II"hatman v. Pearson. Storey v. one on either side of the line, will illustrate this distinction. In Whatman v. Pearson (s), a carter who was employed by a contractor, having the allowance of an hour's time for dinner in his day's work, but also having orders not to leave his horse and cart, or the place where he was employed, happened to live hard by. Contrary to his instructions, he went home to dinner, and left the horse and cart unattended at his door; the horse ran away and did damage to the plaintiff's railings. A jury was held warranted in finding that the carman was throughout in the course of his employment as the contractor's servant "acting within the general scope of his authority to conduct the horse and cart during the day" (t). In Storey v. Ashton (u), a carman was returning to his employer's office with returned empties. A clerk of the same employer's who was with him induced him, when he was near home, to turn off in another direction to call at a house and pick up something for the clerk. While the carman was driving in this direction he ran over the plaintiff. The Court held that if the carman "had been merely going a roundabout way home, the master would have been liable; but he had started on an entirely new journey on his own or his fellow-servant's account, and could not in any way be master's employment" (a). (s) L. R. 3 C. P. 422 (1868). (u) (1869) L. R. 4 Q. B. 476, 38 (x) Lush J. at p. 480. It was "an entirely new and independent said to be carrying out his More lately it has been held that if the servant begins using his master's property for purposes of his own, the fact that by way of afterthought he does something for his master's purposes also is not necessarily such a "re-entering upon his ordinary duties" as to make the master answerable for him. A journey undertaken on the servant's own account "cannot by the mere fact of the man making a pretence of duty by stopping on his way be converted into a journey made in the course of his employment (y). v. Jones. The following is a curious example. A carpenter was Williams employed by A. with B.'s permission to work for him in a shed belonging to B. This carpenter set fire to the shed in lighting his pipe with a shaving. His act, though negligent, having nothing to do with the purpose of his employment, A. was not liable to B. (z). It does not seem difficult to pronounce that lighting a pipe is not in the course of a carpenter's employment; but the case was one of difficulty as being complicated by the argument that A., having obtained a gratuitous loan of the shed for his own purposes, was answerable, without regard to the relation of master and servant, for the conduct of persons using it. This failed for want of anything to show that A. had acquired the exclusive use or control of the shed. Apart from this, the facts come very near to the case which has been suggested, but not dealt with by the Courts in any reported decision, of a miner opening his safety-lamp to get a light for his pipe, and thereby causing an explosion : where "it seems clear that the employer would not be held liable" (a). (y) Rayner v. Mitchell (1877) 2 C. P. D. 357. (*) Williams v. Jones (1865) Ex. Ch. 3 H. & C. 256, 602, 33 L. J. Ex. 297; diss. Mellor and Black- (a) R. S. Wright, Emp. L. 1876, P. 47. of autho rity. Excess or (c) Another kind of wrong which may be done by a mistake in execution servant in his master's business, and so as to make the master liable, is the excessive or erroneous execution of a lawful authority. To establish a right of action against the master in such a case it must be shown that (a) the servant intended to do on behalf of his master something of a kind which he was in fact authorized to do; (3) the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to exist, would have been lawful. Interference with &c. The master is chargeable only for acts of an authorized class which in the particular instance are wrongful by reason of excess or mistake on the servant's part. For acts which he has neither authorized in kind nor sanctioned in particular he is not chargeable. Most of the cases on this head have arisen out of acts of passengers railway servants on behalf of the companies. A porter by guards, whose duty is, among other things, to see that passengers do not get into wrong trains or carriages (but not to remove them from a wrong carriage), asks a passenger who has just taken his seat where he is going. The passenger answers, "To Macclesfield." The porter, thinking the passenger is in the wrong train, pulls him out; but the train was in fact going to Macclesfield, and the passenger was right. On these facts a jury may well find that the porter was acting within his general authority so as to make the company liable (b). Here are both error and error in supposing facts to excess in the servant's action: (b) Bayley v. Manchester, Sheffield, and Lincolnshire R. Co. (1872-3) L. R. 7 C. P. 415, 41 L. J. C. P. 278, in Ex. Ch. 8 C. P. 148, 42 L. J. C. P. 78. in the manner of executing his authority, even had the facts been as he supposed. But they do not exclude the master's liability. "A person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done, and trusts him for the manner in which it is done; and consequently he is held responsible for the wrong of the person so intrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment" (c). Seymour v. Greenwood (d) is another illustrative case of this class. The guard of an omnibus removed a passenger whom he thought it proper to remove as being drunken and offensive to the other passengers, and in so doing used excessive violence. Even if he were altogether mistaken as to the conduct and condition of the passenger thus removed, the owner of the omnibus was answerable. "The master, by giving the guard authority to remove offensive passengers, necessarily gave him authority to determine whether any passenger had misconducted himself." Another kind of case under this head is where a servant Arrest of supposed takes on himself to arrest a supposed offender on his offenders. employer's behalf. Here it must be shown, both that the arrest would have been justified if the offence had really been committed by the party arrested, and that to make such an arrest was within the employment of the servant (c) Per Willes J., Bayley v. Manchester, Sheffield, and Lincolnshire R. Co., L. R. 7 C. P. 415, 41 L. J. P. C. P. 278. (d) 7 H. & N. 355, 30 L. J. Ex. 189, 327, Ex. Ch. (1861). G Act wholly outside liable. who made it. As to the latter point, however, "where there is a necessity to have a person on the spot to act on an emergency, and to determine whether certain things shall or shall not be done, the fact that there is a person on the spot who is acting as if he had express authority is prima facie evidence that he had authority (e). Railway companies have accordingly been held liable for wrongful arrests made by their inspectors or other officers as for attempted frauds on the company punishable under statutes or authorized by-laws, and the like (ƒ). But the master is not answerable if the servant takes on authority, himself, though in good faith and meaning to further the master not master's interest, that which the master has no right to do even if the facts were as the servant thinks them to be: as where a station-master arrested a passenger for refusing to pay for the carriage of a horse, a thing outside the company's powers (g). The same rule holds if the particular servant's act is plainly beyond his authority, as where the officer in charge of a railway station arrests a man on suspicion of stealing the company's goods, an act which is not part of the company's general business, nor for their apparent benefit (h). In a case not clear on the face of it, as where a bank manager commences a prosecution, which turns out to be groundless, for a supposed theft of the bank's property—a matter not within the ordinary routine of banking business, but which might in the particular case be within the manager's authority-the extent of the (e) Blackburn J., Moore v. Metrop. R. Co. (1872) L. R. 8 Q. B. 36, 39, 42 L. J. Q. B. 23. (f) Ib., following Goff v. G. N. R. Co. (1861) 3 E. & E. 672, 30 L. J. Q. B. 148. (g) Poulton v. L. & S. W. R. Co. (1867) L. R. 2 Q. B. 534, 36 L. J. Q. B. 294. (h) Edwards v. L. & N. W. R. Co. (1870) L. R. 5 C. P. 445, 39 L. J. C. P. 241; cp. Allen v. L. & S. W. R. Co. (1870) L. R. 6 Q. B. 65, 40 L. J. Q. B. 55. |