Cochran v. Michaels

Decision Date17 February 1931
Docket Number(No. 6821)
Citation110 W.Va. 127
PartiesLorenza D. Cochran v. William M. Michaels
CourtWest Virginia Supreme Court
1. Master and Servant

Whether an act by a servant is within the scope of his employment is determined by the relation which the act bears to the employment.

2. Same

An act specifically or impliedly directed by the master, or any conduct which is an ordinary and natural incident or result of that act is within the scope of the employment.

Error to Circuit Court, Marion County. Action by Lorenza D. Cochran against William M. Michaels. To review an adverse judgment, defendant brings error.


Frank C. Haymond, for plaintiff in error. Walter R. Haggerty, for defendant in error.

Hatcher, Judge:

Plaintiff was injured by an automobile owned by defendant. This is an action to recover damages for that injury. A verdict was returned in favor of defendant which was set aside by the trial court. The defendant seeks here to sustain that verdict.

The place of the injury was near Fairmont on a public road which is surfaced with concrete a width of eighteen feet; the time was between six and seven p. m., January 31, 1928. The plaintiff was walking along or near the right edge of the concrete and was struck from behind. The automobile was proceeding in the same direction as the plaintiff and was driven by an employee of defendant. The excuse given by the driver for not avoiding the accident is that he was partially blinded by the headlights of an approaching car. The driver was employed to sell used cars, at the price and on the terms fixed by defendant, who is in the garage business at Fair- mont; the driver was authorized by defendant to go anywhere within reason on his own initiative in search of a purchaser, subject to the order that he should return the ear to the garage by eight p. m. He was privileged to "pick up" his friends on his trips. At the time of the accident, the driver was taking a friend (with three other persons) to Fairmont to consult a doctor. The friend lived at Everson, which is about seven miles from Fairmont. None of the passengers were prospects for a sale. Under these circumstances the defendant contends that the relation of master and servant between him and the driver did not exist at the time of the accident and that he is not liable to the plaintiff, as a master.

With great diligence counsel for each litigant has cited many cases as bearing on this question. The citations lead us to no solution, however, as they are in hopeless conflict. This condition prevails not only in the several jurisdictions in the United States but sometimes in the same jurisdiction. Hundreds of opinions have been written on this subject. Nice and subtle distinctions ("almost too fine to be acceptable." Pollock, Torts, (13th Ed.), p. 90), have been drawn, as to just when a servant steps without the ambit of his duty and the precise moment when he re-enters it. The mental attitude of the servant as well as his acts, the distance, the time and the direction travelled from what has been termed '' the path of authorized conduct'' have each been accorded material significance in solving the riddle. Most of the decisions are merely the result of stare decisis. In the leading cases, it is apparent that their diversity is due to different judicial conceptions of the master's liability. This difference is plausibly explained by Young B. Smith in a thoughtful article in the Col. Law Review, 23 Vol. 463: "If a court doubts the wisdom of a rule, a narrow and restricted application is to be expected. On the other hand, if the court approves the policy underlying a rule, a broad and liberal application generally follows. Then, again if the court entertains no convictions about a rule, a more or less mechanical application ensues, offer leading to inconsistencies and confusion." In order to avoid, in this case, a purely mechanical application of the rule of vicarious liability, we have made some research into its history and its rationale.

Again we are met with confusion. The rule generally bears the impress of a Latin formula, respondeat superior, (let the principal answer). The Roman law, however, never extended vicarious responsibility beyond the (a) liability of masters for acts of their slaves; (b) absolute liability of shipowners, innkeepers and stablekeepers for property intrusted to their charge; (c) absolute liability of occupants of buildings for injuries caused by things thrown or poured down from the building; (d) liability of a contractor for the negligence of his servants in performing his contract. 6 Labatt's, Master & Servant, Ch. XCV. Justice Holmes cynically calls the modern rule a bare fiction "a form of words " implanted upon the Patria Potestas (Paternal authority) recognized by the Roman law. See article on Agency, 4th Harvard Law Review, 345. He finds partial support in Shearman & Redfield, The Law of Negligence, (6th Ed.), sec. 142, and 2 Kent, Com. (12th Ed.), 260, note 1. Prof. Wigmore takes a different view, attributing the rule to a gradual development of English thought commencing about the year 1300 and not based on or influenced by the Roman law. He traces it through three phases: (1) when the act of the servant was directly commanded by the master (about 1300); (2) when the act was impliedly so commended (about 1700); (3) when the act was within the scope of authority or course of employment (about 1800). See article on Responsibility for Tortious Acts, 7 Harvard Law Review, 381-2. Pollock and Maitland in their History of the English Law, 2 Vol. 528, etc., find no definite trace of our present doctrine prior to 1688. They agree with Wigmore thus far, that the doctrine had its inception "in phrases which teach that a master is liable for acts that he has 'impliedly' as well as for those which he has 'expressly' commanded" (p. 529). Labatt, supra, sec. 2234, reaches about the same conclusion as Pollock and Maitland. It is generally conceded among legal historians that the modern law of respondeat superior is founded on expressions of Holt, C. J. In Boston v. Sanford, (1689) 2 Salk. 440, he is reported as saying: "Whoever employs another is answerable for Mm." In Turburville v. Stampe (1698), 1 Ld. Raym. 264, the Chief Justice was more exact:" If my servant doth anything prejudicial to another, it shall bind me, where it may be presumed that he acts by my authority, being about my business." These pronouncements have been called "unwarranted dicta". Be that as it may, the latter statement of Holt was accepted by the English judges and furnishes a fair conception of the master's liability as it exists even to this day.

Many different foundations for the rule have been suggested. A very common one among judges and writers is the maxim, qui facit per alium facit per se. ("He who acts through another acts by himself.") 1 Blackstone, Com. 429, 430; 18 R. C. L., subject, Master and Servant, sec. 247; Wood, Master and Servant, sec. 277. This maxim, however, as pointed out by Pollock, "states the effect of the rule, not any reason for it," One reason offered by this author is that whoever "exposes others to risk (per alium) should abide the consequences if the risk ripens into actual harm." Essays in Jurisprudence, p. 122. And then again, "I am answerable for the wrongs of my servant or agent, not because he is authorized by me or personally represents me, but because he is about my affairs, and I am bound to see that my affairs are conducted with due regard to the safety of others.'' Pollock, Torts, p. 81. The earlier decisions attributed the rule to such principles as: "Whenever one of two innocent persons must suffer by the acts of a third, he who has enabled said third persons to occasion the loss must sustain it," (Lickbarrow v. Mason, 1787, 2 T. R. 70); and "he who expects to derive advantage from an act which is done by another for him, must answer for any injury which a third person may sustain from it," (Hall v. Smith, 1824, 2 Bing. 145). The first principle above was adopted by Bishop in sec. 608, Non-Contract Law. The second principle seemed sufficient to the present savant of our own Court, Judge Lively, in Wills v. Gas Co., 104 W. Va. 12, 17. "The rule is founded on the principles of justice between man and man," declared Caldwell, J., in B. B. Co. v. Stevens, 20 Ohio 415, 432, (Lawrence). Many other judges have taken this view. The law writers generally, however, have based the rule entirely on consideration of public policy. "The rule making the master liable does not depend upon foundations of natural justice, but is defended upon consideration of expediency." Floyd R. Mechem on...

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  • Dunn v. Rockwell
    • United States
    • West Virginia Supreme Court
    • November 24, 2009
    ...the scope of employment, not because the employer is at fault, but merely as a matter of public policy. See Cochran v. Michaels, 110 W.Va. 127, 130-131, 157 S.E. 173, 174-75 (1931) ("the rule is based on public policy").20 See also, Oelschlager v. Magnuson, 528 N.W.2d 895, 899 (Minn.App.199......
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    • October 31, 2014 ordinary and natural incident or result of that act, is within the scope of the employment.'" (quoting Syllabus, Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931) (emphasis added)); see alsoGriffith v. George Transfer & Rigging, Inc., 157 W.Va. 316, 326, 201 S.E.2d 281, 288 (1973) ......
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    • November 18, 2014 ordinary and natural incident or result of that act, is within the scope of the employment.’ ” (quoting Syllabus, Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931) (emphasis added)); see also Griffith v. George Transfer & Rigging, Inc., 157 W.Va. 316, 326, 201 S.E.2d 281, 288 (1973......
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    ... ... incident or result of that act, is within the scope of the ... employment.' Syllabus, Cochran v. Michaels, 110 ... W.Va. 127, 157 S.E. 173 (1931)." Syllabus Point 6, ... Courtless v. Jolliffe , 203 W.Va. 258, 507 S.E.2d 136 ... ...
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