* * *

was said, "Where the negligent act of one servant causes injury to another as the result of the exercise of the authority conferred upon him by the master over the servant injured, the master is liable.” In a Missouri case (") the following language was used: "Where the master appoints an agent with a superintending control over the work, and with power to employ and discharge hands and direct and control their movements in and about the work, the agent stands in the place of the master." Various grounds are offered for this view, the most satisfactory one being that advanced in an early Ohio case, (') in which the duty of supervision and control was treated as nondelegable; or, as stated in a Missouri case, (c) "the master, by appointing a foreman or other person to superintend the work, with power to direct the men under him how to do it, thereby devolves upon such person the performance of those duties personal to the master." The power to hire and discharge, while of evidential value, is not, under this doctrine, conclusive either for or against the injured employee, except, perhaps, in the States of North Carolina (4) and Texas, () where this test seems to be one of decisive importance. In addition to the States already named, the courts of Kansas, (1) Kentucky,(9) Louisiana, () Missouri, (') Nebraska, () Tennessee, (*) and Utah (1) seem to be committed to this doctrine, either formally or in effect.

STATUS OF MANAGER.-It has already been indicated that there are some States in which what may be called the "extreme view” of fellow-service is held, i. e., that even a general manager is a fellowservant. This may be called the English as opposed to the American view, as it prevails where the rulings of the House of Lords are the precedent; while in by far the greater number of the States of this country there is a recognition of an actual superintendent or general. manager as the master's representative, for whose acts the master is accountable. While the cases involving the question of vice-principalship in this form naturally disclose for the most part conditions of

a Stephens r. Hannibal & St. J. R. Co. (1885), 86 Mo. 221.

Cleveland, C. & C. R. Co. v. Keary (1854), 3 Ohio St. 201. (See also Little Miami R. Co. v. Stevens (1851), 20 Ohio 415.)

c Miller v. Missouri P. R. Co. (1892), 109 Mo. 350, 19 S. W. 58.

4 Bryan v. Southern R. Co. (1901), 128 N. C. 387, 38 S. E. 914.

* Bering Mfg. Co. v. Femelat (1904), 79 S. W. 869.

f Walker v. Gillett (1898), 59 Kans. 214, 52 Pac. 442.

Southern R. Co. v. Barr (1900), 21 Ky. L. Rep. 1615, 55 S. W. 900; but see Cincinnati, N. O. & T. P. R. Co. v. Hill's Admr. (1905), 89 S. W. 523. Faren . Sellers (1887), 39 La. Ann. 1011, 3 So. 363.

Hunt v. Desloge Consol. Lead Co. (1904), 79 S. W. 710.

i Union P. R. Co. v. Doyle (1897), 50 Nebr. 555, 70 N. W. 43.

* Louisville & N. R. Co. v. Lahr (1888), 86 Tenn. 335, 6 S. W. 663. Trihay v. Brooklyn Lead Min. Co. (1886), 4 Utah 468, 11 Pac. 612.

what may be considered permanent relationship, the same rule has been held to apply to persons occupying the position only temporarily; as, for instance, in the performance of specific undertakings, after the completion of which the representative would assume his customary rank as coemployee with his temporary subordinates. Both the scope and the reason of the rule are in part indicated in the opinion given in a New York case, () in which it was held that where the "master withdraws from the management of the business, or the business is of such a nature that it is necessarily committed to agents, as in the case of corporations, the master is liable for the neglects and omissions of duty of the one charged with the selection of the other servants, in employing and selecting such servants, and in the general conduct of the business committed to his care." The States in which a superintendent seems to be considered as a coservant with other employees are Alabama, () Massachusetts, () Mississippi, () and New Jersey, () while in California, Indiana, Maine, Maryland, Missouri, New York, and Vermont are to be found cases indicative of a similar view; but from a general view of the decisions in these States it appears that this ruling can not be considered law. In Alabama, Massachusetts, and Mississippi the common-law rule has been modified by legislative enactment.

HEADS OF DEPARTMENTS.-On principle, a court that recognizes the manager of an entire business as the master's representative can not well refuse similar recognition to persons in charge of single branches of an undertaking, as in large industrial undertakings the head of such a branch is completely in control of the men under him, and the management of its affairs is as fully in his hands as if it were an independent business. Thus it has been held by the United States Supreme Court (1) that there is a "clear distinction to be made in their relation to their common principal, between servants of a corporation exercising no supervision over others engaged with them in the same employment, and agents of the corporation clothed with the control and management of a distinct department in which their duty is entirely that of direction and superintendence." The limits of the application of this principle are not clearly marked. The courts making most frequent use of it are the Federal courts, and their position may be considered as fairly presented in the statement that it is only individuals who are in charge of separate branches and depart

a Malone . Hathaway (1876), 64 N. Y. 5, 21 Am. Rep. 573.

Mobile & M. R. Co. v. Smith (1877), 59 Ala. 215.

C Meehan . Spiers Mfg. Co. (1899), 172 Mass. 875, 52 N. E. 518.

& Howd v. Mississippi C. R. Co. (1874), 50 Miss. 178.

с Curley v. Hoff (1899), 62 N. J. L. 758, 42 Atl. 781.

f Chicago, M. & St. P. R. Co. v. Ross (1884), 112 U. S. 377, 5 Sup. Ct. 184.

ments of service, and have entire and absolute control therein that are properly to be considered, with respect to employees under them, as vice-principals. In the Supreme Court case just quoted from it was held that the conductor of a freight train was such a vice-principal, while in 1893 the same court ruled that the engineer of an engine running alone was not, although by the rules of the company he was in charge with the same authority as a conductor of a train. (") Later still this court excluded the conductor of a freight train from the operation of this principle, (') thus reversing the position taken fifteen years before on the facts involved, though not abrogating the rule as to vice-principalship. Such variations of position have added to the perplexities of the situation, not only as to the Federal courts, but as to State courts as well, and to attempt to determine or illustrate the present extent of the application of the doctrine of vice-principalship as tested by rank would be out of place in an undertaking of the present scope.

CHARACTER OF ACT AS TEST.-In cases in which vice-principalship is conceded there is yet a possible distinction as to the kind of acts for which the employer will be held responsible. In the first place it must obviously be a negligent act: and, secondly, it must be within the scope of the agent's authority and be connected with the proper business of his employment. Besides these points, as to which it is only necessary to establish the facts in order to determine their status, the question of the official or nonofficial quality of the acts considered may be raised.

In accordance with this view, a doctrine of dual capacity has been developed, according to which some acts of the employer's represen-, tative may be taken as those of a mere servant and not of such a nature as to make the employer responsible for negligence therein. In the courts adopting this doctrine, the negligent performance of the so-called “nondelegable" duties by one who is, by virtue of his rank, conceded to be a vice-principal casts a burden on the employer, while the same person may, as a coservant, perform an act of manual labor negligently, and to the injury of a fellow-workman, without devolving any liability therefor upon the employer. This doctrine of dual capacity seems to have been first applied in Rhode Island, (c) though the leading case is one that was decided in New York in 1880.(4) Other States adopting this theory (though not always without qualification) are Arkansas, (e) Col

Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914.

New England R. Co. v. Conroy (1899), 175 U. S. 323, 20 Sup. Ct. 85.

e Mann v. Oriental Print Works (1875), 11 R. I. 152.

Crispin v. Babbitt, 81 N. Y. 516, 37 Am. Rep. 521.

e St. Louis, A. & T. R. Co. v. Torrey (1893), 58 Ark. 217 S. W. 244,

orado, (4) Idaho, () Illinois, (c) Indiana, (4) Iowa, () Massachusetts, (4) Michigan (2) (though in a somewhat earlier case () it was said that a superintendent "stands in the place of the master in whatever he does in furtherance of the business and operations he has in charge "), Minnesota, (') Pennsylvania, (1) Tennessee, (*) Virginia,(1) Washington, (") and Wisconsin. (") It has been recognized in the Federal courts also. (°)

On the other hand are to be ranged those courts which do not consider that the character of a vice-principal shifts with the nature of his acts, holding as the better rule that the master is liable for the negligence of his representative whether the negligent act was done by his own hand or by another under his orders. (P) This is apparently the position of the courts of Kansas, (4) Kentucky,(") Nebraska, (") North Carolina, () and Ohio. () Federal cases supporting this view may also be found. (") In Missouri it was recently declared by the supreme court that the doctrine of dual capacity was fully established in that State, (") and a number of cases were cited in support of that view, beginning with Harper v. Indianapolis and Saint Louis Railway Company (1871) (47 Mo. 567, 4 Am. Rep. 358). But in the case of Hutson v. Missouri Pacific Railway Company (1892) (50 Mo. App. 300), it was held that the negligent performance by a section foreman of ordinary labor such as a coservant would engage in, resulting in injury to a workman in his gang, was the negligence of the employer: "There is no just or logical distinction between the act of the vice-principal in negli

"Deep Min. & Drainage Co. v. Fitzgerald (1895), 21 Colo. 533, 43 Pac. 210. Larsen v. Le Doux (1905), 11 Idaho 49, 81 Pac. 600. Chicago & A. R. Co. v. May (1883), 108 III. 288.

4 Salem Stone & Lime Co. v. Chastain (1894), 9 Ind. App. 453, 36 N. E. 910. Collingwood r. Illinois & I. Fuel Co. (1904), 125 Iowa 537, 101 N. W. 283. / McPhee v. New England Structural Co. (1905), 188 Mass. 141, 74 N. E. 303. Page . Battle Creek Pure Food Co. (1905), 142 Mich. 17, 105 N. W. 72. Shumway r. Walworth & N. Mfg. Co. (1894), 98 Mich. 411, 57 N. W. 251. Soutar v. Minneapolis International Electric Co. (1897), 68 Minn. 18, 70 N. W. 796.

Ricks r. Flynn (1900), 196 Pa. 263, 46 Atl. 360.

* National Fertilizer Co. v. Travis (1899), 102 Tenn. 16, 49 S. W. 832.

Southern R. Co. v. Mauzy (1900), 98 Va. 692, 37 S. E. 285.

Sayward v. Carlson (1890), 1 Wash. 29, 23 Pac. 830.

Klochinski r. Shores Lumber Co. (1896), 93 Wis. 417, 67 N. W. 934.

Reed v. Stockmeyer (1896), 74 Fed. 186 (C. C. A.).

PIllinois C. R. Co. v. Josey's Admx. (1901), 22 Ky. L. Rep. 1795, 61 S. W. 703. Consol. Kansas City Smelting & Ref. Co. v. Peterson (1899), 8 Kan. App. 810, 55 Pac. 673.

Crystal Ice Co. v. Sherlock (1893), 37 Nebr. 19, 55 N. W. 294.

* Purcell v. Southern R. Co. (1896), 119 N. C. 728, 26 S. E. 161.

Berea Stone Co. v. Kraft (1877), 31 Ohio St. 287, 27 Am. Rep. 510.

Au v. New York, L. E. & W. R. Co. (1886), 29 Fed. 72; Hardy v. MinneapoHs & St. L. R. Co. (1888), 36 Fed. 657.

Louis Transfer Co. (1904), 180 Mo. 490, 79 S. W. 664.

gently ordering a servant to do an imprudent thing and in doing the thing himself." (") In Texas also decisions in apparent conflict may be found, some() denying the dual capacity theory, while a case of the same date() supports it. Examples of lack of harmony could be adduced from other States also, and, as appears from the citations given, the rulings of the Federal courts are not uniform.

A Federal judge in a recent case (") declared that the test of rank used in the Ross case has been largely superseded in the Federal courts by the test of the character of the act, as followed in the Baugh case. () "The question is always," says the judge, "whether the negligence charged is the neglect of a primary and absolute duty of the master to the servant. If such be its character, no delegation of the performance of that duty to another, no matter how inferior his rank may be in the master's service, can relieve the liability of the master for its neglect." Some discussion was had in an earlier part of this chapter of these nondelegable duties, from which the employer can be relieved only by their performance. Courts differ in their classification of these duties; but where the character of the act and not the rank of the agent is the test of liability, a person charged with the performance of what is considered a nondelegable duty will be classed in respect of such act as the employer's representative. The attitude of the courts of several States and a somewhat general discussion of the duties of this class are to be found on pages 16 to 19 above, to which reference is suggested in lieu of a repetition of the statements there made. It may be added here, however, that where the negligent act as fellow-servant cooperates with one's negligence as vice-principal in producing an injury, the effect is to charge the employer with liability.(')

The rule that an employer who purchases appliances from a reputable manufacturer or dealer is not obligated to test or inspect the same is in effect an avoidance of the duty to see that appliances are reasonably safe; this is practically an exception to the general doctrine that such duty is nondelegable, and, as was noted above (page 7), it is not admitted in at least one State, and is modified in the Supreme Court.

The rulings of the courts as to the liability of the employer for the acts of an independent contractor are too contradictory to be summarized. The decisions of a few superior courts are indicated on

See further Dayharsh . Hannibal & St. J. R. Co. (1891), 103 Mo. 570, 15

S. W. 554, and Russ r. Wabash W. R. Co. (1892), 20 S. W. 472.

b Sweeny v. Gulf, C. & S. F. R. Co. (1892), 84 Tex. 433, 19 S. W. 555; Texas & P. R. Co. v. Reed (1895), 32 S. W. 118.

* Gulf, C. & S. F. R. Co. v. Schwabbe (1892), 21 S. W. 706.

Peters v. George (1907), 154 Fed. 634.

See pages 38 and 39, above.

f Cody v. Longyear (1908), 114 N. W. 735. (Minn.)