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CHAPTER III.: PERSONS AFFECTED BY TORTS. - Sir Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law (4th ed.) 
The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law: to which is added the Draft of a Code of Civil Wrongs prepared for the Government of India, Fourth Edition (London: Stevens and Sons, 1895).
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PERSONS AFFECTED BY TORTS.
Limitations of Personal Capacity.
Personal status, as a rule, immaterial in law of tort: but capacity in fact may be material.In the law of contract various grounds of personal disability have to be considered with some care. Infants, married women, lunatics, are in different degrees and for different reasons incapable of the duties and rights arising out of contracts. In the law of tort it is otherwise. Generally speaking, there is no limit to personal capacity either in becoming liable for civil injuries, or in the power of obtaining redress for them. It seems on principle that where a particular intention, knowledge, or state of mind in the person charged as a wrong-doer is an element, as it sometimes is, in constituting the alleged wrong, the age and mental capacity of the person may and should be taken into account (along with other relevant circumstances) in order to ascertain as a fact whether that intention, knowledge, or state of mind was present. But in every case it would be a question of fact, and no exception to the general rule would be established or propounded(a) . An idiot would scarcely be held answerable for incoherent words of vituperation, though, if uttered by a sane man, they might be slander. But this would not help a monomaniac who should write libellous post-cards to all the people who had refused or neglected, say to supply him with funds to recover the Crown of England. The amount of damages recovered might be reduced by reason of the evident insignificance of such libels; but that would be all. Again, a mere child could not be held accountable for not using the discretion of a man; but an infant is certainly liable for all wrongs of omission as well as of commission in matters where he was, in the common phrase, old enough to know better. It is a matter of common sense, just as we do not expect of a blind man the same actions or readiness to act as of a seeing man.
Partial or apparent exceptions: There exist partial exceptions, however, in the case of convicts and alien enemies, and apparent exceptions as to infants and married women.
Convicts and alien enemies. A convicted felon whose sentence is in force and unexpired, and who is not “lawfully at large under any licence,” cannot sue “for the recovery of any property, debt, or damage whatsoever”(b) . An alien enemy cannot sue in his own right in any English court. Nor is the operation of the Statute of Limitations suspended, it seems, by the personal disability(c) .
Infants: contract not to be indirectly enforced by suing in tort. With regard to infants, there were certain cases under the old system of pleading in which there was an option to sue for breach of contract or for a tort. In such a case an infant could not be made liable for what was in truth a breach of contract by framing the action ex delicto. “You cannot convert a contract into a tort to enable you to sue an infant: Jennings v. Rundall”(d) . And the principle goes to this extent, that no action lies against an infant for a fraud whereby he has induced a person to contract with him, such as a false statement that he is of full age(e) .
Limits of the rule: independent wrongs. But where an infant commits a wrong of which a contract, or the obtaining of something under a contract, is the occasion, but only the occasion, he is liable. In Burnard v. Haggis(f) , the defendant in the County Court, an infant undergraduate, hired a horse for riding on the express condition that it was not to be used for jumping; he went out with a friend who rode this horse by his desire, and, making a cut across country, they jumped divers hedges and ditches, and the horse staked itself on a fence and was fatally injured. Having thus caused the horse to be used in a manner wholly unauthorized by its owner, the defendant was held to have committed a mere trespass or “independent tort”(g) , for which he was liable to the owner apart from any question of contract, just as if he had mounted and ridden the horse without hiring or leave.
Infant shall not take advantage of his own fraud. Also it has been established by various decisions in the Court of Chancery that “an infant cannot take advantage of his own fraud:” that is, he may be compelled to specific restitution, where that is possible, of anything he has obtained by deceit, nor can he hold other persons liable for acts done on the faith of his false statement, which would have been duly done if the statement had been true(h) . Thus, where an infant had obtained a lease of a furnished house by representing himself as a responsible person and of full age, the lease was declared void, and the lessor to be entitled to delivery of possession, and to an injunction to restrain the lessee from dealing with the furniture and effects, but not to damages for use and occupation (h) .
Married women: the common law. As to married women, a married woman was by the common law incapable of binding herself by contract, and therefore, like an infant, she could not be made liable as for a wrong in an action for deceit or the like, when this would have in substance amounted to making her liable on a contract(i) . In other cases of wrong she was not under any disability, nor had she any immunity; but she had to sue and be sued jointly with her husband, inasmuch as her property was the husband’s; and the husband got the benefit of a favourable judgment and was liable to the consequences of an adverse one.
Married Women’s Property Act, 1882. Since the Married Women’s Property Act, 1882, a married woman can acquire and hold separate property in her own name, and sue and be sued without joining her husband. If she is sued alone, damages and costs recovered against her are payable out of her separate property(k) . If a husband and wife sue jointly for personal injuries to the wife, the damages recovered are the wife’s separate property(l) . She may sue her own husband, if necessary, “for the protection and security of her own separate property”; but otherwise actions for a tort between husband and wife cannot be entertained(m) . That is, a wife may sue her husband in an action which under the old forms of pleading would have been trover for the recovery of her goods, or for a trespass or nuisance to land held by her as her separate property; but she may not sue him in a civil action for a personal wrong, such as assault, libel, or injury by negligence. Divorce does not enable the divorced wife to sue her husband for a personal tort committed during the coverture(n) . There is not anything in the Act to prevent a husband and wife from suing or being sued jointly according to the old practice; the husband is not relieved from liability for wrongs committed by the wife during coverture, and may still be joined as a defendant at need. If it were not so, a married woman having no separate property might commit wrongs with impunity(o) If husband and wife are now jointly sued for the wife’s wrong, and execution issues against the husband’s property, a question may possibly be raised whether the husband is entitled to indemnity from the wife’s separate property, if in fact she has any(p) .
Common law liability of infants and married women limited, according to some, to wrongs contra pacem. There is some authority for the doctrine that by the common law both infants(q) and married women(r) are liable only for “actual torts” such as trespass, which were formerly laid in pleading as contra pacem, and are not in any case liable for torts in the nature of deceit, or, in the old phrase, in actions which “sound in deceit.” But this does not seem acceptable on principle.
Corporations. As to corporations, it is evident that personal injuries, in the sense of bodily harm or offence, cannot be inflicted upon them. Neither can a corporation be injured in respect of merely personal reputation. It can sue for a libel affecting property, but not for a libel purporting to charge the corporation as a whole with corruption, for example. The individual officers or members of the corporation whose action is reflected on are the only proper plaintiffs in such a case(s) . It would seem at first sight, and it was long supposed, that a corporation also cannot be liable for personal wrongs(t) . But this is really part of the larger question of the liability of principals and employers for the conduct of persons employed by them; for a corporation can act and become liable only through its agents or servants. In that connexion we recur to the matter further on.
The greatest difficulty has been (and by some good authorities still is) felt in those kinds of cases where “malice in fact”—actual ill-will or evil motive—has to be proved.
Responsibility of public bodies for management of works, &c. under their control. Where bodies of persons, incorporated or not, are intrusted with the management and maintenance of works, or the performance of other duties of a public nature, they are in their corporate or quasi-corporate capacity responsible for the proper conduct of their undertakings no less than if they were private owners: and this whether they derive any profit from the undertaking or not(u) .
The same principle has been applied to the management of a public harbour by the executive government of a British colony(x) . The rule is subject, of course, to the special statutory provisions as to liability and remedies that may exist in any particular case(y) .
Effect of a Party’s Death.
Effect of death of either party. Actio personalis moritur cum persona. We have next to consider the effect produced on liability for a wrong by the death of either the person wronged or the wrong-doer. This is one of the least rational parts of our law. The common law maxim is actio personalis moritur cum persona, or the right of action for tort is put an end to by the death of either party, even if an action has been commenced in his lifetime. This maxim “is one of some antiquity, but its origin is obscure and post-classical”(z) . Causes of action on a contract are quite as much “personal” in the technical sense, but, with the exception of promises of marriage, and (it seems) injuries to the person by negligent performance of a contract, the maxim does not apply to these. In cases of tort not falling within statutory exceptions, to be presently mentioned, the estate of the person wronged has no claim, and that of the wrong-doer is not liable. Where an action on a tort is referred to arbitration, and one of the parties dies after the hearing but before the making of the award, the cause of action is extinguished notwithstanding a clause in the order of reference providing for delivery of the award to the personal representatives of a party dying before the award is made. Such a clause is insensible with regard to a cause of action in tort; the agreement for reference being directed merely to the mode of trial, and not extending to alter the rights of the parties(a) . A very similar rule existed in Roman law, with the modification that the inheritance of a man who had increased his estate by dolus was bound to restore the profit so gained, and that in some cases heirs might sue but could not be sued(b) . Whether derived from a hasty following of the Roman rule or otherwise, the common law knew no such variations; the maxim was absolute. At one time it may have been justified by the vindictive and quasi-criminal character of suits for civil injuries. A process which is still felt to be a substitute for private war may seem incapable of being continued on behalf of or against a dead man’s estate, an impersonal abstraction represented no doubt by one or more living persons, but by persons who need not be of kin to the deceased. Some such feeling seems to be implied in the dictum, “If one doth a trespass to me, and dieth, the action is dead also, because it should be inconvenient to recover against one who was not party to the wrong”(c) . Indeed, the survival of a cause of action was the exception in the earliest English law(d) .
A barbarous rule. But when once the notion of vengeance has been put aside, and that of compensation substituted, the rule actio personalis moritur cum persona seems to be without plausible ground. First, as to the liability, it is impossible to see why a wrong-doer’s estate should ever be exempted from making satisfaction for his wrongs. It is better that the residuary legatee should be to some extent cut short than that the person wronged should be deprived of redress. The legatee can in any case take only what prior claims leave for him, and there would be no hardship in his taking subject to all obligations, ex delicto as well as ex contractu, to which his testator was liable. Still less could the reversal of the rule be a just cause of complaint in the case of intestate succession. Then as to the right: it is supposed that personal injuries cause no damage to a man’s estate, and therefore after his death the wrong-doer has nothing to account for. But this is oftentimes not so in fact. And, in any case, why should the law, contrary to its own principles and maxims in other departments, presume it, in favour of the wrong-doer, so to be? Here one may almost say that omnia praesumuntur pro spoliatore. Personal wrongs, it is allowed, may “operate to the temporal injury” of the personal estate, but without express allegation the Court will not intend it(e) , though in the case of a wrong not strictly personal it is enough if such damage appears by necessary implication(f) . The burden should rather lie on the wrong-doer to show that the estate has not suffered appreciable damage. But it is needless to pursue the argument of principle against a rule which has been made at all tolerable for a civilized country only by a series of exceptions(g) ; of which presently.
Extension of the rule in Osborn v. Gillett. The rule has even been pushed to this extent, that the death of a human being cannot be a cause of action in a civil Court for a person not claiming through or representing the person killed, who in the case of an injury short of death would have been entitled to sue. A master can sue for injuries done to his servant by a wrongful act or neglect, whereby the service of the servant is lost to the master. But if the injury causes the servant’s death, it is held that the master’s right to compensation is gone(h) . We must say it is so held, as the decision has not been overruled, or, that I know of, judicially questioned. But the dissent of Lord Bramwell is enough to throw doubt upon it. The previous authorities are inconclusive, and the reasoning of Lord Bramwell’s (then Baron Bramwell’s) judgment is, I submit, unanswerable on principle. At all events “actio personalis moritur cum persona” will not serve in this case. Here the person who dies is the servant; his own cause of action dies with him, according to the maxim, and his executors cannot sue for the benefit of his estate(i) . But the master’s cause of action is altogether a different one. He does not represent or claim through the servant; he sues in his own right, for another injury, on another estimation of damage; the two actions are independent, and recovery in the one action is no bar to recovery in the other. Nothing but the want of positive authority can be shown against the action being maintainable. And if want of authority were fatal, more than one modern addition to the resources of the Common Law must have been rejected(k) . It is alleged, indeed, that “the policy of the law refuses to recognize the interest of one person in the death of another”(l) —a reason which would make life insurance and leases for lives illegal. Another and equally absurd reason sometimes given for the rule is that the value of human life is too great to be estimated in money: in other words, because the compensation cannot be adequate there shall be no compensation at all(m) . It is true that the action by a master for loss of service consequential on a wrong done to his servant belongs to a somewhat archaic head of the law which has now become almost anomalous; perhaps it is not too much to say that in our own time the Courts have discouraged it. This we shall see in its due place. But that is no sufficient reason for discouraging the action in a particular case by straining the application of a rule in itself absurd. Osborn v. Gillett stands in the book, and we cannot actually say it is not law; but one would like to see the point reconsidered by the Court of Appeal(n) .
Exceptions: Statutes of Ed. III. giving executors right of suit for trespasses. We now proceed to the exceptions. The first amendment was made as long ago as 1330, by the statute 4 Ed. III. c. 7, of which the English version runs thus:
Item, whereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; it is enacted that the executors in such cases shall have an action against the trespassers to recover damages in like manner as they, whose executors they be, should have had if they were in life.
The right was expressly extended to executors of executors by 25 Ed. III. st. 5, c. 5, and was construed to extend to administrators(o) . It was held not to include injuries to the person or to the testator’s freehold, and it does not include personal defamation, but it seems to extend to all other wrongs where special damage to the personal estate is shown(p) .
Of Will. IV. as to injuries to property. Then by 3 & 4 Will. IV. c. 42 (ad 1833) actionable injuries to the real estate of any person committed within six calendar months before his death may be sued upon by his personal representatives, for the benefit of his personal estate, within one year after his death: and a man’s estate can be made liable, through his personal representatives, for wrongs done by him within six calendar months before his death “to another in respect of his property, real or personal.” In this latter case the action must be brought against the wrong-doer’s representatives within six months after they have entered on their office. Under this statute the executor of a tenant for life has been held liable to the remainderman for waste committed during the tenancy(q) .
No right of action for damage to personal estate consequential on personal injury. Nothing in these statutes affects the case of a personal injury causing death, for which according to the maxim there is no remedy at all. It has been attempted to maintain that damage to the personal estate by reason of a personal injury, such as expenses of medical attendance, and loss of income through inability to work or attend to business, will bring the case within the statute of Edward III. But it is held that “where the cause of action is in substance an injury to the person,” an action by personal representatives cannot be admitted on this ground: the original wrong itself, not only its consequences, must be an injury to property(r) .
Lord Campbell’s Act: peculiar rights created by it. Railway accidents, towards the middle of the present century, brought the hardship of the common law rule into prominence. A man who was maimed or reduced to imbecility by the negligence of a railway company’s servants might recover heavy damages. If he died of his injuries, or was killed on the spot, his family might be ruined, but there was no remedy. This state of things brought about the passing of Lord Campbell’s Act (9 & 10 Vict. c. 93, ad 1846), a statute extremely characteristic of English legislation(s) . Instead of abolishing the barbarous rule which was the root of the mischief complained of, it created a new and anomalous kind of right and remedy by way of exception. It is entitled “An Act for compensating the Families of Persons killed by Accidents”: it confers a right of action on the personal representatives of a person whose death has been caused by a wrongful act, neglect, or default such that if death had not ensued that person might have maintained an action; but the right conferred is not for the benefit of the personal estate, but “for the benefit of the wife, husband, parent, and child(t) of the person whose death shall have been so caused.” The action must be commenced within twelve calendar months after the death of the deceased person (s. 3). Damages have to be assessed according to the injury resulting to the parties for whose benefit the action is brought, and apportioned between them by the jury(u) . The nominal plaintiff must deliver to the defendant particulars of those parties and of the nature of the claim made on their behalf.
By an amending Act of 1864, 27 & 28 Vict. c. 95, if there is no personal representative of the person whose death has been caused, or if no action is brought by personal representatives within six months, all or any of the persons for whose benefit the right of action is given by Lord Campbell’s Act may sue in their own names(x) .
Construction of Lord Campbell’s Act. The principal Act is inaccurately entitled to begin with (for to a lay reader “accidents” might seem to include inevitable accidents, and again, “accident” does not include wilful wrongs, to which the Act does apply); nor is this promise much bettered by the performance of its enacting part. It is certain that the right of action, or at any rate the right to compensation, given by the statute is not the same which the person killed would have had if he had lived to sue for his injuries. It is no answer to a claim under Lord Campbell’s Act to show that the deceased would not himself have sustained pecuniary loss. “The statute . . . gives to the personal representative a cause of action beyond that which the deceased would have had if he had survived, and based on a different principle”(y) . But “the statute does not in terms say on what principle the action it gives is to be maintainable, nor on what principle the damages are to be assessed; and the only way to ascertain what it does, is to show what it does not mean”(z) . It has been decided that some appreciable pecuniary loss to the beneficiaries (so we may conveniently call the parties for whose benefit the right is created) must be shown; they cannot maintain an action for nominal damages(a) ; nor recover what is called solatium in respect of the bodily hurt and suffering of the deceased, or their own affliction(b) ; they must show “a reasonable expectation of pecuniary benefit, as of right or otherwise,” had the deceased remained alive. But a legal right to receive benefit from him need not be shown(c) . Thus, the fact that a grown-up son has been in the constant habit of making presents of money and other things to his parents, or even has occasionally helped them in bad times(d) , is a ground of expectation to be taken into account in assessing the loss sustained. Funeral and mourning expenses, however, not being the loss of any benefit that could have been had by the deceased person’s continuing in life, are not admissible(e) .
Interests of survivors distinct. The interests conferred by the Act on the several beneficiaries are distinct. It is no answer to a claim on behalf of some of a man’s children who are left poorer that all his children, taken as an undivided class, have got the whole of his property(f) .
The statutory cause of action is in substitution, not cumulative. It is said that the Act does not transfer to representatives the right of action which the person killed would have had, “but gives to the representative a totally new right of action on different principles”(g) . Nevertheless the cause of action is so far the same that if a person who ultimately dies of injuries caused by wrongful act or neglect has accepted satisfaction for them in his lifetime, an action under Lord Campbell’s Act is not afterwards maintainable(h) . For the injury sued on must, in the words of the Act, be “such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof”: and this must mean that he might immediately before his death have maintained an action, which, if he had already recovered or accepted compensation, he could not do.
Scottish and American laws. In Scotland, as we have incidentally seen, the surviving kindred are entitled by the common law to compensation in these cases, not only to the extent of actual damage, but by way of solatium. In the United States there exist almost everywhere statutes generally similar to Lord Campbell’s Act; but they differ considerably in details from that Act and from one another(i) . The tendency seems to be to confer on the survivors, both in legislation and in judicial construction, larger rights than in England.
Right to follow property wrongfully taken or converted as against wrong-doer’s estate. In one class of cases there is a right to recover against a wrong-doer’s estate, notwithstanding the maxim of actio personalis, yet not so as to constitute a formal exception. When it comes to the point of direct conflict, the maxim has to prevail.
As Lord Mansfield stated the rule, “where property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor”(k) . Or, as Bowen L. J. has more fully expressed it, the cases under this head are those “in which property, or the proceeds or value of property, belonging to another, have been appropriated by the deceased person and added to his own estate or moneys.” In such cases, inasmuch as the action brought by the true owner, in whatever form, is in substance to recover property, the action does not die with the person, but “the property or the proceeds or value which, in the lifetime of the wrong-doer, could have been recovered from him, can be traced after his death to his assets” (by suing the personal representatives) “and recaptured by the rightful owner there.” But this rule is limited to the recovery of specific acquisitions or their value. It does not include the recovery of damages, as such, for a wrong, though the wrong may have increased the wrong-doer’s estate in the sense of being useful to him or saving him expense(l) .
The rule limited to recovery of specific property or its value: Phillips v. Homfray. If A. wrongfully gets and carries away coal from a mine under B.’s land, and B. sues for the value of the coal and damages, and inquiries are directed, pending which A. dies, B. is entitled as against A.’s estate to the value of the coal wrongfully taken, but not to damages for the use of the passages through which the coal was carried out, nor for the injury to the mines or the surface of the ground consequent on A.’s workings(h) .
Again, A., a manufacturer, fouls a stream with refuse to the damage of B., a lower riparian owner; B. sues A., and pending the action, and more than six months after its commencement(i) , A. dies. B. has no cause of action against A.’s representatives, for there has been no specific benefit to A.’s estate, only a wrong for which B. might in A’.s lifetime have recovered unliquidated damages(k) .
The like law holds of a director of a company who has committed himself to false representations in the prospectus, whereby persons have been induced to take shares, and have acquired a right of suit against the issuers. If he dies before or pending such a suit, his estate is not liable(l) . In short, this right against the executors or administrators of a wrong-doer can be maintained only if there is “some beneficial property or value capable of being measured, followed, and recovered”(m) . For the rest, the dicta of the late Sir George Jessel and of the Lords Justices are such as to make it evident that the maxim which they felt bound to enforce was far from commanding their approval.
Liability for the Torts of Agents and Servants.
Command of principal does not excuse agent’s wrong. Whoever commits a wrong is liable for it himself. It is no excuse that he was acting, as an agent or servant, on behalf and for the benefit of another(n) . But that other may well be also liable: and in many cases a man is held answerable for wrongs not committed by himself. The rules of general application in this kind are those concerning the liability of a principal for his agent, and of a master for his servant. Under certain conditions responsibility goes farther, and a man may have to answer for wrongs which, as regards the immediate cause of the damage, are not those of either his agents or his servants. Thus we have cases where a man is subject to a positive duty, and is held liable for failure to perform it.Cases of absolute positive duty distinguished: Here, the absolute character of the duty being once established, the question is not by whose hand an unsuccessful attempt was made, whether that of the party himself, of his servant, or of an “independent contractor”(o) , but whether the duty has been adequately performed or not. If it has, there is nothing more to be considered, and liability, if any, must be sought in some other quarter(p) . If not, the non-performance in itself, not the causes or conditions of non-performance, is the ground of liability. Special duties created by statute, as conditions attached to the grant of exceptional rights or otherwise, afford the chief examples of this kind. Here the liability attaches, irrespective of any question of agency or personal negligence, if and when the conditions imposed by the legislature are not satisfied(q) .
also duties in nature of warranty. There occur likewise, though as an exception, duties of this kind imposed by the common law. Such are the duties of common carriers, of owners of dangerous animals or other things involving, by their nature or position, special risk of harm to their neighbours; and such, to a limited extent, is the duty of occupiers of fixed property to have it in reasonably safe condition and repair, so far as that end can be assured by the due care on the part not only of themselves and their servants, but of all concerned.
The degrees of responsibility may be thus arranged, beginning with the mildest:
Modes of liability for wrongful acts, &c. of others. Apart from the cases of exceptional duty where the responsibility is in the nature of insurance or warranty, a man may be liable for another’s wrong—
(1) As having authorized or ratified that particular wrong:
(2) As standing to the other person in a relation making him answerable for wrongs committed by that person in virtue of their relation, though not specifically authorized.
The former head presents little or no difficulty. The latter includes considerable difficulties of principle, and is often complicated with troublesome questions of fact.
Command and ratification. It scarce needs authority to show that a man is liable for wrongful acts which have been done according to his express command or request, or which, having been done on his account and for his benefit, he has adopted as his own. “A trespasser may be not only he who does the act, but who commands or procures it to be done . . . who aids or assists in it . . . or who assents afterwards”(r) . This is not the less so because the person employed to do an unlawful act may be employed as an “independent contractor,” so that, supposing it lawful, the employer would not be liable for his negligence about doing it. A gas company employed a firm of contractors to break open a public street, having therefor no lawful authority or excuse; the thing contracted to be done being in itself a public nuisance, the gas company was held liable for injury caused to a foot-passenger by falling over some of the earth and stones excavated and heaped up by the contractors(s) . A point of importance to be noted in this connexion is that only such acts bind a principal by subsequent ratification as were done at the time on the principal’s behalf. What is done by the immediate actor on his own account cannot be effectually adopted by another; neither can an act done in the name and on behalf of Peter be ratified either for gain or for loss by John. “Ratum quis habere non potest, quod ipsius nomine non est gestum”(t) .
Master and servant. The more general rule governing the other and more difficult branch of the subject was expressed by Willes J. in a judgment which may now be regarded as a classical authority. “The master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master’s benefit, though no express command or privity of the master be proved”(u) .
Reason of the master’s liability. No reason for the rule, at any rate no satisfying one, is commonly given in our books. Its importance belongs altogether to the modern law, and it does not seem to be illustrated by any early authority(x) . Blackstone (i. 417) is short in his statement, and has no other reason to give than the fiction of an “implied command.” It is currently said, Respondeat superior; which is a dogmatic statement, not an explanation. It is also said, Qui facit per alium facit per se; but this is in terms applicable only to authorized acts, not to acts that, although done by the agent or servant “in the course of the service,” are specifically unauthorized or even forbidden. Again, it is said that a master ought to be careful in choosing fit servants; but if this were the reason, a master could discharge himself by showing that the servant for whose wrong he is sued was chosen by him with due care, and was in fact generally well conducted and competent: which is certainly not the law.
A better account was given by Chief Justice Shaw of Massachusetts. “This rule,” he said, “is obviously founded on the great principle of social duty, that every man in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it”(y) . This is, indeed, somewhat too widely expressed, for it does not in terms limit the responsibility to cases where at least negligence is proved. But no reader is likely to suppose that, as a general rule, either the servant or the master can be liable where there is no default at all. And the true principle is otherwise clearly enounced. I am answerable for the wrongs of my servant or agent, not because he is authorized by me or personally represents me, but because he is about my affairs, and I am bound to see that my affairs are conducted with due regard to the safety of others.
Some time later the rule was put by Lord Cranworth in a not dissimilar form: the master “is considered as bound to guarantee third persons against all hurt arising from the carelessness of himself or of those acting under his orders in the course of his business”(z) .
The statement of Willes J. that the master “has put the agent in his place to do that class of acts” is also to be noted and remembered as a guide in many of the questions that arise. A just view seems to be taken, though artificially and obscurely expressed, in one of the earliest reported cases on this branch of the law: “It shall be intended that the servant had authority from his master, it being for his master’s benefit”(a) .
Questions to be considered herein. The rule, then (on whatever reason founded), being that a master is liable for the acts, neglects, and defaults of his servants in the course of the service, we have to define further—
1. Who is a servant.
2. What acts are deemed to be in the course of service.
3. How the rule is affected when the person injured is himself a servant of the same master.
Who is a servant: responsibility goes with order and control. 1. As to the first point, it is quite possible to do work for a man, in the popular sense, and even to be his agent for some purposes, without being his servant. The relation of master and servant exists only between persons of whom the one has the order and control of the work done by the other. A master is one who not only prescribes to the workman the end of his work, but directs, or at any moment may direct the means also, or, as it has been put, “retains the power of controlling the work”(b) ; and he who does work on those terms is in law a servant for whose acts, neglects, and defaults, to the extent to be specified, the master is liable. An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand. For the acts or omissions of such a one about the performance of his undertaking his employer is not liable to strangers, no more than the buyer of goods is liable to a person who may be injured by the careless handling of them by the seller or his men in the course of delivery. If the contract, for example, is to build a wall, and the builder “has a right to say to the employer, ‘I will agree to do it, but I shall do it after my own fashion; I shall begin the wall at this end, and not at the other;’ there the relation of master and servant does not exist, and the employer is not liable”(c) . “In ascertaining who is liable for the act of a wrong-doer, you must look to the wrong-doer himself or to the first person in the ascending line who is the employer and has control over the work. You cannot go further back and make the employer of that person liable”(d) . He who controls the work is answerable for the workman; the remoter employer who does not control it is not answerable. This distinction is thoroughly settled in our law; the difficulties that may arise in applying it are difficulties of ascertaining the facts(e) . It may be a nice question whether a man has let out the whole of a given work to an “independent contractor,” or reserved so much power of control as to leave him answerable for what is done(f) .
Specific assumption of control. It must be remembered that the remoter employer, if at any point he does interfere and assume specific control, renders himself answerable, not as master, but as principal. He makes himself “dominus pro tempore.” Thus the hirer of a carriage, driven by a coachman who is not the hirer’s servant but the letter’s, is not, generally speaking, liable for harm done by the driver’s negligence(g) . But if he orders, or by words or conduct at the time sanctions, a specific act of rash or careless driving, he may well be liable(h) . Rather slight evidence of personal interference has been allowed as sufficient in this class of cases(i) .
Temporary transfer of service. One material result of this principle is that a person who is habitually the servant of A. may become, for a certain time and for the purpose of certain work, the servant of B.; and this although the hand to pay him is still A.’s. The owner of a vessel employs a stevedore to unload the cargo. The stevedore employs his own labourers; among other men, some of the ship’s crew work for him by arrangement with the master, being like the others paid by the stevedore and under his orders. In the work of unloading these men are the servants of the stevedore, not of the owner(k) . There is no “common employment” between the stevedore’s men and the seamen on board(l) .
Owners of a colliery, after partly sinking a shaft, agree with a contractor to finish the work for them, on the terms, among others, that engine power and engineers to work the engine are to be provided by the owners. The engine that has been used in excavating the shaft is handed over accordingly to the contractor; the same engineer remains in charge of it, and is still paid by the owners, but is under the orders of the contractor. During the continuance of the work on these terms the engineer is the servant not of the colliery owners but of the contractor(m) .
But where iron-founders execute specific work about the structure of a new building under a contract with the architect, and without any contract with the builder, their workmen do not become servants of the builder(n) .
“Power of controlling the work” explained. It is proper to add that the “power of controlling the work” which is the legal criterion of the relation of a master to a servant does not necessarily mean a present and physical ability. Shipowners are answerable for the acts of the master, though done under circumstances in which it is impossible to communicate with the owners(o) . It is enough that the servant is bound to obey the master’s directions if and when communicated to him. The legal power of control is to actual supervision what in the doctrine of possession the intent to possess is to physical detention. But this much is needful: therefore a compulsory pilot, who is in charge of the vessel independently of the owner’s will, and, so far from being bound to obey the owner’s or master’s orders, supersedes the master for the time being, is not the owner’s servant, and the statutory exemption of the owner from liability for such a pilot’s acts is but in affirmance of the common law(p) .
What is in course of employment. 2. Next we have to see what is meant by the course of service or employment. The injury in respect of which a master becomes subject to this kind of vicarious liability may be caused in the following ways:—
Let us take these heads in order.
Execution of specific orders. (a) Here the servant is the master’s agent in a proper sense, and the master is liable for that which he has truly, not by the fiction of a legal maxim, commanded to be done. He is also liable for the natural consequences of his orders, even though he wished to avoid them, and desired his servant to avoid them. Thus, in Gregory v. Piper(q) , a right of way was disputed between adjacent occupiers, and the one who resisted the claim ordered a labourer to lay down rubbish to obstruct the way, but so as not to touch the other’s wall. The labourer executed the orders as nearly as he could, and laid the rubbish some distance from the wall, but it soon “shingled down” and ran against the wall, and in fact could not by any ordinary care have been prevented from doing so. For this the employer was held to answer as for a trespass which he had authorized. This is a matter of general principle, not of any special kind of liability. No man can authorize a thing and at the same time affect to disavow its natural consequences; no more than he can disclaim responsibility for the natural consequences of what he does himself.
Negligence in conduct of master’s business. (b) Then comes the case of the servant’s negligence in the performance of his duty, or rather while he is about his master’s business. What constitutes negligence does not just now concern us; but it must be established that the servant is a wrong-doer, and liable to the plaintiff, before any question of the master’s liability can be entertained. Assuming this to be made out, the question may occur whether the servant was in truth on his master’s business at the time, or engaged on some pursuit of his own. In the latter case the master is not liable. “If the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of his servant in doing it”(r) . For example: “If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, . . . the master will not be liable. But if, in order to perform his master’s orders, he strikes but injudiciously, and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant’s employment”(s) .
Departure or deviation from master’s business. Whether the servant is really bent on his master’s affairs or not is a question of fact, but a question which may be troublesome. Distinctions are suggested by some of the reported cases which are almost too fine to be acceptable. The principle, however, is intelligible and rational. Not every deviation of the servant from the strict execution of duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master’s responsibility. But where there is not merely deviation, but a total departure from the course of the master’s business, so that the servant may be said to be “on a frolic of his own”(t) , the master is no longer answerable for the servant’s conduct. Two modern cases of the same class and period, one on either side of the line, will illustrate this distinction.
Whatman v. Pearson. In Whatman v. Pearson(u) , a carter who was employed by a contractor, having the allowance of an hour’s time for dinner in his day’s work, but also having orders not to leave his horse and cart, or the place where he was employed, happened to live hard by. Contrary to his instructions, he went home to dinner, and left the horse and cart unattended at his door; the horse ran away and did damage to the plaintiff’s railings. A jury was held warranted in finding that the carman was throughout in the course of his employment as the contractor’s servant “acting within the general scope of his authority to conduct the horse and cart during the day”(x) .
Storey v. Ashton. In Storey v. Ashton(y) , a carman was returning to his employer’s office with returned empties. A clerk of the same employer’s who was with him induced him, when he was near home, to turn off in another direction to call at a house and pick up something for the clerk. While the carman was driving in this direction he ran over the plaintiff. The Court held that if the carman “had been merely going a roundabout way home, the master would have been liable; but he had started on an entirely new journey on his own or his fellow-servant’s account, and could not in any way be said to be carrying out his master’s employment”(z) . More lately it has been held that if the servant begins using his master’s property for purposes of his own, the fact that by way of afterthought he does something for his master’s purposes also is not necessarily such a “re-entering upon his ordinary duties” as to make the master answerable for him. A journey undertaken on the servant’s own account “cannot by the mere fact of the man making a pretence of duty by stopping on his way be converted into a journey made in the course of his employment”(a) .
Williams v. Jones. The following is a curious example. A carpenter was employed by A. with B.’s permission to work for him in a shed belonging to B. This carpenter set fire to the shed in lighting his pipe with a shaving. His act, though negligent, having nothing to do with the purpose of his employment, A. was not liable to B.(b) . It does not seem difficult to pronounce that lighting a pipe is not in the course of a carpenter’s employment; but the case was one of difficulty as being complicated by the argument that A., having obtained a gratuitous loan of the shed for his own purposes, was answerable, without regard to the relation of master and servant, for the conduct of persons using it. This failed for want of anything to show that A. had acquired the exclusive use or control of the shed. Apart from this, the facts come very near to the case which has been suggested, but not dealt with by the Courts in any reported decision, of a miner opening his safety-lamp to get a light for his pipe, and thereby causing an explosion; where “it seems clear that the employer would not be held liable”(c) .
Excess or mistake in execution of authority. (c) Another kind of wrong which may be done by a servant in his master’s business, and so as to make the master liable, is the excessive or erroneous execution of a lawful authority. To establish a right of action against the master in such a case it must be shown that (α) the servant intended to do on behalf of his master something of a kind which he was in fact authorized to do; (β) the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to exist, would have been lawful.
The master is chargeable only for acts of an authorized class which in the particular instance are wrongful by reason of excess or mistake on the servant’s part. For acts which he has neither authorized in kind nor sanctioned in particular he is not chargeable.
Interference with passengers by guards, &c. Most of the cases on this head have arisen out of acts of railway servants on behalf of the companies. A porter whose duty is, among other things, to see that passengers do not get into wrong trains or carriages (but not to remove them from a wrong carriage), asks a passenger who has just taken his seat where he is going. The passenger answers, “To Macclesfield.” The porter, thinking the passenger is in the wrong train, pulls him out; but the train was in fact going to Macclesfield, and the passenger was right. On these facts a jury may well find that the porter was acting within his general authority so as to make the company liable(d) . Here are both error and excess in the servant’s action: error in supposing facts to exist which make it proper to use his authority (namely, that the passenger has got into the wrong train); excess in the manner of executing his authority, even had the facts been as he supposed. But they do not exclude the master’s liability.
“A person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done, and trusts him for the manner in which it is done; and consequently he is held responsible for the wrong of the person so intrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment”(e) .
Seymour v. Greenwood(f) is another illustrative case of this class. The guard of an omnibus removed a passenger whom he thought it proper to remove as being drunken and offensive to the other passengers, and in so doing used excessive violence. Even if he were altogether mistaken as to the conduct and condition of the passenger thus removed, the owner of the omnibus was answerable. “The master, by giving the guard authority to remove offensive passengers, necessarily gave him authority to determine whether any passenger had misconducted himself.”
Arrest of supposed offenders. Another kind of case under this head is where a servant takes on himself to arrest a supposed offender on his employer’s behalf. Here it must be shown, both that the arrest would have been justified if the offence had really been committed by the party arrested, and that to make such an arrest was within the employment of the servant who made it. As to the latter point, however, “where there is a necessity to have a person on the spot to act on an emergency, and to determine whether certain things shall or shall not be done, the fact that there is a person on the spot who is acting as if he had express authority is prima facie evidence that he had authority”(g) . Railway companies have accordingly been held liable for wrongful arrests made by their inspectors or other officers as for attempted frauds on the company punishable under statutes or authorized by-laws, and the like(h) .
Act wholly outside authority, master not liable. But the master is not answerable if the servant takes on himself, though in good faith and meaning to further the master’s interest, that which the master has no right to do even if the facts were as the servant thinks them to be: as where a station-master arrested a passenger for refusing to pay for the carriage of a horse, a thing outside the company’s powers(i) . The same rule holds if the particular servant’s act is plainly beyond his authority, as where the officer in charge of a railway station arrests a man on suspicion of stealing the company’s goods, an act which is not part of the company’s general business, nor for their apparent benefit(k) . In a case not clear on the face of it, as where a bank manager commences a prosecution, which turns out to be groundless, for a supposed theft of the bank’s property—a matter not within the ordinary routine of banking business, but which might in the particular case be within the manager’s authority—the extent of the servant’s authority is a question of fact(l) . Much must depend on the nature of the matter in which the authority is given. Thus an agent entrusted with general and ample powers for the management of a farm has been held to be clearly outside the scope of his authority in entering on the adjacent owner’s land on the other side of a boundary ditch in order to cut underwood which was choking the ditch and hindering the drainage from the farm. If he had done something on his employer’s own land which was an actionable injury to adjacent land, the employer might have been liable. But it was thought unwarrantable to say “that an agent entrusted with authority to be exercised over a particular piece of land has authority to commit a trespass on other land”(m) . More generally, an authority cannot be implied for acts not necessary to protect the employer’s property, such as arresting a customer for a supposed attempt to pass bad money(n) .
Wilful trespasses, &c. for master’s purposes. (d) Lastly, a master may be liable even for wilful and deliberate wrongs committed by the servant, provided they be done on the master’s account and for his purposes: and this, no less than in other cases, although the servant’s conduct is of a kind actually forbidden by the master. Sometimes it has been said that a master is not liable for the “wilful and malicious” wrong of his servant. If “malicious” means “committed exclusively for the servant’s private ends,” or “malice” means “private spite”(o) , this is a correct statement; otherwise it is contrary to modern authority. The question is not what was the nature of the act in itself, but whether the servant intended to act in the master’s interest.
This was decided by the Exchequer Chamber in Limpus v. London General Omnibus Company(p) , where the defendant company’s driver had obstructed the plaintiff’s omnibus by pulling across the road in front of it, and caused it to upset. He had printed instructions not to race with or obstruct other omnibuses. Martin B. directed the jury, in effect, that if the driver acted in the way of his employment and in the supposed interest of his employers as against a rival in their business, the employers were answerable for his conduct, but they were not answerable if he acted only for some purpose of his own: and this was approved by the Court(q) above. The driver “was employed not only to drive the omnibus, but also to get as much money as he could for his master, and to do it in rivalry with other omnibuses on the road. The act of driving as he did is not inconsistent with his employment, when explained by his desire to get before the other omnibus.” As to the company’s instructions, “the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability”(r) .
Fraud of agent or servant. That an employer is liable for frauds of his servant committed without authority, but in the course of the service and in apparent furtherance of the employer’s purposes, was established with more difficulty; for it seemed harsh to impute deceit to a man personally innocent of it, or (as in the decisive cases) to a corporation, which, not being a natural person, is incapable of personal wrong-doing(s) . But when it was fully realized that in all these cases the master’s liability is imposed by the policy of the law without regard to personal default on his part, so that his express command or privity need not be shown, it was a necessary consequence that fraud should be on the same footing as any other wrong(t) . So the matter is handled in our leading authority, the judgment of the Exchequer Chamber delivered by Willes J. in Barwick v. English Joint Stock Bank.
“With respect to the question, whether a principal is answerable for the act of his agent in the course of his master’s business, and for his master’s benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong”(u) .
This has been more than once fully approved in the Privy Council(x) , and may now be taken, notwithstanding certain appearances of conflict(y) , to have the approval of the House of Lords also(z) . What has been said to the contrary was either extra-judicial, as going beyond the ratio decidendi of the House, or is to be accepted as limited to the particular case where a member of an incorporated company, not having ceased to be a member, seeks to charge the company with the fraud of its directors or other agents in inducing him to join it(a) .
But conversely a false and fraudulent statement of a servant made for ends of his own, though in answer to a question of a kind he was authorized to answer on his master’s behalf, will not render the master liable in an action for deceit(b) .
The leading case of Mersey Docks Trustees v. Gibbs(c) may also be referred to in this connexion, as illustrating the general principles according to which liabilities are imposed on corporations and public bodies.
Liability of firm for fraud of a partner. There is abundant authority in partnership law to show that a firm is answerable for fraudulent misappropriation of funds, and the like, committed by one of the partners in the course of the firm’s business and within the scope of his usual authority, though no benefit be derived therefrom by the other partners. But, agreeably to the principles above stated, the firm is not liable if the transaction undertaken by the defaulting partner is outside the course of partnership business. Where, for example, one of a firm of solicitors receives money to be placed in a specified investment, the firm must answer for his application of it, but not, as a rule, if he receives it with general instructions to invest it for the client at his own discretion(d) . Again, the firm is not liable if the facts show that exclusive credit was given to the actual wrong-doer(e) . In all these cases the wrong is evidently wilful. In all or most of them, however, it is at the same time a breach of contract or trust. And it seems to be on this ground that the firm is held liable even when the defaulting partner, though professing to act on behalf of the firm, misapplies funds or securities merely for his own separate gain. The reasons given are not always free from admixture of the Protean doctrine of “making representations good,” which is now, I venture to think, exploded(f) .
Injuries to servants by fault of fellow-servants. 3. There remains to be considered the modification of a master’s liability for the wrongful act, neglect, or default of his servant when the person injured is himself in and about the same master’s service. It is a topic far from clear in principle; the Employers’ Liability Act, 1880, has obscurely indicated a sort of counter principle, and introduced a number of minute and empirical exceptions, or rather limitations of the exceptional rule in question. That rule,Common law rule of master’s immunity. as it stood before the Act of 1880, is that a master is not liable to his servant for injury received from any ordinary risk of or incident to the service, including acts or defaults of any other person employed in the same service. Our law can show no more curious instance of a rapid modern development. The first evidence of any such rule is in Priestley v. Fowler(g) , decided in 1837, which proceeds on the theory (if on any definite theory) that the master “cannot be bound to take more care of the servant than he may reasonably be expected to do of himself;” that a servant has better opportunities than his master of watching and controlling the conduct of his fellow-servants; and that a contrary doctrine would lead to intolerable inconvenience, and encourage servants to be negligent. According to this there would be a sort of presumption that the servant suffered to some extent by want of diligence on his own part. But it is needless to pursue this reasoning; for the like result was a few years afterwards arrived at by Chief Justice Shaw of Massachusetts by another way, and in a judgment which is the fountain-head of all the later decisions(h) , and has now been judicially recognized in England as “the most complete exposition of what constitutes common employment”(i) . The accepted doctrine is to this effect.Reason given in the later cases. Strangers can hold the master liable for the negligence of a servant about his business. But in the case where the person injured is himself a servant in the same business he is not in the same position as a stranger. He has of his free will entered into the business and made it his own. He cannot say to the master, You shall so conduct your business as not to injure me by want of due care and caution therein. For he has agreed with the master to serve in that business, and his claims on the master depend on the contract of service. Why should it be an implied term of that contract, not being an express one, that the master shall indemnify him against the negligence of a fellow-servant, or any other current risk? It is rather to be implied that he contracted with the risk before his eyes, and that the dangers of the service, taken all round, were considered in fixing the rate of payment. This is, I believe, a fair summary of the reasoning which has prevailed in the authorities. With its soundness we are not here concerned. It was not only adopted by the House of Lords for England, but forced by them upon the reluctant Courts of Scotland to make the jurisprudence of the two countries uniform(k) . No such doctrine appears to exist in the law of any other country in Europe. The following is a clear judicial statement of it in its settled form: “A servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellow-servant when he is acting in the discharge of his duty as servant of him who is the common master of both”(l) .
The servants need not be about the same kind of work: The phrase “common employment” is frequent in this class of cases. But it is misleading in that it suggests a limitation of the rule to circumstances where the injured servant had in fact some opportunity of observing and guarding against the conduct of the negligent one; a limitation rejected by the Massachusetts Court in Farwell’s case, where an engine-driver was injured by the negligence of a switchman (pointsman as we say on English railways) in the same company’s service, and afterwards constantly rejected by the English Courts.
“When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be to be in the same or different departments. In a blacksmith’s shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight or voice, and yet acting together.
“Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety when he is employed in immediate connexion with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied”(m) .
provided there is a general common object. So it has been said that “we must not over-refine, but look at the common object, and not at the common immediate object”(n) . All persons engaged under the same employer for the purposes of the same business, however different in detail those purposes may be, are fellow-servants in a common employment within the meaning of this rule: for example, a carpenter doing work on the roof of an engine-shed and porters moving an engine on a turntable(o) . “Where there is one common general object, in attaining which a servant is exposed to risk, he is not entitled to sue the master if he is injured by the negligence of another servant whilst engaged in furthering the same object”(p) .
Relative rank of the servants immaterial. It makes no difference if the servant by whose negligence another is injured is a foreman, manager, or other superior in the same employment, whose orders the other was by the terms of his service bound to obey. The foreman or manager is only a servant having greater authority: foremen and workmen, of whatever rank, and however authority and duty may be distributed among them, are “all links in the same chain”(q) . So the captain employed by a shipowner is a fellow-servant of the crew, and a sailor injured by the captain’s negligence has no cause of action against the owner(r) . The master is bound, as between himself and his servants, to exercise due care in selecting proper and competent persons for the work (whether as fellow-workmen in the ordinary sense, or as superintendents or foremen), and to furnish suitable means and resources to accomplish the work(s) , and he is not answerable further(t) .
Servants of sub-contractor. Attempts have been made to hold that the servants of sub-contractors for portions of a general undertaking were for this purpose fellow-servants with the servants directly employed by the principal contractors, even without evidence that the sub-contractors’ work was under the direction or control of the chief contractors. This artificial and unjust extension of a highly artificial rule has fortunately been stopped by the House of Lords(u) .
Volunteer assistant is on same footing as servant. Moreover, a stranger who gives his help without reward to a man’s servants engaged in any work is held to put himself, as regards the master’s liability towards him, in the same position as if he were a servant. Having of his free will (though not under a contract of service) exposed himself to the ordinary risks of the work and made himself a partaker in them, he is not entitled to be indemnified against them by the master any more than if he were in his regular employment(x) . This is really a branch of the doctrine “volenti non fit iniuria,” discussed below under the title of General Exceptions.
Exception where the master interferes in person. On the other hand, a master who takes an active part in his own work is not only himself liable to a servant injured by his negligence, but, if he has partners in the business, makes them liable also. For he is the agent of the firm, but not a servant(y) : the partners are generally answerable for his conduct, yet cannot say he was a fellow-servant of the injured man.
Employers’ Liability Act, 1880. Such were the results arrived at by a number of modern authorities, which it seems useless to cite in more detail(z) : the rule, though not abrogated, being greatly limited in application by the statute of 1880. This Act (43 & 44 Vict. c. 42) is on the face of it an experimental and empirical compromise between conflicting interests. It was temporary, being enacted only for seven years and the next session of Parliament, and since continued from time to time(a) ; it is confined in its operation to certain specified causes of injury; and only certain kinds of servants are entitled to the benefit of it, and then upon restrictive conditions as to notice of action, mode of trial, and amount of compensation, which are unknown to the common law, and with a special period of limitation. The effect is that a “workman” within the meaning of the Act is put as against his employer in approximately (not altogether, I think) the same position as an outsider as regards the safe and fit condition of the material instruments, fixed or moveable, of the master’s business. He is also entitled to compensation for harm incurred through the negligence of another servant exercising superintendence, or by the effect of specific orders or rules issued by the master or some one representing him; and there is a special wider provision for the benefit of railway servants, which virtually abolishes the master’s immunity as to railway accidents in the ordinary sense of that term. So far as the Act has any principle, it is that of holding the employer answerable for the conduct of those who are in delegated authority under him. It is noticeable that almost all the litigation upon the Act has been caused either by its minute provisions as to notice of action, or by desperate attempts to evade those parts of its language which are plain enough to common sense. The text of the Act, and references to the decisions upon it, will be found in the Appendix (Note B).
Resulting complication of the law. On the whole we have, in a matter of general public importance and affecting large classes of persons who are neither learned in the law nor well able to procure learned advice, the following singularly intricate and clumsy state of things.
First, there is the general rule of a master’s liability for his servants (itself in some sense an exceptional rule to begin with).
Secondly, the immunity of the master where the person injured is also his servant.
Thirdly, in the words of the marginal notes of the Employers’ Liability Act, “amendment of law” by a series of elaborate exceptions to that immunity.
Fourthly, “exceptions to amendment of law” by provisoes which are mostly but not wholly re-statements of the common law.
Fifthly, minute and vexatious regulations as to procedure in the cases within the first set of exceptions.
It is incredible that such a state of things should nowadays be permanently accepted either in substance or in form. This, however, is not the place to discuss the principles of the controversy, which I have attempted to do elsewhere(b) . In the United States the doctrine laid down by the Supreme Court of Massachusetts in Farwell’s case has been very generally followed(c) . Except in Massachusetts, however, an employer does not so easily avoid responsibility by delegating his authority, as to choice of servants or otherwise, to an intermediate superintendent(d) . There has been a good deal of State legislation, but mostly for the protection of railway servants only. Massachusetts has a more recent and more comprehensive statute based on the English Act of 1880(e) . A collection of more or less detailed reports “on the laws regulating the liability of employers in foreign countries” has been published by the Foreign Office(f) .
[(a) ]Ulpian, in D. 9, 2, ad leg. Aquil. 5, § 2. Quaerimus, si furiosus damnum dederit, an legis Aquiliae actio sit? Et Pegasus negavit: quae enim in eo culpa sit, cum suae mentis non sit? Et hoc est verissimum. . . . Quod si impubes id fecerit, Labeo ait, quia furti tenetur, teneri et Aquilia eum; et hoc puto verum, si sit iam iniuriae capax.
[(b) ]33 & 34 Vict. c. 23, ss. 8, 30. Can he sue for an injunction? Or for a dissolution of marriage or judicial separation?
[(c) ]See De Wahl v. Braune (1856) 1 H. & N. 178, 25 L. J. Ex. 343 (alien enemy: the law must be the same of a convict).
[(d) ]8 T. R. 335, 4 R. R. 680, thus cited by Parke B., Fairhurst v. Liverpool Adelphi Loan Association (1854) 9 Ex. 422, 23 L. J. Ex. 163.
[(e) ]Johnson v. Pie, 1 Sid. 258, &c. See the report fully cited by Knight Bruce, V.-C. (1847) in Stikeman v. Dawson, 1 De G. & Sm. at p. 113; cp. the remarks at p. 110.
[(f) ]14 C. B. N. S. 45, 32 L. J. C. P. 189 (1863).
[(g) ]See per Willes J. If the bailment had been at will, the defendant’s act would have wholly determined the bailment, and under the old forms of pleading he would have been liable at the owner’s election in case or in trespass vi et armis. See Litt. s. 71.
[(h) ]Lemprière v. Lange (1879) 12 Ch. D. 675; and see other cases in the writer’s “Principles of Contract,” p. 74, 6th ed.
[(i) ]Fairhurst v. Liverpool Adelphi Loan Association (1854) 9 Ex. 422, 23 L. J. Ex. 163.
[(k) ]45 & 46 Vict. c. 75, s. 1. The right of action given by the statute applies to a cause of action which arose before it came into operation: Weldon v. Winslow (1884) 13 Q. B. Div. 784, 53 L. J. Q. B. 528. In such case the Statute of Limitation runs not from the committing of the wrong, but from the commencement of the Act: Lowe v. Fox (1885) 15 Q. B. Div. 667, 54 L. J. Q. B. 561.
[(l) ]Beasley v. Roney, ’91, 1 Q. B. 509, 60 L. J. Q. B. 408.
[(m) ]Sect. 12. A trespasser on the wife’s separate property cannot justify under the husband’s authority. Whether the husband himself could justify entering a house, his wife’s separate property, acquired as such before or since the Act, in which she is living apart, quaere: Weldon v. De Bathe (1884) 14 Q. B. Div. 339, 54 L. J. Q. B. 113.
[(n) ]Phillips v. Barnet (1876) 1 Q. B. Div. 436, 45 L. J. Q. B. 277.
[(o) ]Seroka v. Kattenburg (1886) 17 Q. B. Div. 177, 55 L. J. Q. B. 375.
[(p) ]Sect. 13, which expressly provides for ante-nuptial liabilities, is rather against the existence of such a right.
[(q) ]Johnson v. Pie, p. 50, supra (a dictum wider than the decision).
[(r) ]Wright v. Leonard (1861) 11 C. B. N. S. 258, 30 L. J. C. P. 365, by Erle C. J. and Byles J., against Willes J. and Williams J. The judgment of Willes J. seems to me conclusive.
[(s) ]Mayor of Manchester v. Williams, ’91, 1 Q. B. 94, 60 L. J. Q. B. 23.
[(t) ]The difficulty felt in earlier times was one purely of process; not that a corporation was metaphysically incapable of doing wrong, but that it was not physically amenable to capias or exigent: 22 Ass. 100, pl. 67, and other authorities collected by Serjeant Manning in the notes to Maund v. Monmouthshire Canal Co., 4 M. & G. 452. But it was decided in the case just cited (1842) that trespass, as earlier in Yarborough v. Bank of England (1812) 16 East 6, 14 R. R. 272, that trover, would lie against a corporation aggregate. In Massachusetts a corporation has been held liable for the publication of a libel: Fogg v. Boston and Lowell R. Co. (1889) 148 Mass. 513. And see per Lord Bramwell, 11 App. Ca. at p. 254.
[(u) ]Mersey Docks Trustees v. Gibbs (1864-6) L. R. 1 H. L. 93, 35 L. J. Ex. 225: see the very full and careful opinion of the judges delivered by Blackburn J., L. R. 1 H. L. pp. 102 sqq., in which the previous authorities are reviewed.
[(x) ]Reg. v. Williams (appeal from New Zealand) 9 App. Ca. 418.
[(y) ]L. R. 1 H. L. 107, 110.
[(z) ]Bowen and Fry L.JJ., Finlay v. Chirney (1888) 20 Q. B. Div. 494, 502, 57 L. J. Q. B. 247: see this judgment on the history of the maxim generally.
[(a) ]Bowker v. Evans (1885) 15 Q. B. Div. 565, 54 L. J. Q. B. 421.
[(b) ]I. iv. 12, de perpetuis et temporalibus actionibus, 1. Another difference in favour of the Roman law is that death of a party after litis contestatio did not abate the action in any case. It has been conjectured that personalis in the English maxim is nothing but a misreading of poenalis.
[(c) ]Newton C. J. in Year-Book 19 Hen. VI. 66, pl. 10 (ad 1440-41).
[(d) ]20 Q. B. Div. 503.
[(e) ]Chamberlain v. Williamson, 2 M. & S. at p. 414, 15 R. R. at p. 297.
[(f) ]Ticycross v. Grant (1878) 4 C. P. Div. 40, 48 L. J. C. P. 1.
[(g) ]Cp. Bentham, Traités de Législation, vol. ii. pt. 2, c. 10.
[(h) ]Osborn v. Gillett (1873) L. R. 8 Ex. 88, 42 L. J. Ex. 53, diss. Bramwell B.
[(i) ]Under Lord Campbell’s Act (infra) they may have a right of suit for the benefit of certain persons, not the estate as such.
[(k) ]E.g. Collen v. Wright, Ex. Ch. 8 E. & B. 647, 27 L. J. Q. B. 215 (agent’s implied warranty of authority—a doctrine introduced, by the way, for the very purpose of escaping the iniquitous effect of the maxim now in question, by getting a cause of action in contract which could be maintained against executors); Lumley v. Gye (1853) 2 E. & B. 216, 22 L. J. Q. B. 463, which we shall have to consider hereafter.
[(l) ]L. R. 8 Ex. at p. 90, arg.
[(m) ]The Roman lawyers, however, seem to have held a like view. “Liberum corpus nullam recipit aestimationem:” D. 9. 3, de his qui effud., 1, § 5; cf. h. t. 7, and D. 9. 1, si quadrupes, 3. See Grueber on the Lex Aquilia, p. 17. As to the law of Scotland, see L. Q. R. x. 182.
[(n) ]Cp. Mr. Horace Smith’s remarks on this case (Smith on Negligence, 2nd ed. 256).
[(o) ]See note to Pinchon’s case, 9 Co. Rep. 89 a, vol. v. p. 161 in ed. 1826.
[(p) ]Twycross v. Grant (1878) 4 C. P. Div. 40, 45, 48 L. J. C. P. 1; Hatchard v. Mège (1887) 18 Q. B. D. 771, 56 L. J. Q. B. 397; Oakey v. Dalton (1887) 35 Ch. D. 700, 56 L. J. Ch. 823.
[(q) ]Woodhouse v. Walker (1880) 5 Q. B. Div. 404, 49 L. J. Q. B. 609.
[(r) ]Pulling v. G. E. R. Co. (1882) 9 Q. B. D. 110, 51 L. J. Q. B. 453; cp. Leggott v. G. N. R. Co. (1876) 1 Q. B. D. 599, 45 L. J. Q. B. 557; the earlier case of Bradshaw v. Lancashire and Yorkshire R. Co. (1875) L. R. 10 C. P. 189, 44 L. J. C. P. 148, is doubted, but distinguished as being on an action of contract.
[(s) ]It appears to have been suggested by the law of Scotland, which already gave a remedy: see Campbell on Negligence, 20 (2nd edit.); and Blake v. Midland R. Co. (1852) 18 Q. B. 93, 21 L. J. Q. B. 233 (in argument for plaintiff).
[(t) ]“Parent” includes father and mother, grandfather and grandmother, stepfather and stepmother. “Child” includes son and daughter, grandson and granddaughter, stepson and stepdaughter: sect. 5. It does not include illegitimate children: Dickinson v. N. E. R. Co. (1863) 2 H. & C. 735, 33 L. J. Ex. 91. There is no reason to doubt that it includes an unborn child. See The George and Richard (1871) L. R. 3 A. & E. 466, which, however, is not of judicial authority on this point, for a few months later (Smith v. Brown (1871) L. R. 6 Q. B. 729) the Court of Queen’s Bench held in prohibition that the Court of Admiralty had no jurisdiction to entertain claims under Lord Campbell’s Act; and after some doubt this opinion has been confirmed by the House of Lords: Seward v. The Vera Cruz (1884) 10 App. Ca. 59, overruling The Franconia (1877) 2 P. D. 163.
[(u) ]Where a claim of this kind is satisfied by payment to executors without an action being brought, the Court will apportion the fund, in proceedings taken for that purpose in the Chancery Division, in like manner as a jury could have done: Bulmer v. Bulmer (1883) 25 Ch. D. 409.
[(x) ]Also, by sect. 2, “money paid into Court may be paid in one sum, without regard to its division into shares” (marginal note).
[(y) ]Erle C. J., Pym v. G. N. R. Co. (1863) Ex. Ch. 4 B. & S. at p. 406.
[(z) ]Pollock C. B. in Franklin v. S. E. R. Co. (1858) 3 H. & N. at p. 213.
[(a) ]Duckworth v. Johnson (1859) 4 H. & N. 653; 29 L. J. Ex. 25.
[(b) ]Blake v. Midland R. Co. (1852) 18 Q. B. 93, 21 L. J. Q. B. 233. In Scotland it is otherwise: 1 Macq. 752, n.
[(c) ]Franklin v. S. E. R. Co. (1858) 3 H. & N. 211.
[(d) ]Hetherington v. N. E. R. Co. (1882), 9 Q. B. D. 160, 51 L. J. Q. B. 495.
[(e) ]Dalton v. S. E. R. Co. (1858) 4 C. B. N. S. 296, 27 L. J. C. P. 227, closely following Franklin v. S. E. R. Co.
[(f) ]Pym v. G. N. R. Co. (1863) 4 B. & S. 396, 32 L. J. Q. B. 377. The deceased had settled real estate on his eldest son, to whom other estates also passed as heir-at-law. As to the measure of damages where the deceased has insured his own life for the direct benefit of the plaintiff, see Grand Trunk R. of Canada v. Jennings (1888) 13 App. Ca. 800, 58 L. J. P. C. 1.
[(g) ]18 Q. B. at p. 110.
[(h) ]Read v. G. E. R. Co. (1868) L. R. 3 Q. B. 555, 37 L. J. Q. B. 278.
[(i) ]Cooley on Torts (Chicago, 1880) 262 sqq.; Shearman & Redfield on Negligence, ss. 293 sqq. In Arkansas the doctrine of actio personalis, &c. appears to have been wholly abrogated by statute: ib. s. 295.
[(k) ]Hambly v. Trott, 1 Cowp. 375.
[(l) ]The technical rule was that executors could not be sued in respect of an act of their testator in his lifetime in any form of action in which the plea was not guilty: Hambly v. Trott, 1 Cowp. 375.
[(h) ]Phillips v. Homfray (1883) 24 Ch. Div. 439, 454, 52 L. J. Ch. 833. The authorities are fully examined in the judgment of Bowen and Cotton L.JJ. As to allowing interest in such cases, see Phillips v. Homfray, ’92, 1 Ch. 465, 61 L. J. Ch. 210, C. A.
[(i) ]3 & 4 Will. IV. c. 42, p. 60, above.
[(k) ]Kirk v. Todd (1882) 21 Ch. Div. 484, 52 L. J. Ch. 224.
[(l) ]Peek v. Gurney (1873) L. R. 6 H. L. at p. 392.
[(m) ]24 Ch. D. at p. 463.
[(n) ]Cullen v. Thomson’s Trustees and Kerr, 4 Macq. 424, 432. “For the contract of agency or service cannot impose any obligation on the agent or servant to commit or assist in the committing of fraud,” or any other wrong.
[(o) ]The distinction will be explained below.
[(p) ]See Hyams v. Webster (1868) Ex. Ch. L. R. 4 Q. B. 138, 38 L. J. Q. B. 21.
[(q) ]See Gray v. Pullen (1864) Ex. Ch. 5 B. & S. 970, 34 L. J. Q. B. 265.
[(r) ]De Grey C. J. in Barker v. Braham (1773) 2 W. Bl. 866, Bigelow, L. C. 235.
[(s) ]Ellis v. Sheffield Gas Consumers Co. (1853) 2 E. & B. 767, 23 L. J. Q. B. 42.
[(t) ]Wilson v. Tumman (1843) 6 M. & G. 236; and Serjeant Manning’s note, ib. 239.
[(u) ]Barwick v. English Joint Stock Bank (1867) Ex. Ch. L. R. 2 Ex. 259, 265, 36 L. J. Ex. 147. The point of the decision is that fraud is herein on the same footing as other wrongs: of which in due course.
[(x) ]Joseph Brown Q.C. in evidence before Select Committee on Employers’ Liability, 1876, p. 38; Brett L.J., 1877, p. 114.
[(y) ]Farwell v. Boston and Worcester Railroad Corporation (1842) 4 Met. 49, and Bigelow L. C. 688. The judgment is also reprinted in 3 Macq. 316. So, too, M. Sainctelette, a recent Continental writer on the subject, well says: “La responsabilité du fait d’autrui n’est pas une fiction inventée par la loi positive. C’est une exigence de l’ordre social:” De la Responsabilité et de la Garantie, p. 124. Paley (Mor. Phil. bk. 3, c. 11) found it difficult to refer the rule to any principle of natural justice.
[(z) ]Barton’s Hill Coal Co. v. Reid (1858) 3 Macq. 266, 283.
[(a) ]Tuberville v. Stampe (end of 17th century) 1 Ld. Raym. 264.
[(b) ]Crompton J., Sadler v. Henlock (1855) 4 E. & B. 570, 578, 24 L. J. Q. B. 138, 141.
[(c) ]Bramwell L. J., Emp. L. 1877, p. 58. An extra-judicial statement, but made on an occasion of importance by a great master of the common law.
[(d) ]Willes J., Murray v. Currie (1870) L. R. 6 C. P. 24, 27, 40 L. J. C. P. 26.
[(e) ]One comparatively early case, Bush v. Steinman, 1 B. & P. 404, disregards the rule; but that case has been repeatedly commented on with disapproval (see Reedie v. L. & N. W. R. Co. (1849), 4 Ex. 244, 20 L. J. Ex. 65), and is not now law. See the modern authorities well reviewed in Hillard v. Richardson (Sup. Court, Mass. 1855) 3 Gray 349; and in Bigelow L. C. Exactly the same distinction appears to be taken under the Code Napoléon in fixing the limits within which the very wide language of Art. 1384 is to be applied: Sainctelette, op. cit. 127.
[(f) ]Pendlebury v. Greenhalgh (1875) 1 Q. B. Div. 36, 45 L. J. Q. B. 3, differing from the view of the same facts taken by the Court of Queen’s Bench in Taylor v. Greenhalgh (1874) L. R. 9 Q. B. 487, 43 L. J. Q. B. 168.
[(g) ]Even if the driver was selected by himself: Quarman v. Burnett (1840) 6 M. & W. 499. So where a vessel is hired with its crew: Dalyell v. Tyrer (1858) 8 E. B. & E. 899, 28 L. J. Q. B. 52. So where a contractor finds horses and drivers to draw watering-carts for a municipal corporation, the driver of such a cart is not the servant of the corporation: Jones v. Corporation of Liverpool (1885) 14 Q. B. D. 890, 54 L. J. Q. B. 345; cp. Little v. Hackett (1886) 116 U.S. at pp. 371-3, 377.
[(h) ]McLaughlin v. Pryor (1842) 4 M. & G. 48.
[(i) ]Ib.; Burgess v. Gray (1845) 1 C. B. 578, 14 L. J. C. P. 184. It is difficult in either case to see proof of more than adoption or acquiescence. Cp. Jones v. Corporation of Liverpool (1885) 14 Q. B. D. at pp. 893-4, 54 L. J. Q. B. 345.
[(k) ]Murray v. Currie (1870) L. R. 6 C. P. 24, 40 L. J. C. P. 26. In this case the man was actually paid by the owner’s agent and his wages deducted in account with the stevedore, which of course makes no difference in principle. Cp. Wild v. Waygood, ’92, 1 Q. B. 783, 61 L. J. Q. B. 391, C. A.
[(l) ]Cameron v. Nystrom (J. C. from N. Z.), ’93, A. C. 308, 62 L. J. P. C. 85, 1 R. 362; cp. Union Steamship Co. v. Claridge, ’94, A. C. 185, 6 R. June, 39.
[(m) ]Rourke v. White Moss Colliery Co. (1877) 2 C. P. Div. 205, 46 L. J. C. P. 283. See also Donovan v. Laing, ’93, 1 Q. B. 629, 4 R. 317, 63 L. J. Q. B. 25, C. A.
[(n) ]Johnson v. Lindsay, ’91, A. C. 371, 65 L. T. 97.
[(o) ]See Maude and Pollock, Merchant Shipping, i. 158, 4th ed.
[(p) ]Merchant Shipping Act, 1854, s. 388; The Halley (1868) L. R. 2 P. C. at p. 201. And see Marsden on Collisions at Sea, 3rd ed. ch. 5. On the other hand there may be a statutory relation which does resemble that of master and servant for the purpose of creating a duty to the public: King v. London Improved Cab Co. (1889) 23 Q. B. Div. 281; Keen v. Henry, ’94, 1 Q. B. 292, 9 R. Feb. 164, C. A.
[(q) ]9 B. & C. 591 (1829).
[(r) ]Maule J., Mitchell v. Crassweller (1853) 13 C. B. 237, 22 L. J. C. P. 100.
[(s) ]Croft v. Alison (1821) 4 B. & A. 590.
[(t) ]Parke B., Joel v. Morison (1834) 6 C. & P. 503: a nisi prius case, but often cited with approval; see Burns v. Poulsom (1873) L. R. 8 C. P. at p. 567, 42 L. J. C. P. 302.
[(u) ]L. R. 3 C. P. 422 (1868).
[(x) ]Byles J. at p. 425.
[(y) ](1869) L. R. 4 Q. B. 476, 38 L. J. Q. B. 223. Mitchell v. Crassweller, cited on p. 77, was a very similar case.
[(z) ]Lush J. at p. 480. It was “an entirely new and independent journey, which had nothing at all to do with his employment:” Cockburn C. J. “Every step he drove was away from his duty:” Mellor J., ibid. But it could have made no difference if the accident had happened as he was coming back. See the next case.
[(a) ]Rayner v. Mitchell (1877) 2 C. P. D. 357.
[(b) ]Williams v. Jones (1865) Ex. Ch. 3 H. & C. 256, 602, 33 L. J. Ex. 297; diss. Mellor and Blackburn JJ.
[(c) ]R. S. (now Mr. Justice) Wright, Emp. L. 1876, p. 47.
[(d) ]Bayley v. Manchester, Sheffield, and Lincolnshire R. Co. (1872-3) L. R. 7 C. P. 415, 41 L. J. C. P. 278, in Ex. Ch. 8 C. P. 148, 42 L. J. C. P. 78.
[(e) ]Per Willes J., Bayley v. Manchester, Sheffield, and Lincolnshire R. Co., L. R. 7 C. P. 415, 41 L. J. C. P. 278.
[(f) ]7 H. & N. 355, 30 L. J. Ex. 189, 327, Ex. Ch. (1861).
[(g) ]Blackburn J., Moore v. Metrop. R. Co. (1872) L. R. 8 Q. B. 36, 39, 42 L. J. Q. B. 23.
[(h) ]Ib., following Goff v. G. N. R. Co. (1861) 3 E. & E. 672, 30 L. J. Q. B. 148.
[(i) ]Poulton v. L. & S. W. R. Co. (1867) L. R. 2 Q. B. 534, 36 L. J. Q. B. 294.
[(k) ]Edwards v. L. & N. W. R. Co. (1870) L. R. 5 C. P. 445, 39 L. J. C. P. 241; cp. Allen v. L. & S. W. R. Co. (1870) L. R. 6 Q. B. 65, 40 L. J. Q. B. 55.
[(l) ]Bank of New South Wales v. Owston (1879) (J. C.) 4 App. Ca. 270, 48 L. J. P. C. 25.
[(m) ]Bolingbroke v. Swindon Local Board (1874) L. R. 9 C. P. 575, 43 L. J. C. P. 575.
[(n) ]Abrahams v. Deakin, ’91, 1 Q. B. 516 (C. A.), 60 L. J. Q. B. 238.
[(o) ]See per Blackburn J., 1 H. & C. 543.
[(p) ]1 H. & C. 526, 32 L. J. Ex. 34 (1862). This and Seymour v. Greenwood (above) overrule anything to the contrary in M‘Manus v. Crickett, 1 East, 106, 5 R. R. 518.
[(q) ]Williams, Crompton, Willes, Byles, Blackburn JJ., diss. Wightman, J.
[(r) ]Willes J. 1 H. & C. at p. 539.
[(s) ]This particular difficulty is fallacious. It is in truth neither more nor less easy to think of a corporation as deceiving (or being deceived) than as having a consenting mind. In no case can a corporation be invested with either rights or duties except through natural persons who are its agents. Cp. British Mutual Banking Co. v. Charnwood Forest R. Co. (1887) 18 Q. B. Div. 714, 56 L. J. Q. B. 449.
[(t) ]It makes no difference if the fraud includes a forgery: Shaw v. Port Philip Gold Mining Co. (1884) 13 Q. B. D. 103.
[(u) ](1867) L. R. 2 Ex. at p. 265.
[(x) ]Mackay v. Commercial Bank of New Brunswick (1874) L. R. 5 P. C. 412, 43 L. J. P. C. 31; Swire v. Francis (1877) 3 App. Ca. 106, 47 L. J. P. C. 18.
[(y) ]Addie v. Western Bank of Scotland (1867) L. R. 1 Sc. & D. 145, dicta at pp. 158, 166, 167.
[(z) ]Houldsworth v. City of Glasgow Bank (1880) 5 App. Ca. 317.
[(a) ]Ib., Lord Selborne at p. 326, Lord Hatherley at p. 331; Lord Blackburn’s language at p. 339 is more cautious, perhaps for the very reason that he was a party to the decision of Barwick v. English Joint Stock Bank. Shortly, the shareholder is in this dilemma: while he is a member of the company, he is damnified by the alleged deceit, if at all, solely in that he is liable as a shareholder to contribute to the company’s debts: this liability being of the essence of a shareholder’s position, claiming compensation from the company for it involves him in a new liability to contribute to that compensation itself, which is an absurd circuity. But if his liability as a shareholder has ceased, he is no longer damnified. Therefore restitution only (by rescission of his contract), not compensation, is the shareholder’s remedy as against the company: though the fraudulent agent remains personally liable.
[(b) ]British Mutual Banking Co. v. Charnwood Forest R. Co. (1887) 18 Q. B. Div. 714, 56 L. J. Q. B. 449.
[(c) ]L. R. 1 H. L. 93 (1864-6).
[(d) ]Partnership Act, 1890, ss. 10—12. Cp. Blair v. Bromley, 2 Ph. 354, and Cleather v. Twisden (1883) 24 Ch. D. 731, with Harman v. Johnson, 2 E. & B. 61, 22 L. J. Q. B. 297.
[(e) ]Ex parte Eyre, 1 Ph. 227. See more illustrations in my “Digest of the Law of Partnership,” 5th ed. pp. 43—46.
[(f) ]I have discussed it in Appendix K. to “Principles of Contract,” 6th ed. p. 711. See now Maddison v. Alderson (1883) 8 App. Ca. at p. 473, 51 L. J. Q. B. 737.
[(g) ]3 M. & W. 1. All the case actually decided was that a master does not warrant to his servant the sufficiency and safety of a carriage in which he sends him out.
[(h) ]Farwell v. Boston and Worcester Railroad Corporation, 4 Met. 49.
[(i) ]Sir Francis Jeune in The Petrel, ’93, P. 320, 323, 1 R. 651, 653.
[(k) ]See Wilson v. Merry (1868) L. R. 1 Sc. & D. 326.
[(l) ]Erle C. J. in Tunney v. Midland R. Co. (1866) L. R. 1 C. P. at p. 296; Archibald J. used very similar language in Lovell v. Howell (1876) 1 C. P. D. at p. 167, 45 L. J. C. P. 387.
[(m) ]Shaw C. J., Farwell v. Boston, &c. Corporation, 4 Met. 49. M. Sainctelette of Brussels, and M. Sauzet of Lyons, whom he quotes (op. cit. p. 140), differ from the current view among French-speaking lawyers, and agree with Shaw C. J. and our Courts, in referring the whole matter to the contract between the master and servant; but they arrive at the widely different result of holding the master bound, as an implied term of the contract, to insure the servant against all accidents in the course of the service, and not due to the servant’s own fault or vis major.
[(n) ]Pollock C. B., Morgan v. Vale of Neath R. Co. (1865) Ex. Ch. L. R. 1 Q. B. 149, 155, 35 L. J. Q. B. 23.
[(o) ]See last note.
[(p) ]Thesiger L. J., Charles v. Taylor (1878) 3 C. P. Div. 492, 498.
[(q) ]Feltham v. England (1866) L. R. 2 Q. B. 33, 36 L. J. Q. B. 14; Wilson v. Merry (1868) L. R. 1 Sc. & D. 326: see per Lord Cairns at p. 333, and per Lord Colonsay at p. 345. The French word collaborateur, which does not mean “fellow-workman” at all, was at one time absurdly introduced into these cases, it is believed by Lord Brougham, and occurs as late as Wilson v. Merry.
[(r) ]Hedley v. Pinkney and Sons’ S. S. Co., ’92, 1 Q. B. 58, 61 L. J. Q. B. 179, C. A., affd. in H. L., ’94, A. C. 222, 6 R. Apr. 12.
[(s) ]According to some decisions, which seem on principle doubtful, he is bound only not to furnish means or resources which are to his own knowledge defective: Gallagher v. Piper (1864) 16 C. B. N. S. 669, 33 L. J. C. P. 329. And more lately it has been decided in the Court of Appeal that where a servant seeks to hold his master liable for injury caused by the dangerous condition of a building where he is employed, he must allege distinctly both that the master knew of the danger and that he, the servant, was ignorant of it: Griffiths v. London and St. Katharine Docks Co. (1884) 13 Q. B. Div. 259, 53 L. J. Q. B. 504. Cp. Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 56 L. J. Q. B. 340.
[(t) ]Lord Cairns, as above: to same effect Lord Wensleydale, Weems v. Mathieson (1861) 4 Macq. at p. 227: “All that the master is bound to do is to provide machinery fit and proper for the work, and to take care to have it superintended by himself or his workmen in a fit and proper manner.” In Skipp v. E. C. R. Co. (1853) 9 Ex. 223, 23 L. J. Ex. 23, it was said that this duty does not extend to having a sufficient number of servants for the work: sed qu. The decision was partly on the ground that the plaintiff was in fact well acquainted with the risk and had never made any complaint.
[(u) ]Johnson v. Lindsay, ’91, A. C. 371, 65 L. T. 97, overruling Wiggett v. Fox, 11 Ex. 832, 25 L. J. Ex. 188. Cp. Cameron v. Nystrom (J. C.) ’93, A. C. 308, 62 L. J. P. C. 85, 1 R. 362, p. 75, above.
[(x) ]Potter v. Faulkner (1861) Ex. Ch. 1 B. & S. 800, 31 L. J. Q. B. 30, approving Degg v. Midland R. Co. (1857) 1 H. & N. 773, 26 L. J. Ex. 174.
[(y) ]Ashworth v. Stanwix (1861) 3 E. & E. 701, 30 L. J. Q. B. 183.
[(z) ]They are well collected by Mr. Horace Smith (Law of Negligence, pp. 73—76, 2nd ed.).
[(a) ]Further legislation has been expected and attempted, but hitherto (1894) without result.
[(b) ]Essays in Jurisprudence and Ethics (1882) ch. 5. See for very full information and discussion on the whole matter the evidence taken by the Select Committees of the House of Commons in 1876 and 1877 (Parl. Papers, H. C. 1876, 372; 1877, 285). And see the final Report of the Labour Commission, 1894, Part II. Appendix V. (Memorandum on Evidence relating to Employers’ Liability).
[(c) ]See Baltimore and Ohio R. R. Co. v. Baugh (1893) 149 U. S. 368.
[(d) ]Cooley on Torts, 560; Shearman and Redfield, ss. 86, 88, 102. And see Chicago M. & S. R. Co. v. Ross (1884) 112 U. S. 377. Also a stricter view than ours is taken of a master’s duty to disclose to his servant any non-apparent risks of the employment which are within his own knowledge: Wheeler v. Mason Manufacturing Co. (1883) 135 Mass. 294.
[(e) ]See Mr. McKinney’s Article in L. Q. R. vi. 189, April 1890, at p. 197.
[(f) ]Parl. Papers, Commercial, No. 21, 1886.