"In this state the test to determine whether the master is liable to a stranger for the consequences of his servant's misconduct is to inquire whether the latter was doing what he was employed to do at the time he caused the injury complained of. If he was, the fact that he was not doing it in the way expected is immaterial." Danforth v. Fisher, 75 N.H. 111.
A master is liable for acts done by his servants in the prosecution of the work they are employed to do, even though the particular act is in violation of orders given by the master. Richard v. Company, 79 N.H. 380. "The law holds the master responsible for what the servant does, or omits, in conducting the master's business, because the master has voluntarily substituted for his personal management and supervision that of the servant." 18 R. C. L. 796. The phrase "scope of employment" is not susceptible of an exact limitation because the matter involved is a mixed question of law and fact. Richard v. Company, supra.
In the present case the defendant put his servant Jalbert in charge of carrying passengers who applied for transportation. There were three automobiles which were commonly used for this purpose, but Jalbert's orders were that he should not use the Cadillac car. Passengers applied for transportation, the other cars were not available, and Jalbert, who was alone at the defendant's place of business, took the Cadillac to carry the passengers and while so employed caused the injury complained of. The facts present a typical case of the servant *Page 111 doing the work he was employed to do in a manner forbidden to him by the master. Jalbert was employed to carry passengers who applied for transportation, and he was engaged in such transportation. The act he was doing was in line with what his employer hired him to do. The departure from instructions was in a matter of detail only. Selection of the means of transportation had been entrusted to Jalbert, and a special limitation upon such authority is immaterial. Danforth v. Fisher, supra.
It is contended by the defendant that as he had forbidden Jalbert's use of this car such use would be outside the scope of Jalbert's employment, and the defendant would not be liable. This argument would defeat a recovery in every case where the servant acts in violation of orders. It ignores the distinction between what work the servant was employed to do and the method employed in doing the work.
Dearborn v. Fuller, 79 N.H. 217, relied upon by the defendant, is not in point. In that case the defendant did not employ his servant to carry passengers at all, and was not engaged in that business. The conclusion that such unauthorized carriage would be outside the scope of the servant's employment has no application to facts like those in the present case.
The contention that the question of authority was submitted to the jury cannot be sustained. They were expressly instructed that there was no authority unless a ratification was proved, and their statement that the verdict was based upon lack of authority related to the issue of ratification only.
The jury should have been instructed that if they found that the defendant placed Jalbert in charge of the execution of the work of carrying passengers, the defendant would be liable for Jalbert's acts done for the authorized purpose, although he had been forbidden to execute his authority in the way he did at the time of the accident.
Exception sustained.
All concurred. *Page 112