In other words, if the defendant had engaged the teamster to

deliver the coal he would have been liable for the negligence

connected with the employment : so, also, when he ratified the

unauthorized act. To the same effect are other cascs.^

If a servant commit an assault or other wrong while in the

master's employment it is not a ratification of the tort merely

to continue the servant in the employment.*

Acquiescence in the continuing negligent or wilful conduct

of a servant may render the master liable, as acquiescence

In a custom of workmen to throw off fire-wood from a con-

struction train for their own private use,В° or in a custom of

cash-boys to snap pins for their amusement.^

§ 248. — (3) Acts which master reasonably led servant to believe

в– were authorized.

The master may by his instructions lead a servant to

believe that certain powers are intrusted to him. In such

^ " Acceptance of benefits " by the principal or master is, at least, the

best evidence of ratification, and may, historically, have been the origin

of the doctrine. Arite, §§ 34, 121 ; 7 Harv. L. Rev. p. 387-388, note.

2 Dempsey v. Chambers, 15-i Mass. 330.

8 Niras V. Mt. Hermon Boys' School, 160 Mass. 177; Lee v. Lord, 76

Wis. 582.

" Williams v. Pullman Palace Car Co., 40 La. An. 87 ; Gulf, &c. Ry.

V. Kirkbride, 79 Tex. 457; Donivan v. Manhattan Ry., 1 Misc. (N. Y.)

368.

6 Fletcher v. Baltimore & Potomac R., 168 U. S. 13.5.

В« Swinarton v. Le Boutillier, 7 Misc. (N. Y.) 639, aff'd, U8N.Y.752.

302 LTABILITY OF MASTER

a case, if this conclusion is one reasonably reached by the

servant, the acts of the latter within the limits of the sup-

posed authority will bind the master. Thus, if the master

instructs the servant to go to a certain field and kill a

beef, and the servant kills by mistake the animal of X,

believing it to be the one meant by the master, the latter

is liable for the trespass.^ If the master tells the servant

to take from a mill-yard such lumber as the mill-owner

may point out as belonging to the master and the mill-

owner points out lumber belonging to X and the servant

takes it away, the master is liable.^ If the master tells the

servant to go and get X's team and the servant takes the team

without X's consent and injures it, the master is liable.^ In

all of these cases the master intended something different

from the result actually accomplished, but the servant acted

upon the instructions as he reasonably understood them, and

the master is bound by the act so performed within the

scope of the employment and the instructions as nndci'stood.

Although the master intended that his animal and not X's

should be killed, that his lumber and not X's should be taken,

and that X's team should be taken only with X's consent, yet

if the servant reasonably believed that he was acting within

his instructions, the master must bear the loss occasioned

by the error.

§ 249. — (4) Acts impliedly authorized.

In addition to the acts expressly commanded or authorized,

there are others which may fairly be implied as necessary or

usually incidental to those actually authorized.* Frequently

the whole problem of whether a given act is within the course

or scope of the employment hinges upon this consideration.

1 Maier v. Randolph, 33 Kans. 340.

2 May V. Bliss, 22 Yt. 477.

8 Moir r. Hopkins, IG HI. 313.

* Professor Wigmore has shown liow, in the English law, the modern

doctrine of " the course of the employment " grew out of the earlier doc-

trine of an implied command, 7 Harv. L. Rev. 383. " Whatever a servant

is permitted to do in the usual course of his business is equivalent to a

general command." Blackstone, Comm. I. 430.

FOR TORTS OF SKRVANT. 303

Thus where a booking clerk of a railway company had caused

the arrest of a person who he thought had been attempting

to rob the till, the liability of the master was made to depend

upon the answer to the inquiry whether the arrest was a

necessary means of protecting the property committed to the

servant's care.^ So in a case where trainmen with excessive

or improper force remove trespassers from the trains, the

liability of the company rests upon the implied authority

given to trainmen to protect the property under their care

from such trespassers.^ To some extcut this authority may

also be said to rest upon custom or usage.^ In general,

whatever are the customary powers of servants in like occu-

pations or whatever powers are reasonably incidental to those

actually conferred, will be inferentially the powers of the

servant in question. Even an express grant of the particu-

lar power to another servant may not be sufhcient to rebut

the inference that such implied power is incidental to the

occupation.'*

The distinction between an express authority and an implied

authority is clearly brought out in the cases dealing with the

authority of railway trainmen to remove trespassers from

their trains. It is usual for railway companies to confer

upon conductors or other trainmen an express authority to

remove trespassers, and when such authority is exercised

there is no doubt whatever that the conductor is doing an act

within the course of his employment.^ If, however, a tres-

passer is removed by a brakeman there may be no such

express authority, and the question arises whether there is an

implied authority. If no express authority has been conferred

upon a particular trainman then there is an implied authority

for any trainman to remove the trespasser since the confiding

of the care of the property to servants carries with it an

implied authority to do any act reasonably necessary for its

1 Allen V. London, &c. Ry., L. R. 6 Q. B. 65.

2 West Jersey & Seashore R. v. Welsh, 62 N. J. L. 655.

8 Ibid. Hoffman v. R. Co., 87 N. Y. 25.

* Ibid.

6 Illinois Cent. R. v. King, 179 111. 91.

304 LIAP.ILITY OF MASTER

protection.^ If express authority has been given to a particu-

lar trainman, as the conductor, will there still be an implied

authority in other trainmen ? It has been held that there

will. " When the company committed to the conductor and

his crew of brakemen the custody and care of its freight

train, and thereby gave implied power to exclude and expel

therefrom any unauthorized persons intruding thereon in

contravention of the design and purpose of the com{)any in

running such a train, I think that the implication is not

rebutted by proof that it had selected one of its servants and

given him express authority in respect of such trespassers.

The express grant is not inconsistent with the implied author-