behalf and for the benefit of another (n). But that other may well be also liable; and in many cases a man is held answerable for wrongs not committed by himself. The rules of general application in this kind are those concerning the liability of a principal for his agent, and of a master for his servant. Under certain conditions responsibility goes farther, and a man may have to answer for wrongs which, as regards the immediate cause of the damage, are not those of either his agents or his servants.

Cases of absolute positive duty distinguished: Thus we have cases where a man is subject to a positive duty, and is held liable for failure to perform it. Here, the absolute character of the duty being once established, the question is not by whose hand an unsuccessful attempt was made, whether that of the party himself, of his servant, or of an "independent contractor" (0), but whether the duty has been adequately performed or not. If it has, there is nothing more to be considered, and liability, if any, must be sought in some other quarter (p). If not, the non-performance in itself, not the causes or conditions of non-performance, is the ground of liability. Special duties created by statute, as conditions attached to the grant of exceptional rights or otherwise, afford the chief examples of this kind. Here the liability attaches, irrespective of any question of agency or personal negligence, if and when the conditions imposed by the legislature are not satisfied (7).

(n) Cullen v. Thomson's Trustees and Kerr, 4 Macq. 424, 432. "For the con. tract of agency or service cannot im. pose any obligation on the agent or servant to commit or assist in the committing of fraud," or any other wrong.

(0) The distinction will be explained below.

(p) See Hyams v. Webster (1868), Ex Ch. L. R. 4 Q. B. 138, 38 L. J. Q. B. 21. (q) See Gray v. Pullen (1864),Ex. Ch. 5 B. & S. 970, 34 L. J. Q. B. 265.

Cases of absolute positive duty: warranty. These cases are discussed under separate headings on other pages.

Upon duties imposed by statute, see ante, p. 24. Upon the general subject, see post, chap. XII.

Also duties in nature of warranty. There occur likewise, though as an exception, duties of this kind imposed by the common law. Such are the duties of common carriers, of owners of dangerous animals or other things involving, by their nature or position, special risk of harm to their neighbours; and such, to a limited extent, is the duty of occupiers of fixed property to have it in reasonably safe condition and repair, so far as that end can be assured by the due care on the part not only of themselves and their servants, but of all concerned.

The degrees of responsibility may be thus arranged, beginning with the mildest :

(i) For oneself and specifically authorized agents (this holds always).

(ii) For servants or agents generally (limited to course of employment).

(iii) For both servants and independent contractors (duties as to safe repair, etc.).

(iv) For everything but vis major (exceptional: some cases of special risk, and anomalously, certain public occupations).

Modes of liability for wrongful acts, etc., of others. Apart from the cases of exceptional duty where the responsibility is in the nature of insurance or warranty, a man may be liable for another's wrong

(1) As having authorized or ratified that particular wrong:

(2) As standing to the other person in a relation making him answerable for wrongs committed by that person in virtue of their relation, though not specifically authorized.

The former head presents little or no difficulty. The latter includes considerable difficulties of principle, and is often complicated with troublesome questions of fact.

Command and ratification. It scarce needs authority to show that a man is liable for wrongful acts which have been done according to his express command or request, or which, having been done on his account and for his benefit, he has adopted as his own. "A trespasser may be not only he who does the act, but who commands or procures it to be done who aids or assists in it . or who assents afterwards" (r). This is not the less so because the person employed to do an unlawful act may be employed as an "independent contractor," so that, supposing it lawful, the employer would not be liable for his negligence about doing it. A gas company employed a firm of contractors to break open a public street, having therefor no lawful authority or excuse; the thing contracted to be

(r) De Grey C. J, in Barker v. Braham (1773), 2 W. Bl. 866, Bigelow, L. C. 235.

Command and ratification. The doctrine of the text is sustained by all well considered authorities. Congreve v. Morgan, 5 Duer, 495; Clark v. Fry, 8 Ohio St. 358; Elder v. Bemis, 2 Metc. 599; Armstrong v. Cooley, 10 Ill. 509; McCullough v. Shoneman, 105 Pa. St. 169; 51 Am. Rep. 194; Schmidt v. Adams, 18 Mo. App. 432; Craker v. Chicago & N. W. Ry. Co., 36 Wis. 669; McClung v. Dearborne, 134 Pa. St. 396; 19 At. Rep. 698; 26 W. N. C. 42; Tucker v. Jenis, 75 Me. 188; Corner v. Mackintosh, 48 Md. 347; Byne v. Hatcher, 75 Ga. 289; Nashville & C. R. Co. v. Starnes, 9 Heisk. 52; Barden v. Felch, 109 Mass. 154; Williams v. Palace Car Co., 40 La. An. 87; 33 Am. & Eng. R. Cas. 414; Dempsey v. Chambers, 154 Mass. 330; 28 N. E. Rep. 279; Harrison v. Mitchell, 13 La. An. 260; Bass v. Chicago & N. W. Ry. Co., 42 Wis. 654; Milwaukee & M. R. R. Co. v. Finney, 10 Wis. 388; Allred v. Bray, 41 Mo. 484; Brainard v. Dunning, 30 N. Y. 211; Hewitt v. Swift, 3 Allen, 420; Knight v. Nelson, 117 Mass. 457.

And so if the wrongful act be done by an "independent contractor." Ware v. St. Paul Water Co., 2 Abb. U. S. 261; Leber v. Minneapolis & N. W. R. Co., 29 Minn. 256; Ketcham v. Cohn, 22 N. Y. S. Rep. 181; Hawver v. Whalen, 49 Ohio St. 69; 29 N. E. Rep. 1049; Engel v. Eureka Club, 59 Hun, 593; 14 N. Y. S. Rep. 184.

Subsequent approval of a tort will not affect a third person, unless the act were originally done in his name or for his use. Grund v. Van Vleck, 69 Ill. 481; Coomes v. Houghton, 102 Mass. 211; New England Dredging Co. v. Rockport Granite Co., 149 Mass. 381. See Dempsey v. Chambers, 154 Mass. 330; 28 N. E. Rep. 279, reviewing the cases.

done being in itself a public nuisance, the gas company was held liable for injury caused to a foot-passenger by falling over some of the earth and stones excavated and heaped up by the contractors (s). A point of importance to be noted in this connexion is that only such acts bind a principal by subsequent ratification as were done at the time on the principal's behalf. What is done by the immediate actor on his own account cannot be effectually adopted by another; neither can an act done in the name and on behalf of Peter be ratified either for gain or for loss by John. "Ratum quis habere non potest, quod ipsius nomine non est gestum (t).

Master and servant. The more general rule governing the other and more difficult branch of the subject was expressed by Willes J. in a judgment which may now be regarded as a classical authority. "The master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved” (u).

(8) Ellis v. Sheffield Gas Consumers Co. (1853), 2 E. & B. 767, 23 L. J. Q. B. 42.

(t) Wilson v. Tumman (1813), 6 M. & G. 236; and Serjeant Manning's note, ib. 239.

(u) Barwick v. English Joint Stock

Bank (1867), Ex. Ch. L. R. 2 Ex. 259, 265, 36 L. J. Ex. 147. The point of the decis. ion is that fraud is herein on the same footing as other wrongs: of which in due course.

Master and servant. The general statement in the text is that also of the law in the United States.

It is accepted that the master's liability for the torts of the servant springs out of the relation itself, and does not depend upon the stipulations of their contract. Within the scope of his authority, the servant may be said to be the medium through which the master acts; it follows, as a general rule, that for the tortious acts of the servant the master is liable. Ward v. Young, 42 Ark. 542; Northern Pac. R. Co, v. Herbert, 116 U. S. 624; 24 Am, & Eng. R. Cas. 407; The Eleanor, 2 Wheat. 345; Robinson v. Webb, 11 Bush, 465; Sawyer v. Martins, 25 Ill. Ap. 521. The cases subsequently cited in this chapter sustain and show the special application of these general principles.

Reason of the master's liability. No reason for the rule, at any rate no satisfying one, is commonly given in our books. Its importance belongs altogether to the modern law, and it does not seem to be illustrated by any early authority (x). Blackstone (i. 417) is short in his statement, and has no other reason to give than the fiction of an" implied command." It is currently said, Respondeat superior; which is a dogmatic statement, not an explanation. It is also said Qui facit per alium facit per se; but this is in terms applicable only to authorized acts, not to acts that, although done by the agent or servant “in the course of the service," are specifically unauthorized or even forbidden. Again, it is said that a master ought to be careful in choosing fit servants; but if this were the reason, a master could discharge himself by showing that the servant for whose wrong he is sued was chosen by him with due care, and was in fact generally well conducted and competent: which is certainly not the law.

A better account was given by Chief Justice Shaw of Massachusetts. "This rule," he said, "is obviously founded on the great principle of social duty, that every man in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it" (y). This is, indeed, somewhat too widely expressed, for it does not in terms limit the responsibility to cases where at least negligence is proved. But no reader is likely to suppose that, as a general rule, either the servant or the

(x) Joseph Brown Q. C. in evidence before Select Committee on Employers' Liability, 1876, p. 38; Brett L J., 1877, p. 114.

(y) Farwell v. Boston and Worcester Railroad Corporation (1842), 4 Met. 49, and Bigelow L. C. 688. The judgment is also reprinted in 3 Macq. 316. So, too, M. Sainctelette, a recent Continental

writer on the subject, well says: "La responsabilité du fait d'autrui n'est pas une fiction inventée par la loi positive. C'est une exigence de l'ordre social:" De la Responsabilité et de la Garantie, p. 124. Paley (Mor. Phil. bk. 3, c. 11) found it difficult to refer the rule to any principle of natural justice.