power to remove and discharge them, and | tion of said derrick, was at work near the directed what work should be done, and the way and manner in which it should be done, and procured necessary tools and machinery to be used in prosecuting said work, and had full charge and power over and control thereof, and of all details entering into said work. "That the plaintiff was employed as a laborer on said work, and during all the time he worked upon said wall was under the direction and control of said defendant, who was doing said work in the discharge of his duties as road commissioner. base of said wall when the boom of said derrick, by reason of the defective, unsuitable, and unsafe condition thereof, and by reason of its being an unsuitable appliance for the work there being done, and the negligent and unsafe manner in which it had been set up for use, all of which was, or by the exercise of reasonable care and skill might have been, known to said defendant,—and the failure of said defendant to employ suitable and careful persons to erect, maintain, and operate said derrick,—all of which was the result of the failure of said defendant to perform his duty aforesaid,—suddenly fell "That in constructing said wall certain heavy rock and large stone had to be moved, handled, and placed therein, for the handling a great distance, striking" and injuring the of which said commissioner had procured, plaintiff. erected, and equipped a derrick upon the bank far above the place where this plaintiff | no duty. Does this declaration charge the was at work, and nearly on the level with said street. “That the plaintiff knew nothing as to the sufficiency of said derrick or of its equipment, and had never been near to or examined the same, but had been instructed and directed by the said defendant to work at the base of said wall, and far below the level on which said derrick was erected and operated. "That it was then and there the duty of said defendant to the men employed by him and under his control in doing said work, he having full and immediate charge, control, and direction of said work, to provide a suitable and safe derrick and equipment, erect and set the same up in a suitable and safe manner, and keep and maintain it in a safe and suitable condition, and to employ only suitable and careful persons in erecting and maintaining said derrick and in the prosecution of said work; and it was the duty of said defendant to this plaintiff, having undertaken to provide a derrick for use in doing said work, to provide only such derrick as was safe and suitable for the purpose, and such as was, when prepared for use upon said work, in a safe and suitable condition, and such as would not endanger the employees working thereon. "That said defendant, unmindful of his duty in this behalf, did not provide, as plaintiff avers, a suitable and safe derrick, nor did he cause it to be set up in a suitable and safe manner, and did not cause it to be kept and maintained in a safe and suitable condition, and did not employ suitable and careful persons in erecting and maintaining said derrick, and in the prosecution of said work. "That upon the 6th day of August, A. D. 1900, the plaintiff, relying upon the performance by the defendant of his duty in this behalf, and being himself then and there in the exercise of due care and diligence, and without any knowledge or means of knowledge of the defective, unsuitable, and unsafe condi There can be no negligence where there is defendant with a failure to perform any duty which the facts therein averred show that he owed to the plaintiff? He While the defendant was a public officer, the work in which he was engaged was none the less ministerial. It is claimed that the relation existing between the defendant and the plaintiff was that of master and servant; and, if this be the true construction of the facts set forth in the declaration, the defendant is undoubtedly liable under the wellrecognized principles of law applicable to that relation. In repairing the street and building the wall the defendant was acting solely for the public. He had no interest in the work other than that which arose from the discharge of his duty as a public officer. The nature of that duty was such that he could not perform it alone. It could not be executed without availing himself of the services of others. Not that he was obliged to employ any particular man or men. had the right to select and discharge the men, the power to determine what work should be done, and the way and manner in which it should be done. None the less he was compelled to employ men who were paid, not by him, but by the city, who labored, not for his benefit, but for the public. He should not be held liable for the misconduct of those whom he is thus obliged to employ. Such employees are not his servants, and the rule of respondeat superior does not apply. McKenna v. Kimball, 145 Mass. 555, 14 N. E. 789. The foundation of the liability of one person for the acts and negligence of another is found in the doctrine of principal and agent. The fact that the defendant had the right to select and discharge the men whom he was compelled to use might be a good reason why he should be holden to exercise reasonable care in their selection, but we do not think that under the circumstances of this case it is sufficient to establish the fact that the plaintiff was the defendant's servant, and charge him | curred to him in the course of his employ with the onerous consequences which flow ment through any negligence on their part. from that relation. Few men would be found willing to accept an office whose burdens were so disproportionate to its benefits. Sound public policy forbids that public officers should be held responsible for the negligence of those whom they are obliged to employ in the discharge of their duties in the execution of public works, when such officers are not chargeable with any want of dili gence or due care on their part. Bailey v. New York, 3 Hill, 531, 38 Am. Dec. 669. The declaration charges that an unsafe and unsuitable derrick was furnished as a completed appliance for the prosecution of the work, that the place in which the plaintiff was set to work was dangerous and unsafe. and that all this was, or by the exercise of reasonable care might have been, known to the defendant. These matters pertain to the conduct of the defendant himself. The plaintiff had nothing to do with fitting up the derrick. The defendant supplied it to him as a complete appliance to be used in doing the work in which he was engaged. He had a right to rely that it was all right, that it was not subject to such defects as could be discovered by the exercise of reasonable care on the part of the defendant, who furnished it. Poor v. Sears, 154 Mass. 539, 26 Am. St. Rep. 272, 28 N. E. 1046. The defendant may have been under no obligation as road commissioner to furnish the derrick, but having done so, he assumed the obligation towards those who were to use it of seeing that it was reasonably safe and suitable, and so maintained. The defendant selected the place in which the plaintiff was to work. He invited and directed him to work there. When the defendant did this he assumed toward the plaintiff the duty of seeing that the place was reasonably safe, and he must answer for any injury suffered through his failure to perform that duty. In Breen v. Field, 157 Mass. 277, 31 N. E. 1075, the defendants were the selectmen of the town of Greenfield engaged in building a public sewer. They hired the plaintiff, and set him to work in the bottom of the trench. He was injured through the sides of the trench falling in for want of proper support. It was held the defendants were liable, if the injury was due to any neglect on their part to take proper precautions for the plaintiff's safety. Mr. Justice Morton, in delivering the opinion of the court, says: "The defendants were not bound to hire the plaintiff and set him to work in the bottom of the trench, but, having done so, they are liable to him for any injury which oc Whether they were acting as public officers or agents, or not, could, under the circumstances, make no difference as to their duty to the defendant. They were bound, when they hired him to work in a particular place. to see that it was reasonably safe, and that materials were furnished to make it so, and, if any injury occurred to him through their neglect in these respects, they are liable. They voluntarily assumed the responsibility of setting him to do a particular kind of work in a particular place, and they cannot avoid the duty which that act imposed upon them as to him." His is the The dictates of humanity, and a proper regard for the lives and safety of the workmen engaged upon public no less than private works, require that someone should be bound in law to furnish a reasonably safe place in which to do their work. Upon whom, then, does this duty rest? We think it rests upon the man who selects the place in which the work is to be done, and invites and directs the workmen to labor therein. master mind. It is for him to command and the workmen to obey. He is not an insurer, but the laborer has a right to rely, whether the work be public or private, that the man who directs and selects the place, means, manner, and method of his work shall use reasonable care to see that the means and the place are reasonably safe. If the defendant failed in this, it was his own fault, and not that of another, and he cannot shield himself behind the defense that he was a public officer. That plea cannot be interposed to shield him from the consequences of his own negligence. While he need not answer for another, he must answer for himself. A personal liability attaches to him for his failure to exercise reasonable care in providing safe machinery with which, and a safe place in which, the defendant might work. In regard to the other ground claimed by the plaintiff-failure to exercise reasonable care to select the men who set up, maintained, and operated the derrick-we find no sufficient allegation in the writ. The only allegation is that it was the defendant's duty to employ suitable and careful persons, and that he did not employ suitable and careful persons. This is not enough, even from the plaintiff's standpoint. The duty of the defendant in this respect cannot be an absolute duty to employ suitable and careful persons. At the most, he can only be liable for the want of reasonable care in this particular, and there is no allegation that he failed to A trustee is not liable in his official capacity for an injury to a person who was struck while walking on a sidewalk by chips of stone on account of the negligence of the trustee's servants, who were engaged in chiseling stone on the premises of which he held the legal title as trustee. (October 31, 1900.) ligent use of property under their control. Sustained. The facts are stated in the opinion. Messrs. Stephen A. Cooke and Arnold Green, for defendant, in support of de murrer: In support of demurrer, see Keating v. Stevenson, 21 App. Div. 604, 47 N. Y. Supp. 847; Deschler v. Franklin, 20 Ohio C. C. 56. Mr. F. P. Owen for plaintiff, contra. Tillinghast, J., delivered the opinion of the court: This is an action of trespass on the case, for negligence, and is brought against the ()N DEMURRER to a declaration seeking defendants in their official capacity, as trus to hold defendants liable in their trust capacity for injuries to plaintiff by the negNOTE.-Liability of trustee for torts or neylileged negligence of the defendants' servant gence of servants. tees under the last will and testament of Amos C. Barstow, late of the city of Prov The decision in PARMENTER V. BARSTOW is In entire harmony with all except one of the few earlier decisions on this question. Deschler v. Franklin, 20 Ohio C. C. 56, was an action brought against an executor, as such, to recover for an injury claimed to have been received through the negligence of the operator of a passenger elevator in a building managed by the executor for the benefit of the estate. The court held that any cause of action arising through the executor's negligence in managing the estate must be against him personally, and not against him in his representative capacity, basing its decision on the ground that the theory of the law has always been that the property of an estate must be held intact for the benefit of creditors and beneficiaries, and that no new or additional liabilities can be ereated against it by the representative. An etion was brought against an executrix and executor, both in their representative capacity and as individuals, in McCue v. Finck, 20 Misc. 306, 46 N. Y. Supp. 242, to recover damages for an injury which occurred by reason of the al whereby the plaintiff, a police officer, was in- tion that a dead man can neither create obli- The representatives were joint tort feasors, and directed that the complaint be amended to continue the action against the executor individually, it appearing that the executrix had died after suit brought. The same result is reached in the case of other kinds of trustees, but upon different grounds. as in Ballou v. Farnum, 9 Allen, 47, trustees of a railroad, who were operating it for the benefit of bondholders, and who had executed a lease of a part of the road to other parties, but continued to operate it for the lessees, and to select and discharge all employees, and exercise all the powers usually exercised by railroad idence, deceased. The declaration alleges | ner, and that by reason of their negligence that the defendants on the 14th day of Jan- the plaintiff was struck in each eye by chips uary, 1895,-the date of the happening or pieces of stone which were caused to fly of the accident hereinafter referred to,-in her face by reason of the negligence of and for a long time prior thereto, were the the defendants, whereby she has been renowners of a certain building situated at No. dered totally blind in her right eye, and 37 Weybosset street, in said city, and that otherwise injured, wherefore she sues to reas such owners it was their duty to keep the cover damages, which she lays at $25,000. same, and the sidewalk contiguous thereto, To this declaration the defendant Amos C. in proper repair, so that persons lawfully Barstow, one of the trustees aforenamed, walking along the same might not be in- and the only one upon whom the writ was jured in life or limb; that on the day and served, demurs, and for reasons of demurrer year aforesaid the plaintiff was passing says: (1) That in the writ and declaraalong said street as a lawful traveler there- tion he is specifically impleaded as trustee on, in the exercise of due care; that the de- under the will of Amos C. Barstow; that, fendants, their agents and servants, were in the absence of legislative enactment, an then and there engaged in cutting and chis- abutting landowner is not liable to travelers eling stone in a careless and negligent man- for injuries received because of a defect in corporations over their own roads, were held to reimbursement from the estate; but the master stand in the relation of master and servant with of the rolls expressed the opinion that the damthe employees, and to be liable as principals for ages arising from a tort must be borne by the an injury to a third person, occasioned by the trustee personally. Upon appeal, however, the negligence of one of their employees in the per- following opinion was rendered: "The trustee formance of his duties, and to take responsi- in this case appears to have meant well, to have bilities as such, looking for their indemnity to acted with due diligence, and to have employed the receipts of the earnings of the road over a proper agent to do an act the directing which which they had full control. to be done was within the due discharge of his duty. The agent makes a mistake, the consequences of which subject the trustee to legal liability to a third party. I am of opinion that this liability ought, as between the trustee and the estate, to be borne by the estate." And in Falardeau v. Boston Art Students' Asso. 182 Mass. 406, 65 N. E. 797, where a painter was injured by falling through a trap door negligently left open by a janitor employed by individuals who were in full control of the building as trustees under assignment of the lease thereof from a corporation, the corporation was sued for the injury sustained. Any right to recover was, however, denied on the ground that, since the corporation had no right to control the janitor or interfere with him in his duties about the building, it was not liable for his negligence; but, as the court says, obiter, the trustees who were in fall control of the building, and for whom the janitor was acting, were ilable for his negligent acts. So, in Baker v. Tibbetts, 162 Mass. 468, 39 N. E. 350, an action of tort for personal injuries, in which it was sought to charge a trustee for the benefit of creditors on the ground that his agent, acting within the scope of his employment, invited the plaintiff into a place of hidden danger, whereby he was injured, the court said that the fact that the defendant held the title to the property as trustee would not reduce him to the position of an intermediate agent between the real principal and the person actually causing the damage. But Bennett v. Wyndham, 4 DeG. F. & J. 259, an English case, and the only one found directly upon the point involved, seems to be in conflict with the decisions above given, although this was an action by the trustee for reimbursement from the estate for a judgment recovered against and paid by him, rather than a direct attempt to recover against him. From the facts it appears that a trustee of a testator's real estate gave orders to a bailiff to have some oaks felled to obtain timber for roofing a barn upon the estate. The bailiff directed wood cutters, who were usually employed upon the estate, to fell the trees, but in so doing a large bough struck a passerby and broke his leg, whereupon he sued the trustee and obtained a large judgment which the latter paid and then sought It will be observed that McCue v. Finck, 20 Misc. 506, 46 N. Y. Supp. 242, and Ballou v. Farnum, 9 Allen, 47, supra, although going on the theory that the trustee is personally liable. recognize the possibility of his reimbursement from the estate or trust fund under proper circumstances. II. Receivers. a. In general. Receivers, while coming within the general term "trustees," are, nevertheless, within a class by themselves, as intimated in the opinion in PARMENTER V. BARSTOW. There is little doubt that they are free from personal liability for injuries occurring to third persons by the acts of their servants in the operation of the business intrusted to them, when they are themselves free from negligence or wrong, but there has been enough discussion on the subject, however, to make the collection of the decisions on this point not undesirable. The line has been strictly drawn in selecting the cases, so that all actions against the corporation for personal injuries occurring through the negligence of employees while the business was in the hands of a receiver have been excluded, although in many instances, by holding the corporation not liable under such circumstances, they are passive decisions to the effect that the receiver is officially liable. Aiso, actions against receivers operating railroads for the loss of freight shipped have been excluded unless it clearly appeared that such actions were based in tort, rather than on the contract. Also, actions, whether brought against the receiver or the corporation, for the purpose of determining where the liability lies when the receiver is discharged after the injury has occurred or dur the street in front of his premises, unless | and that they were in the possession and such defect is caused by his own act, and control thereof. And, while it appears from that the plaintiff's action, therefore, rests the declaration that the beneficial interest on the tortious negligence of this defendant, in the estate belongs to others, yet, as the but that for such tort the trust estate is absolute legal title thereto is vested in the not liable, nor the trustee as such; that the defendants, the law devolves upon them, in trustees of an express trust of realty are their personal capacity, all of the ordinary not liable in their official capacity as trus- duties and liabilities which are incident to tees for an injury resulting from their neg- the ownership of real estate. They are not ligence in leaving the premises in a danger the agents of the beneficiaries, for a trustee ous condition. And (2) that the trust es- is not an agent, in the strict sense of the tate lies outside the jurisdiction of a court term (Taylor v. Davis, 110 U. S. 334, 28 L. of law, and can only be reached in equity. ed. 163, 4 Sup. Ct. Rep. 147), and hence the We think the demurrer should be sus- relation of master and servant does not extained. The declaration shows that the le- ist, so that the liabilities which trustees ingal title to the premises in front of which cur by their misconduct or negligence are the accident happened was in the defend-personal liabilities. See Ballou v. Farnum, ants at the time of the happening thereof, 9 Allen, 47. Indeed, even the contracts of ing the pendency of the action have been omitted, for the reason that they involve and depend upon another question, viz.: whether any liability exists, even against the corporation, which, as a general rule, is, in its turn, dependent upon the amount of funds turned over to it, or the extent to which the income from the business has been employed in the betterment of the corporation property. b. Personal liability. Arguendo, in Davis v. Duncan, 19 Fed. 477, It is said: "A receiver, as such, upon principle and authority, is not personally liable for the torts of his employees. Were he so liable few men would take the responsibility of such a trust. It is only when he himself commits the wrong that he is held personally liable. The proceeding against him as a receiver, for the wrongs of his employees, is in the nature of a proceeding in rem, and renders the property in his hands, as such, liable for compensation for such injuries." This comprehensive statement of the nature of a receiver's liability is a most satisfactory summary of the law on the subject. Other cases in which, by obiter dicta or arguendo, a receiver's liability for the torts of his employees in the operation of the business intrusted to him is recognized as not personal except in the event of his own personal fault, are Farmers' Loan & T. Co. v. Central R. Co. 2 McCrary, 181; Erskine v. McIlrath, 60 Minn. 485, 62 N. W. 1130; Vanderbilt v. Central R. Co. 43 N. J. Eq. 684, 12 Atl. 188; Gibbes v. Greenville & C. R. Co. 15 S. C. 518; Sloan v. Central Iowa R. Co. 62 Iowa, 728, 16 N. W. 331; McGhee v. Willis, 134 Ala. 281, 32 So. 301; McNulta v. Lockridge, 137 Ill. 270, 31 Am. St. Rep. 362, 27 N. E. 452, 32 Ill. App. 86, 141 U. S. 327, 35 L. ed. 796, 12 Sup. Ct. Rep. 11; Bartlett v. Cicero Light, Heat & Power Co. 177 Ill. 68. 42 L. R. A. 715, 52 N. E. 339; Murphy v. Holbrook, 20 Ohio St. 137, 5 Am. Rep. 633; Hunt v. Conner, 26 Ind. App. 46, 59 N. E. 52; Keating v. Stevenson, 21 App. Div. 607, 47 N. Y. Supp. 847; Ryan v. Hays, 62 Tex. 47; Eddy v. Prentice, 8 Tex. Civ. App. 63, 27 S. W. 1063; Ea parte Brown, 15 S. C. 518; Morris v. Hiler, 57 How. Pr. 323; Texas & P. R. Co. v. Bloom, 85 Tex. 279, 20 S. W. 133. In Averill v. McCook, 86 Mo. App. 348, an action against defendants as receivers of a rail rendered. This was held error, on the ground that the receivers were liable only in their official capacity, and that the judgment rendered would necessarily be paid from the funds in their hands as such officials. So, a personal judgment against the receiver was reversed in McNulta v. Ensch, 134 Ill. 46, 24 N. E. 631, in the following language: "No judgment could be rendered against McNulta individually, and no award of execution could be made. It must be entered against him as receiver, and be made payable out of the funds held by him in that capacity, in the due course of the administration of his receivership." And in Camp v. Barney, 4 Hun, 375, a receiver operating a railroad, while declared personally liable for his own neglect or misconduct, was held not personally liable for the neglect or misconduct of those employed by him, and the record and proceedings in an action against him individually to recover for personal injuries sustained by a passenger were amended so as to make the suit and judgment against him as receiver, and so payable out of the fund in his hands, instead of by him personally. Likewise, in Robinson v. Kirkwood, 91 Ill. App. 54, a personal judgment against receivers was modified so as to stand against them as receivers, the court saying: "It is true no personal judgment could be rendered against the receivers, nor could execution be awarded against them. The judgment should be entered against them as receivers, and be made payable in due course of the administration of their trust, as such receivers," etc. And in Vasele v. Grant Street Electric R. Co. 16 Wash. 602, 48 Pac. 249, an action to recover damages for personal injuries against a corpora tion and its receiver was held to fail as to the receiver when the title of the cause simply designated him "receiver" without the word "as" preceding.--the word "receiver," therefore, being merely descriptio persona, and the force of the allegation consequently being that the receiver had control of the railway business as an individual merely. The court says: "But, individually, he is charged with no negligence or misconduct whatever. If he was receiver of the company's property, and, as such, was conducting its business and using its franchises, he was himself a common carrier of passengers, and those employed by him in the conduct of road for killing a cow, a personal judgment was such business were his agents, and not those of |