Page:Harvard Law Review Volume 5.djvu/38

22 22 HARVARD LAW REVIEW. and agent, in respect to the wrongful or tortious, as well as the rightful acts, of the agent, done in the course of his employment, is an incident which the law has wisely attached to the relation, from its earliest history." " If then the act of the agent be the act of the principal in law, and this legal identity is the foundation of the responsibility of the principal, there can be no escape from his indemnity to the full extent of civil responsibility." An instruc- tion that the jury might give punitive damages was upheld, and the plaintiff had judgment for $12,000. Whatever may be said of the practical consequences or the English of the opinion from which these extracts are made, it has the merit of going to the root of the matter with great keenness. On the other hand, other courts, more impressed by the monstrosity of the result than by the elegantia juris, have peremptorily declared that it was absurd to punish a man who had not been to blame, and have laid down the opposite rule without hesitation. 1 I think I now have made good the propositions which I under- took at the beginning of this essay to establish. I fully admit that the evidence here collected has been gathered from nooks and corners, and that although in the mass it appears to me impos- ing, it does not lie conspicuous upon the face of the law. And this is equivalent to admitting, as I do, that the views here main- tained are not favorites with the courts. How can they be? A judge would blush to say nakedly to a defendant: " I can state no rational ground on which you should be held liable, but there is a fiction of law which I must respect and by which I am bound to say that you did the act complained of, although we both know perfectly well that it was done by somebody else whom the plaintiff could have sued if he had chosen, who was selected with the utmost care by you, who was in fact an eminently proper person for the employment in which he was engaged, and whom it was not only your right to employ, but much to the public advantage that you should employ." That would not be a satisfactory form in which to render a decision against a master, and it is not pleasant even to admit to one's self that such are the true grounds upon which one is deciding. Naturally, therefore, judges have striven to find more intelligible reasons, and have done so in the utmost good faith ; for 1 Hagar v. Providence & Worcester R. R., 3 R. I. 88 (1854) ; Cleghorn v. New York Central & Hudson River R. R., 56 N. Y. 44 ( 1874). Cf. Craker v. Chicago & N. W. R. R., 36 Wis. 657 (1875).