It, or (3) that the master had intrusted the servant with

such dangerous instrumentalities that the risk of their wilful

misuse ought to rest upon the master.

В§ 243. (I.) The "wrongdoer must be defendant's servant.

The doctrine of respondeat superior rests upon the relation

of master and servant. It must therefore appear that such a

relation does in fact exist. It does not exist merely because

of the relation of parent and child,^ husband and wife,^ or

employer and employee.^ It may be that the wrongdoer was

1 See ante, В§ 237. 2 gee ante, В§ 238.

8 See ante, В§ 217.

296 LIAIJILITV OF MASTER

an independent contractor,^ or a volunteer,^ in which case, sub-

ject to the qualifications liereinbcforc mentioned, the employer

is not liable for the torts of such persons. It may be that the

one sought to be charged has been compelled by law to employ

the wrongdoer.^ It may be that the employer is a public

entity or officer or public charity.* Or it may be that while

the wrongdoer is the general servant of the one sought to be

charged there has been such a temi)orary ti-ansfer of service

to another as to render the wrongdoer the servant for the time

being of the transferee.^ In all these and other cases the

question becomes a vital one whctlicr the one sought to be

charged is in fact the responsil)le master of the wrong-

doer.

In some cases there may be a presumption that the wrong-

doer was the servant of the one sought to be charged. If the

latter is the owner of a vehicle which, by negligent manage-

ment, has been the cause of injury to another, there is a pre-

sumption that the one in charge of the vehicle was the

servant of the owner, and the latter has the burden of show-

ing that the relation did not exist.^ The old notion ^ that if

the owner sent a vehicle out with his name upon it he was

estopi)ed to deny that the driver was his servant, has been

distinctly repudiated.^

There are few cases in wliich estoppel plays any part in

the law of master and servant. Yet one may be estopped to

deny that another is his servant where by so representing him

thii-d persons have been induced to intrust their person or

property to his care or treatment.^

1 See ante, В§ 218 et seq. В« See ante, В§ 240.

8 See ante, В§ 235. * See post, В§ 257 et seq.

6 See ante, В§ 228 et seq.

В« Nonis V. Kohler, 41 N. Y. 42; Svenson v. Atlantic Mail Steamship

Co., 57 N. Y. 108.

7 See Stables r. Eley, 1 C. & P. 014.

8 Smith V. Bailey, 1891, 2 Q. B. 403.

В« Ilamion v. Siegel-Cooper Co., 107 N. Y. 244. Defemlants represent

that they conduct a dentistry establishment. Plaintiff is treated there by

S. In an action against defendants for injuries resulting from S's unskil-

ful treatment, it is held that defendants are estopped to deny that S is

their servant, or to show that S is an independent contractor.

FOR TORTS OF SERVANT. 297

В§ 244. (II.) The servant must be about his master's business.

Obviously one may be in the general service of another and

yet at times attend to business or pleasure for himself. Acts

done during the time the servant is at liberty cannot render

the master liable. A master may lend his horse and vehicle

to a servant and give the servant his liberty, and during the

time that the servant is using the horse and vehicle for his

own ends the master is not liable for the servant's negligence.^

Nor is he liable if the servant without his consent takes the

horse and vehicle for ends of his own.^ But if the servant

while about his master's business makes a slight deviation for

ends of his own the master remains liable, as, where the ser-

vant drives out of the most direct route for personal ends,^

or where a pilot diverges from the direct course for ends not

connected with his master's business."*

" In such cases it is, and must usually remain, a question

depending upon the degree of deviation and all the attendant

circumstances. In cases where the deviation is slight and not

unusual, the court may, and often will, as matter of law, de-

termine that the servant was still executing his master's busi-

ness. So, too, where the deviation is very marked and unusual,

the court in like manner may determine that the servant was

not on the master's business at all, but on his own. Cases

falling between these extremes will be regarded as involving

merely a question of fact, to be left to the jury or other trier

of such questions." ^

Railway workmen who build a fire in order to heat coffee

for their dinner are not acting for the railway, and the latter

is not liable unless it be the duty of such workmen to guard

1 Bard v. Yohii, 26 Pa. St. 482; Maddox v. Brown, 71 Me. 432)

Campbell v. Providence, 9 R. I. 262.

3 Mitchell V. Crassweller, 13 C. B. 237 ; Stone r. Hills, 45 Conn. 44;

Fiske V. Enders (Conn.), 47 Atl. 681; Storry r. Ashton, L. R. 4 Q.'B.

476; Cousins i'. Hannibal, &c. R., 66 Mo. 572.

8 Joel V. Morison, 6 C. & P. 501 ; Sleath v. Wilson, 9 C. & P. 607;

Patten v. Rea, 2 C. B. n. s. 606; Mulvehill v. Bates, 31 Minn. 364;

Ritchie v. Waller, 63 Conn. 155.

* Quinn v. Power, 87 N. Y. 535.

6 Ritchie v. Waller, 63 Conn. 155, 161.

298 LIABILITY OF MASTER

against fire;^ in the latter case it would seem that tlic negli-

gence in not extinguishing it would be the negligence of the

master.^

В§ 245. (Ill) The servant must be acting within the course of

his employment.

Subject to the possible exceptions to be hereafter mentioned,^

the master is liable for the torts of his servant only when the

servant's act or omission is within the course of his employ-

ment.'* The mere fact that the servant is in the employment

of the master is, of course, never sufficient to charge the mas-

ter with the consequences of the servant's misconduct.*' It

must further appear that the act or omission constituting the

misconduct was expressly or impliedly within the scope or

course of the servant's employment.*'

This is essentially a question of fact, and the decision of it

may rest upon any one or more of several considerations.

First, the particular act may be expressly authorized by the

master, in which case there would be no doubt that it is one

of the ends to be accomplished by the employment." Second,

it may be ratified by the master, in which case it stands upon

the same footing as an act previously authorized.^ Third, it

may be an act which the master reasonably led his servant to

believe was authorized, although in fact the master never

intended to authorize such an act, in which case the master is

liable.^ Fourth, it may be an act incidental to the duties

actually prescribed or one which servants employed in a

similar capacity usually have power to do, in which case it

i Moiier r. St. Paul, &c. R., 31 Minn. 351.

2 Chapman v. N. Y. Cent., &c. K., 33 N. Y. 369.

« See post, §§ 252-254.

* See ante, В§ 148 et seq.

6 Aldrich r. Boston & Worcester R. , 100 Mass. 31; Walton f. N. Y.

&c. Co., 139 Mass. 550; Wiltse r. State Bridge Co., 63 Mich. 639.

В« Burns v. Poulsom, L. R. 8 C. P. 563.

T Blackstone, Coram. I., 429-430; post, В§ 246.

В» Dempsey v. Chambers, 154 Mass. 330; Niras v. Mt. Ilermon School,

160 Mass. 177 ; post, В§ 247.

9 May lu Bliss, 22 Vt. 477 ; Moir v. Hopkins, 16 111. 313 } post, В§ 248.

FOR TORTS OF SERVANT. 299

will be presumed that the particular servant in question has

been authorized to do it.^ Fifth, it may be an act which the

servant performs in the course of the business intrusted to

him by the master and intended by the servant to be for the

master's benefit, in which case it will be held to be within the

scope of the employment, although the master never author-

ized or intended to authorize it.^ Sixth, it may be an act not

authorized or ratified, done by the servant while about the

master's business but not intended for the master's benefit, in

wliich case the master is not usually liable.^ The last case put