ence of kind, not a difference between the absence and the existence of discretion. A servant must frequently exercise a very wide and important discretion, especially when his master is beyond reach. A servant employed

to drive a stage-coach or an electric car has the care of human lives committed to him, and their safety will depend very much upon the exercise of his own discretion; and on the other hand even the simplest kind of service involves the exercise of discretion, otherwise a stupid servant would be as useful as a bright one. The master cannot be present all the time to direct his servant.

The real difference is in the kind of discretion to be exercised; an agent, while, like a servant, subordinate to and not independent of his employer, is employed to make contracts for his principal. That makes a fundamental difference; but it does not bring about any special result in regard to the principal's liability for his agent's torts. The liability of a principal is the same as that of a master, whatever the tort. And the limits of liability are the same; a principal, like a master, is liable for his agent's torts only when his agent is acting for him, not when the agent is acting for himself, even though doing something which he might have done for his principal.2

Some courts make a single exception to the general rule by which a principal is held liable for the torts of his agent committed on his behalf; they refuse to hold an innocent principal liable for the fraudulent misrepresentations of his agent, which as a matter of fact were

1 'That the proper management of the boilers and machinery of a steamboat requires skill must be admitted. Indeed, by the Act of Congress of August 30, 1852, great and unusual precautions are taken to exclude from this employment all persons who do not possess it.' New World v. King, 16 How. 469.

2 British Banking Co. v. Charnwood Ry. Co., 18 Q. B. D. 714.

not authorized, though they were made in the course and within the scope of the agent's employment. This has been put upon the ground that the general rule imposing liability upon one who, morally speaking, is guiltless is exceptional and harsh. Such a rule it is declared should not be extended to a new class of cases not necessarily within it, except upon grounds of urgent public policy; and no such grounds are considered to exist. The tendency of the authorities, however, has been steadily against this view, and accordingly most of the courts, refusing to make any exception, hold the principal liable. All would agree that if the principal derived a benefit from his agent's fraud, without offering to return it upon discovering the deception practised, he would be liable.

2

For the torts committed by one of two or more servants to the damage of a fellow servant, the master is not liable, unless statute makes him liable. Cases of the kind seldom arise except in negligence, and hence the rule is commonly justified in terms relating to negligence. The servant, in entering the service, assumes the risk of everything which is incidental to the employment, and this is declared to include the negligence of

1 Kennedy v. McKay, 43 N. J. 288; Western Bank v. Addie, L. R. 1 H. L. Sc. 145. See 1 Bigelow, Fraud, 228. The principal is 'innocent' in the double sense of not in fact having authorized the representation, and not knowing or having reason to know that it was false.

2 Allerton v. Allerton, 50 N. Y. 670; Creig v. Ward, 3 Keyes, 393; Durst v. Burton, 47 N. Y. 167; Jeffrey v. Bigelow, 13 Wend. 518; White v. Sawyer, 16 Gray, 586; Fitzsimmons v. Joslin, 21 Vt. 119; Presby v. Parker, 56 N. H 409; Lee v. Pearce, 68 N. C. 76; Hopkins v. Snedaker, 71 Ill. 449; Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 (Ex. Ch.); Mackay v. Commercial Bank, L. R. 5 P. C. 394; and other cases cited in 1 Bigelow, Fraud, 227.

a fellow servant. But the exemption from liability is not limited to cases of negligence; on the contrary the employer, whether a master or a principal, is not liable at common law for damage wrongfully done by one servant or agent to his fellow in the course of the business, whatever the nature of the tort, whether negligence, fraud, malice, or anything else.

The doctrine that the servant assumes the risk of negligence on the part of his fellows is not then broad enough, even if it were not, what it appears to be, an arbitrary doctrine, untrue in point of fact. It would be still less true to say that a servant assumes the risk of torts in general by his fellows. The truth appears to be that, without resorting to fiction, a servant stands in a different position towards his master from that of a stranger. This may be seen by supposing the case of a man's children, who in law are his servants, or of a man's domestic servants; the idea that one of these could sue the master for torts of another of them, would hardly be entertained. The case of non-domestic servants differs only in degree, and the degree of difference must be considerable to justify an alteration of the common law even in cases of negligence; much more so in other cases. Masters furnish the means of support for servants, and hence should not be liable to their servants unless they have done them wrong. The relation is beneficent towards the more dependent classes, and should not be discouraged.

The relation of servant or agent is one of strict dependence upon the authority of the employer; it is on that footing that the latter is liable. When the employment does not create dependence, when the person employed is, in the conduct of the employment, inde1 Post, p. 360.

2

pendent of the person engaging him, when in a word he is what is called in the books an 'independent contractor,' the employer, except in two or three cases standing upon grounds of their own, is not liable for the torts of such contractor.1 Thus if I enter into contract with a builder to erect a house for me, or to make over a factory into a house, or to do any other work, which he is to carry out as if he were working for himself, supplying his own materials, he alone will be liable to others, until I resume control, for torts committed in the course of the work, notwithstanding the fact that the work is done for me. And so in turn if he should employ an independent sub-contractor for part of the work, such as putting in the gas fittings, such subcontractor, and not the chief contractor, much less the first employer, will be liable for torts committed in performing the sub-contract, until he turns over his work to the principal contractor.

4

The exceptions to this doctrine are found in cases in which the employer owed some duty to others regardless of the independent contract,' which that contract does not relieve him of. Thus the owner of premises owes the duty to others not to maintain, or allow to be maintained, a nuisance upon his premises, and if in conse

1 Hilliard v. Richardson, 3 Gray, 349; L. C. Torts, 636; Cuff v. Newark R. Co., 6 Vroom, 17; Brown v. Accrington Cotton Co., 3 H. & C. 511.

2 If I supply the materials, the builder is not, in that respect, an independent contractor.

8 Hilliard v. Richardson, supra.

4 Cuff v. Newark R. Co., supra; Rapson v. Cubitt, 9 M. & W. 710; Overton v. Freeman, 11 C. B. 867. See L. C. Torts, 657. 'In ascertaining who is liable for the act of a wrongdoer, you must look to the wrongdoer 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.' Murray v. Currie, L. R. 6 C. P. 24, 27, Willis, J.; Pollock, Torts, 72, 2d ed.

>

quence of a contract with another a nuisance is created there, the owner will not escape liability because the person immediately guilty of causing it is an independent contractor.1

The same would be true if the thing authorized to be done by the contract were wholly illegal, or wholly without the sanction of law, as if a town, having no authority to lay gas pipes through its roads, should contract with a person to lay such pipes, and some one should be injured by that person's negligence. And the like would be true of cases in which a corporation, municipal or not, having special duties towards the general public, as in the case of a railroad company, should employ an independent contractor to do work for it in premises which the company was bound to have in fit condition for business of the public; in such a case the railroad company could not delegate or otherwise get rid of its own duty to the public."

§ 5. OF LEGAL CAUSE: CONTRIBUTORY FAULT.

The defendant's misconduct must have been the legal cause, or part of the legal cause, of that of which the plaintiff complains, to enable the plaintiff to recover judgment. Having regard to the defendant and third persons, it need not be the sole cause; it matters not that others helped the matter along, so far as the right of the injured person to sue any one (as well as all of them) is concerned. But considering only the person injured and the defendant, the defendant's conduct must have been

1 See Hilliard v. Richardson, supra.

2 Ellis v. Sheffield Gas Co., 2 El. & B. 767.

8 Cuff v. Newark R. Co., supra; Storrs v. Utica, 17 N. Y. 104; Chicago v. Robbins, 2 Black, 418; Holmes v. Northeastern Ry. Co., L. R. 4 Ex. 254; Smith v. London Docks Co., L. R. 3 C. P. 326; Hardaker v. Idle District Council, 1896, 1 Q. B. 335.