the rule has been applied so as to hold a corporation and its servants and agents jointly and severally liable for injuries caused by their negligence in the conduct of its business.1

§ 389. Liability in respect to Servants. Under the common law every man is responsible for injuries occasioned by his own personal negligence, and for the negligence of those whom the law denominates his servants, while engaged in the business or work for which he employs them." He is not liable for the unauthorized malicious or willful act of his servant;3 or for his tortious act or illegal act exceeding his authority.* He is answerable for the servant's misjudgment or error in fact, and wrongful act thereon, within the scope of his employment; 5 for the servant's want of intelligence and his act of folly arising therefrom; and for the servant's failure in duty during his intoxication."

The master's liability for the acts of his servant is placed upon these grounds; first, they are done on his behalf and are therefore his acts; second, he employs or selects his servant with knowledge of his character, capacity and skill, and has the right to direct and control his conduct. The employer is the master, and must answer for the acts or misconduct of the subordinate within the line of his employment. The rule is perfectly plain and well settled; and the only difficulty in its application is generally one of fact, namely this, to ascertain the true relation in which the parties stood to each other. The master must answer for his servant's negligence, and for the negligence of one who volunteers to assist him in his labors; 10 as where the servant driving his

1 Losco v. Buchanan, supra; see 34 N. Y., 30; Suydam v. Moore, 8 Barb., 358; 13 N. Y., 42.

2 Sammell v. Wright, 5 Esp., 263; Dean v. Brauthwaite, 5 Esp., 35.

3 Fraser v. Freeman, 43 N. Y., 566; Vanderbilt v. Richmond T. Co., 2 N. Y., 479; Pittsburgh, Allegheny & Manchester P. Railway Co. v. Donahue, 70 Penn. St., 119. A boy riding on a car was willfully and wantonly struck by the driver and thrown off the car; and the car-wheel passed over him; held in a suit against the owners of the car, 1st, that they were not liable for the act of the driver in striking the boy; 2d, that they were liable for negligently driving over him.

4 Isaacs v. Third Ave. R. R. Co., 47 N. Y., 122; Mali v. Lord, 39 N. Y., 381. 'Higgins v. Watervliet T. Co., 46 N. Y., 23; 56 N. Y., 295.

Launen v. The Albany Gas Light Co., 44 N. Y., 459.

7 Chapman v. N. Y. C. R. R. Co., 33 N. Y., 369; 56 N. Y., 44, 295. Blake v. Ferris, 5 N. Y. (1 Seld.), 48; Quarman v. Burnett, 6 Mees. & Wels, 497; Rapson v. Cubitt, 9 Mees. & Wels., 709; Hobbitt v. Northwestern R. Co., 4 Wels., Hurlst. & Gordon, 254.

9 Milligan v. Wedge, 12 Adol. & Ellis, 737; Rapson v. Cubitt, supra.

10 Althorp v. Wolfe, 22 N. Y., 355; negligence in throwing snow and ice from a roof on a passer by.

master's cart, entrusts the reins to a stranger riding with him, and an injury results from his careless driving; or where a servant directs. another to do an act, within the scope of his employment, and he does it; like setting fire in brush piled in heaps on a field ready for burning.2

§ 390. The master is not answerable to third parties for the negligence of a servant, while engaged in his own private business or acting beyond the range, course or scope of his employment; as where a servant drives his master's horse and carriage or cart upon an errand or upon business of his own, without his master's knowledge or consent, and in doing so negligently runs upon or injures the carriage, horses or person of a third party. The master's liability does not rest upon the ground, that he has entrusted the servant with the horse and carriage, but on the ground that the servant is acting for the master and within the course of his employment. Hence the master is liable for the negligent act of the servant, in the prosecution of the business entrusted to him, though done in violation of instructions relating to the manner of doing the work. The duty of having the work done with proper skill and care, includes the active direction of the work; ard the master is in some cases liable precisely because of the agent's failure to fulfill his instructions with intelligence and discretion. where his driver, with the intention of rendering him a benefit, drives his omnibus across the road, blocking the way of a rival line, and causing a collision; and his liability is not lessened by the fact that his servant had express instructions not to obstruct other omnibuses, and did not observe them."

follow out and

He is so liable

§ 391. The master is civilly liable for the unlawful act of his agent or servant, where the act belongs to a class which are expressly authorized under a given state of facts, and becomes unlawful only because of the existence of a fact which was unknown to the servant; as where a

'Booth v. Wister, 7 Carr. & Payne, 66. 2 Simons v. Monier, 29 Barb., 419. 3 Sheridan v. Charlick, 4 Daly, 338; Mitchell v. Crossweller, 13 C. B., 237; Story v. Ashton, L. R., 4 Q. B., 476; see also McKennio v. McLeod, 10 Bing., 385; and Whatman v. Pearson, L. R., 3 C. P., 422.

4 Cosgrove v. Ogden, 49 N. Y., 255. This action was for negligence in piling lumber, the work being done under the direction of the defendant's foreman; see Southwick v. Estes, 7 Cush., 385; Priester v. Angley, 5 Rich., 44.

5 Weed v. Panama R. Co., 17 N. Y., 362; 49 N. Y., 255; a principal is liable for his agent's fraud in doing an authorized act; 14 N. Y., 623; 16 id., 125.

6 Bayley v. Manchester, S. & L. Ry. Co., Law Rep. 8 C. P., 153; Limpus v. London Gen. Om. Co., 1 Hur. & C., 526; Green v. The London General Om. Co., 7 Com. Fench (N. S.), 299.

' Hamilton v. Third Ave. Railroad Co., 53 N. Y., 25; Goff v. Great Northern R. C., 3 E. & E., 672; Townsend v. N. Y. C. R. R. Co., 56 N. Y., 295; 47 N. Y., 282.

conductor ejected a passenger from a car, in good faith believing he had not, when in fact he had paid his fare. The master being a corporation, must answer for the act, the same as a natural person, in compensatory damages. It being the duty of the conductor to preserve order and protect his passengers from annoyance and injury, his principal is liable for his neglect of that duty; and for the manner in which he discharges it.1

The employer may be liable for an act of trespass by his servant; as in cutting timber upon the land of an adjoining owner, when the work is done under the directions of the master or his authorized agent. The act is as truly his, as if he cut the timber by his own hand.2

§ 392. Under a hiring of the services or use of personal property where there is no bailment, the hirer does not assume the custody or care of the chattels, nor the place of master in their employment: as where a person hires a carriage and horses at a livery stable, and the owner sends with them his own driver, to take care of and drive the team. The owner here, and not the hirer, stands in the relation of master, and must answer for the negligence or misconduct of the driver. The rule respondeat superior applies only to the immediate employer, and there cannot be two superiors answerable for the same servant.*

On the other hand, the hirer of wagons, or carriages and horses, receiving them into his custody to be used by him at his pleasure, becomes a bailec, and is in no sense a servant of the owner. He is responsible to the owner for the reasonable care of them, and to third persons for any negligence of his servants in the use of them. He is liable to third persons, to the same extent as if he were the actual owner of the vehicles and teams used by him.

§ 393. Carmen carrying on business on their own account, do not stand in the relation of servants to merchants employing them to do their carting, at so much a load or at so much a package. The driver on the cart or truck, is the servant of the truckman carrying on that

Pittsburgh, F. W. & C. R. Co. v. Hinds, 53 Penn. St., 512; Flint v. Norwich & N. Y. Transp. Co., 34 Conn., 554; Putnam v. Broadway & Seventh Ave. R. R. Co., 55 N. Y., 108; Higgins v. Watervliet T. Co., 46 N. Y., 23.

2 Smith v. Webster, 23 Mich., 298.

3 Ante § 376; Laugher v. Pointer, 5 B. & C., 547; Quarman v. Barnett, 6 Mees. & Wels., 508.

Boniface v. Relyea, 6 Robt. R., 397. An undertaker who hires carriages to attend a funeral, is not liable as master for the negligence of one of the drivers. " Powels v. Hudson, 33 Eng. L. & E. Rep., 162.

6 Weyant v. N. Y. & Harlem R. Co., 3 Duer, 360; 6 M. & W., 697; 9 M. & W., 709; 38 Barb., 653; Wolse v. Mersereau, 4 Duer, 473; Coulter v. American M. U. Ex. Co., 5 Lansing, 67.

branch of business, and not the servant of the merchant whose goods he is moving; the merchant is not therefore liable for the negligence of the driver on the truck. The rule is the same where the truckman is cmployed one day in each week, to deliver provisions sold to customers at retail.2

A contractor engaging to do an entire job of work, is liable as a master for the negligence of those employed by him in its performance.3 If he engages to furnish materials, and construct or repair a building, he is liable for the negligence of those acting under him as laborers or servants; and he is not liable for the negligence of those employed by and acting under the directions of a sub-contractor for the whole or for a portion of the work; as where the contractor engages to find materials, and construct and finish a building, and then contracts with a mason to do the mason work, or with a plumber to do the plumbing, or with a painter to do the painting.5 The owner of the premises is not liable for negligence in the manner of doing the work, under the contract; and yet where the work or act done under the contract is illegal and wrongful, he is liable to a third person who sustains damages from the doing of that wrong.

7

§ 394. A general or continuous employment is not necessary to create the relation of master and servant. An employment for one occasion, or for a single purpose, will suffice. And the fact that a person in charge of a horse and riding him with the assent of the owner, and engaged in his business, is in the general employment of a third party, does not exempt the owner from liability for an injury caused by negligence in

1 McMullen v. Hoyt, 2 Daly, 271; Deforest v. Wright, 2 Mich., 368; Overton v. Freeman, 8 Eng. Law and Eq., 479; 11 C. B., 867 ; Martin v. Temperly, 4 Q. B., 293; Butler v. Hunter, 7 Hurlst. & Nor., 826.

2 Wood v. Cobb, 13 Allen, 58; here the rule was applied where the truckman being sick, got the defendant's servant, with their assent, to drive one team and assist him in delivering fish, and in so doing, the servant drove against the plaintiff.

3 Blake v. Ferris, 5 N. Y. (1 Seld.), 48; Pack v. Mayor &c. of N. Y., 8 N. Y. (4 Seld.), 222; 11 N. Y., 432; 38 Barb., 653.

4 Hilliard v. Richardson, 3 Gray (Mass.), 349; 11 Allen, 419; 102 Mass., 211; Brown v. Lent, 20 Vt., 529.

5 Rapson v. Cubitt, 9 Mees. & Wels., 710; 3 Gray, 349.

6 Ellis v. Sheffield Gas Consumers' Co., 2 Ellis & Bl., 767. The owner is liable as master, where he employs a man to clean out a drain, and pays him therefor a certain sum: Sadler v. Hemlock, 4 Ellis & Black., 570.

7 Forsyth v. Hooper, 11 Allen (Mass.), 419. The decision in this case proceeds on the ground that the party doing a job of work, i. e., hoisting a chime of bells, under a contract, stands in the relation of master to those employed in the work.

thus riding the horse. The party at whose instance a service is rendered or the work done, is liable; because he is the employer, and so responsible for the conduct and management of the business. And the rule is not affected by the circumstance, that the servant uses the machinery of a third party and calls in the aid of a bystander; as in the lowering of a box from the loft of a store, with the aid of a tackle and fall.3

It is not necessary that the servant should be employed by the master in person, or that he should be under his immediate and personal superintendence, in order to render him liable for injuries caused by the servant's neglect. The owners of a ship are responsible for goods spoiled through the default of the master of the ship, employed by them; and a warehouseman is answerable for the acts of a master porter, appointed by him and engaged in lowering goods out of his warehouse; and also for the manner in which the goods are piled as they are received, under his direction. And a party not pecuniarily interested in a transaction, is liable as a master where he provides the men to do a given work, to the exclusion of others; as in unloading vessels at a dock."

§ 395. An employer is not liable to one of his agents or servants for an injury which he sustains in consequence of the misfeasance or negli gence of another agent or servant, where both are engaged in the sam general business or employment; a rule which rests upon the ground, that each employee on entering the service takes upon himself the ordinary risks and dangers attending it, including the negligence of his fellow servants. The rule applies to the different grades of employees, where some are subject to the direction and control of others, or are engaged in different kinds of work, all tending to accomplish the same

1 Kimball v. Cushman, 103 Mass., 194; Goodman v. Kennell, 1 M. & P., 241; 3 C. & P., 167.

2 Coomes v. Houghton, 102 Mass., 211. In this case a contractor employed to construct the walls of a building, was held not liable for the negligent act of a laborer who was induced by the owner of the property to go to work upon them, though the contractor accounted with and paid the laborer for his work. 3 Stevens v. Armstrong, 6 N. Y. (2 Seld.), 435.

4 Boson v. Sanford, 2 Salk. R., 440; Annett v. Foster, 1 Daly, 502.

Randleson v. Murray, 8 Adolph. & Ellis, 109; Thomas v. Day, 4 Esp., 262; ante § 343.

6 Murphy v. Coralli, 10 Jur. N. S., 1207; 34 L. J., Exch., 14; 13 W. R., 165; 3 H. & C., 462.

7 Gibson v. Inglis, 4 Campb., 72.

Coon v. Syracuse & Utica R. R. Co., 5 N. Y. (1 Seld.), 492; Farwell v. B. & W. R. R. Co., 4 Met., 49; Priestly v. Fowler, 3 Mees. & Wels., 1; Wright v. N. Y. C. R. R. Co., 25 N. Y., 532; Judge STRONG states the ground of the rule in Sherman v. Rochester & Syracuse R. R. Co., 17 N. Y., 153, 156.