Page:Harvard Law Review Volume 5.djvu/37

21 AGENCY. 21 precise point of the fiction is that the direct act of one is treated as if it were the direct act of another. To avoid this conclusion a false reason is given for the liability in general. 1 It is, as has been shown, the old fallacy of the Roman jurists, and is disposed of by the decisions that no amount of care in the choice of one's servant will help the master in a suit against him. 2 But although the reasoning is bad, the language expresses the natural unwillingness of sensible men to sanction an allegation that the defendant directly brought force to bear on the plaintiff, as the proper and formal allegation, when as a matter of fact it was another person who did it by his independent act, and the defendant is only answerable because of a previous contract between himself and the actual wrong-doer. 3 Another circumstance may have helped. Usually the master is not liable for his servant's wilful trespasses, and, therefore, the actions against him stand on the servant's neg- ligence as the alternative ground on which anybody is responsible. There was for a time a confused idea that when the cause of action was the defendant's negligence, the proper form of action was always case. 4 Of course if this was true it applied equally to the imputed negligence of a servant. And thus there was the farther possibility of confounding the question of the proper form of action with the perfectly distinct one whether the defendant was liable at all. I come finally to the question of damages. In those States where exemplary damages are allowed, the attempt naturally has been made to recover such damages from masters when their ser- vants' conduct has been such as to bring the doctrine into play. Some courts have had the courage to be consistent. 5 " What is the principle," it is asked, " upon which this rule of damages is founded? It is that the act of the agent is the act of the princi- pal himself. . . . The law has established, to this extent, their legal unity and identity. . . . This legal unity of the principal 1 The same reason is given in M'Manus v. Crickett, i East, 106, 108 (1800). Com- pare 1 Harg. Law Tracts, 347 ; Walcott v. Swampscott, 1 Allen, 101, 103 ; Lane v. Cotton, 12 Mod. 472, 488, 489. 2 Dansey v. Richardson, 3 El. & Bl. 144, 161. See p. 15. 8 M'Manus v. Crickett, 1 East, 106, no (1800) ; Brucker v. Fromont, 6 T. R. 659 ^796). 6 New Orleans, Jackson, & Great Northern R. R. Co. v. Bailey, 40 Miss. 395, 452, 53, 456 (1866) ; ace. Atlantic & G. W. Ry. Co. v. Dunn, 19 Ohio St. 162.
 * Ogle v. Barnes, 8 T. R. 188 (1799). Cf. Leame v. Bray, 3 East, 593 (1803).