26 Ind. 70.

(c) On this ground rests the distinction now well established, between the negligence of the servant and his wilful and malicious trespass; the act in either case being done in the course of his employ. For the former the master must answer; for the latter he is held not liable, unless the trespass is proved to have been authorized or ratified by him. McManus v. Crickett, 1 East, 106; Croft v. Alison, 4 B. & Ald. 590; Lyons v. Martin, 8 A. & E. 512; Goodman v. Kennell, 1 Mo. & P. 241, s. c. 3 C. & P. 167; Sadler v. Henlock, 4 El. & Bl. 570; Foster v. Essex Bank, 17 Mass. 479; Wright v. Wilcox, 19 Wend. 343; Vanderbilt v. Richmond Turnpike Co. 2 Comst. 479; Corbin v. American Mills, 27 Conn. 274. But it seems that where the duty of the master to the party whose property is injured, is not merely that which every man owes to his neighbor, but a peculiar duty arising from a special relation, there that special relation may occasion a liability even for the wilful tort of the servant. As where the relation is one of bailment. In Sinclair v. Pearson, 7 N. H. 227, Parker, J., giving the judgment, said: "It is evident, therefore, that the liability of a bailee, for a loss occasioned by the act of a servant, cannot be made to depend upon the question whether the act was wilful or otherwise; or whether the servant, in committing it, was doing, or forbearing what his master had directed; for if that were the criterion, the bailee would never be liable for the act or neglect of his servants, unless done by his command, either expressed, or in fact to be inferred; but it must depend upon the question whether the degree of care and diligence required about the preservation, safe-keeping, etc, of the thing bailed, has been exercised by master and servant." And Ellis v. Turner, 8 T. R. 531, • was referred to, where a loss of part of a cargo having occurred in consequence of the misconduct of the master of the that the policy of holding a master to a * reasonable care and discretion in the choice of a servant may cause a Liberal construction of the rule in respect to an injured party, and may therefore be satisfied in some instances with a * slight degree of actual control; but of the soundness and general applicability of the principle itself, we do not doubt; nor do we see any greater difficulty in the application of the principle than may always be apprehended from the variety and complexity of the facts to which this and other legal principles may be applied. The master is responsible for what is done by one who is his servant in fact, for the reason that he has such servant under his constant control, and may direct him from time to time as he sees fit; and therefore the acts of the servant are the acts of the master, because the servant is at all times only an instrument; and one is not liable for a person who is a servant only by construction, excepting so far as this essential element vessel, and an action having been brought by the owner of the goods against the owners of the vessel, Lord Kenyan said: " Though the loss happened in consequence of the misconduct of the defendants' servant, the superiors (the defendants) are answerable for it in this action. The defendants are responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for his misconduct in those things that do not respect his duty to them; as if he were to commit an assault upon a third person in the course of his voyage." - The rule established in McManus v. Crickett, is criticised by Reeve, Dom. Rel. 357; and in the case of The Druid, 1 Wm. Rob. 485, Dr. Lushing-ton commented in forcible terms upon the hardship of the rule, and expressed regret at its adoption. - If a master give general directions which naturally occasion the commission of a tort by the servant executing them, the master is liable notwithstanding he never commanded that particular act. Rex v. Nutt, Fitzg. 47; Lord Tenterden, Rex v. Gutch, Mo. & M. 437, 438; Attorney-General v. Siddon, 1 Tyr. 49; Gregory v. Piper, 9 B. & C. 591; Lord Lonsdale v. Littledale, 2 H. Bl. 267, 299; Sly v. Edgley, 6 Esp. 6; Holmes v. Onion, 2 C. B. (n. s.) 790. In Powles v. Hider, 6 E. & B. 208, the owner of a cab, plying in London, was held liable for goods lost by the negligence of the cab-driver, although the driver paid the owner every day a certain sum for the use of the cab and horses. And where the servant is in the employ of the master, and the acts complained of are done in the course of the employment, the master is responsible, although the acts were done in a way directly contrary to his instructions. Philadelphia, etc. R. Co. v. Derby, 14 How. 468; Southwick v. Estes, 7 Cush. 385. - But in cases where the master is held liable on the ground of an implied authority to the servant to do the particular act for him, if the tort is a trespass on the part of the servant, the master must not be sued in trespass, but case. Gordon v. Rolt, 4 Exch. 365; Sharrod v. London, etc. R. Co. 4 Exch. 580; where a railway train, driven at the rate of forty miles an hour, according to the general directions of the company to the driver, ran over and killed some sheep which had strayed upon the line in consequence of the defective fences of the company. It appeared that if the driver (running the engine at the speed directed) had seen the sheep, he could not have stopped the train in time to prevent the collision. Held, that the company were not liable in trespass for the injury; but that the action should have been case, either for permitting the fences to be out of repair, or for directing the servant to drive at such a rate as to interfere with the right of the sheep to be on the railway. It was observed in the judgment, that, notwithstanding the order to the driver to proceed at a great speed, it did not follow as a necessary consequence that the engine would infringe on the plaintiff's cattle; and the case was distinguished from Gregory v. Piper, 9 B & C. 591, on this ground. See Howe v Newmarch, 12 Allen, 49; Du Pratt v. Lick, 38 Cal. 691.