Odger's English Common Law

BY A SERVANT. 491
attached to the former for an injury caused by the negligence of the latter.
" For the acts of a man's own domestic servants there is no doubt bnt the
law makes him responsible ; and if this accident had been occasioned by a
coachman who constituted a part of the defendant's own family, there
would be no doubt of the defendant's liability ; and the reason is, that he is
hired by the master, either personally or by those who are entrusted by the
master with the hiring of servants, and he is therefore selected by the
master to do the business required of him." 1 But in this case it was the
stable-keeper, and not the owner of the carriage, who had selected the
driver and was therefore answerable for any negligence on his part.
" That person is undoubtedly liable who stood in the relation of master
to the wrong-doer—he who had selected him as his servant from the know-
ledge or belief in his skill and care—and who could remove him for misconduct
and whose orders he was bound to receive and obey ; and
whether such servant has been appointed by the master directly or inter-
mediately through the intervention of an agent authorised by him to
appoint servants for him, can make no difference. But the liability, by
virtue of the principle of relation of master and servant, must cease where
the relation itself ceases to exist." 2
In order, however, to make the employer liable, the act
complained of must have been an act fairly within the scope
of the servant's duty and employment. 3
If the injury in
question was committed by the defendant's servant wilfully,
whilst not engaged in the master's service and whilst not
acting within the scope of his authority, 4 no remedy can be
had against the master.
Thus, if a servant, who is authorised merely to distrain cattle damage
feasant, drives them from the highway into his master's close and there
distrains them ;
or where he wantonly and in order to effect some purpose
of his own strikes the plaintiff's horses and thereby causes an accident,
the servant only will be liable. 5 But if the servant, whilst on his
master's business, 6 is guilty of negligence which results in an injury to
the plaintiff, the master will be liable ;
this may be so, although the servant,
when driving his master's carriage, may at the time be going out of the direct
road for some purpose of his own. 7 " No doubt a master may be liable
for injury done by his servant's negligence, where the servant being about
1 Per cur. in Laugher v. Pointer (1826), 6 B. & C. at p. 554.
* Per cur. in Quarman v. Burnett (1840), 6 M. & W. 499.
8 Cf. Abraham* v. Deakin, [1891] 1 Q. B. 516; Eiigelhart v. Fan-ant $ Co.,
[1897] 1 Q. B. 240 ; Jammer v. Sweeney and Barker (1919), 35 Times L. R. 360.
« See Edwards v. L. $ N. W. By. Co. (1870), L. R. 5 C. P. 445 ; Storey v.
Ashton (1869), L. R. 4 Q. B. 476 ; M'Namara v. Brown, [1918] 2 I. R. 215.
* See Freeman v. Rosher (1849), 13 Q. B. 780, 785.
6 See Limpus v. General Omnibus Co. (1862), 1 H. & C. 526.
1 Joel v. Morison (1834), 6 Car. & P. 501.