Ing diluted or skimmed milk should be recoverable by

the person to whom it was sold, it was held that in an

action for the penalty, proof that the defendant's servants

In the course of the employment, and in his behalf or interest,

sold the skimmed milk, warrants the jury in finding that the

act was authorized.^ Under an act providing that one

who knowingly sells oleomargarine, except in duly marked

and stamped packages, shall be fined and imprisoned, it

has been held that proof of an unlawful sale at defendant's

place of business in the usual course of business by defend-

ant's clerk is sufficient evidence of a violation to sustain a

conviction.'*

In many cases the question is whether on a fair construc-

tion of the law the master was intended to be made criminally

liable for acts done by a servant within the scope of the employ-

ment but contrary to the orders and will of the master.^

1 Noecker v. People, 91 111. 494; Carroll v. State, 63 Md. 551 ; McCut-

cheon v. People, 69 111. 601 ; MuUins v. Collins, L. 11. 9 Q. B. 292 ; Bond

V. Evans, L. II. 21 Q. B. D. 249.

"- 3 M. & S. 11.

8 Verona Central Cheese Co. v. Mnrtaugh, 50 N. Y. 314.

* PraUier v. United States, 9 App. Cas. D. C. 82.

' Coppen V. Moore, 1898, 2 Q. B. 306.

FOE CRIMES OF SERVANTS. 327

В§ 267. Authority.

If the act is done by the authority of the master he is a

participant in it and punishable as such. It has been held,

however, that a crime cannot be ratified.^ Authority may

be express or implied, and most of the confusion in the

cases has been due to a difference in view, frequently unrec-

ognized as such, as to the inference of authority to be drawn

from the doing of the criminal act by the servant in the

course of the employment.

It seems that proof of an illegal sale, whether it be a sale

without a license, or a sale under a license but at forbidden

hours or to forbidden persons, made by defendant's servant

in charge of the defendant's place of business, may, if unex-

plained, warrant the jury in inferring that the sale was author-

ized .^ But it is hardly correct to say that such proof raises

a presumption of fact, and it may always be rebutted by proof

that the sale was made without the master's knowledge, and

in opposition to his will and purpose.^

If a liquor dealer in good faith instructs his clerks not to

sell to minors but leaves them to judge of minority by the

appearance of the customer, and one sells to a minor, be-

lieving him from appearance to be an adult, it is held that

the master is not criminally liable, since there can be no doubt

that there was no authority to sell.^

In the case of the violation of revenue laws, the action by

the state is frequently in the nature of an action of debt

to recover a penalty. If the act or omission giving rise

to the proceeding has been the act or omission of a servant

in the course of his employment the master may be liable to

the penalty in the same way and for the same reason as in the

case of torts committed by the servant. If the servant's act is

commanded or ratified, the case is clear. If not commanded

1 Morse v. State, 6 Conn. 9.

'' Comm. V. Nichols, 10 Met. (Mass.) 259 , Comm. t;. Briant, 142 Mass.

463; Comm. v. Wachendorf, 141 Mass. 270.

s Ibid. ; Anderson v. State, 22 Oh. St. 305 ; Comm. v. Stevens, 153

Mass. 421; State v. McCance, 110 Mo. 398.

* Comm. V. Stevens, 153 Mass. 421.

328 LIABILITY OF MASTER FOR CRIMES OF SERVANTS.

or ratified, there is still the usual question whether the act is

done in behalf of the master and in the course of the

employment.^

В§ 268. Negligent failure to control.

The negligent failure to control duly his business activities

may render the master liable criminally for the act of a

servant.

Lihel. Indictments for libel may stand upon this basis.

If a libellous article is printed by or for the defendant, or sold

at his shop, this is prima facie evidence of his guilt,^ and he

does not rebut this merely by showing that he did not know

of the libel or authorize it.^ It seems that in order to escape

liability he must show that he did not know of or authorize

the libel and that its publication was not duo to any want of

care or caution on his part in the conduct of his business.*

Nuisance. Indictments for nuisance, although criminal in

form, may be in effect a kind of public action for tort. This

is the case where the nuisance is injurious to the property

rights of many but, being common, gives rise to no private

action without proof of special damage. In such case the

master is liable upon evidence which would support a civil

action for damages. Thus the owner of a quarry is liable

criminally for nuisance for tiie acts of his servants in cast-

ing rubbish into a public stream, in the course of the employ-

ment, although he may have forbidden them to do so.^ The

president and directors of a company may be convicted of a

nuisance, although personally ignorant that it exists.*"

* Attorney-General v. Siddon, 1 C. & J. 220; Attorney-General c.

Riddle, 2 C. & J. 493.

2 Rex V. Almon, 5 Burr. 2086; Clay v. People. 80 111. 147.

8 Rex I'. Gutch, Mood. & Malk. 4:33; Rex v. Walter, 3 Esp. 21. (But

see for present English law, 6 & 7 Vict. c. 96, s. 7, and R. v. Ilolbrook,

L. R. 3 Q. B. 1). 00, 4 Q. B. D. 42.)

* Comin. V. Morgan, 107 Mass. 199; State v. Mason, 26 Ore. 273.

В« Queen v. Stephens, L. R. 1 Q. B. 702.

В« Rex V. Medley, 6 C. & P. 292.

A

PART III,

LIABILITY OF MASTER FOR INJURIES TO SERVANT.

В§ 269. Introductory.

This part deals, — (1) with the liability of a master to one

servant for an injury due to the act or omission of another

servant, and (2) with the liability of a master to a servant for

an injury due to an act or omission of the master himself.

Under the first head are discussed the subjects of " fellow-

servants " and " vice-principals " ; under the second head the

general duties of a master to his servant.