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master of the servants with whom the volunteer was working, and by the negligence of whom he was injured. Bramwell, B., in delivering the opinion of the court there, says, “ But we were pressed by an expression found in the cases, that a servant undertakes, as between him and his master, to run all ordinary risks, including the negligence of a fellow-servant, — Wiggett v. Fox being cited for this purpose; and it was said that there was no such undertaking here. But, in truth, there is as much in the one case as in the other. The consideration may not be as obvious, but it is as competent to a man to agree, and as reasonable to hold that he does agree, that if allowed to assist in the work, though not paid for it, he will take care of himself from the negligence of his fellow-workmen, as it would be if he were paid for his services.” But the learned Baron went on to give further and different reasons, on which he seems rather to have based his opinion, and which are in substance the same as those given by the court in the subsequent case of Potter v. Faulkner. This latter case was decided in the Exchequer Chamber; and, it would seem, lays down the true principle in cases of this class. The principle of Degg v. Midland Railway Co. was approved ; but no reference was made in the opinion to the dictum above quoted, and the ground upon which the court go is stated with great clearness by Erle, C. J., who says: “ This is the case of one who volunteers to associate himself with the defendant's servants, in the performance of his work, and that without the consent of even knowledge of the master. Such an one cannot stand in a better position than those with whom he associates himself in respect of their master's liability; he can impose no greater obligation upon the master than that to which he was subject in respect of a servant in his actual employ. And it is clear law, that the master would not have been liable, if the servants below had been injured by the negligence of the servants above. As between master and servant, the duty of the master is to take due care to employ other servants of competent skill and ordinary carefulness: when he has done that, he has done his duty as between himself and his servants; and we are of opinion that the liability contended for by the plaintiff does not attach to an employer. We have considered the case of Degg v. The Midland Railway Co.,) and we are of opinion that it was well decided ; and we affirm the principle of that judgment.” This is very intelligible. When a person voluntarily associates himself with a certain class of persons who have only certain rights as against a third person, the volunteer can have no other or greater rights against such third person than those with whom he associates himself; and it is perfectly immaterial whether or not the principles which limit their rights apply or not to him.
1 B. & S. 800.
It remains for us to ascertain how far, if at all, this principle upon which the rule of exemption is based has been affected by those cases in which it has been necessary to determine, as preliminary to its application, whether the relation of master and servant existed, and which are cited as supporting the decisions in Johnson v. Boston and Rourke v. White Mo88 Colliery Co. These are Wiggett v. Fox,Abraham v. Reynolds,3 and Murray v. Currie.4
In Wiggett v. Fox the question was, whether Wiggett, the plaintiff's intestate, was at the time of the accident which caused his death the servant of the defendant, a contractor, or of a sub-contractor who had selected him. It appeared from the whole evidence that the defendant paid Wiggett his wages, had the power to dismiss him, and that he worked under the superintendence of the defendant's foreman. The court were of opinion that he was the servant of the defendant, and that the principle of the rule exempting the master from liability was applicable. The reasons for considering that the relation of master and servant existed are not distinctly stated by Alderson, B., who delivered the opinion of the court; but Martin, B., in the subsequent case of Abraham v. Reynolds says, in the course of the argument in that case, that he grounded his assent to the decision in Wiggett v. Fox entirely upon the applicability of the test laid down by Crompton, J., in Sadler v. Henlock,5 to determine whether a certain person is a contractor or a servant. Such test is there said to be whether or not the defendant has control of the work: if he has, the person doing the work is his servant. Now, what was held to give control of the work in Sadler v. Henlock was the payment of wages to the workman 11 H. & N. 773.
11 Exch. 832; 25 L. J. N. 8. Exch. 188. 35 H. & N. 143. 4 L. R. 6 C. P. 24.
54 E. & B. 570.
and the power to dismiss him, though there seemed to be no supervision or direction on the part of the defendant as to how the work was to be done. It is unnecessary to go into any examination here of the class of cases of which Sadler v. Henlock is one, because our only purpose at present is to discover, if possible, whether Wiggett v. Fox is in any respect inconsistent with, or in advance of, previous decisions. Of course, in applying the above test to the facts in Wiggett v. Fox, there could be but one result; for all the elements which gave control in the one case were found also in the other, and those elements form the strongest facts from which to imply a contract of service. There seems to be nothing in the opinion to justify any assumption, that mere superintendence or direction alone by the defendant would have been considered by the court as giving him sufficient control to constitute Wiggett his servant. The case, then, it would seem, was entirely consistent with all those which had preceded it, and not only involved no new principle in itself, but called for the extension of none which had been previously established.
The next case, of Abraham v. Reynolds, was as follows: The plaintiff was in the employ of Messrs. Jump & Son, who did all the defendants' carting, at so much per bale of cotton. The defendants were cotton brokers. It appeared that the plaintiff went with the servants of the defendants to the warehouse of certain parties by the name of Hutchinson, to get cotton for the defendants; that the defendants' servants lowered the bales of cotton from the warehouse to the plaintiff into a lorry; and that by the negligence of one of the defendants' servants in lowering the bales, the plaintiff was injured. It was contended, on the authority of Wiggett v. Fox, that the plaintiff was the servant of a sub-contractor or person employed by the defendants to do their work, assisting and taking part with the servants of the defendants of whose negligence he complained, and was substantially in the same position as if he had been one of the defendants' servants. The court held that the plaintiff was not the servant of the defendants : Martin and Channell, BB., on the ground that they had no control of him; and Pollock, C. B., because it did appear that it had been agreed that the work should be done by all, and because it was not plain that the wrong-doer and the party injured belonged to one and the same family or establishment. Channell, B., distinguished Wiggett v. Fox, on the ground that in that case the defendants paid the wages of Wiggett, had a control over him and the power to dismiss him; all of which elements, it is to be noticed, were wanting in the case then before the court.
In Murray v. Currie, it appeared that the defendant was a ship-owner, and that he employed one Kennedy, a stevedore, to unload his ship ; that the plaintiff was one of the servants of Kennedy, and that he was injured by the negligence of one Davis, one of the crew of the defendant's ship, who was working a winch used in the unloading. It further appeared that Davis was engaged by Kennedy to work for him, and that it was the custom to engage the ship's crew for that purpose ; that the ship-owner selected those of his crew who were to be employed in the unloading, but that Kennedy selected the work for them, and could have refused to employ Davis, or any man whom he thought incompetent; that the office, i. e. the defendant, paid Davis, but deducted the sum paid from Kennedy's bills; and that the unloading was under the control of Kennedy or his foreman. Under these circumstances, it was contended that Davis, the wrong-doer, was the servant of the defendant, and not that of Kennedy; and that the defendant was liable for his negligence. But the court were of opinion that the defendant had no control of the work in which Davis was occupied at the time when the negligence complained of occurred; but that the work was completely under the control of Kennedy, and for the reason that the latter paid the workmen their wages, selected whom he would employ, and had the entire direction of those who performed the work. The court had the power to draw inferences of fact; and, although it is not distinctly stated in as many words that Kennedy had the power of dismissing Davis, it is clear that the court thought that such was the fact. Willes, J., says, “ The defendant could not have taken him [Davis) away from the work;” and Bovill, C. J., says, “ He, Kennedy, had the option of using the services of the crew of the ship; but he was under no obligation to do so.” This case, therefore, does not seem to go any farther than those which were decided before it; and we fail to perceive how any authority can be derived from it, or from the two cases preceding it, to sustain the conclusions reached in Johnson v. Boston and Rourke
v. White Moss Colliery Co. This was the state of the law in England up to the year 1876, when the latter case came up for decision in the Common Pleas Division of the High Court of Justice in England.
But, before passing to a consideration of this case, it may be well to notice the case of Johnson v. Boston in Massachusetts, which was decided in 1875. Up to the time of that decision, we understand the law in Massachusetts to have gone no farther than in England. The cases referred to in the opinion of the court in Johnson v. Boston show this. That case was as follows: The plaintiff was in the employment of one Tinkham, who employed a large number of men, and whose business was drilling and blasting rock and doing work of a like nature for all parties who chose to employ him. It appeared that Tinkham sent the plaintiff and eight other workmen in his employ to drill and blast rock in the bottom of a sewer, which the defendant, by its servants and agents, was engaged in constructing under the proper authority ; that among the workmen sent by Tinkham was one Harrigan, who worked with the others, directed them where the drilling was to be done, and superintended the blasting, but he was not called foreman, and received the same pay as the others; that the nine men sent by Tinkham were to drill and blast the rock to deepen the sewer wherever the foreman of the sewer department of the defendant, who was in charge of the whole work directed them to; that the rock, after being blasted, was removed by the servants of the defendant, and the sides of the sewer were to be braced by them; and that the whole work was under the general supervision of the defendant's superintendent of sewers, and under the direction, charge, and management of a foreman of the sewer department employed and paid by the defendant. Tinkham paid his men $2.25 a day, had the power of dismissing them, and gave them orders where to go and what to do. The defendant paid Tinkham $2.45 per day for each of his men for the time they were actually employed. The plaintiff, while drilling, was injured by the negligence of the servants of the defendant in bracing the sides of the sewer. The question was, whether under these circumstances the plaintiff was the servant of the defendant, so as to render the rule of the master's exemption applicable. The court held that he was, and cite the case of Wiggett v. Fox as directly in point. We