ARTICLE III.

OF THE SERVANT'S RIGHTS AND LIABILITIES AS TO THIRD PERSONS.

Section 1. Servant not liable personally on contracts for master. See ante, Vol. 1, 256–260. As a general rule, a servant is not personally liable upon a contract entered into by him for and on account of the master. He may, however, like any other agent, contract in such a manner as to render himself personally liable (Thomson v. Davenport, 9 B. & C. 88; Burrell v. Jones, 3 B. & Ald. 50); as, where he contracts for the master without authority, or, having authority, he exceeds it. Id.; Hochster v. Baruch, 5 Daly (N. Y.), 440. In such case there can be no doubt that he will be personally liable to the person with whom he deals in his master's name. But if the person dealing with the servant knows of his want of authority, and yet chooses to charge the master, it would seem that the servant could not afterward be made liable in the event of the master failing to pay. Smout v. Ilbery, 10 Mees. & W. 1; Patterson v. Gandasequi, 15 East, 62. See 2 Sm. Lead. Cas. (7th Am. ed.) 360. Questions of this sort frequently depend upon the circumstances of the case; as, for instance, to whom was the credit given? If given to the master, the scrvant could not be made liable, provided he had authority to contract. But if the credit was given to the servant, even for goods supplied for his master's use, he could not discharge himself from liability on the ground that he was a mere agent. See Chandler v. Coe, 54 N. H. 561; Maryland Coal Co v. Edwards, 4 Hun (N. Y.), 432. A servant would also be liable, if, at the time he entered into a contract, he did not disclose his master's name, and it was not known to the party contracting with him, although he was known to be a mere agent. Hanson v. Roberdeau, Peake, 163; Franklyn v. Lamond, 4 C. B. 637; Smith's Mast. & Serv. 195. But where a servant has once had authority to contract in his master's name, and the authority is revoked without his knowledge, he would not be liable upon contracts entered into in his master's name, in ignorance of the revocation of his authority, even though the party with whom he contracted is remediless. Smout v. Ilbery, 10 Mees. & W. 1; Blades v. Free, 9 B. & C. 167; Ginochio v. Porcella, 3 Bradf. (N. Y.) 277; Cassiday v. McKenzie, 4 Watts & Serg. 282. See Vol. 1, 289, 290.

§ 2. Liability for fraud. The general principle, that a servant will not be held personally liable on a contract entered into by him on behalf of his master, has no application to cases where there is corruption

in the foundation of the contract, or it is bottomed in oppression or immorality. Miller v. Aris, 3 Esp. 232. Thus, if a servant falsely represents that he has authority when he has none, or, if knowing that his previous authority has been revoked, he enters into a contract in his master's name, he will be held to a personal liability thereon, his act in such case being regarded as fraudulent (See Tryon v. Whitmarsh, 1 Metc. [Mass.] 1; Polhill v. Walter, 3 B. & Ad. 114); and, whether liable upon the contract or not, the party has his remedy against the servant for the fraud. Ballou v. Talbot, 16 Mass. 461; Noyes v. Loring, 55 Me. 408. And see Vol. 1, 257, 258.

So, a servant who joins with and assists his master in the commission of a fraud is civilly responsible for the consequences, though his concurrence is unknown to the party injured; for, all directly concerned in the commission of a fraud are principals. Cullen v. Thomson, 4 Macq. H. L. Cas. 441.

§ 3. Liability for torts. A servant incurs no liability to third persons by reason of a failure on his part to perform his master's obligations. Bristol, etc., Railway Co. v. Collins, 5 H. & N. 969; Montgomery County Bank v. Albany City Bank, 7 N. Y. (3 Seld.) 459; Henshaw v. Noble, 7 Ohio St. 226. For mere nonfeasance or omission of duty, a servant is liable only to his own master, who, in accordance with the maxim "respondeat superior," is liable to answer for his servant's neglect. Gidley v. Lord Palmerston, 3 Brod. & B. 275; Lane v. Cotton, 12 Mod. 488. And see post, 410, art. 4, § 5. But for a misfeasance, or act of positive wrong, a servant is liable to third persons injured thereby, either alone or jointly with his master. Montfort v. Hughes, 3 E. D. Smith (N. Y.), 591; Hewett v. Swift, 3 Allen, 420; Bennett v. Ives, 30 Conn. 329. But see Parsons v. Winchell, 5 Cush. 592; Campbell v. Portland Sugar Co., 62 Me. 552; S. C., 16 Am. Rep. 503. And where a servant employs another person to assist him in his work, and by the negligence or wrongful act of such person an injury is inflicted, all three are jointly liable. Suydam v. Moore, 8 Barb. 358; Althorf v. Wolfe, 22 N. Y. (8 Smith) 355. See Vol. 1, 264.

§ 4. Torts of government agents. See Vol. 1, 267. The government is not liable for the torts and frauds of its agents. Nor are public officers in a superior capacity in general responsible for the tortious acts of their subordinate officers. It does not, however, follow that such subordinate officers are not themselves responsible for their own misdeeds. Thus, although the postinaster-general cannot be held liable for the loss of letters in the post-office through the fault of his agents, yet, there can be no doubt as to an action lying against the party really offending. And the instances are numerous in which deputy post

masters have been sued in damages for their own torts. Rowning v. Goodchild, 3 Wils. 443; S. C., 2 W. Bl. 906; Stock v. Harris, 5 Burr, 2709. And see Vol. 2, 15.

There is also a large class of cases in which public officers in a merely ministerial capacity have been held liable to answer in an action at the suit of the party injured, for negligence in the performance of the duties cast upon them. Thus, a sheriff, whose duty in many cases, such as the receipt, execution, and return of writs, is that of a merely ministerial officer, is liable to be sued by the party aggrieved for any act of irregularity, misfeasance, or nonfeasance in executing writs. Bac. Abr., tit. Sheriff.

ARTICLE IV.

OF THE MASTER'S RIGHTS AND LIABILITIES AS TO THIRD PERSONS. Section 1. Action for injuries to servant. The master's right of action for personal injuries sustained by his servant is recognized in many instances. Thus, he may recover for an actual battery inflicted upon his servant (Duel v. Harding, Strange, 595), or for an injury to his servant caused by negligent driving (Martinez v. Gerber, 3 Man. & G. 88; Hall v. Hollander, 4 B. & C. 660), or arising from the bite of a ferocious dog. Hodsoll v. Stallebrass, 11 Ad. & El. 301. And a recovery was had in an action against a person for negligently intrusting a loaded gun to a mulatto girl, who discharged it against the plaintiff's son and servant. Dixon v. Bell, 1 Stark. 287; S. C., 5 M. & S. 198. So, where a declaration in tort alleged that the defendant was a common carrier of passengers between two places; that the plaintiff's apprentice was on the defendant's car on a day stated, for hire paid by the apprentice in the absence of the master; that by the defendants' negligence in carrying the apprentice he was injured, and the plaintiff thereby lost his services, it was held, on demurrer, that the declaration disclosed a good ground of action. Ames v. Union Railway Co., 117 Mass. 541; S. C., 19 Am. Rep. 426. See Alton v. Midland Railway Co., 19 C. B. (N. S.) 213. But in all these cases the right of action grows out of the loss of service sustained by the master, and if there is no injury in that respect, there can be no recovery. Id.; Robert Marys' Case, 9 Coke, 113. A service de facto is, however, sufficient to support the action (see Martinez v. Gerber, 3 Man. & Gr. 88); and if there is a capacity to serve, very slight evidence is sufficient to support the allegation of service. See Torrence v. Gibbins, 5 Q. B. 300; Dixon v. Bell, 1 Stark. 287; S. C., 5 M. & S. 198.

But a master cannot maintain an action for injuries which cause the immediate death of his servant. Osborn v. Gillett, L. R., 8 Exch. 88; S. C., 4 Eng. R. 464. See Vol. 2, tit. Death.

§ 2. Seduction, enticing, or harboring servant. The action for seduction is predicated upon a loss of service, and, by a legal fiction, it can only be maintained where the relationship of master and servant exists between the party bringing the action and the party seduced. Grinnell v. Wells, 2 Dowl. & L. 610; S. C., 7 Man. & Gr. 1033; Mercer v. Walmsley, 5 Har. & J. (Md.) 27; Hewit v. Prime, 21 Wend. 79; Blanchard v. Ilsley, 120 Mass. 487; S. C., 21 Am. Rep. 535. See post, tit. Seduction.

The action is usually brought by the parent, or one standing in the stead of the parent; but the gist of the action being loss of service, it follows that it may be brought by any one who has sustained that loss. A master may, therefore, maintain an action for debauching his servant, though he is no way related to her in blood. Fores v. Wilson, Peake, 55; Ball v. Bruce, 21 Ill. 161; Irwin v. Dearman, 11 East, 23. See tit. Seduction.

It must now be considered as settled law, that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation subsisting between master and servant, by procuring the servant to depart from the master's service, or by harboring him and keeping him as a servant after he has quitted it, and during the time stipulated for as the period of service whereby the master is injured, commits a wrongful act, for which he is responsible at law. Walker v. Cronin, 107 Mass. 555; Lee v. West, 47 Ga. 311; Bixby v. Dunlap, 56 N. H. 456; 22 Am. Rep. 475; Jones v. Stanly, 76 N. C. 355; Daniel v. Swearengen, 6 S. C. 297; Caughey v. Smith, 47 N. Y. (2 Sick.) 244; Pilkington v. Scott, 15 M. & W. 657; Sykes v. Dixon, 9 Ad. & El. 693; Lumley v. Gye, 2 El. & Bl. 216. And the relation of master and servant subsists sufficiently for the purpose of such action, during the time for which there is in existence a binding contract of hiring and service between the parties. Id.; Blake v. Lanyon, 6 Term R. 221; Haskins v. Royster, 70 N. C. 601; S. C., 16 Am. Rep. 780. And the fact that the servant is employed under a contract voidable by him does not defeat the action for inducing away, since the wrong consists in enticing the servant to avoid the contract. Keane v. Boycott, 2 H. Bl. 511.

But the mere attempt to entice a servant away, followed by no damage, does not entitle the master to an action. Bird v. Randall, 3 Burr. 1352. See Carew v. Rutherford, 106 Mass. 1; 8 Am. Rep. 287. Nor will an action lie for inducing a servant to leave his master's service at

the expiration of the time for which the servant had hired himself, although the servant had no intention, at the time, of quitting his master's service. Nichol v. Martyn, 2 Esp. 734; Boston Glass Manuf. Co. v. Binney, 4 Pick. 425. And no action lies for seducing a servant from his master, who has paid the penalties stipulated by his articles for leaving him. Bird v. Randall, 3 Burr. 1345; S. C., 1 W. Bl. 373, 387.

Under a count for harboring or entertaining a servant, evidence of enticement is not necessary (Dubois v. Allen, Anth. [N. Y.] 128); nor is it essential that such a state of facts should exist as would sustain an action for enticing away. Fawcett v. Beavres, 2 Lev. 63.

Societies of laborers, so long as they confine their objects and action within proper limits, and do no more as a society than each individual member thereof might lawfully do, cannot be held to be unlawful organizations at common law. Commonwealth v. Hunt, 4 Metc. 111; Snow v. Wheeler, 113 Mass. 179. But when workmen combine to prevent others from working for another, either by force or by persuasion, the act is unlawful and such persons are liable for all the damages resulting, and in case the injury is irreparable in damages, or the individuals are irresponsible and unable to respond to a judg ment for damages, a court of equity will interpose by injunction to restrain them. Springhead Spinning Co. v. Riley, L. R., 6 Eq. Cas. 551. So, persons who associate themselves to coerce an employer into paying money which he is not legally bound to pay, by threats that if he refuses they will induce his workmen to leave his service, and will deter others from taking their places, are chargeable with an illegal conspiracy; and if their threats are carried out, the employer aggrieved may recover damages in an action for the wrong done. Carew v. Rutherford, 106 Mass. 1; 8 Am. Rep. 287. See Commonwealth v. Curren, 3 Pittsb. (Penn.) 143.

In an action for enticing away the plaintiff's servants, the measure of damages is not to be ascertained at the actual loss which he sustained at the time, but for the injury done him by causing them to leave his employment. Gunter v. Astor, 4 Moore, 12. And see Hays v. Borders, 6 Ill. 46.

In an action for enticing away an apprentice, the plaintiff is held to be entitled to recover damages as for a total loss of services, if a total loss has been in reality the consequence of the acts of the defendant; if not, then the damages should be estimated according to the chances the plaintiff had of regaining his apprentice. McKay v. Bryson, 5 Ired. (N. C.) L. 216. See, also, Stout v. Woody, 63 N. C. 37. But if a servant or minor child absconds from his father's house, and