The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1909-07-09

suit of Kumazo Matsumara against
the County of Hawaii, in which $4,000
was originally cTalmed. Justice Perry
writes the opinion of the court, which
is an important one for county gov
eminent in this Territory.
c. f. Clemens appeared for the
plaintiff, and w. H. Smith for the de-
PENDANT.
1t is an opinion ~ sixteen pages of
typewriting. After disposing of some
questions on the law of evidence, the
court takes up the matter of the coun-
tvs liability, saying:
Where the employer is an indivi-
dual or private corporation the or
binary rule is that the master is liable
for the negligence. whether of omis-
sion or of commission, of the servant
committed within teh scope of his en-
ployment even though the acts OF
omissions were not authorized or were
expressly forbidden by him. 1t is not
essential in order TO render the mas
ter liable that the acts complained OF
were necessary to the performance of
the masters business. These princi-
pies are well established. The diff
Guilty arises only with reference to
their application to particular cases.
Whether an act is within the SCOPE
of the employment may not Re as sim
pie of solution in one instance as in
another The test seams to be that if
the servant, for however short a time
goes outside of his masters business
and does something wholly discon-
nected from it purely for private pur-
| poses of his own, rs, for example. to
visit his vengeance or spite upon an
other, the master is not liable; but il
the act, however improper or i'll adj
Vised, and even though wrongful. I'M
lawful or forbidden is done in SUM-
posed furtherance Of the masters bu-
siness and for the purpose Of thereby
performing the latters work, liability
attaches"
After quoting many cases from the
books, the opinion proceeds in part
thus:
Applying these principles to the
case at bar, but still assuming that
Ihe employer was an individual or n
private corporation, the tapping of the
hume was an act done within the scope
or the employment of Keola and his
colaborers. The use of the water was
IL is true, resorted to by the laborars
largely for their own convenience in
order to save themselves the greater
physlcal eXertion required in cartins
OIL the weeds in wheelbarrows as thew
mad been directed TO do, bat this of
itself would not free the empIover
from liability. See Cosgrove '. Ogden.
supra. 1t was still an act done to-
wards the performance of the work
OF repairing the highway FOR which
the men had been employed and in
supposed furtherance of that work.
Within the meaning of the rule I'M
der consideration 1t was not an act
done purely for the purposes of the
servant, as it would have been, for
example, if the water had been divert
ed solely for the purpose OF supplv-
ing neighboring faro patch belong
ing to Keola. 1t was not disconnect-
ed from the masters employment nor
was 1t born of the malice OF the SER
wants or for any private ends of their
own.
III instead of diyerting the water
| keola and his associates had borrow
ed mechanical rotary street sweep-
er drawn by horses,-for the same
purpose of doing the work more con-
Veniently and with less physical exer-
tlon TO themselVes-and had thereby
caused plaintiffs horse to bolt and
consequent damage to his propertv.
the act, although unauthorized or for
hidden by the employer, would stiu
De within the scope of the Iaborer's
employment and one for the conse-
quences of which the master would he
liable. The same would be true if
the laborers had been directed in con-
nection with their employment to
blast certain portions of a highway
not to use more than one-half of an
ordinary stick of giant powder In each
blast and then had disregarded their
Instructions and used two or three
sticks in blast thereby causing dam
age. No distinction in principle ex-
lists between these hypothetical cases
and the case at bar.
There is great conflict in the au-
thorities as to whether municipal cor
porations in general and counties n
particular are liable for the negligence
OF their agents and servants. That
question however, has been settled in
this Jurisdiction and in this case in
favor OF the existence of the liabil-
ity' Ante, p. IS. In that opinion this
court, recognizing the general rule OF
the common law to afford redress for
wrong suffered by Individuals plac-
ing the burden Of argument upon
those who would exempt any corpor-
alton, public or private, from the gen
T.