Emison v. Wylam Ice Cream Co.

The American decisions seem to be unanimous in holding that "where there is neither express nor implied authority given a servant to employ another to perform or to assist him in the performance of his work, or a subsequent ratification by his employer of such employment, the relation of master and servant between the employer and one so employed by his servant, does not exist, and he is not liable for the negligent acts of the latter under the doctrine of respondeat superior." 39 Corp Jur. 1272, § 1459, citing numerous cases, among others, Thyssen v. Davenport Ice, etc., Co., 134 Iowa, 749, 112 N.W. 177, 13 L.R.A. (N.S.) 572, Haluptzok v. Gr. N. R. Co., 55 Minn. 446, 57 N.W. 144, 26 L.R.A. 739, and Board of Trade, etc., v. Cralle, 109 Va. 246, 63 S.E. 995, 22 L.R.A. (N.S.) 297, 132 Am. St. Rep. 917. On this proposition, it may be noted in passing our own cases of Tennessee, etc., Co. v. Hayes,97 Ala. 201, 12 So. 98, and Weinacker Ice Fuel Co. v. Ott, 163, Ala. 230, 50 So. 901, are not in point, because there the employing servants had authority to employ the assistants whose negligence caused the injury.

Though a few cases seem to hold that under the conditions first above stated the master is not liable on any theory whatever (Cooper v. Lowery, 4 Ga. App. 120, 60 S.E. 1015; Levin v. Omaha, 102 Neb. 328, 167 N.W. 214; Jewell v. Grand Trunk R. Co., 55 N.H. 84), the great weight of authority, and we think of reason also, is that a denial of liability under the rule of respondeat superior does not necessarily absolve the master from liability on other grounds, although the decisions are not in accord as to the circumstances which will impose liability, nor as to the juridical theory upon which that liability should be explained. 39 Corp. Jur. 1272, § 1459, and cases cited.

Some of them seem to include among the factors necessary to the master's liability the presence of the master's servant at the time and place of the damnifying act of the assistant, employed or authorized by him to perform his own authorized service, in furtherance of the master's business. Geiss v. Twin City, etc., Co., 120 Minn. 368, 372, 139 N.W. 611, 45 L.R.A. (N.S.) 382, and noted; Dimmitt v. Hannibal, etc., R. R. Co.,40 Mo. App. 654; Thixton v. Palmer, 210 Ky. 838, 276 S.W. 971, 44 A.L.R. 1379; Booth v. Mister, 7 C. P. 66, 32 E. C. L. 502; 39 Corp. Jur. 1272.

But, as stated in the text of 39 Corp. Jur. 1272, § 1459:

"Other decisions have formulated an even broader rule and affirmed the liability of the master on the ground that the injury was caused by an instrumentality used by the servant in the prosecution of the master's business, thereby making the act complained of the act of the servant himself, without regard to whether the act causing the injury was or was not done in the presence of the servant."

This theory of liability is supported by the cases of Ellefson v. Singer, 132 App. Div. 89, 116 N.Y. S. 453; Simons v. Monier, 29 Barb. (N.Y.) 419; Campbell v. Trimble, 75 Tex. 270,12 S.W. 863. See, also, Bank of Calif. v. W. U. T. Co.,52 Cal. 280; Thyssen v. Davenport, etc., Co., supra (13 L.R.A. [N. S.] 576, 578). In Hollidge v. Duncan, 199 Mass. 121,85 N.E. 186, 17 L.R.A. (N.S.) 982, it appears that the assistant was called upon for an emergency service, and the negligent act was done in the immediate presence of the servant in charge; and the theory of the master's liability was that the servant "used the assistance of the bystander as he would have used a tool or appliance which he had procured, and which he must be regarded as having implied authority to procure under the circumstances." And it was further observed that:

"The fact that the tool or appliance was an intelligent human being does not affect the matter any more than the fact that another person held the reins did in Booth v. Mister, 7 C. P. 66."

Hollidge v. Duncan, supra, is therefore not in point on the question here involved — the liability, vel non, of the master for the injurious act of the boy whom the servant called upon to discharge his own duty of driving the truck to a designated place; the servant going elsewhere and not being present at the time and place of the accident.

We do not approve the doctrine that a servant can, without authority, abandon the master's service, and substitute another person in his place, so as to make the master responsible for the acts of the substituted servant. But, when the servant has been intrusted with an instrumentality which he is instructed to use in the prosecution of the master's business, we think it is sound both in principle and in policy to hold the master responsible for the servant's injurious use of that instrumentality in the performance of his authorized service, even though the servant had intrusted the particular service to the hands of a third person who was acting for him and under his direction; and, in such a case, we can recognize no valid distinction between a case where the servant was present with his assistant at the time and place of the accident and a case where the servant was elsewhere. In each case the servant uses the instrumentality for the purpose intended and authorized, and in each case the directed act of his assistant is equally the act of the servant. Simons v. Monier, 29 Barb. (N.Y.) 419.

It is of no consequence that, in using the boy to drive the car, and so to perform his own duty in the premises, both the servant and the boy were consciously disobeying the master's orders. As said in Hardeman v. Williams, 169 Ala. 50, 57,53 So. 794, 796:

"The principal is responsible for the acts of his agent done within the scope of his employment, and in the accomplishment of objects within the line of his duties, though the agent seek to accomplish the master's business by improper or unlawful means, or in a way not authorized by the master, unknown to him, or even contrary to his express direction."

Upon the considerations above stated, we think the jury were erroneously instructed to find for the defendants, and the judgment must accordingly be reversed.

Appellant's contention that the master's instruction to the boy to do what White told him to do as helper on the truck made the boy a servant of the master, in whatever service he rendered pursuant to White's orders, is clearly untenable, since that instruction was expressly limited by the more specific instruction not to drive the car.

Reversed and remanded.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.