Odger's English Common Law

492 NEGLIGENCE
his master's business makes a small deviation, or even where. he so exceeds
his duty as to justify his master in at once discharging him," but "at aU
events if the master is liable where the servant has deviated, it must be
where the deviation occurs in a journey on which the servant has originally
in other words, he must be in the employ
started on his master's business ;
of his master at the time of committing the grievance." 1 No liability
attaches to the master if the servant, without his leave or knowledge, takes
out his carriage and causes injury, because in this case the master has not
entrusted the servant with the carriage or commissioned him to perform
any service.
Again, a waterworks company was held not answerable for an assault
committed by its broker while executing a warrant of distress, on the
.ground that it was no part of his duty to commit an assault, his duty being
simply to levy the rate due to the company. 2 But where the plaintiff
jsued a railway company because one of its servants had driven an engine
into his sheep and so destroyed them, it was held that the action lay,
because engine-driving was clearly within the scope of the servant's
duty. 8
Where a fire, which had arisen on the defendant's premises under circumstances
in which neither he nor his servant was to blame, spread and
caused injury to the plaintiff's property owing to the subsequent negligence
of the defendant's servants, he was held liable. 4
The fact that the master had at one time given his servants general
directions not to do the very thing which caused injury to the plaintiff will
not relieve him from liability, if such directions had, for some time before
the accident, been habitually disregarded by his servants to the knowledge
of his manager on the works. 5
But the rule obviously does not apply to any case in which
the party sought to be charged is not the master or employer
of the party whose negligent act caused the damage. Hence,
where the person who does the negligent act exercises an
independent employment, or is the servant of a person who
exercises an independent employment, a third person with
whom he or his master has contracted to do certain work
cannot be made liable for the negligent act. For such third
person is an independent contracting party. " The sub-con-
tractor, and not the person with whom he contracts, is liable
1 Per Jervis, C. J., in Mitohe.ll v. Crassweller (1853), 13 C. B. at p. 245 ; and
see Venables v. Smith (1877), 2 Q. B. D. 279 ; King y. London Cab Co. (1889),
23 Q. B. D. 281.
2 Richards v. West Middlesex Waterworks Co. (1885), 15 Q. B. D. 660.
3 Sharrodv. L. # N. W. By. Co. (1849), 4 Exch. 580.
* Musgrove v. PandelU, [1919] 2 K. B. 48.
5 Harris v. Perry $ Co., [1903] 2 K. B. 219 ; of. R. v. Stephens (1866), L. 1{. 1 Q. B.
702, ante, p. 242 ; Joseph Band, Ltd. v. Craig, [1919] 1 Ch. 1.