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 (c).

3.

Injuries to servants by fault of fellow-servants. 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.

Common law rule of master's immunity. That rule, 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 (d), 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 watch

(c) I have discussed it in Appendix K. to "Principles of Contract," 5th ed. p. 707. See now Maddison v. Alderson (1883), 8 App. Ca. at p. 473, 51 L. J. Q. B. 737.

(d) 3 M. & W. 1. All the case actually decided was that a master does not warrant to his servant the sufficiency and safety of a carriage in which he sends him out.

ing 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 (e).

Reason given in the later cases. The accepted doctrine is to this effect. 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,

(e) Farwell v. Boston and Worcester Railroad Corporation, 4 Met. 49.

Injuries to servants by fault of fellow-servants. In those States of the Union where the common law is unaffected by special legislation on this subject, the rule and reasons stated in the text are generally accepted. Thus, in the case of Cooper v. Mullins (30 Ga. 151) the court said: "The reason of the exception is to make each employe a help to the carefulness of the rest, and where that object cannot be accomplished the exception ought to cease,

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In Chicago & Alton R. Co. v. Murphy (53 Ill. 339) it is said by the court: "When the ordinary duties and occupations of the servants of a common master are such that one is necessarily exposed to hazard by the carelessness of another, they must be supposed to have voluntarily taken the risks of such possible carelessness when they entered the service, and must be regarded as fellow servants, within the meaning of this rule." S. P., Murray v. South Carolina R. Co., 1 McMull. 385; Lalor v. Chicago, etc., R. Co. 52 Ill. 401; Haskins v. N. N. & H. R. R. Co., 65 Barb. 129; affirmed, 56 N. Y. 608.

Sustaining the exception to the master's liability are numerous cases; a few are Renfro v. Chicago, etc., R. Co., 86 Mo. 302; Benn v. Null, 65 Ia. 407; Luce v. Chicago, etc., R. Co., 67 Ia. 75; Beaulieu v. Portland Co., 48 Me. 291; McDermott v. Pacific R. Co., 30 Mo. 115; Henderson v. New

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 (f). 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

See Wilson v. Merry (1868), L. R. 1 Sc. & D. 326.

Jersey, etc., R. Co., 7 Robt. 611; Ponton v. Wilmington, etc., R. Co., 6 Jones L. 245; Illinois, etc., R. Co. v. Cox, 21 Ill. 20; Hough v. Railroad Co., 100 U. S. 213; Sullivan v. Mississippi R. Co., 11 Ia. 421; Caldwell v. Brown, 53 Pa. St. 453; McDonald v. Hazeltine, 53 Cal. 35; Walker v. Bolling, 22 Ala. 294;. Homer v. Illinois, etc., R. Co., 15 Ill. 550; Carle v. Bangor, etc., R. Co., 43 Me. 269; Mosley v. Chamberlain, 18 Wis. 700; Felch. Allen, 98 Mass. 572; Benzing v. Steinway, 101 N. Y. 547; 5 N. E. Rep. 449; Hefferen v. Northern P. R. Co., 45 Minn. 471; 48 N. W. Rep. 1; Webber v. Piper, 109 N. Y. 496; 17 N. E. Rep. 216; Pantzar v. Tilly Foster Min. Co., 99 N. Y. 368; 2 N. E. Rep. 24; Rogers v. Manufacturing Co., 144 Mass. 198; 11 N. E. Rep. 77; Stringham v. Hilton, 111 N. Y. 188; 18 N. E. Rep. 870; Buzzell v. Manufacturing Co., 48 Me. 113; Tuttle v. Railway, 122 U. S. 189; 7 Sup. Ct. Rep. 1166; Hayden v. Manufacturing Co., 29 Conn. 548; Yeaton v. Railroad Corp., 135 Mass. 418; Memphis R. Co. v. Thomas, 51 Mass. 637; Hasty v. Sears, 157 Mass. 123; 31 N. E. Rep. 759; Fitzgerald v. Honkomp, 44 Ill. App. 365.

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" (g).

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

(g) Erle C. J. in Tunney v. Midland R. Co. (1866), L. R. 1 C. P. at p. 296; Archibald J., used very similar language in

Lovell v. Howell (1876), 1 C. P. D. at p. 167, 45 L. J. C. P. 387.

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" (h).

Provided there is a general common object. So it has been said that we must not over-refine, but look at the common object, aud not at the common immediate object" (i). All persons engaged under the same em

(h) Shaw C. J., Farwell v. Boston, &c. Corporation, 4 Met. 49. M. Sainctelette of Brussels, and M. Sauzet of Lyons, whom he quotes (op. cit. p. 140), differ from the current view among Frenchspeaking lawyers, and agree with Shaw C. J. and our Courts, in referring the whole matter to the contract between the master and servant; but they arrive

at the widely different result of holding the master bound, as an implied term of the contract, to insure the servant against all accidents in the course of the service, and not due to the servant's own fault or vis major.

(i) Pollock C. B., Morgan v. Vale of Neath R. Co. (1865), Ex. Ch. L. R. 1 Q. B. 149, 155, 35 L. J. Q. B. 23.

The servants need not be about the same kind of work: provided there is a general common object. Subject to the limitation specified under the next heading the doctrine announced in the text is uniformly accepted in America where many of the courts have broadly stated similar rules. It is practicable only to refer to a few of the late cases, an examination of which will illustrate the meaning of the foregoing propositions of law as applied to special statements of facts.

In the following cases the persons injured and the one injuring were held to be fellow-servants and the master not liable. Haley v. Keim, 151 Pa. St. 117; 25 At. Rep. 98; 31 W. N. C. 18; Texas & P. R. Co. v. Harrington, 62 Tex. 597; 21 Am. & Eng. R. Cas. 571; Van Den Heuvel v. National Furnace Co., 84 Wis. 636; 54 N. W. Rep. 1016; Indianapolis, etc., R. Cas. Co. v. Morgenstein, 106 Ill. 216; 12 Am & Eng. R. R. Cas. 228; Holden v. Fitchburg R. Co., 129 Mass. 268; 2 Am. & Eng. R. Cas. 94; Malone v. Hathaway, 64 N. Y. 5; McBride v. Indianapolis Frog & Switch