The first precedent cited for the
proposition that a promise to an agent may be laid as a promise
to the principal, is a case of master and servant. /1/
As my present object is only to show the meaning of the doctrine
of identification in its bearing upon the theory of possession,
it would be out of place to consider at any length how far that
doctrine must be invoked to explain the liability of principals
for their agents' torts, or whether a more reasonable rule
governs other cases than that applied where the actor has a
tolerably defined status as a [230] servant. I allow myself a few
words, because I shall not be able to return to the subject.
If the liability of a master for the torts of his servant had
hitherto been recognized by the courts as the decaying remnant of
an obsolete institution, it would not be surprising to find it
confined to the cases settled by ancient precedent. But such has
not been the fact. It has been extended to new relations by
analogy, /1/ It exists where the principal does not stand in the
relation of paterfamilias to the actual wrong-doer. /2/ A man may
be held for another where the relation was of such a transitory
nature as to exclude the conception of status, as for the
negligence of another person's servant momentarily acting for the
defendant, or of a neighbor helping him as a volunteer; /3/ and,
so far as known, no principal has ever escaped on the ground of
the dignity of his agent's employment.
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