*SECTION 7.

Delivery to an Agent.

[*293]

A delivery of goods or money to an agent or servant in the course of his employment, is for most purposes equivalent to a delivery to the employer. (a) As to charge him in an action of trover;(b) or assumpsit for goods sold and delivered. To charge a carrier with the receipt of goods to be conveyed, it is sufficient to show a delivery to his servant usually employed in that business. (c) So in an action for money had and received, it is sufficient to show that it came to the hands of an agent employed by the party charged with it.(d) And in an action brought to recover back the deposit paid on an intended sale, it was held unnecessary to prove any more than that it was paid to the person who appeared as agent for the defendant, the seller.(e)

And though, in an action against the agent, it be [is] a defence to him that he has paid over the money to his principal,(ƒ) yet the reverse affords no defence to the principal, if the action be brought against him.(g)

(a) 10 Mod. 310; 2 Mod. 309.

(b) Str. 505. Post, ||305.||

(c) Bull. Ni. Pr. 72; Ld. Raym. 792.

(d) Mathews v. Haydon, 2 Esp. Cas. 509.

(e) 1 Camp. 339.

(f) Post, ||390.||

(g) Carey v. Webster, 1 Str. 480.

CHAPTER III.-PART III.

HOW FAR THE PRINCIPAL IS ANSWERABLE FOR NEGLIGENCE, OR WRONGFUL ACTS OF THE AGENT.

SECTION 1.

Neglect or Fraud of Agent.

1. By the employment of an agent, the employer becomes civilly responsible for his care and diligence to those who make use of him in his business.(A) For, says Lord C. J. Holt, where a trust is put in one person, and another whose interest is entrusted to him is damnified by the neglect of such as that person employs in the discharge of that trust, he shall answer for it to the party damnified.(a)

In noticing the authorities to this purpose, reference will be had to some which may seem to belong rather to the law of master and servant than to the proper subject of this treatise; but as the principles now under discussion are derived from that source, these authorities cannot be deemed irrelevant.

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*A master is responsible for the negligence or unskilfulness of a servant acting in the prosecution of his service, though not under his immediate direction.(b) Thus a smith, whose servant injures a horse

(A) || The Citizens Bank v. The Nantucket Steamboat Co. 2 Story's Rep. 36, 37, 55; Gray v. The President &c. of the Portland Bank, 3 Mass. Rep. 364; 2 Kent's Comm. 633, n. (a).||

(a) 12 Mod. 490.

(b) 1 Ld. Raym. 264. The Citizens' Bank v. The Nantucket Steam

brought to him to be shod, or a surgeon, whose servant treats a patient with gross want of skill, is liable to answer for the injury.(c) Thus also an action lies against the master for damage occasioned by his servant exercising an unruly horse in an improper place, (d) or by negligence in keeping a fire used in the master's service.(e) †And on the like principle, a landlord has been considered as prima facie liable for the act of his bailiff in taking privileged goods under a distress for rent, though not himself present at, nor participating either at the time or afterwards in the transaction. But the same learned judge who so stated the law, added, that if when the landlord came to the knowledge of the circumstances he disclaimed and repudiated the act, his liability would cease.(1)↓ Similar actions for negligence in driving carriages, (f) or navigating

boat Co. 2 Story's Rep. 50. Booth v. Mister, 7 Carr. & Payne, 66. Harriss v. Mabry, 1 Iredell's (N. C.) Rep. 240. Stone v. Codman, 15 Pick. 299. Wilson v. Beverley, 2 N. H. Rep. 548. Dixon v. Bell, Holt's N. P.

Rep. 227, in notis. Smith v. Lawrence, 2 Mann. & Ryl. 1. Martin v. Temperley, 4 Ad. & Ell. N. S. 298. Lynch v. Nurdin, 1 Ad. & Ell. N. S. 29. Earle v. Hall, 2 Metc. 353, 358.||

(c) 4 Bac. Ab. 584. || Master & Servt. K. ed. by Bouvier, vol. 6, p. 533. et seq.ll

(d) Michael v. Allestree, 2 Lev. 172.

(e) 1 Ld. Raym. 264; Salk. 13. ||Viscount Canterbury v. The Attorney General, 1 Phillips, 316, 317.||

(1) Hurry v. Rickman, 2 Moody & M. 126.4

(f) 6 T. R. 661; 2 Salk. 441, pl. 2; 1 Campb. 167. Post, ||297. If a servant driving his master's cart on his master's business, make a detour from the direct road for some purpose of his own, his master will be answerable in damages for any injury occasioned by his careless driving while so out of his road; but if a servant take his master's cart without leave, when it is not wanted for the purposes of business, and drive it about solely for his own purposes, the master will not be answerable for any injuries he may do. "The master is only liable when the servant is acting in the course of his employment. If he was going out of his way, against his master's express commands, when driving on his master's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be liable." Parke, B., Joel v. Morison, 6 Carr. & Payne, 501. If a servant without his master's knowledge, take his master's carriage out of the coach-house, and

[*296] ships,(g) or negligently packing goods to be *car

with it commit an injury, the master is not liable, because he has not in such case intrusted the servant with the carriage. But whenever the master has intrusted the servant with the control of the carriage, it is no answer that the servant acted improperly in the management of it; but the master in such case will be liable, because he has put it in the servant's power to mismanage the carriage, by intrusting him with it. Therefore, where a servant, having set his master down in Stamford street, was directed by him to put up in Castle street, Leicester square; but instead of so doing went to deliver a parcel of his own in the Old Street Road, and in returning along it, drove against an old woman and injured her, it was held that the master was responsible for his servant's act. Sleath v. Wilson, 9 Carr. & P. 607. But see Lamb v. Lady Palk, id. 629. In an action on the case for damage done to the plaintiff's cabriolet, from the negligence with which the defendant's cart was driven, the defendant will be liable, although it should appear, that the defendant's servant was not driving at the time of the accident, but had intrusted the reins to a stranger who was riding with him, and who was not in the service of the defendant. Lord Abinger, C. B. "As the defendant's servant was in the cart, I think that the reins being held by another man makes no difference. It was the same as if the servant had held them himself." Booth v. Mister, 7 Carr. & P. 66. See McLaughlin v. Pryor, 4 Mann. & Gran. 45, 46.||

(g) 8 T. S. 188. The liability of the owner of a vessel, independent of any statutory regulation, is not affected by the circumstance of there being a pilot on board. Parker, C. J. “We think that the owner of a vessel which by collision with another vessel, has caused damage through the fault or negligence of any one on board, is answerable to the injured party in respect of their property, notwithstanding there may be a pilot on board, who has the entire control and management of the vessel. It is more convenient that such owner should seek his remedy against the pilot, whom he has selected for this service, than that the injured party should; and it is more conformable to the general spirit of the law; for although the pilot holds his commission under the executive authority of the commonwealth, yet in many respects he is the servant of the owner who employs him, and in regard to the time of sailing is undoubtedly under the direction of the owner. The master in such case would not be liable, for he is answerable only in respect of his authority over the vessel, which authority is entirely superseded by that of the pilot, when the vessel is under sail within pilot ground.— The pilot is indeed put in the place of the master, and there is as much reason for the owner's liability in one case as in the other." Yates v. Brown, 8 Pick. 23. See Bussy v. Donaldson, 4 Dall. 206. Williamson v. Pierce, 16 Martin's (La.) Rep. 399. Post, 301.

A brig which was towed at the stern of a steamboat employed in the business of towing vessels in the river Mississippi below New Orleans, was

296 through the negligence of the master and crew of the steamboat, over whom those in charge of the brig had no control, brought into collision with a schooner lying at anchor: it was held that the owner of the brig was not responsible for the damage sustained by the schooner. Shaw, C. J. "The maxim respondeat superior in such cases, is well settled; but the difficulty consists in determining what facts and circumstances in legal contemplation, go to establish the relation of superior and subordinate, of master and servant, or employer and employee, in such a manner as to give effect and application to the rule. The case of a vessel towed by a steamboat, is certainly new in its facts, and could not have been anticipated by the founders of the common law; but it is one of the advantages of the common law, that it depends upon plain, equitable and practicable principles, adapted to all times and occasions, and broad and comprehensive enough to embrace new cases as they arise. The decision of this case therefore must depend upon the application of established principles and analogous cases. The owners of a vessel or coach are held liable for damages to third persons, occasioned by the negligence or unskilfulness of those who are in the management of the ship or coach; 1. Either because they are engaged or employed by them, are subject to their order, control and direction, and so are to be deemed either generally or for the particular occasion, their servants; 2. Or, in respect to their being engaged in the business or employment of the owners, conducting and carrying on such business for the profit or pleasure of the owners, by reason of which the acts done in the prosecution of such business, shall be taken civiliter to be done by the employers themselves, and this, whether the persons whose negligence is the cause of damage, have been retained and employed by the principal himself, or by the procuration of others employed by him for the purpose.— Tried by either of these principles, we think that the defendant is not responsible for damages attributable to the carelessness or want of skill of the master and crew of the towing vessel. They were not the servants of the defendant; were not appointed by him; did not receive their wages or salaries from him; the defendant had no power to remove them; had no power to order or control them in their movements; had no contract with them, but only through them, with the owners of the steamboat, for a participation in the power derived from the public use and employment of that vessel by her owners. After making such contract, it was perfectly in the power of the owners of the steamboat to appoint another master, pilot and crew, and the defendant would have no cause of complaint.-3. Nor can the master and crew of the steamboat in any intelligible sense, be considered in the employment or business of the defendant, any more than a general freighting ship, her officers and crew, can be considered as in the employment of each freighter of goods, or the master and crew of a ferry-boat, in the employment of the owners of each coach, wagon or team transported thereon.-The case most nearly resembling this, perhaps is that of a vessel chartered, where for a certain time the whole use and benefit of the ship is transferred to the charterers, but the officers are appointed and the crew engaged and subsisted by the owners,