If the primary obligation was an involuntary one, or if, being

Voluntary, it was one to which the law annexed additional

involuntary ones, we call the breach of it a tort.^

The chief subject-matter of the law of master and servant

Is tort. A servant in performing operative acts for his mas-

ter may wilfully or inadvertently cause injury to the person

or property of a third person, and such third person may be a

stranger to the service or may be a fellow-servant. The main

problem of the law of master and servant is to determine the

nature and extent of the master's liability for such torts.

Other problems concern themselves with the liability of the

master for his own personal torts resulting in injury to a ser-

Vant, with the liability of a servant for his own torts, and

with the criminal liability of a master for the offences of his

servant. But the central problem is the nature and extent

of a master's liability for the tortious acts or omissions of his

servant resulting in injury to a stranger or to another servant.

At the outset, however, it is necessary to determine that

the relation of master and servant actually exists, and this, so

far as not already treated,^ calls for preliminary discussion.

In discussing the matters characteristic of the law of mas-

ter and servant, we shall, without needlessly traversing the

1 Ante, §§ 4-6. 2 j^nte, Part I.

MASTER AND SERVANT.

ground already covered in this work, address ourselves to the

following inquiries : —

I. Who is a servant; that is, when does the relation of

master and servant exist in fact, so that the master is liable

for any of the acts or omissions of the servant ?

II. For what acts or omissions of a servant resulting in

injurv to a third person is the master liable? In connection

with this we shall inquire to what extent a master is liable

criminally, if at all, for offences committed by his servant.

We shall also inquire whether the doctrine of respondeat

superior is applicable to puljlic ofhcers and bodies.

III. For what acts or omissions of a servant resulting in

injury to a fellow-servant is the master of the two servants

liable? In connection with this we shall inrpiire for what

personal acts or omissions of his own resulting in injury to a

servant the master is liable.

IV. To what extent is a servant liable for his own torts

resulting in injury to strangers or to fellow-servants?

V. For what torts affecting the relation is a third person

liable either to the master or the servant ?

PAKT I.

WHO IS A SERVANT?

В§ 217. Introductory.

We have already noted the distinction between a servant

and an agent.^ We have now to inquire whether one who is

performing operative or ministerial acts for another is in the

conventional relation of a servant to a master or whether (1)

he is an independent contractor ; (2) his services have or

have not been transferred to a new master ; (3) he is compul-

sorily employed or in compulsory service * (4) he is a sub-

servant or a volunteer.