In England the relation of master and servant is in many respects regulated by statutory provisions, and upon some points is materially affected by the existing distinction of ranks, and by rules which have come down from periods when this distinction was more marked and more operative than at present. In this country we have nothing of this kind. With us, a contract for service is construed and governed only by the general principles of the law of contracts.
The word "servant" seems to have in law two meanings. One is that which it has in common use, when it indicates a person hired by another for wages, to work for him as he may direct.
We may call such a person a servant in fact; but the word is also used in many cases to indicate a servant by construction of law; it is sometimes applied to any person employed by another, and is scarcely to be discriminated in these instances from the word " agent. " This looseness in the use of the word is the more to be regretted, because it seems to have given rise to some legal difficulties and questions which might have been avoided.
There are important consequences flowing from the relation of master and servant, and it is therefore an important question, where this relation exists, and how far it extends. Thus, if one wishes to build or repair a house, and contracts with another to do this, and the contractor with another, and this other with still a third, for perhaps a part of the work, or the supply of materials, and the servant of the third by his negligence injures some person, has the injured party his right of action against the owner of the land or of the house? Undoubtedly, if all employed about the house were his servants, but not otherwise. So if an owner of coaches lets one with the horses * and the coach- man for a definite time or a definite journey, and while the hirer is using the coach the coachman by his negligence injures a person; has the injured party now an action against the owner? Yes, if the coachman were at the time of the wrongful act his servant, and not otherwise. Hence, when a master gives general directions to his servant, trusting to his discretion, the master may be liable for the servant's misuse of his discretion; but if he gives specific directions, and the servant transcends them, the master is not liable. (a) Again, if one employs a person to drive home for him cattle which he has bought, and gives the cattle up to the driver, going elsewhere himself, and the driver, or a person employed by the driver, by his negligence, injures any one, the injured person has, we think, as in the other instances, an action against the original party, if the party who did the wrong were at the time his servant, and not otherwise. So one was held responsible, who employed a day laborer to clean out a drain, in doing which he broke up the highway, whereby the plaintiff was injured. (b) The general principle is, that a master is responsible for the tortious acts of his servant, which were clone in his service. It is certain and obvious that a master is not responsible for all the torts of his servant; for those, for instance, of which the servant is guilty, when they are entirely aside from his service, and have no connection with his duties, or with the command or the wish of his master; (bb) as if he should leave his master's house at night and commit a felony. There must, then, be some principle which limits and defines the rule respondeat superior. And we think it may be clearly seen and stated. It is this: the responsibility of the master grows out of, is measured by, and begins and ends with, his control of the servant. (c) It is true
(a) Oxford v. Peter, 28 Ill. 434.
(b) Sadler v. Henlock, 4 E. & B 570. (bb) Evansville, etc. R. Co. v. Baum, of control and direction exists between them. We should therefore say that, in the instances we have before supposed, the owner of the land or the house was not responsible for the tort of the servant of the sub-contractor, nor would he have been for the tort of the sub-contractor or of the first contractor. They were not his servants in any sense whatever; they were to do a job, and when this was done he was to pay the party whom he had promised to pay; and this was all; for if, although a contractor be employed, by the terms of the contract control is left with the owner, he is still liable. (cc) Nor is the contractor held if he properly executes the plan and follows the direction of an architect employed to direct him, and injury occurs through the fault of the plan. (cd) In accordance with this rule it is declared that where the negligent party exercises a distinct and independent calling, his employer is not liable, (d) and if the negligence be committed in the performance of a piece of work undertaken in consequence of a special contract, in such case the contractor is solely responsible. (e)1 Nor does it make any difference if the contractor be, in matters beside the contract, the servant of the other contracting party. (/) And the party with whom the contractor engages is not liable, although acts are done by the contractor or his servants amounting to a public nuisance, so long as the act contracted for is not in itself a nuisance. (g) But if an employer interferes with the contractor and gives special directions, and the mischief is done while the contractor is obeying them, the employer would be liable. (gg) If the act to be done be itself an unlawful one, or necessarily involves in its performance the commission of a public nuisance, the employer is not discharged from liability on the ground that the * party employed was a contractor, because in such case he has sufficient control, and expressly commands the act to be done. (h)1 A contractor to build houses, employing a sub-contractor, has been held liable for injury caused by the sub-contractor's negligence. (hh) Some exceptions seem to be made on the ground of public policy, although the case could hardly come within the law or reason of nuisance, as where railroads have their work done by contract, and are yet held liable. (i) And a railroad company has 1