Levi v. Brooks

121 Mass. 501, 1877 Mass. LEXIS 28

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1877
• Status: Published

Opinion

Morton, J.

The instructions given at the trial were in ac • cordance with the decision of this court in Howe v. Hewmarch, 12 Allen, 49. The evidence tended to show that three persons, who were servants of the defendants, committed an assault upon each of the plaintiffs, and that such assaults were committed in the execution of the authority given them by the defendants, and for the purpose and as a means of carrying out their orders.

The ground taken by the defendants, that the master is not liable for a wilful trespass committed by the servant, cannot be sustained. The test of the liability of the master is, that the act of the servant is done in the course of doing the master’s work, and for the purpose of accomplishing it. If so done it is the act of the master, and he is responsible “ whether the wrong done be occasioned by negligence, or by a wanton and reckless purpose to accomplish the master’s business in an unlawful manner.” Howe v. Newmarch, ubi supra, and cases cited. Barden v. Felch, 109 Mass. 154. Hawes v. Knowles, 114 Mass. 518.

The court properly submitted the case to the jury under instructions to which there is no ground of exception.

The court also rightly ruled that the defence of a justification was not open to the defendants under their answer, it being merely a general denial. Snow v. Chatfield, 11 Gray, 12.

Exceptions overruled.