3.: Liability for the Torts of Agents and Servants.

Command of principal does not excuse agent’s wrong. Whoever commits a wrong is liable for it himself. It is no excuse that he was acting, as an agent or servant, on behalf and for the benefit of another. But that other may well be also liable: and in many cases a man is held answerable for wrongs not committed by himself. The rules of general application in this kind are those concerning the liability of a principal for his agent, and of a master for his servant. Under certain conditions responsibility goes farther, and a man may have to answer for wrongs which, as regards the immediate cause of the damage, are not those of either his agents or his servants. Thus we have cases where a man is subject to a positive duty, and is held liable for failure to perform it.Cases of absolute positive duty distinguished: Here, the absolute character of the duty being once established, the question is not by whose hand an unsuccessful attempt was made, whether that of the party himself, of his servant, or of an “independent contractor”, but whether the duty has been adequately performed or not. If it has, there is nothing more to be considered, and liability, if any, must be sought in some other quarter. If not, the non-performance in itself, not the causes or conditions of non-performance, is the ground of liability. Special duties created by statute, as conditions attached to the grant of exceptional rights or otherwise, afford the chief examples of this kind. Here the liability attaches, irrespective of any question of agency or personal negligence, if and when the conditions imposed by the legislature are not satisfied.

also duties in nature of warranty. There occur likewise, though as an exception, duties of this kind imposed by the common law. Such are the duties of common carriers, of owners of dangerous animals or other things involving, by their nature or position, special risk of harm to their neighbours; and such, to a limited extent, is the duty of occupiers of fixed property to have it in reasonably safe condition and repair, so far as that end can be assured by the due care on the part not only of themselves and their servants, but of all concerned.

The degrees of responsibility may be thus arranged, beginning with the mildest:

Modes of liability for wrongful acts, &c. of others. Apart from the cases of exceptional duty where the responsibility is in the nature of insurance or warranty, a man may be liable for another’s wrong—

(1) As having authorized or ratified that particular wrong:

(2) As standing to the other person in a relation making him answerable for wrongs committed by that person in virtue of their relation, though not specifically authorized.

The former head presents little or no difficulty. The latter includes considerable difficulties of principle, and is often complicated with troublesome questions of fact.

Command and ratification. It scarce needs authority to show that a man is liable for wrongful acts which have been done according to his express command or request, or which, having been done on his account and for his benefit, he has adopted as his own. “A trespasser may be not only he who does the act, but who commands or procures it to be done . . . who aids or assists in it . . . or who assents afterwards”. This is not the less so because the person employed to do an unlawful act may be employed as an “independent contractor,” so that, supposing it lawful, the employer would not be liable for his negligence about doing it. A gas company employed a firm of contractors to break open a public street, having therefor no lawful authority or excuse; the thing contracted to be done being in itself a public nuisance, the gas company was held liable for injury caused to a foot-passenger by falling over some of the earth and stones excavated and heaped up by the contractors. A point of importance to be noted in this connexion is that only such acts bind a principal by subsequent ratification as were done at the time on the principal’s behalf. What is done by the immediate actor on his own account cannot be effectually adopted by another; neither can an act done in the name and on behalf of Peter be ratified either for gain or for loss by John. “Ratum quis habere non potest, quod ipsius nomine non est gestum”.

Master and servant. The more general rule governing the other and more difficult branch of the subject was expressed by Willes J. in a judgment which may now be regarded as a classical authority. “The master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master’s benefit, though no express command or privity of the master be proved”.

Reason of the master’s liability. No reason for the rule, at any rate no satisfying one, is commonly given in our books. Its importance belongs altogether to the modern law, and it does not seem to be illustrated by any early authority. Blackstone (i. 417) is short in his statement, and has no other reason to give than the fiction of an “implied command.” It is currently said, Respondeat superior; which is a dogmatic statement, not an explanation. It is also said, Qui facit per alium facit per se; but this is in terms applicable only to authorized acts, not to acts that, although done by the agent or servant “in the course of the service,” are specifically unauthorized or even forbidden. Again, it is said that a master ought to be careful in choosing fit servants; but if this were the reason, a master could discharge himself by showing that the servant for whose wrong he is sued was chosen by him with due care, and was in fact generally well conducted and competent: which is certainly not the law.

A better account was given by Chief Justice Shaw of Massachusetts. “This rule,” he said, “is obviously founded on the great principle of social duty, that every man in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it”. This is, indeed, somewhat too widely expressed, for it does not in terms limit the responsibility to cases where at least negligence is proved. But no reader is likely to suppose that, as a general rule, either the servant or the master can be liable where there is no default at all. And the true principle is otherwise clearly enounced. I am answerable for the wrongs of my servant or agent, not because he is authorized by me or personally represents me, but because he is about my affairs, and I am bound to see that my affairs are conducted with due regard to the safety of others.

Some time later the rule was put by Lord Cranworth in a not dissimilar form: the master “is considered as bound to guarantee third persons against all hurt arising from the carelessness of himself or of those acting under his orders in the course of his business”.

The statement of Willes J. that the master “has put the agent in his place to do that class of acts” is also to be noted and remembered as a guide in many of the questions that arise. A just view seems to be taken, though artificially and obscurely expressed, in one of the earliest reported cases on this branch of the law: “It shall be intended that the servant had authority from his master, it being for his master’s benefit”.

Questions to be considered herein. The rule, then (on whatever reason founded), being that a master is liable for the acts, neglects, and defaults of his servants in the course of the service, we have to define further—

1. Who is a servant.

2. What acts are deemed to be in the course of service.

3. How the rule is affected when the person injured is himself a servant of the same master.

Who is a servant: responsibility goes with order and control. 1. As to the first point, it is quite possible to do work for a man, in the popular sense, and even to be his agent for some purposes, without being his servant. The relation of master and servant exists only between persons of whom the one has the order and control of the work done by the other. A master is one who not only prescribes to the workman the end of his work, but directs, or at any moment may direct the means also, or, as it has been put, “retains the power of controlling the work”; and he who does work on those terms is in law a servant for whose acts, neglects, and defaults, to the extent to be specified, the master is liable. An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand. For the acts or omissions of such a one about the performance of his undertaking his employer is not liable to strangers, no more than the buyer of goods is liable to a person who may be injured by the careless handling of them by the seller or his men in the course of delivery. If the contract, for example, is to build a wall, and the builder “has a right to say to the employer, ‘I will agree to do it, but I shall do it after my own fashion; I shall begin the wall at this end, and not at the other;’ there the relation of master and servant does not exist, and the employer is not liable”. “In ascertaining who is liable for the act of a wrong-doer, you must look to the wrong-doer himself or to the first person in the ascending line who is the employer and has control over the work. You cannot go further back and make the employer of that person liable”. He who controls the work is answerable for the workman; the remoter employer who does not control it is not answerable. This distinction is thoroughly settled in our law; the difficulties that may arise in applying it are difficulties of ascertaining the facts. It may be a nice question whether a man has let out the whole of a given work to an “independent contractor,” or reserved so much power of control as to leave him answerable for what is done.

Specific assumption of control. It must be remembered that the remoter employer, if at any point he does interfere and assume specific control, renders himself answerable, not as master, but as principal. He makes himself “dominus pro tempore.” Thus the hirer of a carriage, driven by a coachman who is not the hirer’s servant but the letter’s, is not, generally speaking, liable for harm done by the driver’s negligence. But if he orders, or by words or conduct at the time sanctions, a specific act of rash or careless driving, he may well be liable. Rather slight evidence of personal interference has been allowed as sufficient in this class of cases.

Temporary transfer of service. One material result of this principle is that a person who is habitually the servant of A. may become, for a certain time and for the purpose of certain work, the servant of B.; and this although the hand to pay him is still A.’s. The owner of a vessel employs a stevedore to unload the cargo. The stevedore employs his own labourers; among other men, some of the ship’s crew work for him by arrangement with the master, being like the others paid by the stevedore and under his orders. In the work of unloading these men are the servants of the stevedore, not of the owner. There is no “common employment” between the stevedore’s men and the seamen on board.

Owners of a colliery, after partly sinking a shaft, agree with a contractor to finish the work for them, on the terms, among others, that engine power and engineers to work the engine are to be provided by the owners. The engine that has been used in excavating the shaft is handed over accordingly to the contractor; the same engineer remains in charge of it, and is still paid by the owners, but is under the orders of the contractor. During the continuance of the work on these terms the engineer is the servant not of the colliery owners but of the contractor.

But where iron-founders execute specific work about the structure of a new building under a contract with the architect, and without any contract with the builder, their workmen do not become servants of the builder.

“Power of controlling the work” explained. It is proper to add that the “power of controlling the work” which is the legal criterion of the relation of a master to a servant does not necessarily mean a present and physical ability. Shipowners are answerable for the acts of the master, though done under circumstances in which it is impossible to communicate with the owners. It is enough that the servant is bound to obey the master’s directions if and when communicated to him. The legal power of control is to actual supervision what in the doctrine of possession the intent to possess is to physical detention. But this much is needful: therefore a compulsory pilot, who is in charge of the vessel independently of the owner’s will, and, so far from being bound to obey the owner’s or master’s orders, supersedes the master for the time being, is not the owner’s servant, and the statutory exemption of the owner from liability for such a pilot’s acts is but in affirmance of the common law.

What is in course of employment. 2. Next we have to see what is meant by the course of service or employment. The injury in respect of which a master becomes subject to this kind of vicarious liability may be caused in the following ways:—

Let us take these heads in order.

Execution of specific orders. (a) Here the servant is the master’s agent in a proper sense, and the master is liable for that which he has truly, not by the fiction of a legal maxim, commanded to be done. He is also liable for the natural consequences of his orders, even though he wished to avoid them, and desired his servant to avoid them. Thus, in Gregory v. Piper, a right of way was disputed between adjacent occupiers, and the one who resisted the claim ordered a labourer to lay down rubbish to obstruct the way, but so as not to touch the other’s wall. The labourer executed the orders as nearly as he could, and laid the rubbish some distance from the wall, but it soon “shingled down” and ran against the wall, and in fact could not by any ordinary care have been prevented from doing so. For this the employer was held to answer as for a trespass which he had authorized. This is a matter of general principle, not of any special kind of liability. No man can authorize a thing and at the same time affect to disavow its natural consequences; no more than he can disclaim responsibility for the natural consequences of what he does himself.

Negligence in conduct of master’s business. (b) Then comes the case of the servant’s negligence in the performance of his duty, or rather while he is about his master’s business. What constitutes negligence does not just now concern us; but it must be established that the servant is a wrong-doer, and liable to the plaintiff, before any question of the master’s liability can be entertained. Assuming this to be made out, the question may occur whether the servant was in truth on his master’s business at the time, or engaged on some pursuit of his own. In the latter case the master is not liable. “If the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of his servant in doing it”. For example: “If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, . . . the master will not be liable. But if, in order to perform his master’s orders, he strikes but injudiciously, and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant’s employment”.

Departure or deviation from master’s business. Whether the servant is really bent on his master’s affairs or not is a question of fact, but a question which may be troublesome. Distinctions are suggested by some of the reported cases which are almost too fine to be acceptable. The principle, however, is intelligible and rational. Not every deviation of the servant from the strict execution of duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master’s responsibility. But where there is not merely deviation, but a total departure from the course of the master’s business, so that the servant may be said to be “on a frolic of his own”, the master is no longer answerable for the servant’s conduct. Two modern cases of the same class and period, one on either side of the line, will illustrate this distinction.

Whatman v. Pearson. In Whatman v. Pearson, a carter who was employed by a contractor, having the allowance of an hour’s time for dinner in his day’s work, but also having orders not to leave his horse and cart, or the place where he was employed, happened to live hard by. Contrary to his instructions, he went home to dinner, and left the horse and cart unattended at his door; the horse ran away and did damage to the plaintiff’s railings. A jury was held warranted in finding that the carman was throughout in the course of his employment as the contractor’s servant “acting within the general scope of his authority to conduct the horse and cart during the day”.

Storey v. Ashton. In Storey v. Ashton, a carman was returning to his employer’s office with returned empties. A clerk of the same employer’s who was with him induced him, when he was near home, to turn off in another direction to call at a house and pick up something for the clerk. While the carman was driving in this direction he ran over the plaintiff. The Court held that if the carman “had been merely going a roundabout way home, the master would have been liable; but he had started on an entirely new journey on his own or his fellow-servant’s account, and could not in any way be said to be carrying out his master’s employment”. More lately it has been held that if the servant begins using his master’s property for purposes of his own, the fact that by way of afterthought he does something for his master’s purposes also is not necessarily such a “re-entering upon his ordinary duties” as to make the master answerable for him. A journey undertaken on the servant’s own account “cannot by the mere fact of the man making a pretence of duty by stopping on his way be converted into a journey made in the course of his employment”.

Williams v. Jones. The following is a curious example. A carpenter was employed by A. with B.’s permission to work for him in a shed belonging to B. This carpenter set fire to the shed in lighting his pipe with a shaving. His act, though negligent, having nothing to do with the purpose of his employment, A. was not liable to B.. It does not seem difficult to pronounce that lighting a pipe is not in the course of a carpenter’s employment; but the case was one of difficulty as being complicated by the argument that A., having obtained a gratuitous loan of the shed for his own purposes, was answerable, without regard to the relation of master and servant, for the conduct of persons using it. This failed for want of anything to show that A. had acquired the exclusive use or control of the shed. Apart from this, the facts come very near to the case which has been suggested, but not dealt with by the Courts in any reported decision, of a miner opening his safety-lamp to get a light for his pipe, and thereby causing an explosion; where “it seems clear that the employer would not be held liable”.

Excess or mistake in execution of authority. (c) Another kind of wrong which may be done by a servant in his master’s business, and so as to make the master liable, is the excessive or erroneous execution of a lawful authority. To establish a right of action against the master in such a case it must be shown that (α) the servant intended to do on behalf of his master something of a kind which he was in fact authorized to do; (β) the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to exist, would have been lawful.

The master is chargeable only for acts of an authorized class which in the particular instance are wrongful by reason of excess or mistake on the servant’s part. For acts which he has neither authorized in kind nor sanctioned in particular he is not chargeable.

Interference with passengers by guards, &c. Most of the cases on this head have arisen out of acts of railway servants on behalf of the companies. A porter whose duty is, among other things, to see that passengers do not get into wrong trains or carriages (but not to remove them from a wrong carriage), asks a passenger who has just taken his seat where he is going. The passenger answers, “To Macclesfield.” The porter, thinking the passenger is in the wrong train, pulls him out; but the train was in fact going to Macclesfield, and the passenger was right. On these facts a jury may well find that the porter was acting within his general authority so as to make the company liable. Here are both error and excess in the servant’s action: error in supposing facts to exist which make it proper to use his authority (namely, that the passenger has got into the wrong train); excess in the manner of executing his authority, even had the facts been as he supposed. But they do not exclude the master’s liability.

“A person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done, and trusts him for the manner in which it is done; and consequently he is held responsible for the wrong of the person so intrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment”.

Seymour v. Greenwood is another illustrative case of this class. The guard of an omnibus removed a passenger whom he thought it proper to remove as being drunken and offensive to the other passengers, and in so doing used excessive violence. Even if he were altogether mistaken as to the conduct and condition of the passenger thus removed, the owner of the omnibus was answerable. “The master, by giving the guard authority to remove offensive passengers, necessarily gave him authority to determine whether any passenger had misconducted himself.”

Arrest of supposed offenders. Another kind of case under this head is where a servant takes on himself to arrest a supposed offender on his employer’s behalf. Here it must be shown, both that the arrest would have been justified if the offence had really been committed by the party arrested, and that to make such an arrest was within the employment of the servant who made it. As to the latter point, however, “where there is a necessity to have a person on the spot to act on an emergency, and to determine whether certain things shall or shall not be done, the fact that there is a person on the spot who is acting as if he had express authority is prima facie evidence that he had authority”. Railway companies have accordingly been held liable for wrongful arrests made by their inspectors or other officers as for attempted frauds on the company punishable under statutes or authorized by-laws, and the like.

Act wholly outside authority, master not liable. But the master is not answerable if the servant takes on himself, though in good faith and meaning to further the master’s interest, that which the master has no right to do even if the facts were as the servant thinks them to be: as where a station-master arrested a passenger for refusing to pay for the carriage of a horse, a thing outside the company’s powers. The same rule holds if the particular servant’s act is plainly beyond his authority, as where the officer in charge of a railway station arrests a man on suspicion of stealing the company’s goods, an act which is not part of the company’s general business, nor for their apparent benefit. In a case not clear on the face of it, as where a bank manager commences a prosecution, which turns out to be groundless, for a supposed theft of the bank’s property—a matter not within the ordinary routine of banking business, but which might in the particular case be within the manager’s authority—the extent of the servant’s authority is a question of fact. Much must depend on the nature of the matter in which the authority is given. Thus an agent entrusted with general and ample powers for the management of a farm has been held to be clearly outside the scope of his authority in entering on the adjacent owner’s land on the other side of a boundary ditch in order to cut underwood which was choking the ditch and hindering the drainage from the farm. If he had done something on his employer’s own land which was an actionable injury to adjacent land, the employer might have been liable. But it was thought unwarrantable to say “that an agent entrusted with authority to be exercised over a particular piece of land has authority to commit a trespass on other land”. More generally, an authority cannot be implied for acts not necessary to protect the employer’s property, such as arresting a customer for a supposed attempt to pass bad money.

Wilful trespasses, &c. for master’s purposes. (d) Lastly, a master may be liable even for wilful and deliberate wrongs committed by the servant, provided they be done on the master’s account and for his purposes: and this, no less than in other cases, although the servant’s conduct is of a kind actually forbidden by the master. Sometimes it has been said that a master is not liable for the “wilful and malicious” wrong of his servant. If “malicious” means “committed exclusively for the servant’s private ends,” or “malice” means “private spite”, this is a correct statement; otherwise it is contrary to modern authority. The question is not what was the nature of the act in itself, but whether the servant intended to act in the master’s interest.

This was decided by the Exchequer Chamber in Limpus v. London General Omnibus Company, where the defendant company’s driver had obstructed the plaintiff’s omnibus by pulling across the road in front of it, and caused it to upset. He had printed instructions not to race with or obstruct other omnibuses. Martin B. directed the jury, in effect, that if the driver acted in the way of his employment and in the supposed interest of his employers as against a rival in their business, the employers were answerable for his conduct, but they were not answerable if he acted only for some purpose of his own: and this was approved by the Court above. The driver “was employed not only to drive the omnibus, but also to get as much money as he could for his master, and to do it in rivalry with other omnibuses on the road. The act of driving as he did is not inconsistent with his employment, when explained by his desire to get before the other omnibus.” As to the company’s instructions, “the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability”.

Fraud of agent or servant. That an employer is liable for frauds of his servant committed without authority, but in the course of the service and in apparent furtherance of the employer’s purposes, was established with more difficulty; for it seemed harsh to impute deceit to a man personally innocent of it, or (as in the decisive cases) to a corporation, which, not being a natural person, is incapable of personal wrong-doing. But when it was fully realized that in all these cases the master’s liability is imposed by the policy of the law without regard to personal default on his part, so that his express command or privity need not be shown, it was a necessary consequence that fraud should be on the same footing as any other wrong. So the matter is handled in our leading authority, the judgment of the Exchequer Chamber delivered by Willes J. in Barwick v. English Joint Stock Bank.

“With respect to the question, whether a principal is answerable for the act of his agent in the course of his master’s business, and for his master’s benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong”.

This has been more than once fully approved in the Privy Council, and may now be taken, notwithstanding certain appearances of conflict, to have the approval of the House of Lords also. What has been said to the contrary was either extra-judicial, as going beyond the ratio decidendi of the House, or is to be accepted as limited to the particular case where a member of an incorporated company, not having ceased to be a member, seeks to charge the company with the fraud of its directors or other agents in inducing him to join it.

But conversely a false and fraudulent statement of a servant made for ends of his own, though in answer to a question of a kind he was authorized to answer on his master’s behalf, will not render the master liable in an action for deceit.

The leading case of Mersey Docks Trustees v. Gibbs may also be referred to in this connexion, as illustrating the general principles according to which liabilities are imposed on corporations and public bodies.

Liability of firm for fraud of a partner. There is abundant authority in partnership law to show that a firm is answerable for fraudulent misappropriation of funds, and the like, committed by one of the partners in the course of the firm’s business and within the scope of his usual authority, though no benefit be derived therefrom by the other partners. But, agreeably to the principles above stated, the firm is not liable if the transaction undertaken by the defaulting partner is outside the course of partnership business. Where, for example, one of a firm of solicitors receives money to be placed in a specified investment, the firm must answer for his application of it, but not, as a rule, if he receives it with general instructions to invest it for the client at his own discretion. Again, the firm is not liable if the facts show that exclusive credit was given to the actual wrong-doer. In all these cases the wrong is evidently wilful. In all or most of them, however, it is at the same time a breach of contract or trust. And it seems to be on this ground that the firm is held liable even when the defaulting partner, though professing to act on behalf of the firm, misapplies funds or securities merely for his own separate gain. The reasons given are not always free from admixture of the Protean doctrine of “making representations good,” which is now, I venture to think, exploded.

Injuries to servants by fault of fellow-servants. 3. There remains to be considered the modification of a master’s liability for the wrongful act, neglect, or default of his servant when the person injured is himself in and about the same master’s service. It is a topic far from clear in principle; the Employers’ Liability Act, 1880, has obscurely indicated a sort of counter principle, and introduced a number of minute and empirical exceptions, or rather limitations of the exceptional rule in question. That rule,Common law rule of master’s immunity. as it stood before the Act of 1880, is that a master is not liable to his servant for injury received from any ordinary risk of or incident to the service, including acts or defaults of any other person employed in the same service. Our law can show no more curious instance of a rapid modern development. The first evidence of any such rule is in Priestley v. Fowler, decided in 1837, which proceeds on the theory (if on any definite theory) that the master “cannot be bound to take more care of the servant than he may reasonably be expected to do of himself;” that a servant has better opportunities than his master of watching and controlling the conduct of his fellow-servants; and that a contrary doctrine would lead to intolerable inconvenience, and encourage servants to be negligent. According to this there would be a sort of presumption that the servant suffered to some extent by want of diligence on his own part. But it is needless to pursue this reasoning; for the like result was a few years afterwards arrived at by Chief Justice Shaw of Massachusetts by another way, and in a judgment which is the fountain-head of all the later decisions, and has now been judicially recognized in England as “the most complete exposition of what constitutes common employment”. The accepted doctrine is to this effect.Reason given in the later cases. Strangers can hold the master liable for the negligence of a servant about his business. But in the case where the person injured is himself a servant in the same business he is not in the same position as a stranger. He has of his free will entered into the business and made it his own. He cannot say to the master, You shall so conduct your business as not to injure me by want of due care and caution therein. For he has agreed with the master to serve in that business, and his claims on the master depend on the contract of service. Why should it be an implied term of that contract, not being an express one, that the master shall indemnify him against the negligence of a fellow-servant, or any other current risk? It is rather to be implied that he contracted with the risk before his eyes, and that the dangers of the service, taken all round, were considered in fixing the rate of payment. This is, I believe, a fair summary of the reasoning which has prevailed in the authorities. With its soundness we are not here concerned. It was not only adopted by the House of Lords for England, but forced by them upon the reluctant Courts of Scotland to make the jurisprudence of the two countries uniform. No such doctrine appears to exist in the law of any other country in Europe. The following is a clear judicial statement of it in its settled form: “A servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellow-servant when he is acting in the discharge of his duty as servant of him who is the common master of both”.

The servants need not be about the same kind of work: The phrase “common employment” is frequent in this class of cases. But it is misleading in that it suggests a limitation of the rule to circumstances where the injured servant had in fact some opportunity of observing and guarding against the conduct of the negligent one; a limitation rejected by the Massachusetts Court in Farwell’s case, where an engine-driver was injured by the negligence of a switchman (pointsman as we say on English railways) in the same company’s service, and afterwards constantly rejected by the English Courts.

“When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be to be in the same or different departments. In a blacksmith’s shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight or voice, and yet acting together.

“Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety when he is employed in immediate connexion with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied”.

provided there is a general common object. So it has been said that “we must not over-refine, but look at the common object, and not at the common immediate object”. All persons engaged under the same employer for the purposes of the same business, however different in detail those purposes may be, are fellow-servants in a common employment within the meaning of this rule: for example, a carpenter doing work on the roof of an engine-shed and porters moving an engine on a turntable. “Where there is one common general object, in attaining which a servant is exposed to risk, he is not entitled to sue the master if he is injured by the negligence of another servant whilst engaged in furthering the same object”.

Relative rank of the servants immaterial. It makes no difference if the servant by whose negligence another is injured is a foreman, manager, or other superior in the same employment, whose orders the other was by the terms of his service bound to obey. The foreman or manager is only a servant having greater authority: foremen and workmen, of whatever rank, and however authority and duty may be distributed among them, are “all links in the same chain”. So the captain employed by a shipowner is a fellow-servant of the crew, and a sailor injured by the captain’s negligence has no cause of action against the owner. The master is bound, as between himself and his servants, to exercise due care in selecting proper and competent persons for the work (whether as fellow-workmen in the ordinary sense, or as superintendents or foremen), and to furnish suitable means and resources to accomplish the work, and he is not answerable further.

Servants of sub-contractor. Attempts have been made to hold that the servants of sub-contractors for portions of a general undertaking were for this purpose fellow-servants with the servants directly employed by the principal contractors, even without evidence that the sub-contractors’ work was under the direction or control of the chief contractors. This artificial and unjust extension of a highly artificial rule has fortunately been stopped by the House of Lords.

Volunteer assistant is on same footing as servant. Moreover, a stranger who gives his help without reward to a man’s servants engaged in any work is held to put himself, as regards the master’s liability towards him, in the same position as if he were a servant. Having of his free will (though not under a contract of service) exposed himself to the ordinary risks of the work and made himself a partaker in them, he is not entitled to be indemnified against them by the master any more than if he were in his regular employment. This is really a branch of the doctrine “volenti non fit iniuria,” discussed below under the title of General Exceptions.

Exception where the master interferes in person. On the other hand, a master who takes an active part in his own work is not only himself liable to a servant injured by his negligence, but, if he has partners in the business, makes them liable also. For he is the agent of the firm, but not a servant: the partners are generally answerable for his conduct, yet cannot say he was a fellow-servant of the injured man.

Employers’ Liability Act, 1880. Such were the results arrived at by a number of modern authorities, which it seems useless to cite in more detail: the rule, though not abrogated, being greatly limited in application by the statute of 1880. This Act (43 & 44 Vict. c. 42) is on the face of it an experimental and empirical compromise between conflicting interests. It was temporary, being enacted only for seven years and the next session of Parliament, and since continued from time to time; it is confined in its operation to certain specified causes of injury; and only certain kinds of servants are entitled to the benefit of it, and then upon restrictive conditions as to notice of action, mode of trial, and amount of compensation, which are unknown to the common law, and with a special period of limitation. The effect is that a “workman” within the meaning of the Act is put as against his employer in approximately (not altogether, I think) the same position as an outsider as regards the safe and fit condition of the material instruments, fixed or moveable, of the master’s business. He is also entitled to compensation for harm incurred through the negligence of another servant exercising superintendence, or by the effect of specific orders or rules issued by the master or some one representing him; and there is a special wider provision for the benefit of railway servants, which virtually abolishes the master’s immunity as to railway accidents in the ordinary sense of that term. So far as the Act has any principle, it is that of holding the employer answerable for the conduct of those who are in delegated authority under him. It is noticeable that almost all the litigation upon the Act has been caused either by its minute provisions as to notice of action, or by desperate attempts to evade those parts of its language which are plain enough to common sense. The text of the Act, and references to the decisions upon it, will be found in the Appendix (Note B).

Resulting complication of the law. On the whole we have, in a matter of general public importance and affecting large classes of persons who are neither learned in the law nor well able to procure learned advice, the following singularly intricate and clumsy state of things.

First, there is the general rule of a master’s liability for his servants (itself in some sense an exceptional rule to begin with).

Secondly, the immunity of the master where the person injured is also his servant.

Thirdly, in the words of the marginal notes of the Employers’ Liability Act, “amendment of law” by a series of elaborate exceptions to that immunity.

Fourthly, “exceptions to amendment of law” by provisoes which are mostly but not wholly re-statements of the common law.

Fifthly, minute and vexatious regulations as to procedure in the cases within the first set of exceptions.

It is incredible that such a state of things should nowadays be permanently accepted either in substance or in form. This, however, is not the place to discuss the principles of the controversy, which I have attempted to do elsewhere. In the United States the doctrine laid down by the Supreme Court of Massachusetts in Farwell’s case has been very generally followed. Except in Massachusetts, however, an employer does not so easily avoid responsibility by delegating his authority, as to choice of servants or otherwise, to an intermediate superintendent. There has been a good deal of State legislation, but mostly for the protection of railway servants only. Massachusetts has a more recent and more comprehensive statute based on the English Act of 1880. A collection of more or less detailed reports “on the laws regulating the liability of employers in foreign countries” has been published by the Foreign Office.