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THE RELATION OF MASTER AND SERVANT IN THE
LIGHT OF SOME RECENT DECISIONS.
A PERUSAL of the lately decided cases of Johnson v. Boston, and of Rourke v. White Mo88 Colliery Co.,2 cannot fail to impress the reader with the fact, that the decisions therein involve a new as well as a very important principle of law. The rule which exempts a master from liability for an injury done to one servant by the negligence of a fellow-servant is familiar to every lawyer, and well settled by authority ; but these two cases are the first ones, as far as we can discover, in which, in order to apply that rule, it has been held that, in the performance of a piece of work, simple superintendence and direction on one side, and submission thereto on the other, are conclusive evidence of a contract of service between the person who superintends and directs and the person who does the work under such superintendence and direction, notwithstanding that every other element of such a contract as to the same work is shown to exist between the person doing the work and a third person. In Johnson v. Boston, both the question of service and that of the applicability of the rule of exemption in such cases were directly passed upon; and in Rourke v. White Moss Colliery Co., although it was not necessary for the decision of the case then before the court to consider more than the question of service, and the majority of the court confined themselves in their opinions to this point, Chief Justice Cockburn went farther, and dealt with the question of the master's exemption. Our purpose in this paper will be to ascertain how far the authorities had gone in the application of the well-settled rule as to fellowservants before the decisions in these two cases, and to what extent these later decisions create a new departure.
In all the cases in England in which this rule was applied, before the case of Wiggett v. Fox, decided in 1856, there was no question that both the party injured and the wrong-doer were the servants of the same master. The only point for consideration was whether those servants were fellow-servants in the sense of fellow-workmen or fellow-laborers, and what were their rights as such, or what were the duties of the master towards them. So it is with many cases since 1856, in all of which the question was as to the development of the rule, and its applicability to particular cases. But the case of Wiggett v. Fox introduced a new element, and furnished the first occasion on which it became necessary, as a preliminary step to the application of the doctrine as to fellow-servants, to consider whether the relation of master and servant existed; and it is with this case, and with others of the same class, which have since been decided, that we have more especially to do. In order entirely to appreciate how important it is that it should appear, in the first place, that both the sufferer and the wrong-doer are in fact the defendant's servants, in the full meaning of the word, it will be useful to recall the reasons upon which the master's freedom from liability is founded, by a brief notice of the clearest statements of those reasons made on some of the occasions when it became necessary to test the applicability of the rule now under consideration.
1 118 Mass. 114.
2 2 C. P. D. 205.
The principle upon which the rule is based is declared by the courts to be, that 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; and this includes the risk of negligence on the part of a fellow-servant whenever he is acting in discharge of his duty as a servant of him who is the common master of both.3
1 Priestley v. Fowler, 3 M. & W. 1; Hutchinson v. York, Newcastle, & Berwick Railway Co., 5 Exch. 343.
2 Bartonshill Coal Co. v. Reid, 3 Macq. 266; Bartonshill Coal Co. v. McGuire, 3 Macg. 300; Morgan v. Vale of Neath Railway Co., L. R. 1 Q. B. 149; Tunney v. Midland Railway Co., L. R. 1 C. P. 291; Wilson v. Merry, L. R. 1 H. L. Sc. 326; Lovell v. Howell, 1 C. P. D. 161.
8 See Priestley v. Fowler, 3 M. & W.1; Hutchinson v. York, Newcastle, & Berwick Railway Co., 5 Exch. 343; Bartonshill Coal Co. v. Reid, 3 Macq. 266; Bartonshill Coal Co. v. McGuire, 3 Macq. 400; Morgan v. Vale of Neath Railway Co., L. R. 1 Q. B. 149; Tunney v. Midland Railway Co., L. R: 1 C. P. 291 ; Wilson v. Merry, L. R. 1 H. L. Sc. 326; Lovell v. Howell, 1 C. P. D. 161; Farwell v. Boston & Worcester R. R., 4 Met. 49; Gilman v. Eastern R. R. Co., 10 Allen, 238; Flike v. Boston & Albany R. R., 53 N. Y. 549; Caldwell v. Brown, 53 Penn. St. 453; Chicago f Alton R.R. Co. v. Murphy, 53 Ill. 336; and many others.
In Hutchinson v. York, Newcastle, f Berwick Railway Co., decided in 1850, and which is the second case in this line of decisions, Alderson, B., says, “ He [the servant] knew when he engaged in the service that he was exposed to the risk of injury, not only from his own want of skill or care, but also from the want of it on the part of his fellow-servants ; and he must be supposed to have contracted on the terms that, as between himself and his master, he would run this risk.” In Bartonshill Coal Company y. Reid, after having stated what was the ordinary rule of law holding the master liable for the carelessness of his servant to strangers, the Lord Chancellor (Cranworth), in delivering his final judgment, in 1858, says, “ But do the same principles apply to the case of a workman injured by the want of care of a fellow-workman engaged in the same work? I think not. When the workman contracts to do work of any particular sort, he knows, or ought to know, to what risks he is exposing himself. He knows, if such be the nature of the risk, that want of care on the part of a fellow-workman may be injurious to him; and that against such want of care his employer cannot by possibility protect him.” So Erle, C. J., in Tunney v. Midland Railway Co. :3 says “ The rule has been settled by a series of cases, beginning with Priestley v. Fowler 4 and ending with Morgan v. Vale of Neath Railway Co., that a servant, when he undertakes 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 discharge of his duty as servant of him who is the common master.” And in Wilson v. Merry, decided in 1868, after quoting what Lord Cranworth said in Bartonshill Coal Co. v. Reid, with approval, the Lord Chancellor (Lord Cairns) goes on to say, “I would only add to this statement of the law, that I do not think the liability or non-liability of the master to his workman can depend upon the question, whether the author of the accident is not or is, in any technical sense, the fellowworkman or collaborateur of the sufferer. In the majority of cases in which accidents have occurred, the negligence has no doubt been the negligence of a fellow-workman; but the case of the fellow-workman appears to me to be an example of the rule, and 16 Exch. 343.
2 3 Macq. 266. 43 M. & W. 1. * L. R. 1 C. P., p. 296. 5L. R. 1 Q. B. 149. 6 L. R. 1 H. L. Sc. 326.
not the rule itself. The rule, as I think, must stand upon higher and broader grounds. As is said by a distinguished jurist, • Exempla non restringunt regulam, sed loquuntur de casibus crebrioribus.'1 The master is not, and cannot be, liable to his servant, unless there be negligence on the part of the master in that in which he, the master, has contracted or undertaken with his servant to do." In Farwell v. Boston & Worcester Railroad Corporation,2 Shaw, C.J., says, “ The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another, for the performance of specified duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services; and, in legal presumption, the compensation is adjusted accordingly." And further on in the opinion, he says, in reference to the argument that this reasoning might apply to servants employed in the same department of duty, but not to those employed in different departments, where one can in no degree control or influence the conduct of another, “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 connection 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 toward him in the relation of a stranger, but he is one whose rights are regulated by contract, express or implied.”
Such is the principle of the rule of the master's exemption from liability, as understood at the present day; and its whole foundation is, as is seen, in contract, whether we say that the servant undertakes to run all ordinary risks, or whether we put it upon the broader ground stated by Lord Cairns and Chief Justice Shaw, that there is no liability on the part of the master to his servant, unless there be negligence on the part of the master in that which he has contracted or undertaken with his servant to do.3 In the one instance, the freedom from liability is made to depend upon an implied promise by the person injured to incur the risks; and, in the other, upon the absence of any implied promise of indemnity on the part of the master. It makes no difference, for the purposes of this paper, which is taken as the governing principle, because the implication in either case is made entirely from the relations of the parties which are created by or arise out of the contract of service. When one person agrees with another to do certain work, the former must be assumed to know what is the nature of the work for which he is engaged, and what are the risks attending the performance of it. When he is to do such' work together with other persons engaged by the same master, and all are to work for a common object however different their immediate duties may be, he knows, or must be assumed to know this, and to know also that the person who engages him does not undertake to do himself what is to be done by other servants. If with this knowledge the service is entered into, the parties to the transaction must be supposed, in the absence of any thing to the contrary, to have agreed to subject themselves to these conditions. And it seems that the limit of the knowledge, actual or assumed, of the servant as to his employment, is the limit also of any implied undertaking on his part as to what risks he will assume. His undertaking to incur the ordinary risks of service is implied from his knowledge, actual or presumed, of the ordinary conditions of that service ; while his undertaking to incur risks which may ensue from the negligence of those who are engaged with him., is implied from his knowledge, actual or assumed, of the object for which he is engaged, and from his being aware that others engaged by the same person have certain duties to perform towards the attainment of that object, and that they are liable to be negligent in the performance of those duties. Such undertakings are terms of the contract of service, and there can be no consideration for them where there is no contract of which they may be a part.
I Donellus de Jure Civ. L. 9, c. 2, n.
2 4 Met. 49. 3 It should be noticed that this latter ground is apparently that upon which the court relied in the first case of Priestley v. Fowler.
The only case which we have found in which it has been intimated that an undertaking of this sort could be implied from the mere fact that the parties were co-workmen, is Degg v. Midland Railway Co.1 In this case, it was decided that a volunteer could not recover against a person who was the
11 H. & N. 773.