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

have already seen that in that case the defendant paid the plaintiff his wages, had the power to dismiss him, and, moreover, had the general superintendence of him. In Johnson v. Boston, the defendant had no control over the plaintiff, except that implied in the power to direct him where there was blasting required.

It is easy to see how very different the cases are in their facts. The question to be decided, prior to the application of the rule of exemption, was the same in each case; and the test applicable in the one case to determine whose servant Wiggett was, was equally applicable in the other to determine whether Johnson was the servant of the city of Boston, but the facts to which the test had to be applied were very different. The first question was whether Tinkham was a contractor or a servant of the defendant; because, if he was the latter, all those engaged by him were its servants also. The test in such a case, as we understand it, is the same in Massachusetts as in England. This appears to be the result of what is said in Hilliard v. Richardson, which case is referred to in the opinion of the court, with approval. What the test is we have already seen; and we have also seen what facts up to that time the courts had decided to give control of the work. It is clear that none of these existed between Johnson and the city of Boston, except the fact that Johnson was under the "direct charge and management" of its foreman, and the "general supervision of the defendant's superintendent of sewers;" which means, in its strongest intendment, that he was under the general direction and superintendence of the defendant. That the defendant's servants and the plaintiff were co-laborers, as engaged in a common object, there can be no serious question. But we have seen that this element is only useful to determine what risks are to be included among those which the servant has impliedly agreed to run, and does not serve in any sense to create the contract of service. The court say, "There was no contract in regard to the removal of the rock, which placed the service of drilling and blasting upon a footing different from any other part of the work. So that if Tinkham, the plaintiff's immediate employer, had been the person injured while engaged in the same work, he would clearly have been in the position of a fellow-servant with those who

13 Gray, 349. See also Linton v. Smith, 8 Gray, 147; Forsyth v. Hooper, 11 Allen, 419; and Conners v. Hennessey, 112 Mass. 96.

excavated the earth." It is submitted, that what is meant by "fellow-servant" here must be confined to fellow-workman or co-laborer; because, if Tinkham had been the person injured, the question would still remain, whether he was a contractor or a servant of the defendant under the particular agreement entered into by each of them. If we suppose Tinkham had gone personally to remove one of his men whom he had reason to be dissatisfied with, and to replace him by another, as he had a perfect right to do under the facts of the case, and while so doing he had been injured, there is no question that he might be considered a co-laborer with all the others in the common object of constructing the sewer; but would not the question still remain, whether he was a contractor or the servant of the defendant?

This is the whole point in the case, and here is all the difficulty; and it cannot be supposed that the court could consider this so very clear. The test of the control of the work must determine this question; and who has the requisite control can be determined only from a careful consideration of the circumstances into which the parties have agreed specially or impliedly to put themselves. It is right and reasonable that control, in the sense in which the word is used in all the 'previous cases, both in England and in Massachusetts, should be considered as creating the relation of master and servant, and any other inference would seem to be most inconsistent with the facts which give the control; but it is difficult to understand how any such implication can be made from simple superintendence and direction, when all the other rights of a master in the same work are exercised by another.

The court in Johnson v. Boston say, "The existence of this general relation of master and servant between the plaintiff and Tinkham does not exclude a like relation with the defendant, to the extent of the special service in which he has actually engaged. This was decided in Kimball v. Cushman, as to liabilities to a stranger for the negligence of one employed in a special service." This is indisputable; but, when the service is one and the same, a person employed cannot be the servant of two different persons who have different relations with him. It is very difficult to understand how the plaintiff was the servant of Tinkham, except to drill and blast wherever Tinkham should

1 103 Mass. 194.

require him to do so. Tinkham sent him to drill and blast for the defendants; and, if there was any general relation of master and servant between them, there certainly was the relation of master and servant to do the drilling and blasting in the special case. Whether the decision in Johnson v. Boston can be supported in the general interests of public policy, we do not intend to discuss here. There may be reasons upon which a decision of that sort might be based; but our attempt has been only to show that the rule within which the case was sought to be brought does not properly extend to it. That rule, as we have seen, depends entirely upon contract; and, unless the contract is found, the rule is inapplicable, from the want of those principles to which it owes its origin.

The

The case of Rourke v. White Moss Colliery Co., the latest of this series, came before the Common Pleas Division of the High Court of Justice in May of last year; and again, on appeal, before the Court of Appeals in January of this year. facts of the case, as they appeared in the latter court, were as follows: The defendants were owners of a colliery, and had begun to sink a pit or shaft; for which purpose they had erected a steam-engine near the mouth of the shaft, and employed men to drive it. Having sunk the shaft to some depth, they entered into an agreement with one Roger Whittle to carry on the work for them. The following were the terms of the agreement which are material to the case, as given by the managing director of the defendant company, in answer to interrogatories: "The sinking and excavating were executed by Roger Whittle, contractor, under a verbal contract, at a certain price per yard; Whittle to find and provide all labor necessary for such sinking, and the company to provide and place at the disposal of Whittle the necessary engine power, ropes, and hoppets, with two engineers to work the engine, one for the day, and one for the night, such engineers, engine, and hoppets being under the control of the contractor. The engine, pulley, and hoppet, which were used to bring to the surface the stuff excavated in the shaft, were the property of the defendants, but were at the time of the accident under the control of the contractor. Ellis Lawrence, engineer, was in charge of the engine, pulley, and hoppet, on the 27th of October, 1874, under the control of Whittle. Lawrence was employed by the defendant company, who, on the 7th of Novem