Sylvester A. Ploof v. Henry Putnam

• Decision Date: 07 February 1910
• Citation: 75 A. 277,83 Vt. 252
• Parties: SYLVESTER A. PLOOF v. HENRY PUTNAM
• Court: Vermont Supreme Court

75 A. 277

83 Vt. 252

SYLVESTER A. PLOOF v. HENRY PUTNAM

Supreme Court of Vermont

February 7, 1910

October Term, 1909.

TRESPASS AND CASE for damages resulting from unmooring plaintiff's sloop from defendant's dock. Plea, the general issue. Trial by jury at the March Term, 1909 Chittenden County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Judgment affirmed.

Batchelder & Bates and Charles H. Darling for the defendant.

Present ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.

OPINION

POWERS

It was formerly held, usually on the authority of McManus v. Crickett, 1 East 106, that a master was not answerable for the wilful or malicious act of his servant, though done in the line of the servant's duties, unless he directed or assented to it. Accordingly, it was said by ALDIS, J., in Andrus v. Howard 36 Vt. 248, that "the master is not liable for the wilful wrong or trespass of the servant, though the act be done while employed in the business of his master." But this doctrine is now pretty generally repudiated, and it has come to be well settled that a master is liable for the act of his servant, though it be wilful and malicious, when it is done in furtherance of the master's business and within the scope of the servant's employment. The primary test, then, is, not the character of the act itself, nor whether it was done during the period of employment, but whether it was done to carry out the directions of the master, express or implied, or to effect some purpose of the servant alone. This rule was fully recognized and approved in Palmer v. St. Albans, 60 Vt. 427, 13 A. 569, 6 Am. St. Rep. 125, wherein it is said: "The rule of respondeat superior is of universal application, whether the act be one of omission or of commission, whether negligent or fraudulent. And it makes no difference that the master did not know of the act, or disapproved it, or even forbade it, provided the servant was acting at the time for the master and within the scope of the business entrusted to him. * * * But the foundation of the rule is the relation of master and servant. When that does not exist, the law does not impute to one man the negligence of another. * * * Hence, the modern cases all show that it is not enough in order to charge one man with the negligence of another, to show that the latter was acting at the time under the employment of the former; but you must go further and show that the employment created the relation of master and servant between them;"--that is to say, of course, the relation of master and servant as to the very act of which complaint is made. Acts are here spoken of as "negligent or fraudulent," but in this connection fraud stands the same as other torts. Barwick v. English Joint Stock Bank, 2 L. R. Ex. Cas. at p. 265. So far we can proceed without much difficulty. Indeed the defendant's brief does not seriously controvert the rule as above stated. But an attempt to apply the rule to the varying circumstances of the numberless cases which have already arisen under it has led to much perplexity and confusion. In Pollock's Torts, (7th Ed.) at p. 82, the injuries in respect of which a master becomes subject to this kind of "vicarious liability" are helpfully classified as follows:

(a) Such as are the natural consequence of something being done by a servant with ordinary care in execution of the master's specific orders.

(b) Such as are due to the servant's want of care in carrying on the work or business in which he is employed.

(c) Such as result from an excess or mistaken execution of a lawful authority.

(d) Such as result from a wilful wrong, such as an assault, provided the act is done on the master's behalf and with the intention of serving his purposes.

The case in hand falls within class c or class d. It is further said by the author referred to at p. 87, that to establish a right of action against the master in cases covered by class c, it must be shown that (1) the servant intended to do on behalf of his master something of a kind which he was in fact authorized to do; (2) the act, if done in a proper manner, or under circumstances erroneously supposed by the servant to exist, would have been lawful.

In determining what acts are within a servant's authority, courts are not usually confined to his express instructions. Regard should be had to the character of the work, the situation of the parties, and the surrounding circumstances. Certain implied authority goes with the relation, usually if not always. In the much quoted language of Mr. Justice BLACKBURN in Allen v. London, etc. Ry. Co., L. R. 6 QB 65, implied authority in a servant will be inferred to do all those things that were necessary for the protection of the property intrusted to him or for fulfilling the duty which he has to perform.

So this man Williams who was the defendant's caretaker and had sole charge of his island in Lake Champlain, was clothed with implied authority to keep off trespassers and intruders,--and this, without regard to his written instructions that the defendant did not care to have people tie up to his wharf. Authority to use such force as might be necessary to accomplish this is implied from the character of the work. 26 Cyc. 1541; Alton Ry. & Illuminating Co. v. Cox, 84 Ill.App. 202; Brennan v. Merchant & Co., (Pa.) 205 Pa. 258, 54 A. 891. The whole story is condensed into an admirable statement of WILLIS, J., in Bagley v. M. S. & L. R. R. Co., L. R. 7 C. P. at p. 420: "A person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done, and trusts him for the manner in which it is done; and consequently he is held answerable for the wrong of the person so intrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment." When Williams cast off the plaintiff's rope, he was doing one of a class of acts well within the scope of his employment. One which under ordinary circumstances would be proper and lawful. But in the peculiar circumstances then existing, the act was improper and unlawful,--it was done under circumstances in which it ought not to have been done,--and the defendant is responsible, whether it was done carelessly or wilfully, unless it was done from the caprice of Williams, that is, to serve some purpose of his own. In other words, if Williams cast off the rope intending thereby to carry out his instructions and perform his duty as caretaker of the property, the defendant is liable; if he cast it off, not for this purpose, but only to serve some purpose of his own, the defendant is not liable.

The...