Liability of a Master to Third Persons for the Negligence of a Stranger Assisting His Servant

Authors

Floyd R. Mechem, University of Chicago

Abstract

Speaking generally, one person can only be liable for the negligence of another when he stands toward that other in the relation of master and servant. Speaking generally, also, one person can become the servant of another only with the latter's express or implied consent. That consent may be given by him in person or by some agent to whom the power of appointing servants for him has been delegated. Such a power may be expressly conferred or it may arise by implication. There is, for example, a large and familiar class of cases, not now necessary to be considered, wherein power in a certain agent to employ sub-agents or servants will be implied. The case of the agent given general control or management of some business or enterprise to the proper conduct of which sub-agents or servants are necessary, may be cited as an illustration. Another well recognized illustration is found in the case of merely mechanical or -ministerial acts. Thus an agent, who has himself passed upon all those matters which involve judgment or discretion, may bind his principal even though he confides to a sub-agent the execution of the parts which are mechanical or ministerial merely. The general rule, however, is, that an agent or servant has no implied authority to delegate his undertaking to another; and it is very clear that an ordinary servant has usually no implied power either to substitute some one else in his place or to employ some one else to assist him, in such a way as to make the person so employed the servant of his master.

Recommended Citation

Floyd R. Mechem, Liability of a Master to Third Persons for the Negligence of a Stranger Assisting His Servant, 3 Mich. L. Rev. 198 (1905).
Available at: https://repository.law.umich.edu/mlr/vol3/iss3/3