645*] name, apparently as principal, or has sold as bailee of the *goods, it is supposed that the agent cannot sue in his own name, but that the suit must be brought by the principal. In Branch Bank of Montgomery v. Sydnor, use, &c., 7 Alabama, 308, it was decided that where a note payable to one as agent, had been entrusted by the agent to an attorney for collection, who had fraudulently transferred it to a bank, and the bank had received the money due upon it, the action against the bank, for money had and received, could not be brought by the agent, but must be brought by the principal, the implied promise being raised by the law to him.

OF THE LIABILITY OF A PRINCIPAL FOR INJURIES DONE TO OTHERS BY HIS AGENT, IN THE COURSE OF HIS DUTY AS AGENT.-RESPONDEAT SUPERIOR.

STEPHEN WILSON v. THOMAS PEVERLY.

In the Supreme Court of Judicature of New Hampshire.

MAY TERM, 1823.

[REPORTED 2 NEW HAMPSHIRE, 548-550.]

When a servant acts under the special orders of his master, the master is not liable for his negligence in doing business not ordered.

THIS was trespass on the case, for rashly setting a fire on land of the defendant, which fire was so negligently guarded, that it spread to land of the plaintiff, and there caused much damage.

The facts of the case were, that a fire was set upon the land of the defendant by his orders, and the charge of it given to a hired laborer; that the defendant then left home on business, directing this laborer, after setting the above fire, to employ himself in harrowing other land of the defendant in the same neighborhood; that in the course of the day, fire communicated from the farm. of the defendant, to that of the plaintiff, and caused great damage; and as to the other facts in the case, about which the evidence was contradictory, the jury found specially that the damages amounted to $164.17; that they were not caused by any

neglect in setting or watching the fire first kindled, but were produced by the laborer of the defendant, who after his master's absence, and before he commenced harrowing, undertook to carry brands from the first fire into the ploughing field to consume some piles of wood and brush, which were there collected, and on his way dropped some coals, from which all the subsequent* injury arose; that carrying the fire in this manner from [*646 one field to the other was, under all the circumstances, dangerous, and was not in conformity to any express directions of the master, and that this laborer was accustomed to work under the particular directions of the defendant, and could conveniently have harrowed without first burning the piles of wood, though to burn them first is the usual course of good husbandry.

Upon this finding, a general verdict was taken for the defendant, subject to the opinion of the court on the whole case.

Stuart and Sullivan, counsel for the plaintiff.

Peverly and Bell, for the defendant.

WOODBURY, J. 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 inferrible 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 were not actually expressed.

The next ground on which the master is liable, for the wrongs of his servant is, that the wrongs are peformed by the servant in the negligence and unskilful execution of business specially entrusted to the servant.(1)

(1) Savignac v. Roome, 6 Term, 125; Stone v. Cartwright, Id. 411; Day v. Edwards, 5 Term, 648; Morley v. Gaisford, 2 Henry Blackstone, 442; Ward v. Evans, 1 Salkeld, 441; v. Burrow, 562?; Bush v. Steinman, 1 Bosanquet & Puller, 404; Leslie v. Pounds, 4 Taunton, 649; Reeves' Domestic Relations, 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 property of others.(1)

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Nor does it reach wrongs caused by carelessness in the performance of an act, not directed by the master; as a piece of business of some third person, or of the servant himself, or of the master, but which the master did not either expressly or impliedly direct him to perform.(2)

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 those orders. Bush v. Steinman, 1 Bosanquet & Puller, 404; Saunderson v. Baker, 3 Wils. 317; Turberville v. Stamp, 1 Ld. Raymond, 264.

Thus a piece of labor might be very properly and safely performed at one time and not at another, as in this case the 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, forbore 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 attended to that business, went in his own discretion and kindled the fire to the damage of third persons.

The master, quoad hoc, is not acting in person or through the servant; neither per se, nor per aliud; and the doctrine of respondeat superior does not apply to such an act, it being the sole act of the servant.

It is a general rule, that a principal is civilly liable for the neglect, fraud, deceit or other wrongful act of his agent in the course of his employment, though the principal did not authorize the specific act; and even though the agent may have directed another person to do the

(1) McManus v. Crickett, 1 East, 106; Ellis v. Turner, 8 Term, 533; Foster et al. v. Essex Bank, 17 Massachusetts Rep. 509; Mechanics' Bank v. The Bank of Columbia, 5 Wheaton, 326.

(2) McManus v. Crickett, 1 East, 106; Noy's Maxims, ch. 44; 2 Rolle Ab. 553; Croft et al. v. Alison, 4 Barnewall & Alderson, 590.

act,(1) but the liability is only for acts committed in the course of the agent's employment.(2) This proceeds upon the ground that the act of the agent within his employment, is the act of the principal; or, that, in law, the principal is considered as doing the business by, or through, the agent. So, wherever the relation of master and servant exists, the master is liable for the negligence or wrongful conduct of his servant while acting in his employment. The owner of a stage or boat is liable for injuries occasioned to passengers or strangers, by the negligence of his driver, master or *pilot; (3) but the superior or principal is *648 not liable where there is a departure from his business, as is shown in the principal case; and still more pointedly in the less plain case of The Steamboat Co. v. Housatonic Railroad Co., 24 Connecticut, 56, and a fortiori is not liable for acts of wilful misconduct, on the part of a servant or agent, for that is a departure from the employment.(4) This liability of a principal or master for the negligence of his agent or servant, is to strangers; a master or principal is not liable to one servant or agent, for injuries occasioned to him by the negligence of another servant or agent, employed in the same service or business; (5) provided the injury complained of has happened without any

(1) Simons v. Monier, 29 Barb. 422.

(2) Locke v. Stearns and another, 1 Metcalf, 560; Parkerson v. Wightman, 4 Strobhart, 363, 367; Bard et al. v. Yohn, 26 Penna. State, 489.

(3) Philadelphia and Reading Railroad v. Derby, 14 Howard, 486; Johnson & Co. v. Bryan, 1 B. Monroe, 292; Johnson & Co. v. Small, 5 Id. 25; McFarland, &c., v. McKnight, 6 Id. 500, 506; Shaw v. Reed, 9 Watts & Sergeant, 72; Smith v. Berwick and another, 12 Robinson, 20, 27; McDaniel v. Emanuel, 2 Richardson, 455, 459; Yates et al. v. Brown et al., 8 Pickering, 23; Arthur v. Balch, 3 Foster, 157; Penn., Delaware and Maryland Steam Nav. Co. v. Hungerford, 6 Gill & Johnson, 292; Martin v. Temperley, 4 Q. B. 298; Huzzey v. Field, 2 Crompton, Meeson & Roscoe, 432, 440; and see Patten v. Rea, 2 C. B. (89 E. C. L.) 605.

(4) Brown v. Purviance, 2 Harris & Gill, 317; Wright v. Wilcox, 19 Wendell, 343; Richmond Turnpike Co. v. Vanderbilt, 1 Hill's N. Y. 480; McGary v. The City of Lafayette, 12 Robinson, 668, 676; Leggett v. Simmons, 7 Smedes & Marshall, 348.

(5) Priestley v. Fowler, 3 Meeson & Welsby, 1; Murray v. S. C. Railroad Company, 1 McMullan, 385; McDaniel v. Emanuel, 2 Richardson, 455, 458; Ryan v. The Cumberland Valley R. R., 23 Penna. State, 354, a case decided by a divided court and which ought to have been decided on other grounds; Hutchinson v. The York, &c., R. R. Co., 19 Law Journal Reports, 296; S. C., 14 Jurist; Farwell v. Boston and Worcester Railroad Corporation, 4 Metcalf, 49; Fifield v. Nor. R. R., 42 N. H. 236; Coon v. The Utica and Syracuse R. R. Co., 6 Barbour's S. Ct. 231; S. C., 1 Selden, 492; Hayes v. The Western Railroad Corporation, 3 Cushing, 270; Albro v. The Agawam Canal Co., 6 Id. 75; even though it be in entirely distinct departments of the same service; Coon v. The Syracuse and Utica R. R. Co., 1 Selden, 493; an extent of liability which seems not to be approved in Russell v. H. R. Co., 17 N. Y. 136; though followed in Whalan v. Mad River R. R., 8 Ohio State, 249. In Carle v. B. and P. Canal and R. R. Co., 43 Maine, 271, the court enforces the general rule in the face of a statute whose literal construction would have excused them from doing so, had they not refused to construe any words, not plainly compelling them to do so, in derogation of the common law. See also Hodgkinson v. Fevine, 2 J. Scott (89 E. C. L.), 415.

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actual fault of the principal either in the act which caused the injury or in the selection of the agent by whose fault it did happen; Keegan v. The Western Railroad, 4 Selden, 175, cited in Smith v. N. Y. & H. Railroad, 6 Duer, 230; Wright v. N. Y. C. Railroad, 28 Barb. 86; Ill. Cent. Railroad v. Cox, 21 Ill. 20 and 25; and provided one does not stand in any relation of superior. This is the distinction which is taken in the important case of Little Miami Railroad Co. v. John Stevens, 20 Ohio, 435; dissenting from the doctrine of Farwell v. The Boston and Worcester Railroad, 4 Metcalf, 49; and Murray v. S. C. Railroad, 1 McMullin, 385; and not accordant with Sherman v. The R. & S. Railroad, 17 N. Y. 156, since decided. It seems to me, however, generally speaking, a fair distinction.(1) It was *taken in Scudder v. Woodbridge, 1 Kelly, 197; where the doctrine was held not applicable to the (1) This Ohio case was a suit against a railroad company by an engineer of the road for damage done to his person owing to a collision of trains. The engineer's business was simply to run the trains as the conductor, another servant of the company, told him to run them, and he was thus running them when the collision took place. The fault was with the conductor in giving careless instructions to the engineer. "It is contended on the part of the company," said the court, "that public policy forbids the right of a party to bring a suit against his employer for an injury by another in the same employ, because it is supposed that it will lead to carelessness on the part of those employed, when they know that they can recover for any damage that they may receive. In answer to this, it may be remarked, that it is only where the person has been careful himself, that any right of action accrues in any case. Besides, we do not think it likely that persons would be careless of their lives and persons or property, merely because they might have a right of action to recover for what damage they might prove they had sustained. If men are influenced by such remote considerations to be careless of what they are likely to be most careful about, it has never come under our observation. We think the policy is clearly on the other side. It is a matter of universal observation, that in any extensive business, where many persons are employed, the care and prudence of the employer is the surest guaranty against mismanagement of any kind. The employer would, we think, be much more likely to be careless of the persons of those in his employ, since his own safety is not endangered by any accident, when he would understand that he was not pecuniarily liable for the careless conduct of his agents. Indeed, we think that those who have others in their employ are under peculiar obligations to them to provide for their safety and comfort, and we think they should at least be held legally responsible to them as much as to a stranger.

"We could easily suppose a case where two persons employed by the same individual, and standing on a perfect equality-where the business was managed as much by one as the other-where they would stand on the same footing as men in a community generally do—in which the employer would not be liable for an injury done to one by the negligence of the other. But we regard this case as standing entirely on a different footing. "Amongst other cases, we have been referred to those of Farwell v. The Boston and Worcester Railroad Corporation, 4 Metcalf, 49; and Murray v. South Carolina Railroad Company. The case in 4 Metcalf denies the right of recovering principally on two grounds, namely, that the person employed contracts with reference to the perils of the employment and that he receives a compensation, in the way of wages, for such perils, and therefore he cannot recover; and that it would be contrary to public policy to permit a recovery, as the tendency would be to produce carelessness on the part of persons thus employed. The decision in 1 McMullen, appears to be based principally on the first of these two propositions. We have noticed both of these propositions in our previous