Liability of Master for Wilful or Malicious Acts of Servant (I)

Authors

Floyd R. Mechem, University of Chicago

Abstract

In general-While it is well settled that the principal or master is responsible to third persons for the negligent act of his servant or agent, committed within the scope of his authority, it has been held in many cases that he is not liable for the agent's wilful or malicious act. In the language of Judge Cowen, which fairly states the doctrine of these cases, "the dividing line is the wilfulness of the act." It is perhaps not strange that a distinction in the master's responsibility for negligent acts and for wilful acts should constantly present itself. The very idea of negligence in the servant suggests the case wherein the servant is performing the master's business, but doing it heedlessly, inattentively, without definite purpose, without sufficient mental attention to it to do it properly. When, however, it is suggested that the servant was acting wilfully a different situation presents itself. Instead of mental inaction, mental activity is the situation at once presented. Instead of purposeless inattention, a definite purpose, a distinct motive is now suggested, and whose motive is it? At this point a further distinction must be observed. What is meant by "wilfully"? It may mean no more than a conscious purpose and intent to perform the master's business, and in this view is wholly commendable and in furtherance of the master's interests. Oh the other hand, the expression may be used, in the language Of the Century dictionary, "with an implication of evil intent or legal malice, or with absence of reasonable ground for believing the act in question to be lawful." It is undoubtedly in this latter sense that the expression is ordinarily used in this connection. Inasmuch as it can rarely be supposed that the master has authorized or directed a wilful or malicious act, the conclusion seems now natural and reasonable that the servant is effectuating his own purpose and motive, and that for the time being, at least, he has ceased to represent his master. What he does, then, while so acting, is, it is said, his own act and not the act of his master.

Recommended Citation

Floyd R. Mechem, Liability of Master for Wilful or Malicious Acts of Servant (I), 9 Mich. L. Rev. 87 (1910).
Available at: https://repository.law.umich.edu/mlr/vol9/iss2/1