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" (z).

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 artifically 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 (a).

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

(z) Barton's Hill Coal Co. v. Reid (1858), 3 Macq. 266, 283.

(a) Tuberville v. Stampe (end of 17th century), 1 Ld. Raym. 264.

Who is a servant: Responsibility. "A servant is one who is engaged not merely in doing work or services for another, but who is in

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

his service, usually upon or about the premises or property of his employer, and subject to his direction and control therein, and who is, generally, liable to be dismissed." Heygood v. The State, 59 Ala. 51.

It is a uniform rule that, where one has the right to direct or control the action of another, the relation of master and servant exists. The chief difficulty in applying this rule is in determining what state of facts amounts to a release of control by the person possessing the right to retain it, as an employer, and what amounts to a retention of control. These questions are usually for the jury, under proper instructions from the court. See Mumby v. Bowden, 25 Fla. 454; Andrews v. Boedecker, 17 Ill. App. 213; Bennett v. Truebody, 66 Cal. 509; 56 Am. Rep. 117; Mullan v. Steamship Co., 78 Pa. St. 25; 21 Am. Rep. 2; Riley v. State Line Steamship Co., 29 La. An. 791; 29 Am. Rep. 349; St. Louis, etc., R. Co. v. Willis, 38 Kan. 330; 16 Pac. Rep. 728; Rankin v. Merchants' & M. T. Co., 73 Ga. 229; 54 Am. Rep. 874; Toledo v. Cone, 41 Ohio St. 149; Rummell v. Dilworth, 11 Pa. St. 343; Lean v. Burbank, 11 Minn. 277; Lowell v. Boston & L. R. Co., 23 Pick. 24; Earle v. Hall, 2 Metc. 353; Brackett v. Lubke, 4 Allen, 138; Ballow v. Farnum, 9 Allen, 47; Schwartz v. Gilmore, 45 Ill. 455; Larock v. Ogdensburg & L. C. R. Co., 26 Hun, 382; Forsyth v. Hooper, 11 Allen, 419; Cincinnati v. Stone, 5 Ohio St. 38; Clark v. Fitch, 2 Wend. 459; Lipe v. Eisenlerd, 32 N. Y. 229; Hartwig v. Bay State S. & L. Co., 43 Hun, 425; Schrubbe v. Connell, 69 Wis. 476; 34 N. W. Rep. 503; Stone v. Codman, 15 Pick. 297; Morgan v. Bowman, 22 Mo. 538; Linnehan v. Rollins, 137 Mass. 123; 50 Am. Rep. 287; New Orleans, etc., R. R. Co. v. Norwood, 62 Minn. 565; 52 Am. Rep. 191: Ward v. Young, 42 Ark. 542; Burton v. Galveston & H. R. Co., 61 Tex. 526; 21 Am. & Eng. R. R. Cas. 218; Clapp v. Kemp, 122 Mass. 481; Huff v. Ford, 126 Mass. 24; Baxter v. Warner, 13 N. Y. Supreme Ct. 585; Eaton v. European R. Co., 59 Me. 520; Darmstuetter v. Moynahan, 27 Mich. 188; Larson v. Metropolitan S. R. Co., 110 Mo. 234; 19 S. W. Rep. 46; Spisak v. Baltimore & O. R. Co., 152 Pa. St. 281; 25 At. Rep. 497; Bernauer v. Hartman Steel Co., 33 Ill. App. 491; Southern Express Co. v. Brown, 67 Miss. 260; 7 So. Rep. 318; 8 So. Rep. 425; Hickey v. Merchants' & M. T. Co., 152 Mass. 39; 24 N. E. Rep. 860; Singer Mfg. Co. v. Rahn, 132 U. S. 518; Brown v. Smith, 86 Ga. 274; 12 S. E. Rep. 411; Douglass v. Stephens, 18 Mo. 362; Wilkins v. Gilmore, 2 Humph. 140.

An extreme case is that of Fay v. Davidson (113 Minn. 523), in which it was held, that although the owner of an interest in a vessel, by contract, renounce his right to control, right to hire, discharge, etc., yet, if the boat is run for him and his interest, he is liable as master. see Sproul. Hemmingway, 14 Pick. 1.

But

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

Where one contracts with another, exercising an independent calling, to do certain work for him, not subject to his orders or control as to manner of performance, but only as to results to be obtained, the latter is said to be an "independent contractor," for whose torts and those of his servants the employer is not liable. Hitle v. Republican Valley R. Co., 19 Neb. 620; McDonnell v. Rifle Broom Co., 71 Mich. 61; 38 N. W. Rep. 681; Chicago City R. Co. v. Hennessey, 16 Ill. Ap. 153; Hexamer v. Weber, 101 N. Y. 377; 54 Am. Rep. 703; Matthes v. Kerrigan, 53 N. Y. Superior Ct. 431; Blake v. Ferris, 5 N. Y. 48; Boswell v. Laird, 8 Cal. 469; Kellogg v. Payne, 21 Ia. 575; Hass v. Philadelphia, etc., Steamship Co., 88 Pa. St. 269; Am. Rep. 462; McCarthy v. Second Parish, 71 Me. 318; 36 Am. Rep. 320; Wabash, etc., R. Co. v. Farver, 111 Ind. 195; 31 Am. & Eng. R. Cas. 134; Edmundson v. Pittsburg, etc., R. Co., 111 Pa. St. 316; 23 Am. & Eng. R. Cas. 423; Wray v. Evans, 80 Pa. St. 102; Callahan v. Burlington R. Co., 23 Ia. 562; Sweeny v. Murphy, 32 La. An. 628; Hilliard v. Richardson, 3 Gray, 349; Vanderpool v. Husson, 28 Barb. 196; Gilbert v. Beach, 4 Duer, 423; Annen v. Willard, 57 Pa. St. 374; Fink v. Missouri Furnace Co., 82 Mo. 276; 52 Am. Rep. 376; Martin v. Tribune Assn., 30 Hun, 391; Smith v. Simmons, 103 Pa. St. 32; New Orleans & N. E. R. Co. v. Reese, 61 Miss. 581; Aston v. Nolan, 63 Cal. 269; Bailey v. Troy & B. R. Co., 57 Vt. 252; 52 Am. Rep. 129; Harrison v. Collins, 86 Pa. St. 153; Tiffin v. McCormack, 34 Ohio St. 638; Hale v. Johnson, 80 Ill. 185; Deford v. State, 30 Md. 179; Schular v. Hudson River R. Co., 38 Barb. 653; O'Rourke v. Hart, 7 Bosw. 511; Clarke v. Vermont & C. R. Co., 28 Vt. 103; Du Pratt v. Lick, 38 Cal. 691; Harris v. McNamar (Ala.), 12 So. Rep. 103; Geer v. Darrow, 61 Conn. 230; 23 At. Rep. 1087; Charlebois v. Gogebic & M. R. Co., 91 Mich. 59; 51 N. W. Rep. 812; Fulton County S. R. Co. v. McConnell, 87 Ga. 756; 13 S. E. Rep. 828; Long v. Moon, 107 Mo. 334; 15 S. W. Rep. 810; Scarborough v. Alabama Midland R. Co., 94 Ala. 497; 10 So. Rep. 316; Wiener v. Hammel, 14 N. Y. S. Rep. 365; McCann v. Kings Co. E. R. Co., 19 N. Y. S. Rep. 668; Atlanta & F. R. Co. v. Kimberly, 87 Ga. 161; 13 S. E. Rep. 277; St. L. A. & T. R. Co. v. Knott, 54 Ark. 424; 16 S. W. Rep. 9; Charlock v. Freed, 125 N. Y. 357; 26 N. E. Rep. 262; Larow v. Clute, 14 N. Y. 616; Vincennes Water Supply Co. v. White, 124 Ind. 376; 24 N. E. Rep. 747; Rome & D. R. Co. v. Chasteen, 88 Ala. 591; 7 So. Rep. 94; St. L. I. M. & S. R. Co. v. Yonley, 53 Ark. 503; 12 S. W. Rep. 333.

And the same rule obtains as between a contractor and a sub-contractor. Hart v. Ryan, 6 N. Y. S. Rep. 921; Gourdier v. Cormack, 2 E. D. Smith, 254; Gately v. Kniss, 64 Ia. 537; McCleary v. Kent, 3 Duer, 27; Devlin v. Smith, 89 N. Y. 470; Hilliard v. Richardson, 3 Gray, 349.

But where work causing injury is done by an independent contractor

moment may direct the means also, or, as it has been put, "retains the power of controlling the work" (b); 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" (c). "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." (d). 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 apply

(b) Crompton J., Sadler v. Henlock (1855), 4 E. &. B. 570, 578, 24 L. J. Q. B. 138, 141.

58.

(c) Bramwell L. J., Emp. L. 1877, p. An extra-judicial statement, but

made on an occasion of importance by a great master of the common law.

(d) Willes J., Murray v. Currie (1870), L. R. 6 C. P. 24, 27, 40 L. J. C. P. 26,

the employer is liable if the particular work was directly authorized. Palmer v. Lonclon, 5 Neb. 136; Waller v. Lasher, 37 Ill. App. 609; Beatty v. Thileman, 8 N. Y. Rep. 645; Stone v. Cheshire R. Co., 19 N. H. 427; Robbins v. Chicago, 4 Wall. 679; Chicago v. Robbins, 2 Blackf. 418.

ing it are difficulties of ascertaining the facts (e). 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 (ƒ).

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 ser

(e) One comparatively early case, Bush v. Steinman, 1 B. & P. 404, disregards the rule; but that case has been repeatedly commented on with disapproval, and is not now law. See the modern authori. ties well reviewed in Hillard v. Richardson (Sup. Court, Mass. 1855), 3 Gray, 349; and in Bigelow L. C. Exactly the same distinction appears to be taken under the Code Napoléon in fixing the limits

within which the very wide language of Art. 1384 is to be applied: Sainctelette, op. cit. 127.

(f) Pendleburgh v. Greenhalgh (1875), 1 Q. B. Div. 36, 45 L. J. Q. B. 3, differing from the view of the same facts taken by the Court of Queen's Bench in Taylor v. Greenhalgh (1874), L. R. 9 Q. B. 487, 43 L. J. Q. B. 168.

Specific assumption of control. Following the general rule that the employer who retains direction and control of the work is responsible for the wrongful acts of the contractor and his servants, it is reasonable, that where the employer interferes during the progress of the work let to another and assumes control, he should, at that moment, assume the responsibilities as master; and this is the rule. Hefferman v. Benkard, 1 Robt. 432; Savannah & W. R. Co. v. Phillips, 90 Ga. 829; 17 S. E. Rep. 82.

A coachman, hired with the coach, does not become the bailee's servant. New York, etc., R. Co. v. Steinbrenner, 47 N. J. L. 161; 54 Am. Rep. 126; S. P., Crockett v. Calvert, 8 Ind. 127; Quinnlv. Complete Electric Co., 46 Fed. Rep. 506; Muse v. Stern, 82 Va. 33.

So, it has been held, that where a passenger in a carriage, driven by a servant of the carrier, upon being assured by the driver that a vehicle in front can be passed, gives an order to that effect to the driver, the passenger is not liable for the resulting accident. Richardson v. Van Ness, 53 Hun, 267; 6 N. Y. S. Rep. 618; Michael v. Stanton, 3 Hun, 462; 5 Thomp. & C. 634. See Joslin v. Grand Rapids Ice Co., 50 Mich. 520; 45 Am. Rep. 54; Brophy v. Bartlett, 108 N. Y. 632, 15 N. E. Rep. 368; Chicago R. Co. v. Volk, 45 Ill. 175; Morrell v. Pheinfrank, 24 Fed. Rep. 94. Contra, Boniface v. Relyea, 6 Robt. 397; 5 Abb. Pr. (N. S.) 259.