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- •Introduction.
- •Introduction. 5
- •Identity,! but with the growth of individualism and the
- •1 O. W. Holmes, Jr., 4 Ilarv. Law Rev. 345; 5 Ihid. 1. But see 2
- •2 Post, в§ 55.
- •6 Agency.
- •Voluntary primary obligations and their correlative rights.
- •Introduction. 7
- •In our English law has an eventful future before it, the ' use,
- •8 Agency.
- •Is estopped to deny the agency (for there is no holding out as
- •Introduction. 9
- •10 Agency.
- •1 Donovan V. Laing, (1893) 1 q. B. 629.
- •2 Quinn V. Complete Electric Const. Co., 46 Fed. Rep. 506; Huff V.
- •8 Post, в§ 86.
- •Introduction. 11
- •In the performance of an operative or mechanical act of ser- •
- •Vice not resulting in the creation of a voluntary primary obli-
- •Inducing a third person to act. A servant may cause damage
- •In representation through a servant, there are only two per-
- •In sequence upon the primary one. The agent, by influencing
- •12 Agency.
- •Is estopped to deny its truth. In deceit, the matter is not so
- •In tort for negligence. Bigelow on Torts, 7th ed., в§в§ 54-56.
- •Intkoducticn. 13
- •In this, that it arises from a voluntary representation by one
- •Ing, the obligation is created voluntarily by the one making
- •Important to note here is the fact that the distinction between
- •1 Ames, Hist, of Assumpsit, 2 Harv. Law Rev. 15.
- •8 Ibid. P. 16.
- •If he had acted immediately instead of mediately. In such a
- •It has been contended that we must seek the basis of
- •Introduction". 15
- •16 Agency.
- •Is within the course of the employment, is an incident which
- •Ing promises or representations to third persons calculated to
- •Induce them to change their legal relations.
- •18 Agency.
- •Is applicable except where a third person is induced to change
- •Voluntary or involuntary.
- •Ity to drive the horse to a designated place, he is a servant in
- •Introduction. 19
- •Is as above stated." — Dwight, Persons and Pers. Prop. P. 323. See
- •1 Sometimes (a) is given as the correct definition, sometimes (b), and
- •2 Sometimes the definition is given with, and sometimes without, the
- •20 Agency.
- •Inquire whether the agent has really or apparently been en-
- •Is an agent whose powers are fixed by the customs of a trade
- •9 Wall. (u. S.) 766.
- •2 Holland, Jurisp. (9tli ed.) p. 200; Dwiglit, 1 Col. Law t. 81.
- •Introduction. 21
- •22 Agency.
- •In cases where the representative acts as for himself and not
- •Ing the relation, this part will also discuss the methods by
- •It should also be noted that much, but not all, of what
- •Implied whenever he undertakes to act for another; and his
- •1. Agency hy Contract.
- •If the agent will render a service. The promise may be ex-
- •In its absence an implied agreement may be inferred. Strictly
- •1 Muscott I'. Stubbs, 24 Kans. .520 ; McCrary V. Ruddick, '33 Towa, 521.
- •2 Hertzog V. Hertzog, 29 Pa. St. 4g5; Hall V. Fincli, 29 Wis. 278.
- •6 Dearborn V. Bowman, 3 Mete. (iMass.) 155; Hicl.S V. Burhans, 10
- •Is not clear.I Moreover, as to third persons, the question
- •Is void.* It is admitted that the exception, if it be one, is not
- •Insane to the knowledge of the agent, but unknown to the
- •1 Drew V. Nunn, l. R. 4 q. B. D. 6g1; Davis l: Lane, 10 n. II. 156;
- •3 Weisbrod c Chicago, &c. R , 18 Wis. 35.
- •Is necessary will not bring the appointment within this rule.*
- •It seems that parol authority to one to fill in the name of the
- •2 Tillier V. Whitehead, 1 Dull. (Pa.) 2g9 ; Lucas V. Bank, 2 Stew.
- •8 Post, в§ 185.
- •Itous relationship is created between the agent and the sub-
- •In tlic nature of a ratification of the act, and is intended to
- •In question, and the ratification operates as an extension of
- •1 Post, в§в§ 42-44.
- •16 Cal. 501; Grant V. Beard, 50 n. H. 129; Dempsey V. Chambers, 154
- •1. Elements of Ratification.
- •Very near the line of ratification, but is distinguishable from
- •If a. Makes a contract in the name and on 1)ehalf of b., c.
- •2 Hagedorn r. Oliverson, 2 m. & s. 485.
- •8 Foster V. Bates, 12 u. & w. 226 ; Lyell V. Kennedy, 14 App. Cas.
- •6 Brainerd V. Dunning, 30 n. Y. 211.
- •Implied. (2) Silence is not (ordinarily) assent. (3) Assent
- •Impliedly adopted the act, the conduct relied on to establish
- •Ing as the principal knows or does not know the facts to
- •Ized agent in the mean time will bind the purchaser to his
- •Infancy), then clearly the act could not have been authorized
- •It has already been seen that, with the exception of a few
- •2 Pollock V. Cohen, 32 Oh. St. 514; Taylor V. Robinson. 1 1 Cal. 306;
- •610; Irvine V. Union Bank, 2 App. Cas. 306.
- •6 Milford V. Water Co., 124 Pa. St. 610.
- •2. Legal Effects of Ratification.
- •Innocent, which induces the principal to ratify, will involve tlie
- •1 Sherrod V. Laugdon, 21 Iowa, 518 ; Poillou V. Secor, Gl n. Y. 456.
- •Ing notice of his withdrawal to those who had previously been
- •160; Ewart on Estoppel, pp. 83-97.
- •2 Kwart on Estoppel, pp. 83-97.
- •8 First n. B. V. Cody, 93 Ga. 127.
- •If it is made to another, and intended or expected to be com-
- •Is, of course, necessary that there should be some representa-
- •If he has justified the belief of a third party that the person
- •It is no answer for him to say that no authority had been
- •1 Post, в§в§ 1o0-116.
- •2 Ante, в§в§ 4-5; pout, в§ 243.
- •6 Bank of Hatavia V. New York, &c. R., 106 n. Y. 1 в– "': Haskell V.
- •It is admitted that a shipping clerk has authority to certify
- •Is, certify checks or issue bills of lading ; in each case the
- •Ignorance must not be the result of his own negligence or
- •1 Ewart on Estoppel, pp. 18-27, 28-67.
- •2 Post, в§в§ 102-116; в§в§ 149-157.
- •Vendee with the difference between the contract price and the
- •It is clear upon principle, that since the authority is con-
- •1 MacBeath r. Ellis, 4 Bing. 57s ; Butler V. Knight, l. R. 2 Ex. 109.
- •2 Seton V. Slade, 7 Ves. 265.
- •6 Post, в§в§ 79-81.
- •Ity was originally conferred by a formal instrument.* The
- •Various. If tlie principal, after conferring the authority, but
- •If tlie agency is to endure for an indefinite period, or is an
- •Implied agreement that the agency is to endure for a definite
- •3. By Operation of Law.
- •Insanity has been judicially declared, the decree of the court
- •1 Iluffcut's Alison on Cont. Pp. 431-432; Read V. Anderson, 10 q. B.
- •8 Hess V. Ran, siipj-a.
- •It being assumed that the relation of principal and agent
- •92 RiilNcii'al and agent.
- •1. The duty to comjjensate the agent.
- •2. The duty to reimburse the agent.
- •3. The duty to indemnify the agent.
- •Inference, arising from the relation of the parties, is that the
- •Vices are competitive, or are rendered on the chance of future
- •If the service was unauthorized but is subsequently ratified
- •If the revocation of the agency be not a breach of the
- •Ity on part of the agent. In either case the impossibility in
- •If an infant renounce his employment, he may nevertheless
- •If, however, the province of the agent is merely to bring
- •If the loss is due to the agent's own negligence or default
- •1 Post, в§ 97.
- •In sending it to b, since he had no right of choice whatever
- •In general, the same rules apply to a breach of the contract
- •It is the duty of an agent to keep his principal's money and
- •It in cases where such enforcement would be in direct viola-
- •In all matters involving judgment, skill, or discretion, it is
- •If an agent in breach of his duty to act in person commits
- •2 AVhite V. Proctor, 4 Taunt. 209 ; Haluptzok V. Great Northern Ry.,
- •55 Minn. 446.
- •125 X. Y. 57; Carpenter V. Gernmn Am. Ins. Co., 135 n. Y. 298.
- •109 Pa. St. 422; Daly V. Bank, 56 Mo. 94; First n. B. V. Sprague, 34
- •2 Ayrault V. Pacific Bank, 47 n. Y. 570 ; Bank V. Butler, 41 Oh. St.
- •8 Dun V. City n. B., .58 Fed. Rep. 174, where it was held that one who
- •1 Xational Cordage Co. R. Sims, 44 Neb. 148; ante, в§ 2.
- •2 Thorne V. Deas, 4 Johns. (X. Y.) 81, where the subject is exhaus-
- •Is accustomed to use in his own like affairs ; (2) how much
- •Is liable for the want of that care and prudence " that men
- •1 Swentzel V. Penn Bank, u7 Pa. St. 140; Bank V. Bossieux, 4 Hughes
- •2 Ilun V. Gary, 82 n. Y. 65.
- •111. 247 ; Williams V. McKay, 40 n. J. Eq. 189.
- •1 Hun V. Gary, 82 n. Y. 65; Williams V. McKay, 40 n. J. Eq. 189.
- •1. In Agencies generally.
- •It depends upon a consideration of the rights of the public
- •Ity. This consideration leads to the conclusion that where
- •2 See Chapters II. And V., ante.
- •Is a question of fact. It is sometimes said that where the
- •In the ordinary course of a trade, business, or profession, and
- •Instructions to the agent, intended to limit the ostensible
- •If a special agent exercise the power exhibited to the public
- •1 Ilatcli r. Taylor, 10 n. II. 538, 548.
- •2 Howell V. Graff, 25 Nel). 130; Byrne V. InIassasoit Packing Co., 137
- •It is better that an individual should occasionally suffer fi-om
- •Is not responsible for the veracity and accuracy of the agent's
- •In others still, to determine them becomes a question of mixed
- •Inference that the agent has certain powers, and if so the
- •Ized to sell realty as well as to those authorized to sell
- •Incidental to the transaction, as, to fix the terms, and, if
- •Insured, since the latter cannot be held to anticipate that
- •Voidable at the election of the principal. "' Any agreement or
- •1 Ante, % 96.
- •150 Principal and tiiiiid pakty.
- •In the sale of similar goods '/' to receive payment in a sale
- •1 Carnochan V. Gould, 1 Bailey (s. C), 179; Howard V. Chapman,
- •152 RuiNoir.VL and ttiikd I-autv.
- •Is much narrower than that of a factor. He must obey in-
- •Very wide discretion in their management. All the usual and
- •Implied or customary authority and will bind the client.
- •1 Cockcroft V. Muller, 71 n. Y. 367.
- •8 Matter of GoodelC 39 Wis. 232; In re Day, 181 111. 73.
- •Validity of a lien, for which a decree of sale has already been
- •Indorse and transfer for collection, discount, or sale the nego-
- •In order to make clear the outlines of a difficult branch of
- •1. The Doctrine of Privity of Contract.
- •2 Boston Ice Co. I'. Potter, 123 Mass. 28 ; Boultou V. Jones, 2 II. & n.
- •Venience, namely, that " it accords the remedy to the party
- •1 McDowell V. I.Aev, 35 Wis. 171.
- •2 Lehow V. Simonton, 3 Colo. 3i0 ; Wood I-. Moriarty, 15 r. I. 518.
- •8 See Huffcut's Ausou on Coiit. Pp. 279-282; Ilaniman on Cont.
- •1 Cothay V. Feunell, 10 b. & c. 671.
- •1G2 prinCirAl and tiiikd party.
- •Is not admissible to introduce into a sealed instrument or
- •In that I'ospect. It rests upon the anomalous docti'ines
- •It is established that the defendant was the real j)rincipal,
- •025; Ilubburd V. Tonbrook, 124 Pa. St. 291 ; Schendel V. Stevenson, 153
- •Is obvious, however, that this is all sheer assumption and
- •1 AVatteau V. Fenwick, supra, per Wills, j. See criticism in 9 Law q.
- •168 RiiiNCirAi. And tiiikd takty.
- •Is made by the seller, either by words or conduct, the seller
- •Versy therefore is as to whether settlement in good faith
- •In the former case the right of set-off which might be asserted
- •Is equally applicable to contracts other than those for the sale
- •In his own name, since parol evidence would l)e inadmissible
- •Istence or non-existence of some fact (other than the two named
- •Is offered, and secondarily upon the relation of the admission
- •In evidence against the principal, eitiier (1) to establish the
- •08 Mo. 418; Buller V. C, b. & q. Ry. Co., 67 Iowa, 206.
- •It is therefore improper to charge a jury that they may find
- •It is said that the declaration of an agent to be competent
- •In which tiie agent was acting for his princi])al ; (a) it must
- •1 1 Greenleaf on Ev. В§ 113; Fairlie V. Hastings, 10 Ves- Jr. 123; Bar-
- •In the conduct of a transaction for his principal is treated
- •Is stated very clearly in the leading case of White V.
- •1 Great w. Ry. V. Willis, 18 c. B. N. S. 748; Stiles V. Western r., 8
- •2 Peto V. Hague, 5 Esp. 134 ; Baring V. Clark, 19 Pick. (Mass.) 22c ;
- •35 Kans. 412.
- •199 ; Burt V. Palmer, 5 Esp. 145 ; Webb V. Smith, 6 Colo. 365.
- •In cases of pure tort in which no doctrine of estoppel is
- •In connection with such torts, where the servant's declaration
- •Is uncertain. The courts have shifted the line in accordance
- •Identity all the knowledge present in the mind of the agent,
- •It hapi)ens that a possesses information affecting the trans-
- •It therefore follows that as to notice acquired by the agent
- •In the course of the transaction in respect of which the notice
- •Is invoked, the principal is bound as fully as if he acquired
- •Is continuous, and concerned with a business made up of a
- •It is the rule that whether the principal is bound by contracts
- •2 Cave r. Cave, 15 Cli. Div. G:!!); Barnes V. Trenton Gas Light Co., 27
- •8 Frenkel V. Hudson, 82 Ala. 158.
- •Voked, for as is said in one case : " a corporation cannot see
- •Individuals and corporations is governed by the same limita-
- •Ing which he has notice, the corporation is charged with his
- •Is held that the master is liable for every wrong committed
- •Inquiry may be whether it was for the master's benefit.
- •1 For a discussion of the meaning and definition of " tort," see Bigelow
- •2 Pollock on Torts (.5th ed.), p- "*- et seq. ; Bigelow on Torts (7th ed.),
- •194 Principal and third partv.
- •In this, that a servant injures a person by acting upon him or
- •Injured person to act to his own prejudice ; and this the
- •Innocent principal liable in deceit for the wilful frauds of his
- •Ing the matter, and does not expressly authorize any repre-
- •1 " III Cornfoot V. Fowke, it is difficult to suppose that as a matter of
- •Is now generally conceded that the principal is liable however
- •Innocenli he may have been personally.-* Thus, if the agent is
- •1 Udell V. Athorton, 7 II. & n. 172; Western Bank V. Addie, l. R. 1
- •If they are in the line of accomplishing the object of the
- •In any case where the principal has in his hands the fruits
- •Innocent, and that the fraud was not for his benefit, was
- •Inquire as to the validity of the stock, and were of course
- •Informed that the stock was valid. The jMaster of the
- •It may well be that they would l)e liable. But although
- •1 British Mutual Banking Co. V. Chavnwood Forest Ky , l. R. 18 q.
- •2 Moores V. Citizens' Nat. Hk., Ill u. S. 156. Cf Bank of New York,
- •8 Friedlander V. Texas, &o. Ry., 130 u. S. 416.
- •In the doctrine that where the principal authorizes an act
- •Is of course binding on the principal. But the doctrine
- •If the representation be false. So he does as between him-
- •1 New York & New Haven r. V. Schuyler, 31 n. Y. 30, especially pp.
- •206 Principal and third party.
- •Voked under other circumstances too various to be referred
- •1. Contract Ohligations.
- •In the name of the principal outside the scope of a prior au-
- •Ity, real or apparent, which would bind the principal will also
- •In such a case the principal is both the real and nominal party
- •In interest and is the only one who can sue or be sued upon
- •Instrument 1)c under seal or negotiable, parol evidence cannot,
- •It follows that there are three cases in which the agent also
- •Indicia of title, it might be reasonably inferred that the
- •2 McCauley V. Brown, 2 Daly (n. Y. C p.), 426.
- •8 Hentz r. Miller, 94 n. Y. 64.
- •8 Lord Ellenborough in Pickering V. Busk, 15 East, 38.
- •In his own name, and it follows that an innocent purchaser
- •In any one of these cases the principal may reclaim bis goods
- •Ing it better that where one of two innocent persons must
- •It is to be observed that the factor or agent must be one
- •Ize a common carrier, warehouse-keeper, or other y)erson to whom mer-
- •2 This is ostensible ownership. The English Act reads, "any sale,
- •8 Xew York Security & Trust Co. V. Lipman, 91 Hun, 554, allirmed,
- •It is to be observed that the third party must have made
- •If the property is still in the hands of the third party, an action
- •Its value. If it has been sold by the third party, the tort may
- •Interference with the agent in the discharge of his duties, or
- •Involve either fraud or malice, — fraud in inducing the prin-
- •Is acting in behalf of the principal, since every person is liable
- •2 Gushing V. Rice, 46 Me. 303; Perkins c. Evans, 61 Iowa, 35; White
- •V. Owen, 12 Vt. 361.
- •Is committing a fraud on his princii)al, he becomes a party to
- •Interfering with the agent or the agency. He is liable if he
- •Interferes with the agent in the performance of the duties of
- •2. Where the Agent alone is bound.
- •If the contract is unenforceable against the principal be-
- •Is a body of more or less clearly identified ])ersons who might
- •Is always a question of the intention and understanding of
- •Is no presumption either way, and that it is always a question as to what
- •6 Flinn & Co. V. Iloyle, 63 l. J. Q. B. 1 (1894).
- •Is liable on the contract whether his principal be known or
- •Instruments. As to either no parol evidence is admissible to
- •1 Tucker Mfg. Co. V. Fuirbauks, 98 Mass. 101 ; Williams V. Second n.
- •2 Metcalf V. Williams, 104 u' s. 93; Case Mfg. Co. V. Soxman, 138
- •8 Compare, for example, Carpenter V. Farnsworth, 106 Mass. 561 ;
- •It would be improper to sustain a demurrer to a complaint
- •Ing under this head are only a phase of those just con-
- •Indicative of agency. The court held the instrument ambigu-
- •Is general agreement that, in the absence of recitals -or other
- •Indications of the identity of the principal, a. B. Alone is
- •In the case of indorsers of bills and notes the whole doc-
- •If read with the signature and its descriptive words, would
- •3. Where both Principal and Agent are hound.
- •If the third person knows that the agent is acting for some
- •If an agent contracts personally in a simple written con-
- •It is supported savors of subtlety and refinement. . . . What-
- •4. Wiere neither Principal nor Agent is hound.
- •Implied warranties as to the existence and competence of his
- •Instruments, adding words descriptive of their office, and
- •If the agent has not acted as agent, but for an undisclosed
- •In the second case he may sue because there was at least
- •It is admitted, however, that even in the first case the agent
- •Ing the action, gives due notice of the actual state of the
- •Interest. He may supersede it by suing in his own name,
- •Is, of course, necessary that the essential elements of deceit
- •2 Bennett V. Bayes, 5 h. & X. 391.
- •In such cases he is both bailee and agent, and it is a general
- •Introduction.
- •If the primary obligation was an involuntary one, or if, being
- •Voluntary, it was one to which the law annexed additional
- •Is tort. A servant in performing operative acts for his mas-
- •Vant, with the liability of a servant for his own torts, and
- •1 Ante, в§в§ 4-6.
- •Independent contractors.
- •Ists, would go far toward destroying the whole doctrine appli-
- •If the employer contracts for a nuisance or other unlawful
- •If the employer is under an obligation of positive law to do
- •109, 115; Atlanta r. V. Kimberly, 87 Ga. 161, 168.
- •2 Read V. East Providence Fire Dist., 20 r. I. 574 ; Higgins V. W. U.
- •280 Who is a sEliVant?
- •In favor of the view that the coachman was not the servant of
- •In a recent case the hirer owned a hoisting tackle affixed to
- •1 Hardy V. Shedden Co., 78 Fed. Gio.
- •8 Lord Russell of Killowen, c. J., in Jones V. Scullard, 1898, 2 q. B.
- •It has also been held that the engineer and crew of a railroad
- •Vants for the time of the mill-owner and not of the railroad
- •1 Rourke V. White Moss CoTliery Co., l. R. 2 c. P. D. 205.
- •2 Donovan V. Laing, 1893, 1 q. B. 629. ' Ibid. P. 632.
- •6 Burton V. G. H. & s. A. Ry., 61 Tex. 526 ; New Orleans, &c. R. V.
- •If the general master is asked to furnish a workman for a
- •Vant of the hirer and a fellow-servant of the hirer's regular
- •Voluntarily assumes the risks of the default of fellow-servants.
- •Vices, in determining the question, Who is a servant ?
- •In some cases — as in the em{)loyment of pilots — the em-
- •If the employment of a particular person, or of the first of
- •Is injured through the negligence of a member of the crew.
- •In such case is the pilot barred of recovery upon the ground
- •If a convict is hired out by the state to an employer, there
- •1 Angel V. Felton, 8 Johns. (n. Y.) 149; Kosminsky V. Goldberg, 44
- •2 Phillips V. Barnet, 1 q. B. D. 436 ; Abbott V. Abbott, 67 Me. 304.
- •It is generally conceded that, aside from the cases of com-
- •8 Gwilliam V. Twist, supra.
- •Injury recklessly inflicted after knowledge of his dangerous
- •If, however, the volunteer performs the service at the
- •It, or (3) that the master had intrusted the servant with
- •In some cases there may be a presumption that the wrong-
- •Involves, however, further questions of considerable nicety
- •Vant who is within the scope of the employment. Thus where
- •In other words, if the defendant had engaged the teamster to
- •If a servant commit an assault or other wrong while in the
- •In a custom of workmen to throw off fire-wood from a con-
- •Ity." 2 But if the express authority is given to one servant,
- •It is to be noted that these cases cannot proceed upon the
- •Intimations are subject to the material qualification, that the
- •Vice, and were not such as the servant intended and believed
- •8 Rounds I'. Delaware, &c. R., supra.
- •It is not a bar to the plaintiff's recovery that he provoked
- •If so the master is liable, although the provocation may be
- •It is shown that the administrators of the charity were them-
- •In either case the test is whether the act was done by the agent
- •In the performance of his business, and is an act within the
- •Violation of revenue laws, licensing laws, health hiws, and in
- •In the course of the employment, —
- •In case the prohibited act is done in the conduct of his busi-
- •It is immaterial whether the failure to comply with the statu-
- •1 Comm. I'. Morgan, 107 Mass. 199. See also Bisliop, dim. Law, "Vol. 1.,
- •Impose a penalty for any violation of the conditions, whether
- •Ing diluted or skimmed milk should be recoverable by
- •In the course of the employment, and in his behalf or interest,
- •330 Liability of master
- •Istrative acts.
- •It will be recalled that the distinction between an agent
- •Vice-principal in the sense that his act is the act of the
- •It will also be recalled that the distinction thus made
- •It will also be recalled that the same employee may be both
- •Indeed, insist that an employee whose chief duties are admin-
- •Istrative shall always be regarded as a vice-principal whatever
- •Vant committed within the scope of the employment, there is
- •Instances of who are and who are not "fellow-servants."
- •In the decision of that case. The earliest actual decision was
- •1841. The leading American case is that of Farwell V. Boston
- •Inconvenience in specific cases. Finally the whole matter is
- •In others. The English and Massachusetts cases were imme-
- •In order that the rule should apply it is necessary that the
- •Vants employed in the same service. They must have a
- •In their relation to the servants of the employer of the inde-
- •In such a way as to cut up the railroad business into different
- •It is everywhere admitted that two servants of the same
- •In the ocean carrying trade, the seamen on one of his vessels
- •Injury occasioned by the negligence of a fellow-servant, has
- •In authority to the one receiving the injury. . . . Where one
- •In whole or in part in a few other states. In Illinois it is
- •Inferior servant for the negligence of a superior servant, pro-
- •Vided the superior is negligent in the exercise of the power
- •Impropriety or defect in the rules, by-laws, or instructions, —
- •In the same grade, in like employment, and in the district in
- •1894, C. 499).4 Mississippi (l. 1896, c. 87) adopts substantially
- •Inferior servant for any injury due to the negligence of a su-
- •Injured servant.В®
- •10 Western, &c. Ry. V. Bishop, 50 Ga. 405; Fulton isIills V. Wilson, 89
- •In damages to his servant. These torts uuiy be either negli-
- •If the master is working with his servants in operating the
- •1 Crispin V. Babbitt, 81 n. Y. 516.
- •8 Ashwortli r. Stanwix, 3 El. & El. 701.
- •In consequence of his failure to do so. If he negligently fails
- •Inspection, he is liable to any servant injured in consequence
- •Injuries arising from a danger which he voluntai'ily and with
- •1 Sweeney V. Berlin, &c. Co., 101 n". Y. 520; Dougherty V. West Supe-
- •8 Hough V. Texas, &c. R., 100 u. S. 213 ; Northern Pac. R. V. Bab-
- •Ical Co., 147 Pa. St. 475; Haas V. Balch, 50 Fed. Rep. 984. Cf. Davis V.
- •If a master is asked the character of a servant who is or
- •360 Liability of servant
- •1. Liability to master.
- •If one intrust a horse to another as gratuitous servant or
- •If the servant agrees upon a consideration to perform a
- •4 Johns. (n. Y.) 84.
- •2 Ante, в§в§ 97-98; Whiteheafl V. Greetham, 2 Biiig. 4g4.
- •2. Liability to fellow-servant.
- •3. Liability to third persons.
- •In dealing with the liability of the servant for his torts we
- •Is liable to third persons (including fellow-servants) for his
- •If an agent never does anything toward carrrying out his con-
- •1 Thorne V. Deas, 4 Johns. (n. Y.) 84 ; ante, в§в§ 97, 286.
- •2 Osborne V. Morgan, 130 Mass. 102. And see Bell V. Josselyn, 3
- •364 Liability of servant
- •Is liable for his own negligent omissions in the management
- •89 Ilun (n. Y.), 417; Dean V. Brock, 11 Ind. App. 507.
- •In control, but not after he has surrendered control to his
- •In such cases the relief of the party injured must be sought
- •Is held that it is immaterial that there is no binding contract
- •Importance in view of the broader doctrine concerning the
- •It is also actionable to induce or persuade a master to dis-
- •It is actionable if unlawful means are used as force, intimida-
- •Is it actionable to induce or persuade a master to discharge
- •Ing the plaintiff does not carry with it immunity to the de-
- •Interfering with the plaintiff's occupation or means of liveli-
- •It will be observed that there are two different views enter-
- •1. For any money advanced, or negotiable security given by
- •2. For any money or negotiable security received by the per-
- •1 Sects. 1 and 2 are now cited as в§ 72 of " The Lien Law " (l. 1897,
- •37G appendix.
- •Instrument or otlier obligation in writing given by such other
- •Isfying such lien as may exist thereon in favor of the agent who
- •52 & 53 Vict. C. 45.
- •1. For the Purposes of this Act — (1) The expression "mer-
- •6. For the purposes of this Act an agreement made with a
- •7. ВЂ” (1) Where the owner of goods has given possession of the
- •8. Where a person, having sold goods, continues, or is, in pos-
- •Ing for him, of the goods or documents of title under any sale,
- •9. Where a person, having bought or agreed to buy goods,
- •382 Appendix.
- •Instantaneous death. If there are no such persons, then no
- •1 This paragraph was added by St. 1892, c. 200.
- •2 This paragraph was added by St. 1893, c. 3.')9.
- •Injured or by some one in his behalf; but if from physical or
- •In case of his death without having given the notice and without
- •It is shown that there was no intention to mislead, and that the
- •384 Appendix.
360 Liability of servant
CHAPTER XXVI.
servants' liability for torts.
1. Liability to master.
В§ 287. Gratuitous service.
We have already seen that if one without consideration
promises to do a service for another, that not doing the
service at all is no actionable wrong, however seriously the
promisee may be damaged thereby.^ This is a mere non-
feasance, and as there is no consideration for the promise no
action can be maintained.
But if the gratuitous agent enter upon the performance of
the duty and is negligent or unskilful where he may reason-
ably be held to have undertaken for care and skill, the em-
ployer may recover damages for the injury occasioned thereby .^
If one intrust a horse to another as gratuitous servant or
bailee to be shown to a third })erson, and the gratuitous
servant, being conversant with and skilled in horses, negli-
gently rides the horse upon slippery grounds so that it falls
and is injured, the gratuitous servant or bailee is liable.^
The distinction here taken between non-feasance and mis-
feasance in the case of a gratuitous agent or servant sued
by the employer, is taken as to a paid servant sued by a
third person who is injured in consequence of the servant's
negligence.
В§ 288. Paid service.
If the servant agrees upon a consideration to perform a
service and neglects to do so to the damage of the master,
^ Ante, §§ 29, 97 ; Wilkinson v. Coverdale, 1 Esp. 75; Thorne v. Deas,
4 Johns. (n. Y.) 84.
2 Ante, в§в§ 97-98; Whiteheafl V. Greetham, 2 Biiig. 4g4.
В« Wilson V. Brett, 11 M. & W. 113.
FOR TOUTS TO CO-SERVANT. 361
the latter may maintain an action for the loss.^ In such a
case it is immaterial whether the negligence is merely a non-
feasance or a misfeasance, since the consideration supports
the promise to act, and to act with care and skill.
For any negligence in the discharge of his duties resulting
in damage to the master, the servant is liable,^ but not for
accidental loss or injury not due to negligence.^ If, in con-
sequence of the servant's wrongful act, the master, being
himself not personally at fault, is obliged to pay damages to
a third person, he may recoup the same from the servant by
way of indemnity.*
2. Liability to fellow-servant.
В§ 289. Servant liable to co-servant for misfeasance.
There can be no doubt of one servant's liability to another
for any wilful tort.^
Notwithstanding the authority of some early cases,^ it is
established law that one servant is also liable to a fellow-
servant for negligence in the performance of the duties of the
service.'^ But some courts make a subtle distinction between
misfeasance and non-feasance, and hold the negligent servant
1 Ante, §§ 88-89.
2 Countess of Salop v. Crompton, Cro. Eiiz. 777 ; Lewson v. Kirk,
Cro. Jac. 265; Mobile, &c. R. v. Clanton, 59 Ala. 392; Gilson v. Collins,
66 111. 136.
3 Savage v. Walthew, 11 Mod. 135; Walker v. Guarantee Ass'n, 18
Q. B. 277 ; Rechtscherd v. Accommodation Bank, 47 Mo. 181 ; Page v.
Wells, 37 Mich. 415 ; Johnson v. Martin, 11 La. An. 27.
* Green v. New River Co., 4 T. R. 589 ; Pritchard v. Hitchcock,
6 M. & G. 151; Grand Trunk Ry. v. Latham, 63 Me. 177; Challiss i-.
Wylie, 35 Kans. 506 ; Oceanic, &c. Nav. Co. v. Compania, &c. Espanola,
134 N. Y. 461, 467.
6 Reg. V. Huntley, 3 Car. & K. 142.
6 Southcote V. Stanley, 1 Hurl. & N. 247 (dictum) ; Albro v. Jaquith,
4 Gray (Mass.), 99.
'' Osborne v. Morgan, 130 Mass. 102; Griffiths v. Wolfram, 22 Minn.
185; Greenberg v. Whitcomb Lumber Co., 90 Wis. 225; Lawton v.
Waite, 103 Wis. 244; Daves v. Southern Pac. Co., 98 Cal. 19; Martin v.
Louisville, &c. R., 95 Ky. 612 ; Warax v. Cincinnati, &c. R., 72 Fed.
Rep. 037.
362 LIABILITY OF SERVANT
liable to the injured servant for the former but not for the
latter.^ While the distinction is a valid one between bare
non-feasance (not doing at all) and misfeasance (doing ill
either by commission or omission after performance begun),
the distinction between commission and omission after per-
formance is once begun has led to considerable confusion.
This subject will be discussed in the succeeding sections.
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