If the principal authorizes the tort, he is liable.
If before the commission of a tort by an agent the principal authorizes or counsels its commission he is liable as a tort feasor.
A principal is liable for a tort which was committed as part of an act which the principal now ratifies.
See this subject discussed elsewhere.83
The principal is liable for the torts of the agent which are committed within the scope of the authority.
When an agent does an act for the principal, the principal is theoretically present doing it. If while engaged in the performance thereof the agent commits a tort which may be said to be a part of it, the principal will be held as though he had himself committed the tort or counselled its commission. The tort, however, must be a tort which really forms a part of the act which the principal authorized; it must be done in the course of the employment and within the scope of the authority given him.
83. See Section 21.
The fact that a principal will be held for the torts of the agent is based upon sound policy. It results in making a principal careful in choosing his agents, and it prevents secret arrangements between the principal and agent that the agent shall commit a tort apparently unassented to by the principal. But the real basis for the rule is probably that the principal and agent are in law, one.84
A tort is within the scope of the authority so as to render the principal liable to third persons therefor when it occurs while the agent is engaged in his work, as a part thereof.
The principal is liable for an agent's torts when they are within the scope of the authority. This implies two things. First, that the tort occur during the time of the employment, and second, that it be a part of the act done in the principal's behalf and not independently thereof. Let us consider each of these tests.
(1) Principal (or master) not liable for agent's (or servant's) tort unless it occurs during the performance of the employment.
It is very clear that I am not liable for another person's tort merely because he is one who works for me. He may assault a person - after hours, and far, perhaps, from the scene of his work. I am not answerable. He must be at work when the tort is committed, but some interesting questions arise in this connection.
Example 21. In an early English case, one Joel was crossing a street and was knocked down by a cart and horse belonging to Morrison. Joel sued Morrison and there was conflicting evidence whether the servant was on an errand of his own or about his master's business. And the court said that the master was liable even if the servant was going out of his way at the time and against his master's business, if he was still about that business, but if he had the cart out for a "frolic of his own" the master would not be liable.85
84. Dempsey v. Chambers, 154 Mass. 330.
Translating the above example into a picture of today, with the term "joyriding" for "frolic of his own," we have a situation fraught with much greater danger, but which needs the same distinction. The cases are numerous.
Example 22. One Fairman was driving a car belonging to Windsor Motor Car Co., by which he was employed. He was, however, at the time, driving upon a pleasure trip of his own. Plaintiffs intestate was killed by Fairman's alleged negligence. The court said, "If he was not acting at the time within the scope of his employment, but was on a purely pleasure trip of his own, the company cannot be held liable.86
In another case87 the evidence was that the delivery boy driving the automobile by which plaintiff was injured had made his last delivery and was going in a longer route than was necessary to the garage, permitting guests to ride with him, was not conclusive evidence that the master was or was not liable and the question was for the jury to determine whether he was about his master's business, or upon a trip of his own and a verdict for plaintiff against the master was sustained.
85. Joel v. Morrison, 6 C. & P. 501.
86. Stern v. Intern. Rwy. Co., 153 N. Y. 520; see, also, Cunningham v. Castle, 111 N. Y. Suppl. 1056.
87. Maloy v. Rosenbaum Co., 260 Pa. 466, 103 Atl. 882.
(2) The tort must be a part of the act done in the furtherance of the principal's business.
Even if the tort is committed concededly while the employee is at work, it may not be attributable to the principal. This question requires the consideration of the nature of the work which the employee is authorized to do, and the nature of the tort committed by him. Perhaps we can make one exception to this, that is, the case of negligence. A negligent performance of his duties by the employee will render the principal liable to the party damaged by the causal operation of such negligence, no matter what the nature of the work.88 In this connection, however, very difficult questions arise as to what is the duty of the employee, for if he performs some act negligently which he had no duty to perform the master is not liable.
Fraud. If the employee is an agent to deal with third persons, the principal is liable for the agent's frauds by which he performs his authority.89 But whether the principal must answer, depends on whether the fraud has a part of authorized acts.
Assault and Battery. False arrest. Whether the principal is liable depends entirely on the agent or employee's duty. If put to guard the property as a watchman or detective, or if generally he has a duty of protection, the employer is liable for a wrongful arrest or assault and battery.90
Thus a wrongful arrest by a detective would make his employer liable,- but the same arrest by a window washer, would not make him liable.
Defamation. Defamation by an agent may or may not render an employer liable. If connected with a sale or attempted sale by a general manager,91 the employer will be liable. Newspapers are liable for defamatory statements of their editors, published therein.
88. See cases cited in the notes just above.
89. Lloyd v. Grace, (1912) A. C. 716 (Eng.).
90. Staples v. Schmidt, 18 R. I. 224.
91. Pa. Iron Works v. Henry Voght Machine Co., 29 Ky. L. R. 861, 96 S. W. 551, 8 L. R. A. (N. S.) 1023.