The Nature of a Master's Liability

in the Law of Tort

G. J. HUGHES* AND A. H. HUDSONt

Hull, England

-t this late date in our jurisprudence we might expect the major

concepts of private law to be well settled . The doctrine that in
some circumstances one person should be liable for the act of
another has long been established on grounds of obvious expe-
dience and convenience . But, although this doctrine has often been
justified and is unquestionably accepted, it seems that no convincing
technical statement of its basis has been finally agreed upon in
English law. The matter seems never to have received the notice
of a court of high authority, and a clear schism can be perceived
in the views of learned writers on the subject. Speaking ofa master's
liability for the torts of his servant, Mr. C. H. S. Fifoot writes in
his book, English Law and its Background: "In a capitalist age,
when the pursuit of trade carried agents into all parts of the world
and when the complications of industry interposed a hierarchy of
servants between the principal and the public, technical limitations
and professional sophistry were no longer to be tolerated . Even
before the Common Law Procedure Act attacked in 1852 the forms
of action, the judges were reverting to an open avowal of conven-
ience as the basis of their doctrine. After that date the doctrine
was accepted as a generalization to be justified, not as a deduc-
tion from legal premises but as a sacrifice to public policy ." This
passage sums up the traditional attitude of the courts to the topic.
The technical problem involved can perhaps best be posed by
extracting four passages from the works of learned writers . It will
be seen that the first two adopt a view which is in sharp opposi
tion to that of the others . A cause of surprise is their seeming un-

* G. J. Hughes, M .A. (Cantab .), LL.B. (Wales), Assistant Lecturer in Law,

University College, Hull.
1'A. H. Hudson, B.A., LL.B . (Cantab .), Assistant Lecturer in Law, Uni-
versity College, Hull.
 19531 A Master's Liability in the Law of Tort 19

awareness of the fundamental nature of their dispute . In his work

on Crown Proceedings, Professor Glanville Williams writes : I
It will be remembered that section 2(1)(a) [of the Crown Proceedings Act]
makes the Crown liable `in respect of torts committed by its servants
or agents'. This formula is somewhat unfortunate . Although it is cus-
tomary and convenient to speak of a master being vicariously liable
for the torts of his servants, it seems that this is not the technical posi-
tion. Technically the rule is that certain acts and states of mind of the
servant are imputed to the master . It is the master who owes a duty
to the plaintiff, and who breaks it as a result of the acts and mental
states of his servant. In discussing the liability of the master it is not
necessary to consider whether the servant owes a duty to the plaintiff
or has committed a tort. A master may be under so-called vicarious
liability even though the servant has not committed any tort, or any
actionable tort.
This principle was laid down in Twine v. Bean's Express Ltd., [1946]
1 All E.R. 202, and it was well exemplified in Smith v. Moss, [1940]
1_ K.B. 424 . . . . Those who wish to base vicarious liability upon a tort of
the servant may perhaps say that there was here a kind of 'unenforce-
able tort' (or rather a tort without a sanctioning right of action) com-
mitted by the servant. . . . Although this theory is perfectly possible,
it is submitted that it is not necessary in order to justify the decision
in Smith v. Moss. The master was liable to the wife for his own
breach of duty committed through the instrumentality of the servant ;
the question whether a tort was committed by the servant was ir-
relevant .
Professor Glanville Williams' view is supported by that of Mr.
Diamond in his work, Master and Servant. Mr. Diamond writes : 2
Indeed the liability of the master is founded upon the doctrine that
an act, omission, knowledge or intention of the servant in the course
of his employment is that of the master, so that the master may be
made liable in tort although civil proceedings could not be brought
against the servant, and in order to render the master liable in tort
the act must be one which would be actionable if done by him, vid.
Dyer v . Munday, [1895] 1 Q.B . 742 [where the servant had been don-
victed of assault and thereby released from civil proceedings].
A divergence of views will be obvious if we set by the side of
these extracts passages from two other writers . Mr. Powell, in his
The Law of Agency, writes :'
The principal's liability for an unauthorised tort committed by his
agent will depend on whether the agent can himself be held liable for
the tort ; for unless the agent can be held liable the principal cannot
be made vicariously liable for the agent's tort.
In a footnote to this Mr. Powell says, "There is an exception
1 At p . 43.
2 (2nd ed.) p. 243 .
3 P. 240 .
20 THE CANADIAN BAR REVIEW [VOL. XXXI

however where the agent is the husband or wife of the plaintiff.

See Smith v. Moss . . .". Mr. Powell's view of the matter is also
taken by Professor Hanbury in this book, The Principles of Agen-
cy. Here Professor Hanbury concludes that the decision in Smith
v. Moss was wrong because, he argues, speaking of the husband
in that case, "Surely he was in the position either of servant or
independent contractor. If the former, he could not have been
sued in tort by his wife and it follows that his mother could not
have been vicariously responsible . . . ."
These quotations clearly reveal two quite opposite views on
the nature of "vicarious" liability . Under the first view, A may be
liable in tort for the act of his servant, B, even though B himself
will not be liable . Under the second, A can only be liable in tort
for the act of his servant, B, if B is himself liable in tort. If the
first be correct, then "vicarious" is, as Professor Glanville Williams
hinted, a mistaken word for this species of liability, for A cannot
be said to be a "vicar" for B, where B himself cannot be liable .
The case of Smith v. Moss figures largely in these discussions,
as will be seen, and an examination of it will be a useful introduc-
tion to the practical aspects of this problem . The plaintiff suffered
injuries owing to her husband's negligent driving of a motor car
in which she was a passenger . The car was owned by the husband's
mother, who was also a passenger in it at the time of the accident,
and the action was brought by the wife against her mother-in-law .
The wife could not of course sue her husband, for the action
could not be said to be for the "protection of her property" under
section 12 of the Married Women's Property Act of 1$$2. Charles
J. held that the husband was acting as his mother's agent and the
mother was therefore liable . The judgment is short and it will per-
haps not occupy too much space to give it in full. Charles J. said :
It is said that the plaintiff cannot recover against her mother-in-law
because the accident was caused by the negligence of her husband,
and a husband cannot commit a tort on his wife. Strictly, that is
right, but I cannot conceive that, if a husband, while acting as agent
for somebody else, commits a tort, which results in injury to the wife,
the wife is deprived of her right to recover against the principal who
is employing the husband or agent. To take an extreme case, suppose
that the plaintiff had been in the habit of hiring a car from a garage
tha proprietors of which employed, among a number of other men, the
plaintiff's husband as a chauffeur. Suppose, too, that on a particular
day, when the plaintiff had telephoned for a car, the husband should
be sent out as driver of that car. If an accident happened, for which
the husband was responsible, could it then be said that the plaintiff
was deprived of her right to recover against the owners of the car?
19531.' ._ A Master's Liability in the Law of Tort 21

I dô not think so, because the active operator in the tort, the husband,
would have two capacities, (1) that of husband, and (2) that of agent.
In the present case the husband was, at the time of the accident, acting
in the capacity of agent for his mother and it was his negligence alone,
I hold,,,wWch caused the accident . Therefore, the plaintiff is entitled
to succëed against her mother-in-law .
We may explain the decision on the ground that there is no
necessity to prove an actionable tort in the servant in order to
render the master liable ; 4 or that the action involving husband
and wife is an exception to the opposite rule ; s or again, by em-
ploying a Hohfeldian classification, we may reconcile the decision
with the true "vicarious" principle and say that there is a tortious
breach of duty in the husband towards the wife but that by a
procedural immunity the husband may not be sued .' Finally, the
decision may simply be condemned because it conflicts with the
principle that a master cannot be liable unless there is an action-
able tort in the servant.' .
Smith v. Moss was followed and applied by the Lord Chief
Justice in the case of Broom v. Morgan .' In that case the plaintiff
and her husband were employed, by the defendant in the beer and
wine house of which the defendant was the tenant . The husband
was expressed to be the manager. The plaintiff was injured by
falling through a trap door, negligently left open. The Lord Chief
Justice held the defendant liable for the negligent act of her ser-
vant, the plaintiff's husband, although the husband himself could
not have been successfully sued by the wife . In the course of his
judgment the Lord Chief Justice made the following direct ob-
servations on our present problem :
There is a curious lack of authority in English law . on the question
that now arises, and I hope that some day the matter will receive con-
sideration in a court of appeal . The only authority directly in point
is a decision of Charles J. in Smith v . Moss.
Lord Goddard adverts to the criticism of Smith v. Moss made in
Salmon on Torts, and then goes on :
At first sight the argument that the master can only be liable for an
act of his servant for which the latter would himself be liable has a
certain attraction, and, indeed, this view found favour at one time in
the American courts . . . . But it appears that since 1928 the American

' Professor G . Williams in Crown Proceedings .

s Mr . Pôwell in The Law of Agency .
c White v. Procter, [1937] O .R . 647, and Professor Williams in Joint
Torts and Contributory Negligence .
7 Professor Hanbury in the Principles of Agency, and Salmond, Torts
(10th ed .) p . 66 .
9 [195212 All E .R. 1007 .
22 THE CANADIAN BAR REVIEW [VOL . XXXI

cases have gone it different way, beginning with Schubert v. August

Schubert Wagon Co. (1928), 164 N .E . 42 . This was a decision of Cardozo
C. J. in the New York Court of Appeals. . . . In that case he took, I
think, exactly the same view as did Charles J. in Snith v. Moss. He
said : 'A trespass, negligent or wilful, upon the person of a wife, does
not cease to be an unlawful act, though the law exempts the husband
from liability for the damage . Others may not hide behind the skirts
of his immunity . . . . As well might one argue that an employer, com-
manding a husband to commit a battery on a wife, might justify the
command by the victim's disability .'
In the American Restatement, s. 880, 1 find the matter put thus :
`Where two persons would otherwise be liable for a harm, one of them
is not relieved from liability by the fact that the other has an absolute
privilege to act or an immunity from liability to the person harmed .
. . . Where a servant while acting in the scope of his employment
negligently harms another, the fact that he is in such relation to the
injured person that suit cannot be brought against him does not re-
lieve the master from liability.'
The American view seems to me, if I may say so, to be eminenti .,,~
in accordance with good sense, and in modern times I do not think
that the consequences of the doctrine of husband and wife being one
person in law should be carried any further than the authorities re-
quire. . . .
This particular decision on the law of husband and wife can-
not however be taken to settle finally the principles of vicarious
liability. Indeed, the Lord Chief Justice himself expressed the hope
that the matter would some day receive the attention of a higher
court. It is proposed therefore to propound some other situations
in which the problem may arise and to consider what views of
the matter are to be found in the earlier case law. Five situations
are offered as illustrations :
(1) An infant servant does an otherwise tortious act for which
he may not be sued since it arises directly out of a breach of con-
tract. Assuming it to be in the course of his employment (Lloyd
v. Grace, Srnith & Co .), is the master liable for the act?
(2) A servant commits a tort which is also a felony . He can-
not be sued for he has not been prosecuted (Srnith v. Selwyn t°). Is
the master liable?
(3) A servant does an otherwise tortious act while not know-
ing the nature and quality of his act because of disease of the mind
(Morris v. Marsden"). Is the master liable?
(4) An infant servant does an act which, although not negli-

119121 A.C . 716.

10 [191413 K.B . 98 .
11
[19521 1 All E.R . 925.
1953] A Master's Liability in the Law of Tort . 23
gent in him because .of infancy, would be accounted negligent in
an adult. Is the master liable?
(5) A master has two servants,'A and B. A makes an innocent
misrepresentation to the plaintiff. B knows the truth and knows
that the false representation has been made, yet he keeps silent .
It may be that neither servant will be liable for the tort of deceit .
Is the master liable? 12
In the last two examples there is clearly no tort at all committed
by the servant (unless in example (5) B is liable for deceit), whereas
in the first three examples we may say that there is a prima facie
tortious act by the servant, although he may raise a defence to
negative his liability. This distinction may prove useful in our dis-
cussion. It will be revealed by the examination of cases to follow
that the hypothetical problems put have not as yet come squarely
before the-English courts .
When we turn to the mass of case law on master and servant,
or principal and agent, we find only occasional and fragmentary
assistance. The earlier cases (for example, the judgments of Holt
C. J. in Hern v. Nichols la and Wayland's case") reveal a laconic
readiness to accept the doctrine of a master's liability for- his
servant's acts as an unfortunately unnecessary solecism on the
common law. Baron Bramwell exemplifies the attitude of the-nine-
teenth century judiciary to the question -a sort of grumpy sub-
mission to the principle of the master's liability coupled with a
reluctance to extend it in any way." It is indeed this somewhat
cavalier treatment of the doctrine that is probably responsible for
the failure of the common-law courts in the nineteenth century
to work out a technical statement of the principle of the master's
liability. Only in one case in the nineteenth century did the prob-
lem we have posed seem to arise in a clear fashion. This was Dyer
v. Munday.ls In this case the defendant employed a manager to
run a portion of his business connected with the sale of furniture
on, hire purchase . This manager sold apiece of furniture to a per-
son. who was lodging in the plaintiff's house and, when one of the
instalments fell into arrear, he went to the house and removed
'iR Ih his Crown Proceedings, Professor Williams offers this example
and concludes that the master would be clearly liable . He gives London
County Freehold and Leasehold Properties Ltd. v . Berkeley Property &
Investment Co. Ltd., [19361 2 All E .R. 1039, as his authority . See our
discussion of this point later.
13 (1709), 1 Salk. 289 .
t4 3 Salk . 234 .
14 Bramwell B .'s judgment in Swift v. Jewsbury (1874), L.R . 9 Q.B,
315 ; also (1857), 2 H. & N . 356, at p . 361 .
16 [18951 1 Q .B. 742 . '
24 THE CANADIAN BAR REVIEW f VOL . XXXI

the furniture. While so doing, he unlawfully assaulted the plaintiff,

and for this assault he was summoned, convicted and fined, and
he paid the fine . In an action against the defendant for the assault.
it was pleaded that, since the manager, under 24 and 25 Vict ., c.
100, s. 45, could not be sued for the assault, his employer could
also not be sued, that is, that the release of the servant from li-
ability must operate as a release of the master too. The Court of
Appeal held (Lord Esher M.R., Lopes L. J. and Rigby L. J.) that
the master was not released from liability. All three judgments are
brief and are based on the narrow ground that the Act in question
intended to release from civil liability only the person charged. It
is submitted that this rather begs the question whether the master
should be liable or not. It is clear that the Act only expressly re-
leases the person charged ; the matter at issue was whether it was
possible in such circumstances to hold the master liable and (by
pointing out that the Act did not release the master) the court
simply evaded this point. Dyer v . Munday can in any case be very
easily explained on the ground that the servant was clearly liable
in tort ; the plaintiff was only procedurally barred from bringing
his action by 24 and 25 Vict ., c. 100, s. 45 . The master was thus
rightfully held to be "vicariously" liable.
A case which perhaps hints in the other direction is Wright v.
London Omnibus Co." Here the plaintiff was a cab driver who had
suffered damage to his cab as a result of furious driving by the
defendant's servant. The servant had been prosecuted and-con-
victed for furious driving and at the trial the magistrate. acting
under his statutory powers, had offered the plaintiff £10 by way
of compensation . The plaintiff had protested that this was insuffi-
cient, but had accepted the sum. The court held that the plaintiff's
acceptance of compensation, which barred his action against the
servant, also barred his action against the master . In his judgment
Cockburn C. J. said : "Either the master can be rendered liable or
the servant, but not first one and then the other. So when the
magistrate awards compensation against one, the party aggrieved
cannot then proceed against the other." The first sentence here is
not of course law since the Law Reform (Married Women and
Tortfeasors) Act of 1935, but the tendency of the judgment is to
make the master's liability depend on that of the servant.
It can be seen then that little or no authority is available in
the nineteenth century cases. It may be remembered that in the
quotation given from Professor Glanville Williams' Crown Pro-
" (1877), 2 Q .B .D . 271 .
1953] A Master's Liability in the Law of Tort 25

ceedings the learned author referred to the case of Twine v. Bean's

Express Ltd." as authority for the proposition that the master may
be under so-called "vicarious" liability, even though his servant
has not committed any tort. The plaintiff in this case was injured
by the negligent driving of the defendant's van driver, who had
given the plaintiff a lift in breach of his employer's express instruc-
tions that he should carry no one but his fellow servants . Uthwatt
J. held that the action against the employers of the driver must
fail, and this decision was confirmed by the Court of Appeal. The
vital portion of Uthwatt J.'s judgment, so far as our problem is
concerned, would seem to be the following :
The law attributes to the employer the acts of a servant done in the
course of his employment and fastens upon him responsibility for
those acts . In determining the duty of the employer and the duty,of
the servant on any occasion, all the circumstances have to be con-
sidered : In the general run of cases, the duty of both is the same ; but
that is a coincidence, not a rule of law . The general question in an action
against the employer, such as the present, is technically : `Did the em=
ployer in the circumstances which affected him owe a duty?' -for the
- law does not attribute to the employer, the liability which attaches to
the servant.

It is submitted that the main trend of this passage is to em-

phasize that the employer is not necessarily liable simply because
the servant is liable. It does not seem to be authority for the pro-
position that the .employer may: be liable where the'servant is not:
The facts of ^the case surely bear this out;. for the court was con-
sidering a situation where the servant was clearly liable, the only
question being whether the master was liable or not. In any case
the passage is clearly an obiter dictum, the ratio decidendi of the
case being, as the rest of the judgment shows, that the servant's
act was not in the course of his employment . Indeed the Court
of Appeal in Conway v. George Wimpey and Co . Ltd.," in applying
Twine v. Bean's Express Ltd. to almost identical facts, clearly re-
garded the ratio decidendi of the earlier case to be that the servant's
act was not in the course of his employment. It is submitted there-
fore that, though Twine v. Bean's Express does by the tenor of the
judgment suggest that the master's liability is based upon a duty
independent of that of the servant, there is nothing in the judg-~
meat to serve as explicit authority for the proposition that a master
may, be liable in tort for the act of his servant where the servant is
not liable .
is [19461 1 All E .R. 202 .
1 ° [19511 1 All E .R. 363 .
26 THE CANADIAN BAR REVIEW [VOL . XXXI

Before we attempt to sum up the effect of the English authori-

ties, there is another line of cases which may be usefully investi-
gated. These are the cases in which the problem of the liability of
principal and agent for fraud has been raised . We find here a group
of confusing and difficult judgments, ranging from Cornfoot v.
Fowke" to Armstrong v. Strain ." It is not proposed here to trace
the development of the law on this point; that has already been
done in a brilliant fashion by the learned judgment of Devlin .T.
in Armstrong v. Strain . A full and clear account of the position
may be found too in Mr. Powell's book on the law of agency .--'
It would appear that the law as it stands at present may be sum-
marized as follows :
Before a principal may be held liable for fraud it must be shown
(1) that the principal knowingly or recklessly made a false repre-
sentation to his agent, knowing that, or reckless whether, his agent
would pass it on to the plaintiff; or (2) that the agent knowingly
or recklessly made a false representation within the course of his
employment ; or (3) that agent A made an innocent misrepre-
sentation while agent B deliberately withheld the truth, knowing
that, or reckless whether, agent A would pass the false representa-
tion on to the plaintiff.
The principal cannot be liable for fraud if the agent makes an
innocent misrepresentation while the principal knows the truth but
is ignorant that his agent is making the false representation . If
London County Freehold and Leasehold Properties Ltd. v. BerkelI,
Property and Investment Co . Ltd.23 was ever authority for the pro-
position that the principal may be liable for fraud in such circum-
stances, it must be taken to be displaced on that point by Arm-
strong v. Strain (per Devlin J., "You cannot add an innocent state
of mind to an innocent state of mind and get as a result a dis-
honest state of mind") .
There seems then to be nothing in the fraud cases which con-
tributes any fresh illustration or approach to the problem we are
investigating. It will be appropriate here however to advert to the
last example in the five situations offered earlier, namely, where a
master has two servants, A and B, and A innocently makes a false
representation while B stands by, knowing the truth but keeping
silent . In his Crown Proceedings, Professor Glanville Williams puts
forward this possibility and concludes that, although neither ser-
2U
(1840), 6 M . & W . 358 .
21 [1951] 1 T .L.R . 856 (Devlin J .) and [1952] 1 All E .R . 139 (C.A .) .
22 Powell, Law
of Agency, pp. 161-169 .
s3 [1936] 2 All E.R . 1039 .
1953] A Master's Liability in the Law of Tort 27
vant would be liable for deceit, the master clearly would be under
the principle of the London County Freehold case .24 If this is true,
then we have a clear case of a master's liability in tort, where the
servant is not liable at all. It is submitted however that in such a
case the servant, B, would be liable for the tort of deceit, and the
master's liability would be thus a true "vicarious" one. In his work
on agency, Mr. Powell writes, "If A as an agent of P deliberately
withholds the knowledge from B, another agent of P, with the
intention that B shall, in ignorance, make a false statement to a
third party, T, then A is liable for deceit and his principal is liable
for A's deceit" ." Would not this cover the example given? If,
however, it be the law that on these facts B would not be liable
for deceit, it is submitted that under the principle of Cornfoot v.
Fowke and Armstrong v. Strain it is impossible to hold the master
liable. You cannot add an innocent agent to an innocent agent
(for if B is not liable for fraud he deserves the adjective "innocent"
in the legal- sense at least) and get a fraudulent principal. In any
event, there is nothing in the authoritative cases on fraud to sub-
stantiate the doctrine that a master may be liable for the tort of
deceit for the act of his servant, if the servant is not liable (unless
of course the servant was an innocent agent in the sense of being
his master's instrument).
The total effect of the English cases referred to seems to amount
to this : that although, particularly in the most recent case of
room v. Morgan, there is a great deal of general talk about the
master's liability not depending on that of the servant, there are
only three cases in which this can possibly be said to be demon-
strated, namely, Dyer v. Munday, Smith v. Moss and Broom v.
Morgan. Dyer v. Munday may be quickly disposed of on the ground
that the servant was clearly liable in the first place. Smith v. Moss
and Broom v. Morgan may be explained (a) on the ground that
the master's liability does not depend on proving a tort in the
servant (this was certainly the view of Goddard h. C. J. in Broom
v. Morgan) ; or (b) on the ground that there is liability in the
husband in such a case and only a procedural immunity protects
him from action . They can of course, alternatively, simply be
treated as wrong.
If we turn to the transatlantic case law, we can find a more
definite awareness of the problem and a more definite line adopted
2' Professor Gower in a note on Armstrong v. Strain (1952), 15 Mod .

h . Rev . 232, also concludes that neither A nor B would be liable for deceit
here.
25
op. Cit., p . 165 .
28 THE CANADIAN BAR REVIEW [VOL . XXXI

towards it . The question has often arisen in the American cases

and the earliest attitude of the American courts was to hold that
the master cannot be liable where the servant is not. This view
was grounded on two arguments : firstly, that there could be no
logical "vicarious" liability where the servant is not liable ; and,
secondly, that to allow an action against the master would be an
indirect way of waking the servant liable, since the master could
claim an indemnity against the servant.=6 This second reason opens
an interesting field to which we shall revert later.
In 1928 the New York Court or Appeals heard the case of
Schubert v. Schubert Wagon Coat The case raised the question
whether or not a wife may recover against the employer of her
husband for injuries she sustained by her husband's negligence in
the course of his employment. The court found the employer liable,
the judgment being written by Cardozo C . J., who said : "The dis-
ability of wife or husband to maintain an action against the other
for injuries to the person is not a disability to maintain a like
action against the other's principal or master". Cardozo C. J.
continued
An employer commits a trespass by the hand of his servant on the
person of another. The act, let it be assumed, is within the scope either
of an express mandate or of an implied one. In either event, if the
trespass is not justified, he is brought under a distinct and independent
liability, a liability all of his own. . . . The defendant, to make out a
defence, is thus driven to maintain that the act, however negligent,
was none the less lawful because committed by a husband upon the
person of his wife . This is to pervert the meaning and effect of the
disability that has its origin in marital identity. . . . As well might
one argue that an employer, commanding a husband to commit a
battery on a wife, might justify the command by the victim's disability .
We might point out here that, if an employer expressly com-
mands a servant to commit a battery on his wife, the employer
would be clearly under a liability quite apart from the master and
servant relationship . Cardozo C. J. was not therefore quite justi-
fied in saying, "as well might one argue' 1.211 So far the passage
taken from the judgment can be easily explained on the ground
that the servant has only a procedural immunity in the husband
and wife cases. The learned judge however went on to say, "In
ss See Maine v . Maine and Son and Co. (1924), 198 Iowa 1278, and
Emerson v . Western Seed and Irrigation Co. (1927), 116 Neb. 180 .
27
(1928), 249 N .Y . 253 .
29
The master would be clearly under a principal liability here and the
"vicarious" problem is not raised : Barker v. Braham (1773), 2 Black W.
866, at p. 868 (defendant liable for false imprisonment, though the officer
who actually arrested could justify under the writ).
1953] A Master's Liability in the Law of Tort 29
all this there is nothing at war with the holding of some cases that
the remedy against the husband is denied altogether and not mere-
ly suspended during coverture" . Here at last is a bold statement,
amounting to a declaration that the master may be liable in tort
where the servant is not liable at all, and it is in this that the im-
portance of the judgment lies, Cardozo C. J. recognized that the
master would have a right to claim an indemnity from the servant,
but he was not prepared to regard this as an indirect way of at-
taching liability to the servant.
Schubert's case was followed in Hudson v. Gas Consumers As-
sociation" and in Koontz v. Messer," where the servant's wife
obtained judgment against the master and the master against the
servant. These cases take up the line of Cardozo C. J.'s judgment
and in particular they adopt an argument to be found in his judg-
ment where he said, "The liability of the 'master must remain
until he satisfy it or be by rule of law relieved from the liability
of his servant's wrong". It is submitted that this passage raises a
rather frightening doubt as to the basis of these decisions; for if
the servant is not liable, how can his act be said to be wrong?
Any test of "wrongness" outside the' ambit of legal liability is a
dangerous and uncertain one for a court to adopt.
We may note also the Canadian case of White v. Proctor, 31 a
decision of the Court of Appeal for Ontario. In this case the
plaintiff was injured while riding in a lorry driven by her hus-
band. The injury was caused by the negligence of her husband
and the negligence of the driver of a second vehicle. Her action .
against the driver succeeded and he now sought to recover a con-
tribution from the employer of the plaintiff's husband. It was con-
ceded that he could not recover a contribution from the husband
since the husband could not be sued in tort by his wife." The
Ontario Court of Appeal found the husband's employers liable to
pay a contribution, taking the view that the husband was only
procedurally immune from an action and that this immunity did
not extend to the husband's employers3 3 This decision is thus just
29 (1939), 8 A. 2d 337 (N .J.).
10 (1935), 181 Ad . 792. See also Chase v. New Haven Waste Materials
Corp ., where a son was allowed to sue his negligent father's employers,
although by Connecticut law he could not sue his father.
31 [1937] O .R . 647 .
32 See the English decisions of Chant v . Read, [1939] 2 K .B . 346, and
Arinkwater v. Kimber, [1951] 2 All E .R . 713 ; affirmed, [1952] 1 All E .R .
701 .
33 professor Kahn-Freund in an article in (1952), 15 Mod. L . Rev. 133,
takes the view that there is a substantive absence of liability between hus-
band and wife in tort . He does not however refer to White v. Proctor .or
indeed to Smith v. Moss.
30 THE CANADIAN BAR REVIEW [VOL . XXXI

another in the Smith v. Moss line ; it lays down an easily under-

standable rule for the husband and wife cases, but does not face
up to the fundamental problem of the basis of vicarious liability
in tort.
In attempting to draw some conclusions from the case law
considered it is suggested that we use as our test a blend of legal
logic and social expediency. As has been shown, the English cases
have always maintained that a master's liability for his servant's
acts rests upon expediency and it has been suggested that this easy
acceptance of the doctrine has perhaps precluded a technical state-
ment of its principles . The present writers hope that they have
demonstrated the need for such a technical statement by a court
of high authority, and the absence of much authority in the present
case law provides an opportunity for shaping a principle that will
fit the interests of society.
In the first place, the most powerful argument advanced in the
case law against holding the master liable where the servant is not
is that the master, if held liable, could claim an indemnity from
the servant, thus providing an indirect method of fixing liability
on the servant . Apparently the master cannot claim a contribu-
tion from the servant as a joint tortfeasor," but the master can
presumably claim an indemnity from the servant on general com-
mon-law principles ." American courts, as we have seen, have held
that the master may recover an indemnity from the servant, and
Cardozo C. J. was not at all perturbed by this point. Indeed there
seems nothing illogical in holding the servant liable to indemnify
his master in, for example, the husband and wife cases, where the
servant enjoys only a procedural immunity from being sued by a
particular plaintiff. The problem would become acute if the master
were to be held liable where there is no prima facie tortious act
at all by the servant, for example, if the servant is an infant and
harms the plaintiff by an act not negligent in an infant, but which
would be negligent if done by an adult. If the master were to be
held liable in such circumstances, could he recover an indemnity
from the servant? It would seem obvious that he cannot . This in
as Chant v. Read and Drinkivater v. Kimber ; though it can be argued
that the master is entitled to a contribution from his servant even under
the Tortfeasors Act, for he is "liable" even though his liability is not en-
forceable. See Professor G. Williams' Joint Torts and Contributory Neg-
ligence, p. 104.
°I Adamson v. Jarvis (1827), 4 Bing. 66 . Professor G. Williams takes
this view, Joint Torts, p. 104. But see Jones v, Manchester Corp ., (19521
1 T.L .R. 1589, where, in the Court of Appeal, Denning L. J. was of the
opinion that the master can never at common law claim an indemnity
from his servant .
1953] A Master's Liability in the 'Law of Tort 31

turn seems somewhat unfair to the master, though it can probably

be justified by the test of expediency. This view, however, does
conjure up an occasional frightening possibility. If a husband in
the course of his employment were to kill his wife by his negli-
gence, he could presumably, if he were the beneficiary under his
wife's will or on intestacy, indirectly recover damages from his
employer under the Law Reform Act of 1934 . The employer could
presumably recover this money by an action for an indemnity
against the husband. This is a sort of minor folly which perhaps
cannot be avoided. '
It does, however, now seem well settled both in this country
and in America that in the particular case of husband injuring
wife (or presumably wife injuring husband), the employer will be
liable. And, again, the social expediency test would seem to justify
this (always provided that collusion is guarded against). The cru-
cial difficulty which, it is submitted, still remains to be settled is
exactly why the employer is liable in such a case . Can we say that
the master's duty is quite independent of that of the servant, that
is, to provide a servant who will ,not harm the plaintiff? We have
seen that in cases like Twine v. Bean's Express Ltd. and Broom v.
Morgan this was the fine of argument put forward - an attempt
to remove the vicarious quality of the master's liability and to
place him under an independent primary duty. But, if this is so,
what is the nature of the duty which the law imposes on the master?
It cannot be contended that the master will be liable for any harm
that the servant does in the course of his employment. DIimnuna
sine injuria done by the servant will obviously not fix liability on .
the master. It is socially inexpedient and legally nonsensical to
hold a master liable for harm done by a servant for which the
master could not be sued had he done the harm himself. It follows
therefore that it must logically be only a certain kind of harm
done by the servant which can make the master liable ; in other
words, the nature of the servant's act must be examined in order
to determine the question of the master's liability. This being so,
we must decide what quality must be present in the servant's act
to render the master liable . We have seen that American cases
sometimes say that the master will be liable if the servant has done
a "wrong", whether the servant may be sued or not. But, as we
have observed earlier, there is extreme danger in any doctrine
based on the idea of a "wrong" as opposed to a tort . The servant's
act cannot be legally regarded as a "wrong" unless we invest it
with the technical apparel of a tort . It is contended therefore that
32 THE CANADIAN BAR REVIEW [VOL . XXXI

we are driven to the inescapable conclusion that the servant's act

must be shown to be a tort before the master can be held liable.
There would seem to be only one way of extending the master's
liability - to adopt the Hohfeldian classification, which has some-
times found its way into writings on the point, and to say that
the servant may have committed a prima facie tortious act even
though he may be immune from an action based upon it (as in
Smith v. Moss and Dyer v. Munday). This statement of principle
may be attacked on the ground that there may sometimes be
grave difficulty in deciding whether the servant is quite free of a
breach of duty, or whether he is only enjoying an immunity from
an action . But even if this difficulty should arise it should not be
an insuperable one for a court, and i t is at least a clear and
universal test. In favour of this statement of principle the follow-
ing arguments can be urged
(1) It adequately explains all decided cases.
(2) It makes the liability of a master a true vicarious one, for
under this test there must be a tortious act done by the servant,
even if not an actionable one.
(3) It saves the court from the impossible task of trying to
frame the scope of some independent duty to be laid on the master.
It has been demonstrated earlier that no such duty can logically
be imposed on the master which does not take into account the
tortious or non-tortious nature of the servant's act.
(4) The solution appears to be socially equitable and expedient.
 restatement of the law on this point should therefore in the
present writers' view run something like this : A master is liable in
tort for the act of his servant, if the servant's act was a breach of
a duty imposed on the servant by the lacy of tort and was done in
the course of the servant's employment ; the fact that the servant
enjoys an immunity from action does not protect the master . This
statement, it will be seen, approximates to the American Restate-
ment of the point (quoted earlier in the passage from Lord God-
dard's judgment in Broom v. Morgan), but, if the arguments we
have given are correct, it should not be interpreted as imposing
some independent duty on the master . The master's liability is a
true vicarious one in which he is only the automatic reflector of
his servant's tort .