the act committed or omitted was a mere operative act, the relation of fellow-servants will arise, whereas if the act committed or omitted was of the kind which the master cannot assign, but has an absolute duty of performing properly, the person entrusted with the performance will be the vice-principal, and the master will be responsible for the injury caused by the negli gence of that person. 375. Liabilities of masters and servants for negligent and wilful torts by servants.-A master is liable for wrong done a third person through the negligence of his servant, if at the time the servant was acting within the scope of his authority; the servant also will be liable, but if the injury is due to contributory negligence on the part of the third person, neither the master nor the servant may be held liable. EXAMPLES 361. A hires B as a driver who runs over C. C may sue either A or B, and in many jurisdictions may sue them jointly. 362. A with a horse and buggy is passing along a road and comes to a railroad crossing, which he attempts to cross at a trot. While he is on the track, a train crashes into his vehicle and he is severely injured. He cannot recover, for he has contributed to the accident by failing to "stop, look and listen." The same rules apply to wilful torts committed by servants, except that it must be shown that the servant is acting in the course of his employment, and in supposed furtherance thereof. EXAMPLES 363. A is employed by B as a driver, and is returning with a load to his master's place of business. On the way he meets a clerk of his master, who asks him to go up a side street to get a package for the clerk. A does so, and while on the side street injures X. The master is not liable, for the relation of servant and master did not exist in respect to the transaction of procuring the package for the clerk. 364. A is a ticket seller for the X Ferry Company, and receives notice from the police department to beware of a counterfeiter who is passing counterfeit nickels. B enters the ferry-house and gives A a nickel for a ferry ticket. A claims that the nickel is counterfeit, and B thereupon offers another nickel, but A insists upon his arrest as a counterfeiter. C enters the ferry-house and hands A a nickel for a ticket. A claims that the nickel is counterfeit; C answers that it is not, and insists upon passing through the house to the ferry-boat. A runs after him and detains him for half an hour, at the end of which time a superintendent tells A that C's nickel and B's nickel are not counterfeit. The question arises, what are the rights of B and C against the X Ferry Company? It will be noticed that A procured the arrest of B pursuant to the information given him by the police department. A did not act in behalf of the ferry company, for B offered him another coin. The X Ferry Company, therefore, is not liable to B. On the other hand, A detained C for the purpose of procuring a good coin which C did not offer in exchange for the one in dispute. In this case A was acting for the Ferry Company and it will be liable for the false imprisonment of C. B 365. A, a street car conductor, gets into an argument with a passenger and strikes him. The street car company will be liable for the act of A, for common carriers are bound to protect their passengers from injuries by fellow-passengers and by their own servants. 376. Master's non-assignable duties, and the doctrine of the assumption of evident risks.-There are certain duties which a master cannot delegate to an employé and in that way clear himself from liability if the duties are not performed or are performed negligently. He must provide: 1. A safe place in which to work; 2. Safe tools; 3. A sufficient number of competent servants; 4. Competent superintendents; 5. Inspection and repairing of instrumentalities; 6. Special warning of extraordinary dangers. The master is not an absolute insurer of safety in all of these respects, but he is bound to take due care. On the other hand, if a servant with full knowledge of an evident defect, remains in the employment and is injured in consequence of it, he assumes the risk and cannot recover. If, however, the master promises to repair the defect, the servant will not be presumed to have assumed the risk by remaining a reasonable time. EXAMPLES 366. A hires common laborers who are directed to make a raft, float it down from a railroad bridge to an arch of a new bridge, two hundred feet distant, and to remove scaffolding from under the new bridge. There are dangerous currents in the stream, and falls below the new bridge. While working on the raft, some of the laborers are caught in the currents and carried over the falls. It was held that while the servant assumed the ordinary risks usually incident to his employment, so far as they may fairly be presumed to have been within his knowledge in the exercise of ordinary care, the weight of the raft, the dangerous currents of the stream and the proximity of the falls below, made it the duty of the master to furnish competent superintendence. 367. B, who is erecting a building, directs some workmen to build a scaffold. They use poor material, notwithstanding the fact that B provided good material for the purpose. C, an employé, is injured by the falling of the scaffolding, his fall being caused by the defective material. He brings an action against B, who defends on the ground that the injury was caused by the negligence of a fellow-servant. C may recover, for B is bound to furnish a safe place in which to work, and his servants may assume that their master has performed his duty in that regard. 368. A is an employé in a factory and is engaged in operating a machine with unguarded cog wheels. While cleaning the machine, A is injured through lack of a guard. The factory act requires that cog wheels shall be guarded. A brings an action against his employer. A cannot recover, for he has assumed an obvious risk.1 377. Liability of master to servant.-It has been seen that a master is not liable for injuries to his servant occasioned by the acts of a fellow-servant, but that he will be held liable for any injury caused by his neglect to perform one of the non-assignable duties mentioned in a previous paragraph. The fact that a master has instructed a servant to perform one of these duties for him, will furnish no excuse, for any servant to whom such a duty is delegated is raised while performing that particular function, to the grade of vice-principal. It is a fundamental rule that masters are liable for injuries caused by the negligence of their vice-principals. 1 The doctrine of assumption of evident risks and many other common law doctrines regulating the rights and liabilities of laborers are being changed in many states by employers' liability acts. All these statutes and the important decisions bearing thereon are printed from time to time in the "Bulletin of the Bureau of Labor," published by the Department of Labor, and printed by the government printing office. These bulletins provide invaluable records for employers of large labor forces. Statistics of the Department of Labor has made detailed studies of this important subject. See especially Labor Bulletin No. 126. The Bureau of Labor PART V: BUSINESS ASSOCIATIONS CHAPTER XXIV PARTNERSHIP IN GENERAL 378. Definition and nature.-Partnership is a legal relation existing between two or more persons who have agreed either expressly or impliedly to combine, as principals, their property, labor or skill in carrying on a lawful business enterprise for their joint profit. Every true partnership is based upon contract, and in no case created by operation of law. Therefore, a person cannot become a true partner against his will. The relation is one of mutual trust and confidence, involving in a high degree the principle of delectus personarum, or the right to choose one's associates. It is on account of this principle that the consent of every partner is essential to the introduction of a new member into the firm. (But see sec. 390.) 379. Essential elements. The partnership relation embodies the following essential elements: 1. It must be founded upon an agreement between two or more competent parties. 2. The association must be unincorporated. 3. The business contemplated must be a lawful one. 4. The purpose of the members must be pecuniary gain. 5. There must be co-ownership of the profits. 380. Agreement essential.-As has been previously stated, a true partnership is never created by operation |