside the scope of the employment.^ A cus-

tom of non-authorized servants to use a locomotive, known

to the master, may be equivalent to an authority.'*

В§ 255. Liability of master for exemplary damages.

A master is liable for exemplary damages for a tort of a

servant which he either commands or ratifies if he would be

liable for such damages in case he had personally committed

the tort.^

If the master has not commanded or ratified such tort,

but is held liable simply upon the doctrine that the servant

has acted for him within the scope of the employment, there

is a sharp conflict of authority. Many jurisdictions hold the

master, whether a natural person or a corporation, not liable

in punitive damages under such circumstances.^ Other

jurisdictions, while holding the same as to masters who

are natural persons, hold that corporations are liable in

Newsorae, 60 Ga. 492 ; Texas & P. Ry. i'. Scoville, 62 Fed. R. 730; Cobb

V. Columbia, &c. R., 37 S. C. 194; Skipper v. Clifton Mfg. Co. (S. Car.),

36 S. E. Rep. 509.

1 Stephenson v. Southern Pac. Co., 93 Calif. 558.

2 Branch v. International, &c. Ry., 92 Tex. 288.

8 Cousins V. Hannibal & St. Jo. R., 66 Mo. 572.

^ East St. Louis Connecting Ry. v. Reames, 173 111. 582.

6 Denver, &c. R. v. Harris, 122 U. S. 597.

6 Cleghorn v. N. Y. Cent. & H. R. R., 56 N. Y. 44 ; Haines В». Schultz,

50 N. J. L, 481; Craker v. Chicago, &c. R., 36 Wis. 657; Warner v.

Southern Pac. R., 113 Calif. 105; Maisenbacker v. Society Concordia, 71

Conn. 369; Lake Shore, &c. R. v. Prentice. 147 U. S. IQl^i. :

314 LIABILITY OF MASTER FOR TORTS OF SERVANT.

punitive damages since corporations can act only through

agents.^

В§ 256. Imputed notice.

Knowledge of a servant concerning property committed to

his care is the knowledge of the master. Hence, if the ser-

vant knows of the vicious tendencies of an animal of which

he has charge this knowledge is imputed to the master.^

1 Goddard v. Grand Trunk R., 57 ^le. 202 ; Thiladelphia, &c. R. v.

Larkin, 47 Md. 155; Atlantic, &c. R. v. Dunn, 19 Oh. St. 162; lb. 590;

Citizens' Street R. v. Willoeby, 134 Ind. 563; Wheeler, &c. Co. v. Boyce,

36 Kans. 350.

- Brice v. Bauer, 108 N. Y. 428 ; Clowdis v. Fresno, &c. Co., 118 Calif.

315.

LIABILITY OF PUBLIC BODIES FOE TORTS OF SERVANTS. 315

CHAPTER XXII.

LIABILITY OF PUBLIC AGENCIES OR PUBLIC CHARITIES FOR TORTS

OF SERVANTS.

В§ 257. General doctrine.

While a private person or corporation may be liable for the

torts of servants, a public corporation, entity, person, or

charity, is not ordinarily liable for the torts of officers or

servants. This is placed on doctrines of public policy and

expediency. It may be said, subject to qualifications to be

hereafter noted, that the doctrine of respondeat superior does

not apply, — (1) to the state or its agencies generally, (2) to

municipalities so far as they are acting in a governmental

capacity, (3) to public officers generally, (4) to public charities.

В§ 258. Liability of the State and its agencies for torts of officers.

The Federal or State governments are not liable for the

torts of their officers.^

Counties are not liable for the torts of their officers, unless

such liability is fixed by positive law.^ Even negligence in

the construction of roads and bridges does not render a

county liable according to the great weight of authority ;3

nor does negligence in the construction or maintenance of

county buildings, as court houses and jails.* New England

towns stand in this respect upon the same basis as counties,^

as, indeed, do all such quasi-corporations as townships, school-

districts, road-districts, and the like.^ In many jurisdictions

1 Mechera, Public Officers, §§ 848, 849.

2 7 Am. & Eng. Encyc. of Law (2d ed.), pp. 947-953.

8 lUd, p. 950 ; Markey v. County of Queens, 154 N. Y. 675, contra in

Penn. and Md.

* Ihid, p. 949.

6 Dillon, Munic. Corp., В§ 962.

6 Ibid, В§ 963.

316 LIABILITY OF PUBLIC BODIES

statutes expressly confer a remedy as against such quasi-

corporations especially for injuries resulting from defective

highways.^

В§ 259. Liability of municipal corporation for torts of officers and

servants.

Municipal corporations, or chartered cities, villages, or

towns, stand ui)on a somewhat different basis. It is said

that in the case of such cor j)orat ions the j)crsons comprising

them are regarded as having voluntarily sought the powers

conferred and must therefore be held to a higher degree of

liability. Moreover such powers may include not only the

usual public governmental powers, but also special powers

or franchises, such as the power to supply gas, electric light,

water, wharves, and the like. In the exercise of these latter

powers the municipality is acting in much the same capacity

as a private corporation engaged in the same business. Thus

in Hill V. Boston,^ it was held that the city was not liable for

a defective stairway in a public school-house, and that in

general a city is liable (in the absence of statute) only when

the duty for breach of which the action is brought is a new

one, and is such as is ordinarily performed by a trading

company. This distinction would exclude municipal liability

for defective highways, and the court in the case cited argues

strongly for such a result, but the great weight of American

authority is now to the effect that such a liability exists.^

It follows that municipal and quasi-municipal corporations,

so far as they are acting in a governmental or discretionary

character for public ends are not liable for the negligent or

wilful wrongs committed by their agents or servants.* But

where distinct duties are imposed upon them, purely minis-

terial and involving no exercise of discretion, the same lia-

bility attaches as in the case of private persons doing the

1 Ibid, В§ 1000 and notes.

2 122 Mass. 344.

8 Dillon, IVIunic. Corps. §§ 1017-1023 ; Conrad v. Ithaca, 16 N. Y. 158.

* City of Richmond v. Long's Adm'r, 17 Gratt. (Va.) 375; City of

Anderso'n r. East, 117 Ind. 126 ; Hines i;. Charlotte, 72 Mich. 278.

FOR TORTS OF SERVANTS. 317

same duty.^ Thus a city is not liable for the negligence of

its officer in shooting at an unmuzzled dog,^ nor for the neg-

ligent acts of members of its fire department,^ or of any of

the other of its agents or servants engaged in governmental

or police duties.^ A city is not rendered liable by the alle-

gation or proof that it appointed an incompetent officer.^

But it is liable for failure to keep its streets in proper repair,В®

or properly to plan and construct its public worksJ

В§ 260. Liability of public officer for torts of subordinates.

Public officers who act for the public generally, and not

for private individuals who may have need of special service,

are not liable for the torts of subordinates duly and properly

selected. A subordinate is regarded, like the officer himself,

as an agent of the public. Each is liable for his own torts,

but one is not liable for the torts of the other.^ A post-

master is not liable for the tort of a deputy or clerk, unless

some personal negligence of his own be proved.^ A collector

of customs is not liable for the negligence of his subordinate.^^

An army or naval officer is not liable for the negligence, or

other wrong, of an inferior officer,ii unless he has participated

in such wrongful act.^'-^

1 Seymour v. Cummins, 119 Ind. 148; Bates v. Westborough, 151 Mass.

174; Barron v. Detroit, 94 Mich. 601. But see Howard v. Worcester, 153

Mass. 426

2 Whitfield V. Paris, 84 Tex. 431 ; Culver v. Streator, 130 111. 238.

3 Dodge V. Granger, 17 R. I. 664; Gillespie v. Lincoln, 35 Neb. 34.

4 Robfnson v. Rohr, 73 Wis. 436 ; O'Leary v. Marquette, 79 Mich. 281 ;

Dillon, Munic. Corp. §§ 975-977.

6 Craig y. Charleston, 180 111. 154; Mclllhenny v. Wilmington, 127

N. C. 146.

6 Conrad v. Ithaca, 16 N. Y. 158.

' Barron v. Detroit, 94 Mich. 601 ; Seymour v. Cummins, 119 Ind. 148.

8 Lane v. Cotton, 1 Ld. Raym. 646 ; Governors, &c. v. Meredith, 4 T.

R. 794.

9 Dunlop V. Munroe, 7 Cranch, 242; Keenan v. Southworth, 110 Mass.

474 ; Hutchins v. Brackett, 22 N. H. 252; Con well v. Voorhees, 13 Ohio,

523.

10 Robertson v. Sichel, 127 U. S. 507.

11 Nicholson v. Mouncey, 15 East, 384.

12 Castle V. Duryee, 1 Abb. App. (N. Y.) 327.

318 LIABILITY OF PUBLIC BODIES

In like manner a i)ublic trustee, as a scliool trustee, is not

liable for the negligence of workmen or servants employed

to make repairs upon a public building.^ Nor is a receiver

acting under the orders of the court liable for the torts of

servants em])loyed by him.-

Public olhcers who act for individuals, as sheriffs,^ re-

corders of deeds,** clerks of courts,^ and others whose acts

are ministerial or administrative,^ are liable to the individuals

for whom they act for any negligence or other tort of a sub-

ordinate committed in the course of oflicial transactions.

This rule of liability is very frequently applied in the case

of sheriffs^

В§ 261. Public charities.

Upon the question whether a public charitable corporation

or trust is liable for the negligence or other torts of its agents

and servants, there are these diverse holdings : —

(1) It is sometimes held that the trust funds contributed

for charitable objects cannot be diverted to the payment of

damages occasioned by the negligence or other torts of agents

and servants.^ Under this holding it could make no differ-

ence whether the one injured was a gratuitous recipient of

the bounty, one who paid for the service, or an outsider. Nor

could it make any difference whether the negligent person was

one charged with the administration of the fund or a mere

servant.

(2) The doctrine that the charitable funds cannot be reached

in payment of damages for torts, has been doubted or repudi-

1 Donovan v. McAlpin, 85 N. Y. 185; Wash v. Trustees, 96 N. Y.427.

2 Cardot v. Barney, 03 N. Y. 281.

8 M'Intyre v. Trumbull, 7 Johns. (N. Y.) 35; Prosser v. Coots, 50

Mich. 26-2; State v. Moore, 19 Mo. 3G9.

* Russell V. Lavvton, 14 Wis. 202.

5 McNutt V. Livingston, 15 Miss. G41 ; Moore v. McKinney, GO Iowa,

367.

6 Wood V. Farnell, 50 Ala. 546.

7 Mechem, Public Oflicers, В§ 798.

8 Duncan v. Findlater, 6 CI. & Fin. 89 1 (flictim) ; Feoffees of Ileriot's

Hospital V. Ross, 12 CI. & Fin. 507 ; Fire Ins. Patrol v. Boyd, 120 Pa. St.

624, also 113 Pa. St. 269 ; Dowries v. Harper, 101 Mich. 555.

FOR TORTS OF SERVANTS. 319

ated bj other courts, but there has been no agreement as to

the nature and extent of the liability of the charity.

(В«) The general doctrine of respondeat superior has been

applied and the charity held like any other master for the

torts of servants.^

(5) The general doctrine of respondeat superior has been

admitted, but it has been held that one accepting the services

or bounty of the charity is a mere licensee and must take the

service as he finds it, that is, " that there is no liability on

the part of charitable corporations, arising out of the adminis-

tration of the charity, to those who accept their bounty." ^

Under this doctrine there is a further divergence of opinion

as to whether one who pays for the service is a recipient of

the bounty. One case holds that he is, treating the payment

as a mere contribution to the charity.^ Other cases seem to

regard the payment as imposing a special duty toward the

payer for breach of whicli an action will lie. ^

(c) The general doctrine of respondeat superior has not

been admitted, and recovery is limited to those cases where