Dowsett v. Dowsett , 116 Utah 12 ( 1949 )

I concur in the holding that the doctrine of respondeat superior was not applicable here because Darwin Dowsett was not as to either Nellie Dowsett, Harold Dowsett or Mrs. Darwin Dowsett in a relationship which would make the doctrine applicable.

The very doctrine itself has been subject to criticism by competent scholars. See Holmes, "Agency" (1891), 4 Harvard Law Review, 345-84; 5 Harvard Law Review 1-23, published in Selected Essays in Anglo-American Legal History Vol. III. Holmes thought its origin could be traced to the patria protectas of the Roman law. He had no use for this anomaly of responsibility without fault.

Professor Wigmore in his "Responsibility for Tortious Acts: Its History" (1894), 7 Harvard Law Review, 315, 383, 441, traces the origin of the doctrine of respondeat superior to the

"primitive notion which instinctively visits liability on the visible offending source, whatever it be, of a visible result * * *. The notion as applied to persons is that of the schadliche Mann, a person from who some evil result has proceeded."

Professor Douglas, now Mr. Justice Douglas, thought that no satisfactory explanation of the origin of the doctrine had yet been given.

I cite these brief comments in order to show that the doctrine has been not only "a healthy and stubborn orphan of the law," but that it owes modern support essentially to public policy. See Wigmore's essay, supra; Professor Seavey, "Respondeat Superior," Harvard Legal Essays (1934) 435; Laski, "The Basis of VicariousLiability" (1916), 26 Yale L.J. 105.

But how far this public policy should be carried in the master and servant and principal and agent relationship gave the old common law judges much concern. The so-called relationship of independent contractor, at bottom a type of master and servant relationship, really grew out of the felt necessity of not extending the doctrine of respondeat superior beyond the point to which it had been carried and involved a recession from the furthermost point to which it had been carried. See Determination of Employer-Employee Relationships in Social Legislation, Columbia Law Review, Vol. XLI (June 1941) at page 1021, from which I quote my own language:

"In early common law development, the master and servant category included almost all service relationships. The conception of an independent contractor, not so-called until later, dates back not much before Bush v. Steinman, in 1799. There the court was confronted with the practical problem of whether C, who negligently caused harm, was the servant of A or the servant of B, where there was a contract relationship between A and B. In this and later cases, the prevailing doctrine of respondeat superior was applied to hold A or B, but not both, responsible. The doctrine of independent contractorship was developed as a solution of this problem. There was no deliberate intent to create a new relationship — rather it developed gradually to fill an apparent need for selecting the right defendant in such triangular situations.

"Essentially the difficulty was in determining whether A, having hired B (B having an independent calling) to do a definite job or piece of work should be responsible for the acts of C, hired by B. This required a preliminary decision as to whether C was A's servant or B's. The courts, after holding C to be B's servant, decided that the harm was caused, if at all, only remotely by A; in other words there was an intervening cause which broke the chain of direct causation between A and C. The intervening cause was the circumstance that B was in the pursuit of an independent calling. In effect, therefore, the doctrine of independent contractorship was unconsciously developed as a mechanism to evade the rigors of the ancient doctrine of respondeat superior.

"Throughout the growth of ethico-legal distinctions among accident (no liability), fault through carelessness (tort), and design (crime), i.e. the development of classifications based on different mental states, the liability of the master for the acts of his servant still persisted though the servant may have chosen with great care and acted in a fashion contrary to the master's desire or instruction. Between 1500 and 1600 the law attempted to confine the master's liability to the Particular Command, that is, `the master to be liable must have commanded (or assented to) the very act in which the wrong consisted,' unless it were a command to do a thing in itself unlawful. But with the industrial era experience dictated the policy of holding the employer for the torts of his employee when acting within the scope and in the furtherance of his master's business. Under the guiding genius of Lord Holt, the technical requirement of Particular Command was logically met by implying it from the General Command or authority.

"So by 1800 through the Implied Command, the doctrine of respondeat superior was thoroughly ingrained as a policy in English law. It is at this point that we first meet with independent contractorship. While the situations presented to the courts were definitely ones in which it seemed unfair to impose liability by respondeat superior, the new relationship was not consciously invented to escape responsibility.

"The independent contractor, conceived as someone engaged in a separate and independent calling and exercising that calling while producing an agreed result for the employer, actually did stand in a different conceptual relation to the employer than did the ordinary servant or employee. The difference was that he was in the pursuit of his calling and for this reason the employer did not have control as to the manner of performance. The independent contractor was in what we have called an `own business' relationship.

"In the growing complication of life, new relationships arise different in nature from those which we are familiar, long before we recognize the difference. We continue to allude to them under the old generic name. As has been pointed out, there were relationships developing where the discretion of the agent was an ever-widening one and as the economic life became more complicated, special callings increased. Men did less of their own increasingly diversified tasks. The relation of independent contractor, while conceptually developed in the field of tort, was in fact earlier recognized in some of its other legal aspects, although not given that name. Certainly the servant of A, where A was himself engaged by B to achieve a definite result could not sue B for wages unless, of course, A was found to be the agent of B with authority to hire for him. This situation was recognized in its contractual aspects, B not being indebted to the servant because he had not hired him.

"Earlier the courts had not resorted to the rationale that the acts of the negligent actor were remote from the person who had contracted with the actor's employer, so as to break the chain of cause and effect from that person to the actor. Rather they evolve a limitation on the doctrine of respondeat superior by finding that the negligent actor was not the servant of the ultimate employer, B, but the servant of one whose relationship to such employer was in a new and different category, in time dubbed independent contractorship.

"If the judges could have projected themselves a hundred years into the future and from that vantage point have surveyed their own work, they might have seen fit to modify the policy of respondeat superior in certain instances without devising a relationship to create an exemption from the doctrine. But judge-made law has the disadvantage that it only grows from case to case, from situation to situation.

"The element which distinguished independent contractorship from the master-servant relationship was the absence of the right of control over the performance. The reason why in certain situations the `employer' did not have such right of control was that in those situations the other party to the contract was engaged in an independent calling while he was accomplishing the result for which the other had employed him."

It may appear that I have unnecessarily taken an excursion into the nature and origin of the doctrine of respondeat superior to no useful purpose, since it has now become a matter of public policy to hold the master responsible for the torts of his servants committed in the course of his business. But I have done so because I think it necessary to realize that the relationship of independent contractor was given recognition in an attempt to cut down this responsibility of the master. The next step then is to call attention to the fact that where, as here, someone does something for another as a favor or as an accommodation or for the mutual benefit of both parties where there is no right of control, and where it is apparent that it is not within the realm where public policy dictates that the non-actor party should be held on the doctrine of respondeat superior, we might press the relationship into that of independent contractorship even though it does not seem to have all the aspects of that relationship.

I rather think this case could be decided on principles applicable to bailments. The elder Dowsetts were bailees for the mutual benefit of Darwin and themselves. He wanted his car, and they wanted to visit him and visit with their daughter enroute. Certainly the fact that one of the bailees, if by negligent driving injured the other, would not make the bailor liable. Or it may have both the aspects of bailment and independent contractorship. In any event, I agree that the result is proper whether we fit it in the mould of bailment or independent contractorship or both.

I therefore concur.