A Treatise on the Law of the Domestic Relations

It might be a question whether the master is not in such latter cases held responsible, as substantially a party whose negligence caused or contributed to the injury; if so, this principle could be pushed still further.1

So it is held on like grounds, irrespective of the question of fellow-servants, that a master is not liable to his servant for any defects in the materials furnished to the latter for use in the master's service, unless he was negligent in providing such materials or in pointing out their defects.2 Nor for injuries caused his servant by latent defects in the structures of employment where he had appointed suitable inspectors who failed to discover and report them, and he received no other information that the defects in fact existed. In short, ordinary and reasonable care and diligence on his part will protect the master from liability to his own servants; and ordinary care is usually presumed to exist in absence of proof to the contrary. But for his own culpable negligence, on the other hand, a master is liable to his own servant as to any one else; that is to say, provided the servant on his part exercised ordinary care,5 and

hands, and to direct and control their movements. Stephens v. Hannibal R., 86 Mo. 221; 67 Wis. 24; 23 Fed. R. 363. But cf. Reese v Biddle, 112 Penn. St. 72; Conley v. Portland, 78 Me. 217. Indeed, in various States the latest decisions show a disposition to favor the injured servant, by denying that servants of a corporation who are engaged in various departments of a complex and extensive business should be classed as "fellow-servants" in the present And see Chicago R. v. Ross, 112 U. S. 377, where a railroad conductor was treated as a sort of “vice-principal" with reference to the engineer and other train servants. See authorities here examined; 23 Q. B. D. 508.

sense.

1 See Davis v. Detroit, &c. R. R. Co., 20 Mich. 105.

2 Shearm. & Redf. Negligence, 103, and cases cited; Hayden v. Smithville, &c. Co., 29 Conn. 548.

8 Warner v. Erie R. R. Co., 39 N. Y. 468. But see Chicago, &c. R. R. Co.

v. Jackson, 55 Ill. 492; Paulmier v. Erie R. R. Co., 34 N. J. L. 151. Where the master employs persons who are to furnish each his own tools or appliances, he is not answerable for defects in such tools or appliances. Harkins v. Sugar Refinery, 122 Mass. 400. But a master is responsible for an accident who furnishes a defective and dangerous appliance, by reason of which the injury occurred, even though a fellowservant's negligence contributed to the injury. 100 N. Y. 516. These principles are applied in a number of railway and other cases which a treatise like the present cannot well enumerate.

4 Shearm. & Redf. 104; Roberts v. Smith, 2 Hurl. & Nor. 213; Brydon v. Stewart, 2 Macq. H. L. 30; Cayzer v. Taylor, 10 Gray, 274; Ashworth v. Stanwix, 3 El. & El. 701; Johnson v. Bruner, 61 Penn. St. 58; Probst v. Delamater, 100 N. Y. 266; 27 W. Va. 285.

5 Chicago R. v. Donahue, 75 Ill. 106.

not otherwise. Though not a guarantor, it is incumbent upon the master to use ordinary and reasonable care in selection of servants, and in the procurement of materials, and in keeping the premises of usual employment in repair and safe condition,3 and in remedying defects which are brought to his notice. But a master does not insure his servant against accidents, nor as against the servant's own risks or carelessness. Peculiar terms of the employment have a bearing upon such issues; and in domestic or household service, where the risk of personal injury is small, the master should not be held very rigidly accountable for primitive implements used about the house; especially as there are certain risks of all employment, which the servant who can appreciate them is supposed to take upon himself."

1 Hough v. Texas R., 100 U. S. 213. As to facts which constitute contributory negligence on the servant's part, see 123 U. S. 710.

2 Gilman v. Eastern R. R. Co., 10 Allen, 233; Faulkner v. Erie R. R. Co., 49 Barb. 324; Moss v. Pacific R. R. Co., 49 Mo. 167. The English statement of the rule is that "negligence cannot exist if the master does his best to employ competent persons; he cannot warrant the competency of his servants." Tarrant v. Webb, 25 Law J. N. s. C. P. 263. The master cannot delegate his responsibility so as to divest himself of the necessity of using ordinary care. See Fuller v. Jewett, 80 N. Y. 46; Mitchell v. Robinson, SO Ind. 281. Intoxication of the fellow-servant when the injury occurred may be shown. 100 N. Y. 266; 85 Mo. 95. But the burden of showing the master at fault is on the injured party. 114 Ill. 244; 44 Ark. 52.

8 Ryan v. Fowler, 24 N. Y. 410; Williams v. Clough, 3 Hurl. & Nor. 258; Buzzell v. Laconia, &c. Co., 48 Me. 113; Allerton Packing Co. v. Egan, 86 Ill. 253; Fairbank v. Haentzsche, 73 Ill. 236; 137 Mass. 204; 99 Ind. 188.

4 Perry v. Ricketts, 55 Ill. 234. And this liability for his own negligence

would appear to apply in some cases where a fellow-servant contributed to the injury. Paulmier v. Erie R. R. Co.,

34 N. J. L. 151.

5 Flynn v. Beebe, 98 Mass. 575, per Hoar, J. See also Marshall v. Stewart, 2 Macq. Ho. Lords, 30, 33, E. L. & Eq. 1.

6 Where the servant knows his master's rules and violates them, it is held that he must suffer the consequences; for of the reasonableness of the rule his master must be the sole judge. Wolsey v. Lake Shore R., 33 Ohio St. 227. It seems to the present writer, however, that if the servant showed that he exercised ordinary care he ought to recover, though even in the act of transgressing an unreasonable rule of his employer. See dissenting opinions in Wolsey v. Lake Shore R., supra. As to warning a child or inexperienced person against the dangers of the task committed to him, those latent but not those patent, see Sullivan v. India Man. Co., 113 Mass. 396; O'Connor v. Adams, 120 Mass. 427; Hill v. Gust, 55 Ind. 45; 39 Ark. 17.

7 As in falling down a ladder or a The questions of a flight of stairs. master's negligence, of a servant's contributory carelessness, and of the servant's assumption of certain risks, under

The rule that a master is not responsible to one servant for the negligence of a fellow-servant applies to the case of a person. who is injured while voluntarily assisting the servant. A guest, a friend, a relative, any one engaged in the same common work, comes within the principle. And, in general, where a danger is obvious, it is treated as incident to the employment. And the servant who is killed or injured while encountering it must be deemed to have assumed the risk.2

§ 493. Master not Criminally Responsible for Servant, but only for Himself. As a general rule, the master is not criminally liable for the acts of his servants, unless he expressly command or personally co-operate in them. Each offender against public justice must answer for himself. Where one, however, procures innocent agents to do acts amounting to a felony, the employer, and not the innocent agent, is held accountable; for this is his own act. As to penalties, the rule in this country is sometimes understood to be the same. Yet penal actions in general have more the character of civil suits than of criminal proceedings; and, under the revenue laws, penalties are frequently imposed upon the master. So, again, have masters been indicted for public nuisances committed by

the circumstances of a particular case, are all usually for submission to the jury. Mahoney v. Dore, 155 Mass. 513; Steinhauser v. Spraul (1894), Mo.

1 Degg v. Midland R. R. Co., 40 E. L. & Eq. 370; Potter v. Faulkner, 1 Best & Smith, 800; Althorf v. Wolfe, 22 N. Y. 355; Abraham v. Reynolds, 5 Hurl. & Nor. 143; Ohio, &c. R R. Co. v. Hammersley, 28 Ind. 371; Stewart v. Harvard College, 12 Allen, 58; Washburn v. Nashville, &c. R. R. Co., 3 Head, 638. For the case where a servant, not authorized to do so, gets another to help him in his work, see Jewell v. Grand Trunk R., 55 N. H. 84.

2 A servant not apparently unfit for hazardous duties, and accepting such an employment, takes upon himself the natural risks of that service. Howd v. Miss. Central R., 50 Miss. 178; Gibson v. Erie R., 63 N. Y. 449; Pennsylvania R. v. Lynch, 90 Ill.

333;
189.

Tuttle v. Detroit R., 122 U. S. Where a master orders his inexperienced servant to do some unusual work of a dangerous kind, not well understood by the servant, he owes the latter a warning, or instruction, besides furnishing suitable appliances; but otherwise if the danger is obvious, and the servant voluntarily takes the risk. 105 Ind. 151; Tuttle v. Detroit R., 122 U. S. 189. And a servant may do such work reluctantly and yet voluntarily. 139 Mass. 580.

8 Smith, Mast. & Serv. 143; Story, Agency, § 452; Rex v. Huggins, 2 Ld. Raym. 1574; Sloan v. State, 8 Ind. 312.

4 Reg. v. Bleasdale, 2 Car. & K. 166. 5 Deerfield v. Delano, 1 Pick. 465; Goodhue v. Dix, 2 Gray, 181.

See Smith, Mast. & Serv. 145147; Attorney-General v. Siddon, 1 Cr. & J. 220; Atcheson v. Everitt, Cowp. 391.

their servants,1 according to the English rule; though modern cases disfavor such a conviction.2 Some of the proceedings authorized by statute against corporations in this country for damages caused by the negligence of their servants will be found to contain a like principle.3

§ 494. Final Observations on Law of Domestic Servants. — The foregoing brief statement of doctrines concerning the law of master and servant may suffice for the present treatise in its limited space and scope. To enter upon the law further, or to attempt in these pages an analysis of the numerous and conflicting cases which constantly arise at the present day under what might be called the analogies of master and servant, would be at present impossible. We trust in time to see the topic of "master and servant" confined to its legitimate and proper limits, as one of the domestic relations, and some new and more comprehensive title applied to such decisions as clearly affect mankind in the external concerns of life.

1 1 Bl. Com. 431, 432; Turberville v. ferred to such general works as ShearStampe, 1 Ld. Raym. 264.

2 22 Q. B. D. 736.

8 For further discussion of the broad principles underlying a master's liability for the negligence of his servants, as illustrated in the modern English and American cases, the reader is re798

man and Redfield on Negligence, Story or Wharton on Agency, and Wood on Master and Servant. The decisions which relate to domestic service constitute a very small proportion of those which properly belong to this head.

INDEX.

SECTION

ABANDONMENT,

gives wife rights as feme sole

ABDUCTION,

of child.

ACCOUNTS,

of guardian in English chancery practice

distinction between final and intermediate accounts
practice in the United States

items allowed the guardian

compensation of guardians.