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based on a different test from that of contemplated risk, is natu-
rally suggested by the considerations indicated above. In the
application of this theory the classification turns on the relation
of employees in different departments of the employer's estab-
lishment or business, more or less segregated. In the courts
in which it is adopted the general test is one of the dentity or
diversity of the departments in which the plaintiff and the
delinquent employee were at work. Since, however, no satis-
factory definition of the term "department" has yet been fur-
nished, the test may be more accurately said to be one of
consociation of duties, i.e., such a relation of the duties of the
injured employee and those of the delinquent co-employee as that
the former had a reasonable opportunity for protecting himself
from injury by his own efforts. All courts would unite in ruling
out the defense of co-employment in certain classes of cases, and
there is a hopeless contrariety of views as to where this defense
shall be allowed and where denied. Even in those states where
the defense is most frequently based on what has been called
the departmental doctrine, this test is not the only and final
one, as it is found that while departments may be distinct, those
employed therein may be thrown into such contact that fellow-
service cannot be denied, and vice versa. While, therefore, the
two theories presented lead to real and wide differences of view,

» Lukic V. Southern P. R. Co., 160 Fed. 135.


there is a class of cases where they approach, and the conclu-
sions reached therein may be referred indifferently to the one
reason or the other.

Section 82. Representation of the Employer. — No court
goes so far as to assert without qualification that all employees
of a common master, or even in the same department, are co-
employees in such sense as to relieve the master of responsibility
for the negligent acts of those who are his representatives, either
permanently, or as to the matter in hand. But here again there
are as irreconcilable differences as any that have been noted,
and it will be possible only to present the different views without
attempting to summarize them or to bring them into harmony.

There are in general two grounds on which adjudications are
based : One, the mere superiority in rank of the negUgent em-
ployee and the other, the nature of the injurious act, i.e.,
whether or not it was one which was connected with the dis-
charge of the so-called nondelegable duties of the employer.
Like other distinctions made in the applications of the fellow-
servant rule, there are cases in which the decision might be
reached by the u:: cf either test, but in other cases the adoption
of the one rule w^'J be found to be decisive along hnes not ca-
pable of being reached by the other unless by giving a special
meaning thereto.

Section 83. Test of Rank. — The representative of the em-
ployer is most frequently termed by the courts a vice-principal,
though the actual functions of his employment and not the
designation by which he is known while at work will be deter-
minative in any case. This rule has been made to extend so far
as to relieve the employer even when the injured emploj'ee in
good faith regarded the negligent employee as his superior, not


knowing of the latter's discharge from that position.^ On the
other hand, a coservant intrusted temporarily with the duties
of a vice-principal must be answered for by the employer no
less than if he were permanently holding the position. Repre-
sentation, however, must be actual. In a majority of the juris-
dictions of the Union the mere fact of superiority of rank is not
sufficient to charge the employer with liability for the negligence
of the superior servant, though the negligence complained of
may have been connected with the giving of orders.^ Nor do
these courts consider that the adding on of the power to hire and
discharge is sufficient to convert a foreman of subordinate grade
to the rank of vice-principal, as mere fear of discharge will not
justify the assumption of undue risks.^ And this is true even
when there is power of control.* Thus it was said in a recent
case that "a servant who sustains an injury from the negligence
of a superior agent, engaged in the same general business, can-
not maintain an action against their common employer, although
he was subject to the control of such superior agent, and could
not guard against his negligence or its consequences."® This
rule is based on the theory that the contracting employee as-
sumes the risk of his superior's negligence as one of the ordinary
risks of his employment, but is subject to the restrictions result-
ing from the application of the doctrine of nondelegable duties.
This principle does not, except in a few states, extend to

J Allen V. Goodwin. 92 Tenn. 385, 21 S.W. 760.

» Kimmer v. Weber, 151 N.Y. 417, 45 N.E. 860 ; McLean v. Blue Point
G. M. Co., 51 Cal. 255.

» Alaska Treadwell Gold Min. Co. v. Whelan. 168 U.S. 86, 18 Sup. Ct. 40.

« Vitto V. Keogan, 15 App. Div. 329, 44 N.Y. Supp. 1 ; Lehigh Valley Coal Co.
V. Jones, 86 Pa. 432 ; Viltor Mfg. Co. v. Otte, 157 Fod. 230 (C.C.A.).

6 Keenan v. New York, L. E. & W. R. Co., 145 N.Y. 190, 39 N.E. 711.


actual superintendents or managers of an employer's business ;
nor is it vital that such representative shall not be employed in
part at actual labor, or that he shall receive a higher salary than
his subordinates. No fixed rule is discoverable, but to render
the employer liable the employee "must be more than a mere
foreman to oversee a batch of hands and direct their work under
the supervision of the master." ^ Or, as stated in another case
"he must have general power and control over the business, and
not mere authority over a certain class of work or a certain gang
of men." ^

Section 84. Superior Servant Doctrine. — While such is the
rule in the greater number of American jurisdictions, what is
known as the "superior servant doctrine" has been adopted in
a number of states.' The form of this rule varies in different
states, or even in the same court ; and there is inconsistency in
its application to different cases, resulting from an unwilling-
ness on the part of some courts to carry it out to its logical con-
clusions, and from an indefiniteness as to the point where it
shall cease to control. It was characterized as a "discredited"
doctrine in a recent case,^ but it is not only recognized in a num-
ber of jurisdictions as a rule of common law, but has moreover
received statutory recognition.^

The forms in which the doctrine is expressed vary, but all are

» Dobbin v. Richmond & D. R. Co., 81 N.C. 446, 31 Am. Rep. 512.

» New York, L. E. & W. R. Co. v. Bell, 112 Pa. 400, 4 Atl. 50.

» Consol. Coal Co. v. Wombaeher, 134 111. 57, 24 N.E. 627 ; Walker v. Gillett,
69 Kans. 214, 52 Pac. 442 ; Southern R. Co. v. Barr, 21 Ky. L. R. 1615, 55 S.W.
900 (but see Cin., N. O. & T. P. R. Co. v. Hill's Adm'r.. 28 Ky. L. R. 530, 89
S.W. 523) ; Faren v. Sellers, 39 La. Ann. 1011. 3 So. 363.

* Lukic V. Southern P. R. Co., 160 Fed. 135.

»Cal., Acts 1907, ch. 97 ; Ohio, Gen. Code, sec. 9016 ; S.C, Const., Art. 9,
sec. 15.


to the effect that the employer is Uable to an injured employee
where his injury is caused by the exercise of the authority con-
ferred by the employer on another employee.

In one 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 of-
fered in support of this view, the most satisfactory one being
that advanced in an early Ohio case,^ in which the duty of super-
vision and control was treated as nondelegable; or, as stated
in a Missouri case,' "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."

Section 85. Status of Manager. — It has already been in-
dicated 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 fellow-servant.^ 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 account-
able. While the cases involving the question of vice-principal-

> Stephens v. Hannibal & St. J. R. Co., 86 Mo. 221.

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

» Miller v. Missouri P. R. Co.. 109 Mo. 350. 19 S.W. 58.

* Curlcy V. Hoff, 62 N.J.L. 758, 42 Atl. 731 ; Mobile & M.R. Co. v. Smith, 59
Ala. 245 ; Meehan v. Spiers Mfg. Co., 172 Mass. 375, 52 N.E. 618 ; Howd v. Miss.
C. R. Co., 50 Miss. 178.


ship in this form naturally disclose for the most part conditions
of 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 co-employee with his tem-
porary 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 ser-
vants, in employing and selecting such servants, and in the
general conduct of the business committed to his care."

In some of the states in which the courts had favored the
view that the fellow-servant rule extended even to employees
in charge of work, legislative enactments have intervened, pro-
viding that for the exercise of superintendence intrusted to any
employee by the employer the latter should be responsible.^

Section 86. Heads of Departments. — On principle, a court
that recognizes the manager of an entire business as the master's
representative cannot well refuse similar recognition to persons
in charge of single branches of an undertaking, as in large in-
dustrial 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

» Malone v. Hathaway, 64 N.Y. 5, 21 Am. Rep. 573.

» Ala., Code, sec. 3910 ; Mass., Acts 1909, ch. 514, sec. 127 ; Miss., Const., sec,
193, Code, sec. 4056.


business. Thus it has been held by the United States Supreme
Court ^ that there is a "clear distinction to be made in their
relation to their common principal, between servants of a cor-
poration 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 depart-
ment in which their duty is entirely that of direction and super-
intendence." 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 con-
sidered as fairly presented in the statement that it is only in-
dividuals who are in charge of separate branches and departments
of service, and have entire and absolute control therein, that are
properly to be considered, with respect to employees under them,
as vice-principals.

Section 87. 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 re-
sponsible. 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 em-
ployment. Besides these points, as to which it is only necessary
to establish the facts in order to determine their status, the
question of the oflficial or nonofficial quality of the acts con-
sidered 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
representative may be taken as those of a mere servant and
not of such a nature as to make the employer responsible for

» Chicago, M. A St. P. R. Co. r. Robs, 112 U.S. 377. 5 Sup. Ct. 184.


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 li-
ability therefor upon the employer. This doctrine also has
received statutory recognition.^

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 that the master is liable for the neg-
ligence of his representative whether the negligent act was done
by his own hand or by another under his orders.^ 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 Har-
per V. Indianapolis and St. Louis R. Co. (47 Mo. 567, 4 Am.
Rep. 358). It was held in a later case, however,^ that the neg-
ligent performance by a section foreman of ordinary labor such

1 Reed v. Stockmeyer, 74 Fed. 186 (CCA.) ; Mann v. Oriental Print Works,
11 R.I. 152 ; Crispin v. Babbitt. 81 N.Y. 516, 37 Am. Rep. 521 ; St. Louis. A. &
T. R. Co. V. Torrey, 58 Ark. 217, 24 S.W. 244.

« Ala., Code, sec. 3910 ; Conn., G.S.. sec. 4702 ; Mass.. Acts 1909, ch. 514, sec.

' Illinois C R. Co. v. Josey's Adm'x., 22 Ky. L. R. 1795. 61 S.W. 703 ; Consol.
Kansas City Smelting & Ref. Co. v. Peterson. 8 Kans. App. 316. 55 Pac. 673;
Crystal Ice Co. v. Sherlock, 37 Nebr. 19. 55 N.W. 294 ; Purcell v. Southern R. Co.,
119 N.C 728, 26 S.E. 161 ; Berea Stone Co. v. Kraft, 31 Ohio St. 287, 27 Am. Rep.

* Au V. New York, etc., R. Co., 29 Fed. 72 ; Hardy v. Minneapolis, etc., R. Co.,
36 Fed. 657.

» Fogarty v. St. Louis Transfer Co., 180 Mo. 490, 79 S.W\ 664.

• Hutson V. Missouri P. R. Co., 50 Mo. App. 300.


as a coservant would engage in, resulting in injury to a work-
man in his gang, was the negligence of the employer: "There
is no just or logical distinction between the act of the vice-
principal in negligently ordering a servant to do an imprudent
thing and in doing the same 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 ; 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 has been largely superseded in the federal courts by the
test of the character of the act. "The question is always,"
said 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; " and the characterization of the superior servant
doctrine as discredited indicates the same view.^

Section 88. Tests not Mutually Exclusive. — It is not to be
understood that the different tests of vice-principalship are
mutually exclusive in any jurisdiction, or even in any case
in which the question arises. The courts may approach the

> See further, Dayharsh v. Hannibal & St. J. R. Co.. 103 Mo. 570. 15 S.W. 554.
and Russ v. Wabash W. R. Co., 112 Mo. 4.5, 20 S.W. 472.

« Sweeny v. Gulf, etc., R. Co.. 84 Tex. 433, 19 S.W. 555 : Texas & P. R. Co. v.
Reed, 32 S.W. 118 (Tex. Civ. App.).

» Gulf. C. & S. F. R. Co. V. Schwabbe, 1 Tex. Civ. App. 573. 21 S.W. 706.

* Peters v. George. 154 Fed. 634.

» Lukic V. Southern P. R. Co., 160 Fed. 135.


question in either way, or, as frequently happens, expressions are
used in a single case which refer some to one and some to the
other method of determining the point at issue. The general
result of using the test of the character of the act may be said to
be favorable to the employee, since under it "an act of the mas-
ter" may be performed by an employee of whatever rank;
though obviously it favors the dual capacity theory, and tends
in so far to limit recovery for the acts of a superior.

It is clear that the opportunity for litigation, in connection
with the application of the test of the character of the act, lies
not so much in the acceptance or rejection of general principles,
or of the doctrine of representation as such, for a determination
of these points having been once made in a jurisdiction they may
be said to be the local law ; rather, the numerous accumulated
decisions bear mainly on the question of the boundaries between
the field covered by the doctrine of nondelegable duties and
that covered by the fellow-servant doctrine, or, as otherwise
expressed, between "the act of a master and the act of an em-
ployee," boundaries which are, as has been said with good reason,
"sometimes quite vague and shadowy." Thus it is established
that one of the employer's duties is to use due care to furnish
and maintain a safe place to work, while a negligent act on the
part of an employee may at any moment render a place unsafe
for his co-employees. When or at what point liability attaches
is a question that comes before the courts to be determined on
the merits of the particular facts, and, apart from precedents
presenting a practical identity of conditions, the question may
be fairly considered an open one. Certain general principles
are, of course, settled in any case, but, after all, there
remains an undetermined margin on the merits of which


the plaintiff grounds his undertaking for a recovery, hoping
that in his particular case the scales will turn in his favor, so
that instead of conclusive classifications being formed, it appears
rather that the volume of litigation relating to this department
of the law of employers' liability is steadily growing.

Section 89. Modification of Employers' Liability by Statute. —
It appears to be the consensus of legislative opinion that of all
the weak points in the American law of employers' liability, the
one that presents the most objectionable features is that repre-
sented by the fellow-servant doctrine. At least it is to this
phase that legislatures have most frequently addressed them-
selves, one, that of Colorado, having achieved the sole distinction
of completely abrogating the doctrine.^ This statute was de-
clared constitutional by the supreme court of the state,* the
court ruling that the act renders the employer liable for damages
resulting from injuries to an employee, caused by the negligence
of a co-employee, in the same manner and to the same extent as
if the negligence were that of the employer. The law does not
affect the defenses of assumed risks or contributory negligence.

Liability laws patterned more or less closely after the British
law of 1880 on this subject have been enacted in a number of
jurisdictions.' These acts are frequently referred to as "fellow-
servant laws," since their principal feature is the abrogation,
as to the classes of employees enumerated and under the condi-

> Supp., sees. 151 If. 151 Ig. See also pp. 186. 197, 198.

« Vindicator Consol. Min. Co. v. Firstbrook, 36 Colo. 499. 86 Pac. 313.

•Ala., Code, sec. 3910: Cal.. Acts 1907. ch. 97; Colo.. Supp. sees. 1511a
-151 le; Idaho. Acts 1909, p. 34; Ind., A.S., sec. 7083; Me., Acts 1909, ch.
258; Mass., Acta 1909. ch. 514, sees. 127-134; Mich., Acts 1909, No. 104;
N.J., Acts 1909, ch. 83; N.Y., Acts 1910, ch. 352; Pa., Acts 1907, No. 329;
P.R., R.S., sees. 322-331 ; and Texas, Acts 1909 (extra session), ch. 10.


tions specified, of the defense of common employment.^ The
introductory provision as to defects in ways, etc., adds little or
nothing to the common law rule as followed in this country as
to the duty of the employer as to safe places and appliances.^
The same may be said of the provision relative to the reporting
of facts by the employee, if cognizant thereof ; though as most
of the statutes make the employee's failure to report a bar to
his recovery, if injured, while at common law such failure was
only an added reason why he could not, under such circum-
stances, recover, it may be said that this provision places an
employee who knows of the defect in a more unfavorable posi-
tion than before, so far as the question of the assumption of
risk is concerned. Nor do these laws much affect the defense
of contributory negligence. They are chiefly effective in their
determination of responsibility for the acts of superiors, and of
designated classes of employees on railroads. As to superiors,
it may be noted that different laws recognize both the superior
servant ^ and dual capacity ^ doctrines. The California statute
distinctly presents the departmental doctrine ; so that it is clear
that even the enactment of statutes which clearly enlarge the
employer's responsibility, as do these, do not secure uniformity,
since they are both differently phrased and differently con-

The rule that statutes in derogation of the common law will
be strictly construed has generally been modified by the state
courts in respect of the acts above discussed, in order that the

» Coffee V. New York, etc., R. Co., 155 Mass. 21, 28 N.E. 1128.
« Ryalls 1). Mechanics' Mills, 150 Mass. 190, 22 N.E. 766.
» Kansas City, M. & B. R. Co. v. Burton, 97 Ala. 240, 12 So. 88.
* Gmaehle v. Rosenberg, 178 N.Y. 147, 70 N.E. 411.


manifest ends of the laws may be attained.^ They in no way
interfere with the common law rights of an injured employee,
and he may, if he prefers, bring his action at common law instead
of under the statute.

Section 90. Statutes Affecting Designated Employments. — A
very considerable number of states have laws applying specifi-
cally to the business of railroading, some of them applying to all
employees, and some only to those engaged in the operation of
the road. These laws range in effect from the slightest possible
deviation from the principles of the common law to a complete
abrogation of the defense of fellow-service, and important
changes in those of contributory negligence and of assumed

The constitutionality of laws relating to railroads only has
been repeatedly decided in their favor in the face of contentions
that they are discriminatory, not affording railroads equal pro-
tection with other businesses, and that the laws deprive railroad
companies of their property without due legal process, thus
alleging that such laws are in conflict with the fourteenth amend-
ment of the Constitution of the United States. The Kansas
statute abrogating the defense of fellow-service was attacked
in the United States Supreme Court,^ which declared the law
valid, using in part the following language, which shows the
general grounds on which such laws are upheld : —

"The greater part of all legislation is special, either in the
objects sought to be ascertained by it, or in the extent of its
application. Such legislation does not infringe upon the clause

Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 14 of 32)