§ 31.—Acts Done by a Servant on his own Behalf.

1. Even when an act is in its nature within the scope of the Master not servant's emplovment,
the master is not responsible for it l,able "产严- unless the servant in committing it was acting
on his master's his own be- behalf. A master is not responsible for what his servant halfdoes
while engaged, not on his master's business, but exclusively on his own ; he must answer
only for what his servant does as his servant, not for what he does in pursuance of his own
affairs. A servant is not acting in the course of his employment, when he is acting not for his
employer but solely for himself.
2. This general principle has the effect of exempting an employer from liability in at least
four important classes of cases which, require special consideration :
⑷ When a servant is guilty of fraud OT other wilful wrongdoing on his own account;
传 )When he uses his master's property for his own purposes without authority and does
harm thereby;
⑹ \Mien he is guilty of negligence contemporaneous with the execution of his master's
business but not in connection with it;
(d) When he is negligent in that which his master permits him to do on his own account, but
does not employ him to do.
3. Wilful wrongdoing by a servant in his own interest. The Wilful liability of a master
extends, speaking generally, to frauds &
and other wilful wrongs, no less than to negligence and mistake. If his servant does
fraudulently what he is employed to do honestly, the master must answer for the fraud. Thus
in Barwick v. English Joint Stock Bank1 the defendant batik was held liable for a fraudulent
representation made to the plaintiff by the manager of one of the bank's branches in relation
to the business under his control. " With respect to the question/* says Willes } J., delivering
the judgment of the Exchequer Chamber,2 " whether a principal is answerable for the act of
his agent in the course of his master's business and for his masters benefit, no sensible
distinction can be drawn between the case of fraud and the case of any other
wrong."
Wheie, howeveij the fraud or other wilful wrong of the servant is committed on his own
account and not for the benefit of his master, the master is not answerable, Thus in British
Mutual Banking Co, v, Charnwood Forest Rly. Co.* the defendant company was held not
liable for a fraudulent representation made by its secretary in lus own interest, although in a
matter which in its nature was within the scope of his employment. On the same principle an
employer who receives pioperty for safe custody is not responsible, if it is stolen by one of
his servants without the negligence of the employeT or of any of his other servants charged
with the care of it,"
Use of 4. Servants unauthorised use u/ his employer's property.
置誉丸 P" A master is not res|K«isible for the negligence of his servant in the unauthorised
servant's use of his master's property for the servant's own purposes. This rule has been
purposes. applied on several occasions when harm has been done by the negligent
driving of servants, while using their master's horses and conveyances for their
own ends. These cases have established the rule that a master is not responsible merely
because he intrusted to the care of his servant the instrument which did the mischief. The
test is not whethei the servant was intrusted with it, but whether he was using it in his
master's business or in his own. " The question/ 1 says Maule, J.,3 4 5 "is not whether the
servant was trusted, but whether he was employed, so as to make his master liable. The way
it is always put is, whether the man was about his master's business at the time."
Accordingly in Mitchell v. Crasswellera the defendant's servant was engaged to drive a cart,
and on returning to his employees premises at the end of his day's work it became his duty
to take the horse and cart to the stables. Instead of doing so, he drove away on a new
journey for his own purposes exclusively ; and while returning he injured the plaintiff by
negligent driving. It was held that the defendant, his master, was not liable. Similar
decisions have been given
on more or less similar facts in Storey v. Ashton,1 Rayner v. Mitchell^ and Sanderson v.
Collinsy
5, It is to be observed, however, that if the servant is Servant really engaged on his master's
business, the fact that he is at eng^ed b®t,1 the same time engaged on his own is no defence to
the master ; ter^ business even though it was the competing claims of the servant's busi-黑：
°" his ness which caused him to perform his master's negligently. The m^ter is exempt only
when the servant was exclusively on his own business. If while driving his master's cart in
the course of his employment, he lights his pipe, and while so engaged causes a colHsion by
not looking where he is going, his master will be liable ; and it will be no defence to him to
allege that the servant in Eghting his pipe was engaged on his own business and not on his
master's; for he was in truth engaged on both. SQ where a carman deviates for his own
purposes from the direct line which he ought to have followed in the execution of his
master's business, and an accident happens while this deviation still continues, it is a
question •of degree whether the deviation is so great that the servant 建 an no longer be said
to be driving on his master's business, but to be on a journey of his own, or whether on the
other hand the deviation is so slight, that it may be said to be part
■of the journey on which his master sent him. In Joel v. Morison 10 Parke； B., says: " If
the servants, being on their master's business, took a detour to call upon a friend, the master
will be responsible. . . . The master is only liable ■where the servant is acting in the course
of his employment. If he was going out of his way against his master's implied •commaHds,
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 S3 PARTIES. Chap. IL
when driving on his master's business, he will make his master liable ; but if he was going
on a frolic of liis own, without being at all on his master's business, the master will not be
liable.So in Storey v. Ashton 11 Cockburn, CJ., says ： " I am very far from saying, if the
servant, when going on his master's business, took a somewhat longer road, that owing to
this deviation he would cease to be in the employment of the master, so as to divest the
latter of all liability; in such cases it is a question of degree, as to how far the deviation
could be considered a separate journey/' Negligence at
6. Servant's n&gligence contemporaneous with his employment. pk^ment" & 堂母如 is not
responsible for the negligence or other wrong- but not in ful act of his servant s simply
because it is committed at a time :案;谓 Ment when the servant is engaged on his master's
business. It must be committed in the course of that business, so as to form a part of it, and
not merely coincident in time with it. In Williams v. Jones 1 方 the defendant employed his
servant,, a carpenter, to make a signboard in a shed belonging to the plaintiffj who had
allowed the use of it for this purpose. The carpenter lit his pipe while so engaged, and set the
shed on. fire by negligently throwing down the light used by him. It was held by the Court
of Exchequer Chamber13 that the defendant was not liable, ° It was not necessary that lie
should smoke in order to make the signboard, nor was the act of lighting the pipe in any way
whatever for the benefit of his master or in furtherance of the object of his employment. It is
said he was negligent whilst using the shed,, and that in a 院 use is true. It seems to us*
however, that inorder to make the master liable, the servant must not only have been
negligent in. using the shed, but in iising it for the purposes of his master and in the course
of his employment." 1 $ There was no negligence in making the signboard (the master's-
business) ;there was negligence only in smoking the pipe (the servant's business). The fact
that the two thin 笋 were coincident in time did not make them parts of a single transaction
done on behalf of the master. It is true that the servant was negligent iu his management and
care of the shed, but he was not employed by his master to look after the shed ; his master's
business was the making of a signboard, not the care of the plaintiffs shed.
If, on the other hand, the fire had arisen through the act of the servant in, lighting a fire to
boii his glue-pot, the master would have been responsible. So, to use a former illustration, if
the servant had been a carter instead of a carpenter, and had lit his pipe while driving his
master's horses, and whilst so doing he had run over the plaintiff through inattention, his
master would have been responsible ; for this would have been a negligent way of driving
horses, and not merely a negligent way of lighting pipes. But if, after lighting his pipe under
the same circumstances, he had negligently thrown away the match, and so burned the
plaintiff's crops, his master would have been free from responsibility. This would be a
negligent way of smoking tobacco, but an unexceptionable way of driving horses.
7. Per mission distinguished "cm employment. On the Acts which same principle a master is
not responsible for the negligence of his servant, while engaged in doing something which
he but not.. is permitted to do for his own purposes, but not employed toployed .Jo do for his
master. I am liable only for what I employ my servant to do for me, not for what I allow him
to do for himself. If I permit my servant for his own ends to drive my horse, I am not liable
for his negligence in doing so. In this respect he is not my servant, but a mere bailee to
whom I have lent my property ; and there is no more reason why I should answer for his
conduct in such a matter, than why
I should answer for that of my friends or my children, to whom without personal negligence
on my own part I lend or intrust property that may be made the instrument of mischief. Thus
in respect of Jones v. Williams^6 already referred to, it is submitted that even if the carpenter
had been expressly permitted to smoke while doing his work, the master must have been
equally free from liability, unless the act of granting such a permission were in itself an act
of personal negligence on the master's part.