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L.J.) in British Mutual Banking Co. v. Charnwood and of Lord Davey in Ruben v. Great Fingall Consolidated were overruled.
How far is the doctrine of Lloyd v. Grace, Smith & Co. applicable to torts other than fraud? Is it still material, in running down cases and the like, whether the servant is on a "joy-ride' or 'on a frolic of his ownl'
Dealing with this question in his latest edition of The Law of Torts (1920) Sir Frederick Pollock says (p. 76):
“It is clear that actual benefit need not be shown to have accrued to the master. But it is not so clear in what cases it is material that the servant intended the master's benefit."
Conceding that in many cases it certainly is not material that the servant intended the master's benefit, he goes on to point out the considerable distinction between two classes of cases, viz.: (a) the case of a person wronged while dealing
with an agent as representing the principal in the way of his business and in reliance on the
agent's ostensible authority, and (b) the case of a stranger who happens to be in
jured by the servant's want of care in doing something attended with more or less risk to the public.
"In the former class of cases it is now held that even if the agent has abused his authority for his own purposes in a transaction of an authorized class, the principal is bound. A solicitor is liable to a client from whom his managing clerk has fraudulently taken a conveyance to himself, under the pretence of effecting a sale advised by himself for that very purpose.” Lloyd, v. Grace, Smith & C0.10
“Under the other head, where the injury is, as regards the sufferer, merely casual, it is evident that so long as the act complained of was done in the usual course of employment the servant's intention is immaterial. Probably he had no specific intention and was thinking mainly, if at all, of his own interest in getting through the work. But we shall meet presently with a somewhat rare class of cases in which the manifest facts are ambiguous, and there is a question whether the servant was acting from misguided zeal for the business or some extraneous motive of his own. Here the intention, being found as a fact, will turn the scale. Nothing in the recent authorities appears to affect this, nor does it seem inconsistent with the rule established for more normal cases."
On page 94 he repeats the following statement contained in previous editions:
“A master may be liable even for wilful and deliberate wrongs committed by the servant, provided they be done on the master's account and for his purposes, and (it would seem) are such acts as might in some circumstances be within the lawful course of employment: and this, no less than in other cases, although the servant's conduct is of a kind actually forbidden by the master. Sometimes it has been said that a master is not liable for the 'wilful and malicious' wrong of his servant. If ‘malicious' means 'committed exclusively for the servant's private ends,' or 'malice' means 'private spite,' this is a correct statement; otherwise it is contrary to modern authority. The only material question of intention is whether the servant intended to act in the master's interest."
To this he adds, in the last edition, the following new matter:
“That question (the question of the servant's intention, it will be observed, does not arise in the distinct class of cases we have already mentioned, where an agent, under colour of a real authority to do similar acts in a due course of business, fraudulently abuses that authority for his own gain. There the ground of the principal's liability is the apparent authority on which the third person is entitled to rely; whereas in the case immediately before us it is only the servant’s misdirected zeal for the master's interest that prevents his act from being a merely collateral trespass. In Joseph Rand, Ltd. v. Craigo Neville, J. drew a similar distinction. There carters were employed by the day by a contractor to take rubbish from certain works to his dump and to tip it there. Some of the carters, without the knowledge of the contractor, and in contravention of their orders to tip the rubbish in a particular place, took it to a piece of unfenced land belonging to the plaintiffs and tipped it there for a purpose of their own. It was held by Neville, J., and affirmed in the Court of Appeal, that the carters were not acting within the scope of their employment and that consequently the contractor was not liable.
Dealing with the application of the doctrine of Lloyd v. Grace, Smith & Co. Neville, J. said:
“I think the analogy between cases of this class and Ruben v. Great Fingall Consolidated and Lloyd v. Grace, Smith & Co. is not perfect. There seems to me to be a natural distinction between a case where a man directs another to do a particular act and a case where a man in business appoints an agent for the purpose of carrying on the business and holds out that person as the person to whom the public are to apply if they do business with him. I do not think the cases in the House of Lords in any way affect the present case, having regard to the view I take of the facts .. What I have to consider here is whether what was done was done in the course of their employment by the carters of the defendant. To put it in » (1919) 1 Ch. 1.
another way, was the true character of the acts of the defendant's servants that they were acts of their own, and in order to effect a purpose of their own—in which case the principal would not be responsible—or were the acts of the carters all done in the course of their employment, obeying the defendant's instructions? The employment was to load up at certain premises with rubbish and to carry that rubbish to a particular destination and there discharge it. Instead of doing that, what some of these carters did was entirely for their own benefit and without any regard to or intention of carrying out the job for which they had been employed by the master, namely, to take this rubbish off to the nearest place where they could get rid of it and throw it down there and make off. Were these acts within the scope of the employment of the carters? In my opinion they were not. It appears to me that they come expressly within the terms of an act of their own, and in order to effect a purpose of their own. Instead of carrying out the job which the employer had given them, they did something totally different, and in order to enable them, without fulfilling their employment at all, to obtain payment from their employer for their hire."
In the Court of Appeal, Swinfen Eady, M.R., said:
“They (the carters) were to go with their load of rubbish and the ticket to the premises of the person who issued the ticket, and by virtue of the ticket they had a right to shoot their load of rubbish on the premises owned or occupied by that person. That was the whole of their employment, and their duty was to convey from the premises where they loaded to the premises where they discharged three loads a day, and they were paid a fixed day's wage for that work. It was suggested that they were employed generally to cart rubbish, and only had instructions as to where they were to put it. But the evidence negatived that. They were employed to cart rubbish from, and to, defined premises, and they were given authorized permits that enabled them to shoot there the rubbish they so carted. Now it is proved and accepted by the learned judge that in certain cases persons in the employ of the defendant, for their own purposes, and deliberately, instead of taking their loads of rubbish to the premises on which the tickets enabled them to unload, took them to the plaintiff's premises and shot the rubbish there. The acts for which they were guilty were acts done deliberately of their own choice and to effect a purpose of their own, and in opposition to the express instructions of their employer. The purpose of their own suggested was probably either to indulge their laziness or to give them an opportunity of spending an extra time in the public house, but any rate it was entirely a purpose of their own. The acts of which they were guilty were their own deliberate acts. It is not a case of carelessness
or negligence in the course of their employment. In my judgment it is a case, on the facts proved, of departing from the course of employment, and for their own purposes deliberately committing the acts in question.”
In Curley v. Latreille, 21 a case of a joy-riding chauffeur from the Province of Quebec and decided in the Supreme Court of Canada on the "plain letter and express provision” of the Quebec Civil Code, the view of the judges of the Supreme Court, and especi
of Anglin J., as to the doctrine of the common law appears to be in accord with the Rand Case. They do not, indeed, apply common law principles to interpret the Quebec Code. But Anglin, J., who makes a very complete review and comparison of the law of England and of France on the question of the master's liability, adopts an interpretation of the Quebec Code which is nearer to the more reasonable view" of the common law than to the doctrines of stricter liability to be found in modern decisions of the Cour de Cassation of France and in French text writers.
160 S. C. R. 131.