Departure or deviation from master's business. Whether the servant is really bent on his master's affairs Departure or deviation from master's business. The American authorities are in substantial accord with those of England. Thus, it was said by the court in the case of Howe v. Newmarch (12 Allen, 49), that: "If the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another not within the scope of his employment, the master is not liable." See Way v. Powers, 57 Vt. 135; Sheridan v. Charlick, 4 Daly, 338; Chicago, B. & Q. R. Co. v. Casey, 9 Ill. App. 632; Cavanaugh v. Dinsmore, 19 N. Y. Supreme Ct. 465; Bard v. John, 26 Pa. St. 482; Baker v. Kinsey, 38 Cal. 631; Wright v. Wilcox, 19 Wend. 343; Parsons v. Winchell, 5 Cush. 592; Boulard v. Calhoun, 13 La. An. 445; Brown v. Purirance, 2 Har. & G. 316; Adams v. Cost, 62 Md. 264; 50 Am. Rep. 211; Dawkins v. Gulf C. & S. F. R. Co., 77 Tex. 232; 13 S. W. Rep. 984; Thorp v. Minor, 109 N. C. 152; 13 S. E. Rep. 702; Stephenson v. South Pac. R. Co., 93 Cal. 558; 29 Pac. Rep. 234; Louisville, etc., R. Co. v. Douglass, 69 Miss. 723; 11 So. Rep. 983; Southern Express Co. v. Fitzner, 59 Miss. 581; Dells v. Stollenwerk, 78 Wis. 330; 47 N. W. Rep. 431. Where a master of a ferry boat left the wharf without the requisite consent of the owners of the boat and took a burning barge in tow, which set fire to other boats; it was held, that the owners of the boat were not responsible for the conduct of the master. Aycrigg v. New York, etc., R. Co., 30 N. J. L. 460. A bill-poster who wantonly throws a heap of bills into the road fifteen miles from where they should have been posted, does not charge his employer with liability for a runaway caused by two of the bills being blown against the horse of plaintiff's intestate. Smith v. Spitz, 156 Mass. 319; 31 N. E. Rep. 5. The nice discrimination sometimes observed by the courts in the application of these principles is illustrated in the case of Cobb v. Columbia & G. R. Co. (37 S. C. 194; 15 S. E. Rep. 878), in which a railroad company is held liable for the misconduct of an engineer in unnecessarily and wilfully sounding the whistle and blowing off steam, so as to frighten a horse, and cause him to run away; but not for the misconduct of the trainmen in yelling and shouting at the horse. In the case of Mielvehill v. Bates (31 Minn. 364), where the owner of an express wagon employed a driver, and intrusted the wagon to him, generally, to be used, at his discretion, in securing and doing business; thus employed, the driver, having delivered a trunk, on his return got "a load of poles for himself," and, while taking them home, negligently drove over and injured the plaintiff's child; it was held, that the master was liable for the injury. In another case, where the pilot in charge of a ferry boat took on a boatman, agreeing without compensation, to put him on board his boat, or not is a question of fact, but a question which may be troublesome. Distinctions are suggested by some of the reported cases which are almost too fine to be acceptable. The principle, however, is intelligible and rational. Not every deviation of the servant from the strict execution of duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master's responsibility. But where there is not merely deviation, but a total departure from the course of the master's business, so that the servant may be said to be " on a frolic of his own" (r), the master is no longer answerable for the servant's conduct. Two modern cases of the same class and period, one on either side of the line, will illustrate this distinction. Whatman v. Pearson. In Whatman v. Pearson (8), 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 (r) Parke B., Joel v. Morison (1834), 6 C. & P. 503: a nisi prius case, but often cited with approval; see Burns v. Poul som (1873), L. R. 8 C. P. at p. 567, 42 L. J. C. P. 302. (8) L. R. 3 C. P. 422 (1868). which was part of a tow passing up the river. The ferry boat diverged from its course to reach the tow, and through the negligence of those in charge, collided with a canal boat attached thereto, upon which was plaintiff's intestate, who was thrown by the collision into the river and drowned. The defendant (the owner of the ferry boat), was held responsible for the accident. Quinn v. Power, 87 N. Y. 535; 41 Am. Rep. 392; reversing 17 Hun, 102. See Smith v. Webster, 23 Mich. 298; Tuel v. Weston, 47 Vt. 624; Leviness v. Post, 6 Daly, 321; Wolfe v. Mersereau, 4 Duer. 473; Chapman v. New York, etc., R. Co., 33 N. Y. 369; Simons v. Monier, 29 Barb. 219; Chicago, M. & St. P. R. Co. v. West, 125 Ill. 320; 17 N. E. Rep. 788; Simonin v. New York, etc., R. Co., 36 Hun, 214; Bonner v. Bryant (Tex.), 21 S. W. Rep. 549; Baxter v. Chicago, etc., R. Co. (Ia.), 54 N. W. Rep. 350; Garretzen v. Duenchkel, 50 Mo. 104; Northwestern R. Co. v. Hack, 66 Ill. 238; Schaefer v. Osterbrink, 67 Wis. 495; 58 Am. Rep. 875. 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). Storey v. Ashton. 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 said to be carrying out his master's employment" (x). 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). (t) Byles J., at p. 425. (u) (1869) L. R. 4 Q. B. 476, 38 L. J. Q. B. 223. Mitchell v. Crassweller, cited on p. 77, was a very similar case. (x) Lush J. at p. 480. It was "an entirely new and independent journey, which had nothing at all to do with his employment:" Cockburn C. J. "Every step he drove was away from his duty:" Mellor J., ibid. But it could have made no difference if the accident had happened as he was coming back. See the next case. (y) Rayner v. Mitchell (1877), 2 C. P. D. 357. Williams v. Jones. The following is a curious example. A carpenter was 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. (2). 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). 66 Excess or mistake in execution of authority. (c) Another kind of wrong which may be done by a servant in his (z) Williams v. Jones (1865), Ex. Ch. 3 H. & C. 256, 602, 33 L. J. Ex. 297; diss. Mellor and Blackburn JJ. (a) R. S. (now Mr. Justice) Wright, Emp. L. 1876, p. 47. Excess or mistake in execution of authority. The master is liable for the wrongful act of the servant to the injury of a third person, when the servant is engaged at the time in doing his master's business and was acting in the scope of his general authority; although, the servant departed from the private instructions of the master, abused his authority, was reckless in the performance of his duty, and inflicted unnecessary injury. Rounds v. Del. L. & W. R. Co., 64 N. Y. 129; 5 Thomp. & C. 475; 4 Hun, 329. Thus, where a gate-keeper, authorized to keep order, ejects plaintiff for fanciful objections to his demeanor and assaults him, the employer is liable. Oakland City A. & I. Soc. v. Bingham (Ind. App.), 31 N. E. Rep. 383. See New Orleans, etc., R. Co. v. Hanning, 15 Wall. 649; Ochsenbein 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. 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. Interference with passengers by guards, etc. Most of the cases on this head have arisen out of acts of railway servants on behalf of the companies. A porter whose duty v. Shapley, 85 N. Y. 214; Heenrich v. Pullman, etc., Co., 20 Fed. Rep. 100; 18 Am. & Eng. R. Cas. 379; Molloy v. New York, etc. R. Co., 10 Daly, 453; Gulf & S. F. R. Co. v. Kirkland, 79 Tex. 457; 15 S. W. Rep. 495; Chicago, R. I. & P. R. Co. v. Conklin, 32 Kan. 55; Isaacson v. New York, etc., R. Co., 94 N. Y. 278; Pittsburg, etc., R. Co. v. Kirk, 102 Ind. 399. So, a railroad conductor or brakeman has implied authority to remove trespassers, but if he recklessly ejects one from a train, the company is liable. Hoffman v. New York, etc., R. Co., 87 N. Y. 25; Carter v. Louisville, etc., Ry. Co., 98 Ind. 552; Atchison, etc., R. Co. v. Thul, 32 Kan. 255; Kansas City, etc., R. Co. v. Kelley, 36 Kan. 655; 14 Pac. Rep. 172; Lovett v. Salem & S. D. R. Co., 9 Allen, 557; Holmes v. Wakefield, 12 Allen, 580; Jeffersonville R. Co. v. Rogers, 38 Ind. 116; Kline v. C. P. R. Co., 37 Cal. 400; Shea v. Sixth Ave. R. Co., 62 N. Y. 180; Higgins v. Watervliet Turnpike Co., 46 N. Y. 23; Chicago, M. & St. P. R. Co. v. West, 24 Ill. App. 44; affirmed 125 Ill. 320; 17 N. E. Rep. 788. For the servant's mistakes the master is liable. K. C. & N. Ry. Co., 78 Mo. 610; White v. Bank, 1 Kinley v. C. & N. W. R. Co., 44 Ia. 314. Marshall v. St. Louis, Interference with passengers by guards, etc. Where a street car conductor threw a boy from the car, whom he erroneously supposed was stealing a ride; it was held, that though the conductor acted without malice and with a sole view to further the master's business, as he viewed |