Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/341

 PART IV.] LIABILITY FOR TORTS OF AGENTS. [§ 345. liable for the assaults and batteries 1 and trespasses 2 of its ser- vants committed while acting within the general scope of their employment in the business of the corporation ; or for a public nuisance created by them under like circumstances. 3 And the circumstance that the act of the servant was wilful will not, in itself, preclude the liability of the corporation. 4 But the as- sault of the servants must in some way be connected with their employment in the business of the corporation. And thus it has been held that a railroad company is not liable for an as- sault and battery committed by its employes on a person who, they thought, had placed obstructions on the railroad track ; the assault being in no way connected with their employment. 5 § 345. We come now to the consideration of the third rule regulating the liability of corporations for the torts „,,. ,, 00 J l Third rule. of their servants and agents. A corporation is liable Liability - -, t. ,, where tort for any wrongful or negligent act or omission on the causes vio part of any of its servants or agents which causes a ^utyowed violation of any duty or obligation owed by the cor- b y p° r P°- J, J ° J ration. poration to the injured person : and this is true whether the corporation owes to the injured person special duties arising from contract, so that the tort occasions a breach of contract ; or whether it is a duty owed to the injured person merely as a member of the community ; a duty mainly based on the maxim, Sic utere tuo ut alienum non Icedas. It will be convenient to consider first the liability of a corporation for the torts of its agents and employes which cause the breach of 1 Hewitt v. Swift, 3 Allen, 420; Holmes v. Wakefield, 12 Allen, 580. See §§ 347, 348. 2 Whiteman, s Exr. v. Wilmington, etc., R. R. Co., 2 Hair. (Del.) 514; Hazen v. Boston and Maine R. R. Co., 2 Gray, 574; Mobile, etc., R. R. Co., v. McKellar, 59 Ala. 458; Palmer v. Maine Cent. R. R. Co., 92 Me. 399. 3 Ford v. Santa Cruz R. R. Co., 59 Cal. 290. 4 Mott v. Consumers 1 Ice Co., 73 X. Y. 543; Nashville & C. R. R. Co. t>. Starnes, 9 Heisk. (Tenn.) 52; Banis- ter v. Pennsylvania Co., 98 Iud. 220. A railroad company is liable for the 21 wilful acts of its servants in running a train over a person on the track. Terre Haute, etc., R. R. Co. v. Gra- ham, 46 Ind. 239. Contra, Illinois Central R. R. Co. v. Downey, 18 111. 259; Pennsylvania Co. v. Toomey, 91 Pa. St. 256. 5 Porter v. C. R. I. and P. R. R. Co., 41 Iowa, 358. See, also, Marion o. C. R. I. and P. R. Co., 59 Iowa, 428. A railroad company is not re- sponsible for the acts of its employes in creating a nuisance by using a cul- vert under its railroad, near the plain- tiff's residence, as a privy. Hopkins v. Western Pac. R. R. Co., 50 Cal. 321