gence(p).(132) Among the ordinary risks so taken, must be included the chance of sustaining injury from the negligence of such of his fellow servants as are engaged in the same employment as himself; and if the master have

(p) Roberts v. Smith, 2 H. & N. 213; Williams v. Clough, 3 H. & N. 258; Paterson v. Wallace, 1 Macq. H. L. Cas. 748.

(132) The rule stated in the text is very generally applied and enforced in this country. It is not limited to any particular kind of business or employment. F. was employed to do chores at the house of B. She went into the wash-room and found a tub into which she put a skirt which she was directed to wash. B.'s wife brought a pailfull of water from the stove, and poured it into the tub, and needing more water, F. procured it in a dipper. F. then put her hands into the tub, drew the skirt against the rubbing board, and in so doing cut her hand severely with a piece of glass; yet it was held, that B. was not liable for the injury. Flynn v. Beebe, 98 Mass. 575.

Where an employee works in a foundry having a piece of insufficient machinery, which is unsafe, to his knowledge, he will take the risk of all injuries resulting from such machinery while he is engaged in his work. McGlynn v. Brodie, 31 Cal. 376. And so of any other defective machinery. Hayden v. Smithville, etc., Co., 29 Conn. 548; Wonder v. Baltimore & Ohio R R. Co., 32 Md. 411; S. C., 3 Am. Rep. 143; Wright v. New York Central R. R. Co., 25 N. Y. (11 Smith) 562; Fraser v. Penn. R. R. Co., 38 Penn. St. 104; Mad River, etc., R. R. Co. v. Barber, 5 Ohio St. 541, 552; Buzzell v. Laconia Manuf. Co., 48 Me. 113; Loonam v. Brockway, 28 How. 472; 3 Rob. 74; Laning v. New York Central R. R. Co., 49 N. Y. (4 Sick.) 521.

But where a railroad company continues in use a dangerous locomotive, after notice of its dangerous condition, it is liable to one of its servants who is injured while engaged in running such engine, if he was ignorant of such defects. Keegan v. Western R. R. Corporation, 8 N. Y. (4 Seld.) 175.

A person in the sole employ of one railroad company, who is injured by the cars of another company, which is permitted by the former to use its track, is not precluded from recovering damages on the ground that he is in the same general employ with the servants of the latter. Cattawissa R. R. Co. v. Armstrong, 49 Penn. St. 186; Smith v. N. Y. & Harlem R. R. Co., 19 N. Y. (5 Smith) 127.

A police officer is not a servant of the city which appoints him, in any such sense as to take away his right of action against it for an injury sustained by reason of a defective highway. Kimball v. Boston, 1 Allen (Mass.), 417.

While the servant is required to assume the ordinary risks of the employment in which he is engaged, it does not follow that he must take these risks under any and all circumstances. It is the duty of the employer to use reasonable care for the safety of those engaged in his service. And if he has knowledge that the servant is exposed to risks in consequence of defects in machinery or other things used in his business, and he does not take proper measures to render them safe, he will be liable to his servant who is injured in consequence, if the latter was ignorant of the defect or danger. The legal implication is, that the employer will adopt suitable instruments and means with which to carry on his business, and where injuries to servants or workmen happen by reason of improper and defective machinery and appliances used in the prosecution of the work, the employer is liable, provided he knew, or might have known, by the exercise of reasonable care, that the apparatus was unsafe. Gibson v. Pacific R. R. Co., 46 Mo. 163; S. C., 2 Am. Rep. 497; Illi nois Central R. R. Co. v. Welch, 52 Ill. 183; S. C., 4 Am. Rep. 593; Snow v. Housatonic R. R. Co., 8 Allen (Mass.), 441; Coombs v. New Bedford Cordage Co., 102 Mass. 572; S. C., 3 Am. Rep. 506; Harrison v. Central R. R. Co., 2 Vroom (N. J.), 293; Nashville, etc., R. R. Co. v. Elliott, 1 Cold. (Tenn.) 611; Thayer v. St. Louis, etc., R. R., 22 Ind. 26; Fifield v. Northern R. R., 42 N. H. 225; Ryan v. Fowler, 24 N. Y. (10 Smith) 410.

Where there are several servants in the employ of the same master, and one of the servants is injured by the negligence of another, while employed in the course of the common employment, the master will not ordinarily be liable for the injury. Warner v. Erie Railway Co., 39 N. Y. (12 Tiff.) 468; O'Connell v. Baltimore, etc., R. R. Co., 20 Md. 212; Thayer v. St. Louis, etc., R. R. Co., 22 Ind. 26; Beaulieu v. Portland Co., 48 Me. 291; McDermott v. VOL. I. -43

taken reasonable care in selecting proper persons, he is not answerable for their negligence (q). The broad rule upon this subject being that for a personal hurt done to the servant whilst engaged in his master's business, the master is not liable unless there be negligence on his part in that which he, the master, has contracted or undertaken with his servant to do(r).

*By several statutes(s) justices of the peace have had jurisdiction [ *515] given them over labourers and artificers, including servants in husbandry, though not menial servants(t), and could formerly enforce payment of wages as against an employer, and discharge the servant from employment on non-fulfilment by the master of his contract. The justices could only summon the master to appear before them, but if it was alleged that the servant had been guilty of misconduct, or had unlawfully absented himself from work, they might, without any notice, issue a warrant for his immediate apprehension, and, on the offence being duly proved, commit him to hard labour for any period not exceeding three months. The harshness of our law in thus dealing with the servant has been partly remedied by the statute 30 & 31 Vict. c. 141, which enacts that the proceedings against the servant, as well as against the master, shall commence by summons, that compensation or a fine shall be awarded in the first instance, that imprisonment in lieu thereof shall be a total discharge of compensation, and that no subsequently accruing wages shall be appropriated to pay it. The previous punishment of imprisonment for three months, without the option of a fine, can now only be inflicted in cases of aggravated misconduct.

(q) Hutchinson v. York, N. and B. R. C., 5 Ex. 343; Wigmore v. Jay, ib. 354; Wiggett v. Fox, 11 Ex. 832; Tarrant v. Webb, 18 C. B. 797. (r) Wilson v. Merry, L. R. 1 Sc. App. 326, 332 (where the law upon the subject is reviewed); Bartonshill Coal Co. v. Reid, 3 Macq. H. L. Cas. 266, 282; Feltham v. England, L. R. 2 Q. B. 33.

(8) 20 Geo. 2, c. 19; 6 Geo. 3, c. 25; 4 Geo. 4, cc. 29, 34.

Pacific R. R. Co., 30 Mo. 115; Chamberlain v. Milwaukie, etc., R. R. Co., 11 Wis. 238; Illinois, etc., R. R. Co. v. Cox, 21 Ill. 20; Ponton v. Wilmington, etc., R. R. Co., 6 Jones' Law (N. C.), 245; Whaalan v. Mad River, etc., R. R. Co., 8 Ohio St. 249.

But if the master employs incompetent and improper servants, with a knowledge of their unfitness, and they negligently cause an injury to another servant of his while employed about his business, the latter, if ignorant of the unfitness of the other servants, may maintain an action against the master for the injury. Laning v. New York Central R. R. Co., 49 N. Y. (4 Sick.) 521; Paulmier v. Erie R. R. Co., 34 N. J. L. 151; Cayzer v. Taylor, 10 Gray (Mass.), 274; McMahon v. Davidson, 12 Minn. 357; Illinois, etc., R. R. Co. v. Jewell, 46 I11. 99. Where two servants of a common master are employed upon the same work, and one of them, without authority from his employer, directs the other to use a machine for a danger. ous and improper purpose, for which it was not intended or provided, and he complies and thereby receives an injury, the employer will not be held liable. Felch v. Allen, 98 Mass. 572. But, where an employee of a railway company, hired to labor in a particular service, and no other, is compelled by a fellow employee of such company to labor at a business much more perilous than that for which he is engaged, and while thus laboring receives an injury, the company is liable for the damages occasioned by the injury. Chicago, etc., R. R. Co. v. Harnely, 28 Ind. 28.

The question of negligence, whether on the part of master or servant, is a question of fact. Ardesco Oil Co. v. Gilson, 63 Penn. St. 146; Laning v. New York Central R. R. Co., 49 N. Y. (4 Sick.) 521.

The provisions of our criminal law relating to combinations amongst workmen being elsewhere considered (u), we shall here merely observe that, no workman seems to be punishable for joining in a strike so long as it is conducted peaceably, and no subsisting contract of service is *violated.

The fact, however, of combinations of this sort not being illegal in [ *516]

the sense of being punishable by law, does not render them so far legal as to prevent the courts from refusing to enforce an agreement made in pursuance of such combination as being in restraint of trade and therefore void(x).

To a servant, other than an apprentice, wages become due according to the agreement, either express or implied (y), under which he serves, and slight evidence would suffice to entitle the servant to recover on a quantum meruit whatever a jury might think his services to be fairly worth (z). A contract to pay wages is not, however, necessarily inferred from a contract of service, as board and lodging, either with (a) or without(b) instruction, may be a sufficient remuneration for it. A restriction, however, is imposed on the power of master and servant to agree as to the terms of service, by the truck act(c), which prohibits various work people therein enumerated (d) from receiving wages otherwise than in the current coin of the realm. This act, however, does not extend to domestic servants, nor to servants in husbandry(e).

III. Let us, lastly, see how strangers may be affected by this relation of master and servant: or how a master may behave towards others on behalf of his servant; and what a servant may do on behalf of his master. And first, the master may maintain (that is, abet and assist) his servant, and the servant may maintain his master in an action at law against a stranger: whereas, *in general, it is an

III. How third parties are affected by the relation of master and servant or apprentice.

offence against public justice to encourage suits and ani- [*517]

mosities, by helping to bear the expense of them, and is called in law mainteuance(ƒ). A master also may bring an action against any man for beating or seducing his servant (g);(133) but in

(u) Post, vol. iv. p. 190.

(x) Hilton v. Eckersley, 6 E. & B. 47, 66; see also Hornby v. Close, L. R. 2 Q. B. 153. (y) See Lamburn v. Cruden, 2 M. & Gr. 253; Alfred v. Fitzjames, 3 Esp. 3.

(z) Bryant v. Flight, 5 M. & W. 114. (a) R. v. Shinfield, 14 East, 541.

each such case he must assign, as a

(b) Foord v. Morley, 1 Fost. & F. 496; Davies v. Davies, 9 C. & P. 87.

(c) 1 & 2 Will. 4, c. 37.

(d) Id. s. 19. See Chawner v. Cummings, 8 Q. B. 311; Sharman v. Saunders, 13 C. B. 166. (e) Sect. 20.

(f) 2 Roll. Abr. 116.
(g) Post, vol. iii.

(133) A stepfather who has adopted the illegitimate daughter of his wife, and taken her in and brought her up in his family, may maintain an action for her seduction. Bracy v. Kibbe, 31 Barb. 273. But the action is founded upon the loss of service, and to maintain it, there must be the actual or constructive relation of master and servant. Bartley v. Richtmyer, 4 N. Y. (4 Comst.) 38; Dain v. Wycoff, 7 N. Y. (3 Seld.) 191.

Where a servant is employed for a specified term, and a third person entices or seduces such servant to leave the service before the expiration of the term, an action will lie in favor of the master against such third person. Haight v. Badgeley, 15 Barb. 499. But to sustain the action, it must appear that there was some contract or some other right or relation which gave the master a right to the services of such servant. Campbell v. Cooper, 34 N. H. 49. And it must be the act or enticement of the defendant that caused the servant to leave, or the action will not lie. Butterfield v. Ashley, 6 Cush. 249; 2 Gray, 254; Stuart v. Simpson, 1 Wend. 376. If the servant is under no legal obligation to remain with the master, he cannot maintain the action. Campbell v. Cooper, 34 N. H. 49. Nor will an action lie for hiring a servant upon the condition that he shall commence work after the termination of his contract with his present employer. Glass Manufactory v. Binney, 4 Pick. 425.

special reason for so doing, his own damage by the loss of service; and this loss must be proved upon the trial(); and, when proved, the jury may give damages for the loss sustained, not only to the time of action brought, but down to the time when, as it appears by evidence, the servant may be expected to recover ability to perform his duties(i). A master likewise may justify an assault in defence of his servant, and a servant in defence of his master(k): the master, because he has an interest in his servant, not to be deprived of his service; the servant, because it is part of his duty, for which he receives his wages, to stand by and defend his master().

If any person knc wingly entices away a servant or apprentice(m), or retains him in his service after due notice that he is under an unexpired contract of service(n), he is, in either case, liable to an action at suit of the master. Indeed, it would seem that the master may, in this case, maintain an action for damages as well against the servant as against his new master, though if the latter was unaware of the former service, he is not liable unless he afterwards refuse to restore the servant upon information and demand (o). Moreover, the master *may, if he choose, waive the tort, and bring his action for whatever [ *518] the servant has earned while unlawfully in the service of another(p). It is not, however, actionable to persuade a servant to leave his master, or enter into a new service after the expiration of the term for which he has contracted (7). The foundation upon which all this doctrine is built, seems to be that every man has a right to the service of his domestics; acquired by the contract of hiring, and purchased by giving them wages.

As for those things which a servant may do on behalf of his master, they seem all to proceed upon the general principle of agency, by which the master is answerable for the act of his servant, if done by his command, either expressly given or implied: nam, qui facit per alium, facit per se(r). Therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it(s), though the servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful(t). If an innkeeper's servant rob his guests, or a carrier's servant steal the goods entrusted to his master; in either case the master is bound to restitution (u). for as there is a confidence reposed in him, that he will take care to provide honest servants, his negligence is a kind of implied consent to the robbery; nam, qui non prohibet, quod prohibere potest, assentire videtur(x).(134) For

(h) Robert Marys' Case, 9 Rep. 113; Hall v. Hollander, 4 B. & C. 660.

(i) Hodsoll v. Stallebrass, 11 A. & E. 301. (k) Post, vol. iii. Lamb. Eiren. 121; 2 Roll. Abr. 546; Tickell v. Read, Lofft, 215.

() In like manner, by the laws of king Alfred, c. 42, a servant was allowed to fight for his master, a parent for his child, and a husband, father, or son, for the chastity of his wife, daughter, or mother. Anc. Laws and Inst. Eng. p. 40.

(m) Reg. v. Daniel, 6 Mod. 99, 182. See Lumley v. Gye, 2 E. & B. 216.

(n) Blake v. Lanyon, 6 T. R. 221.

(0) F. N. B. 167, 168.

(p) Ex parte Landsdown, 5 East, 38, and Eades v. Vanderput, cited in note thereto; Foster v. Stewart, 3 M. & S. 191; Lightly v. Clouston, 1 Taunt. 112.

(q) Nichol v. Martyn, 2 Esp. 732.

(7) 4 Inst. 109; Broom, Leg. Max. 4th ed. 784.

(8) Fost. 125. See Eaton v. Swansea Waterworks Co., 17 Q. B. 267.

(t) R. v. Woodburn, 16 St. Tr. 54. (u) Noy's Max. c. 43. Jones on Bailments, 91, 94, 95, 103, 104.

(x) 2 Inst. 305.

(134) The question how far a master is bound by the acts or omissions of his servant is one of much practical importance. The reason why the master is liable at all in such cases is, that the act or omission of the servant is legally the act or omission of the master, when acting by the authority of the latter, either express or implied. Whatever the master does,

merly, indeed, innkeepers (except for loss, to which the gross carelessness of their guests had contributed,) and common carriers were looked upon as insurers of the goods entrusted to their care; and *though they have both been, to a certain extent, relieved from this liability by statute, yet in

[*519]

or neglects to do, by his servant, who is acting as his representative, is chargeable to him on the ground that he directed the servant's conduct. And, in every case where the servant has done or omitted acts in accordance with his master's instructions, it is clearly just that the latter should be legally responsible for the consequences. There are instances in which the master directs certain things to be done, while he does not point out the mode of doing them. And, as a general rule, the master will be liable for the acts of the servant when they were done in his service. While, on the other hand, it is also a general rule that the master is not responsible for the wrongful acts of the servant when done out of the scope of his authority, or when they were willfully done of his own wrong. In some cases the servant seems to have a discretionary power as to the manner in which he shall act, and, when the master confers such an authority, he will be liable for the consequences of its exercise. And perhaps the best way to illustrate the general liability of the master will be to state some of the points decided. A railroad conductor who attempts to seize articles of property which are in the hands of a passenger on the cars, for the purpose of enforcing the payment of fare, will render the corporation liable to an action of assault and battery. Ramsden v. Boston & Albany R. R. Co., 104 Mass. 117; S. C., 6 Am. Rep. 200. So if he wrongfully ejects a passenger who has paid his fare, or uses unjustifiable force in ejecting a passenger who has not paid his fare, and injures him by a blow or a kick, or by compelling him to jump off while the train is in motion, the corporation is liable. Moore v. Fitchburg R. R. Co., 4 Gray, 465; Hewett v. Swift, 3 Allen, 420; Holmes v. Wakefield, 12 id. 580; Goddard v. Grand Trunk Railway Co., 57 Me. 202; S. C., 2 Am. Rep. 39; Pennsylvania R. R. Co. v. Vandiver, 42 Penn. St. 365; Higgins v. Watervliet Turnp. & R. R. Co., 46 N. Y. (1 Sick.) 23; S. C., 7 Am. Rep. 293; Sanford v. Eighth Avenue R. R. Co., 23 N. Y. (9 Smith) 343; Isaacs v. Third Avenue R. R. Co., 47 N. Y. (2 Sick.) 122; Duggins v. Watson, 15 Ark. 118.

But a railroad company wili not be liable for the acts of a baggage-master, when a passenger applies to him to have a trunk checked, and because it is not promptly done uses threatening and abusive language to him, and he in return strikes the passenger. Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 110; S. C., 2 Am. Rep. 373. Nor is a master liable for the malicious and willful act of his servant which is done without his direction or assent, although while in his employment. Fraser v. Freeman, 43 N. Y. (4 Hand) 566; S. C., 3 Am. Rep. 740. In the last case the plaintiff's intestate was shot and killed by M. while in the defendant's employment, and while the defendant and M. and another servant were endeavoring, under a claim of right, to enter upon the premises of the intestate, but there was no evidence that the fatal shot was fired by the express direction or assent of the defendant. For a willful and malicious trespass of a servant not commanded or ratified by the master, but perpetrated to gratify the private malice of the servant under mere color of discharging the duty which he has undertaken for his master, no action will lie against the master. Evansville, etc., R. R. Co. v. Baum, 26 Ind. 70; Thames Steamboat Co. v. Housatonic R. R. Co., 24 Conn. 40; Cox v. Keahey, 36 Ala. 340; Vanderbilt v. Richmond Turnpike Co., 2 N. Y. (2 Comst.) 479; Wesson v. Seaboard, etc., R. R. Co., 4 Jones' Law (N. C.), 379.

A master is not liable for the torts of a servant done out of the course of his employment, when he is no longer under the master's direction or control. Yates v. Squires, 19 Iowa, 26; Yerger v. Warren, 31 Penn. St. 319.

The negligence of the servant in the course of his employment is the negligence of the master, and he is liable for the consequences. The act of a driver or brakeman of a street car in assisting passengers to get on board is in the course of his employment, and makes the principal liable for negligence in its performance. Drew v. Sixth Avenue R. R. Co., 26 N. Y. (12 Smith) 49.

A master is liable for the act of his servant which is a trespass, although it occurred through the neglect or unskillfulness of the servant, if done within the scope of his business. Andrus v. Howard, 36 Vt. 248; Luttrell v. Hazen, 3 Sneed. (Tenn.) 20.

A master who directs his servant to kindle a fire for the purpose of clearing land will be