2 N.H. 548 | Superior Court of New Hampshire | 1823
When a servant causes an injury to a third person, the master is liable for it, if he directed the injury to be done. This principle extends to all cases, where wrongs are committed by the express orders of others, whether the particular relation of master and servant exist between them or not.
In the present case the jury find, that the master did not order the fire to be kindled in the second field ; and that such order was not implied in directing him to harrow in that field seems inferable from the fact that, though the piles of wood are usually burned before harrowing ; yet the harrowing could in this case have been conveniently performed first, and to burn the piles at that time would have been dangerous. The servant also was a laborer under the daily directions of the master, and hence had less discretion to presume or imply orders, which wore not actually expressed.
The next ground on which a master is liable for wrongs of his servant, is that the wrongs are performed by the servant in the negligent and unskilful execution of business specially entrusted to the servant. 6 D. & E. 125, 411.—3 D. & E. 648.—2 Hen. Bl. 442.-1 Salk. 441.—Burr. 562.—1 Bos & Pull. 404.—4 Taunt. 649.—Reeves Dom. Re. 356.
This rests on the ground, that the master should not do an act himself, or cause it to be done, with such negligence or want of skill as to injure third persons.
But it will at. once be perceived, that this principle does not reach a wrong done by the servant, while not engaged in business of his master, such as wanton and wilful trespasses on the person or properly of others. 1 East 106, M'Manus vs. Cricket.-8 D. & E. 533.—17 Mass. Rep. 509, Foster et al. vs. Essex Bk.—5 Wheaton 326.
Nor does it reach wrongs caused by carelessness in the performance of an act, not directed by the master; asa piece of business of some third person, or of the servant himself, or ot the master, but which the master did not either expressly or impliedly direct him to perform. 1 East
When a general agent is employed, then all acts within the scope of his agency are the master’s acts ; but when a laborer works under the special orders of the master, the master is responsible only for his skill and care in executing .hose orders. 1 Bos. & Pull. 404, Bust vs. Stierman.—3 Wils. 317.—1 Ld. Ray. 264, Tubervill vs. Stump.
Thus a piece of labor might be very properly and safe-:y performed at one time, and not at another, as in this case t he setting of a fire in the neighborhood of much combustible matter. And if the master, when the fire would be highly dangerous in such a place, forebore to direct it to be kindled, and employed his servant in other business,it would be unreasonable to make him liable, if the servant before attending to that business, went in his own discretion anc3 kindled the fire to the damage of third persons.
The master, quoad hoc, is not acting in person or through ae servant; neither per sc, nor per aliud ; and the doctrine of respondeat superior does not apply to such an act, it being the sole act of the servant.
