A Frolic of His Own

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American law is based upon English law due the United States being comprised of 13 British colonies prior to the The American Revolutionary War (1775–1783).

In all state constitutions except for Louisiana’s, there is provision sometimes described as a “reception statute” which provides something to the effect that the common law of England is the law of the state to the extent that it does not conflict with provisions of the state constitution or with state laws. There is an understanding, either explicit or implicit, that the reception of the common law of England refers to the judge-made decisions as kept and recorded for centuries, not including Acts of Parliament.

In PG’s experience, after well over 200 years of independence, citing a judgement made under English common law to an American judge would almost always be a poor idea, regarded as a desperation move. This is because, in one state or another, English common law principles have been included in a bunch of American court opinions.

That direct and indirect inclusion process has included some delightful British court language.

One of PG’s favorite terms describing a legal principle is “a frolic of his own.”

Under US and English common law, if an employee causes damage to someone else while the employee is doing his/her job, the employer and the employee are both liable for the damages caused.

If a semi-tractor/trailer runs a red light and collides with your car, both Jane Jones, the driver, and Super-Fast Deliveries, the trucking company that owns or leases the truck and pays Jane to drive it are obligated to pay any damages that result to you and your car.

From a practical standpoint, this is useful for an injured person because, while Jane may not have any assets or personal liability insurance, Super-Fast Deliveries will have liability insurance (and may be required by law to maintain such insurance in force up to a legally specified minimum level).

“A frolic of his own” is a rare and seldom-seen exception to the general employer pays liability rule, called, in Latin, respondeat superior, meaning in translation, something like, Let the Master Answer.

So, back to frolicking, if Jane delivers her load for Super-Fast Deliveries and, instead of returning the tractor portion of the truck to the closest Super-Fast depot as she is supposed to do, Jane decides to “borrow” it for a weekend getaway out by the lake, and, on her way to the lake, runs a red light and smashes into into a loaded bus filled with wealthy investment bankers, causing a huge amount of damage, well beyond the limits of Super-Fast’s liability insurance, Super-Fast might contend that Jane had the accident not while she was doing the job for which she was hired, but rather, “on a frolic of her own” or an updated term that means the same thing.

(Yes, PG acknowledges that was a run-on sentence and Mrs. Lascelles would be upset with him even if he were still only in the third grade.)

If successful, this frolic argument would get Super-Fast off the hook for a bazillion dollars in investment-banker damages caused by Jane’s negligence while driving its truck.

So, after that first-year law school explanation, here’ the opinion of the English case that first created the judge-made exception to respondeat superior rule that says the employer is liable for an employee’s negligence.

From Joel v. Morison:

England and Wales High Court (King’s Bench Division) Decisions


03 July 1834


  1. The declaration stated, that, on the 18th of April, 1833, the plaintiff was proceeding on foot across a certain public and common highway, and that the defendant was possessed of a cart and horse, which were under the care, government, and direction of a servant of his, who was driving the same along the said highway, and that the defendant by his said servant so carelessly, negligently, and improperly drove, governed, and directed the said horse and cart, that, by the carelessness, negligence, and improper conduct of the defendant by his servant, the cart and horse were driven against the plaintiff, and struck him, whereby he was thrown down and the bone of one of his legs was fractured, and he was ill in consequence, and prevented from transacting his business, and obliged to incur a great expense in and about the setting the said bone, etc., and a further great expense in retaining and employing divers persons to superintend and look after his business for six calendar months. Plea: Not guilty.
  1. From the evidence on the part of the plaintiff it appeared that he was in Bishopsgate street, when he was knocked down by a cart and horse coming in the direction from Shoreditch, which were sworn to have been driven at the time by a person who was the servant of the defendant, another of his servants being in the cart with him. The injury was a fracture of the fibula.
  1. On the part of the defendant witnesses were called, who swore that his cart was for weeks before and after the time sworn to by the plaintiff’s witnesses only in the habit of being driven between Burton Crescent Mews and Finchley, and did not go into the City at all. Thesiger, for the plaintiff, in reply, suggested that either the defendant’s servants might in coming from Finchley have gone out of their way for their own purposes, or might have taken the cart at a time when it was not wanted for the purpose of business, and have gone to pay a visit to some friend. He was observing that, under these circumstances, the defendant was liable for the acts of his servants.
  1. Parke, B: He is not liable if, as you suggest, these young men took the cart without leave; he is liable if they were going extra viam in going from Burton Crescent Mews to Finchley; but if they chose to go of their own accord to see a friend, when they were not on their master’s business, he is not liable.
  1. His Lordship afterwards, in summing up, said: This is an action to recover damages for an injury sustained by the plaintiff, in consequence of the negligence of the defendant’s servant. There is no doubt that the plaintiff has suffered the injury, and there is no doubt that the driver of the cart was guilty of negligence, and there is no doubt also that the master, if that person was driving the cart on his master’s business, is responsible. If the servants, being on their master’s business, took a detour to call upon a friend, the master will be responsible. If you think the servants lent the cart to a person who was driving without the defendant’s knowledge, he will not be responsible. Or, if you think that the young man who was driving took the cart surreptitiously, and was not at the time employed on his master’s business, the defendant will not be liable. The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master’s implied commands, when driving on his master’s business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master’s business, the master will not be liable. As to the damages, the master is not guilty of any offence, he is only responsible in law, therefore the amount should be reasonable.

Verdict for the plaintiff: damages, £30.

Thesiger and S. Martin, for the plaintiff.
Platt, for the defendant.

Link to the original at Joel v. Morrison

11 thoughts on “A Frolic of His Own”

  1. Strictly as a case in point, PG, the sentence you wrote that begins with “So, back to frolicking” and ends with “the same thing” is a very long sentence, but it is neither a run-on sentence nor a comma spliced sentence. It’s written and puncutated correctly, and though it might cause mind-strain for some, it works fine as-is.

    A ‘run-on sentence’ is two or more independent clauses (each with its own subject and verb) that are joined by simply being smashed together, without benefit of a comma and a coordinating conjunction (or a semicolon). You have plenty of commas, each in a correct, useful place, and just enough coordinating conjunctions. Y’done good.

    • Twain was wrong; he just didn’t have the patience or attention span to get to the end of a German sentence and find the verb, which was at the end where it belongs.

      My point is that this is about context, which differs from language to language. (And “legal” is a distinct language, too.)

    • Thanks for this Harvey. I reread the sentance several times and could not see anything wrong – save for the single closing quote after the first “frolicking ” – and concluded that I had finally forgotten what little knowledge of grammar I still retain. I found your comment most reassuring.

  2. Another exception, or perhaps a slightly different variation of this, is applied to the Crown in Canada, but it was done as a “rule of law” rather than “frolic”. Which is, if a Minister of the Crown (politician) is acting for the Crown, but does something that is not related to the duties for which the Minister is charged to perform, then the actions do not stand.

    In other words, if a politician who has immunity and discretion is doing their legal job, they are protected; if on the other hand, they step outside their role and do something, however discretionary, that is for their own benefit or to the detriment of someone else — say private business with the Minister’s pen — then the act cannot stand, there is no immunity, and the Minister is liable.

    In Canada, back in the 1940, there was a classic case where a Minister was sued by a business owner whose business license was revoked by the MInister because there were laws against religious solicitation etc, Jehovahs Witnesses were being arrested, and the business owner kept posting their bail and paying for their lawyers. To get back at him, the Minister decided not to renew the businessperson’s liquor license, thus killing a 34-yo business. The courts threw out the cases against the Jehovah’s Witnesses, the business owner was never charged with anything, but he was told he would never get another liquor license. It took 13y, but the court eventually awarded him a jdugement against the Minister, even though the minister was protected by the Crown AND had discretion. The judges ruled that the decisions had not been within the normal “rule of law”, and while different wording, basically said the Minister was on a frolic of his own that had nothing to do with the legitimate business of his office.

    Because he was a Minister, we used different wording, but some of the original interpretation is similar.

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