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only, and the persons whom he employs are his own servants, and not those of the principal party; and therefore the latter is not liable for their negligence or misdoing. It is to this point, therefore, that the evidence on each side should be directed. Thus, the trustees under a public road act were held not responsible for the negligence of the men employed in making the road, the work being carried on by a regular surveyor in their absence, whom they had no right to turn out of employment. So, where a licensed drover undertook to drive an ox to the slaughter-house, and sent him by his own servant, through whose negligence the ox did damage, it was held that the drover, and not the owner of the ox, was liable for the damage, as he was in the exercise of an independent employment, and had the exclusive control of the subject of the contract.3

1 Story on Agency, $ 454 a (2d ed.), 228-233; Powell v. Deveney, 3 Cush. 300. Lynch v. Nardin, 1 Ad. & Ell. n. s. 29.

2 Duncan v. Findlater, 6 Cl. & Fin. 894, 910.

8 Milligan v. Wedge, 12 Ad. & El. 737. And see Burgess v. Gray, 14 Law Journ. N. S. 184; Quarman v. Burnett, 6 M. & W. 499; Rapson v. Cubitt, 9 M. & W. 710; White v. Hague, 2 Dowl. & Ry. 33; Earl v. Hall, 2 Met. 353. These, and other cases cited in them, devolve the liability on the person who was the master of the enterprise. Other cases, apparently nearly similar in their facts, have held the general owner liable; but it will be found, on examination, that in those cases the general owner of the subject was also the master of the work, retaining the management and control, and rendering the contract in essence but a case of mere day labor or ordinary service. See Littledale r. Lord Lonsdale, 2 H. Bl. 267, 299; Stone v. Codman, 15 Pick. 297; Wanstall v. Pooley, 6 Cl. & Fin. 910, n.; Randleson v. Murray, 8 Ad. & El. 109; Sly v. Edgely, 6 Esp. 6; Matthews v. W. Lond. Waterw. Co., 4 Campb. 403; Leslie r. Rounds, 4 Taunt. 649. The case of Bush v. Steinman, 1 B. & P. 404, in which the owner of a house was held liable for the negligence of laborers employed by a contractor, who had undertaken to repair the house by the job, was disapproved as an extreme case, by the Ld. Chancellor, in Duncan v. Findlater, 6 Cl. & Fin. 903, and by Ld. Brougham, Id. 909; and was doubted by Ld. Denman, in Milligan v. Wedge, supra, and it has since been overruled in Reedie v. N. West. Railw, Co., 13 Jur. 659. (a) By the Assizes Act of 11 Geo. IV. and i W. IV., C. 68, § 8, common carriers are rendered liable for the felonious acts of servants in their employment. Under this statutory provision, a railway corporation is held liable for the acts of the servants of those who had undertaken, by special contract, to do this part of the business. Machu v. London & Southwestern Railw. Co., 12 Jur. 501.

Where several persons are employed in the same service, and one of them is injured by the carelessness of another, the master or employer is not liable. Winterbottom v. Wright, 10 M. & W. 109; Strange v. McCormick, 3 Am. Law Jour. N. S. 398; Farwell v. Boston & Worcester R. R. Corp., 4 Met. 49; Priestley v. Fowler, 3 M. & W. 1; Murray v. S. Car. R. R. Co., 1 McMull. 385; Hayes v. Western R. R. Corp., 3 Cush. 270. (6)

(a) The case of Bush v. Steinman resulting to a third person from boards de. was examined at considerable length hy posited in the highway in front of the Thomas, J., in Hilliard v. Richardson, 3 land by a teamster in the employ of the Gray (Mass.), 349, and its authority was carpenter, and intended to be used in such denied. That case decides that the owner alteration and repair, and in accord with of land who employs a carpenter, for a this decision is McCarthy v. Portland specific price, to alter and repair a build- Second Parish, 71 Me. 318. Cf. Killea ing thereon, and to furnish all materials v. Faxon, 125 Mass. 485. for this purpose, is not liable for damages (6) The general rule is, that the master is not liable to a servant for injuries caused scribed above. To illustrate this princi. by the negligence of a fellow-servant. This ple, the following cases may be of use, and negligence is one of the risks which the especially if they are compared with the servant takes into account in entering the cases cited under the next exception to employment. Kelley v. Buston Lead Co., the general rule, which is closely connected 128 Mass. 456 ; Quincy Mining Co. v. with this exception, by which servants who Kitts, 42 Mich. 34 ; Gormley v. Ohio, &c. are employed in distinct departments of R.R.Co., 72 Ind. 31, et cases passim; Sum- the same employment are allowed to sue merhays v. Kansas, &c. RR Co., 2 Col. T. the master for the negligence of each other. 484; Mullan v. Philadelphia S. S. Co., 78 The captain of a ship is not a fellowPa. St. 25; Mansfield Coal & Coke Co. v. servant of the sailors, but is the agent of McEnery, 91 Pa. St. 185.

the owners of the vessel ; and the owners The hardships which this rule has are responsible for injuries resulting to a brought about in cases where a large num. sailor through the negligence of the capber of persons are employed in dangerous tain. Ramsay v. Quinn, 8 Irish Rep. occupations, as railroad and other corpora- (C. L.) 322, declining to follow Wilson tion employees, have caused very general v. Merry, 1 L. R. (1 Sc. App.) 326, which dissatisfaction, and in many States the did not recognize any grade of service. rule is entirely abrogated, either by the A common laborer and a section "boss" decisions of the court or by express stat- on a railroad are not fellow-servants (Lou. ute. There is a general tendency in the & Nash. R. R. v. Blair, 1 Tenn. Ch. 351); American decisions to hold that one to nor such a laborer and a depot superintenwhom the master entrusts the whole super- dent (Lalor v. Ch., B., & Q. R. R., 52 Ill. vision of the employment, or possibly any 401. Cf. Speed v. Atlantic, &c. R.R.Co., separate department of the employment, is 71 Mo. 303); nor the receiver of a railroad not a fellow-servant with other servants of and an employee of the road (Meara Adm. the same master, but is a substituted v. Holbrook, 20 Ohio St. 137). This dismaster, and so renders the master liable. tinction has been denied in Massachusetts. Crispin v. Babbitt, 81 N. Y. 516; Lake Albro v. Agawam Caual Co., 6 Cush. 75; Shore, &c. R. R. Co. v. Lavelley, 36 Ohio Zeigler v. Day, 123 Mass. 152. In a North St. 221 ; Heiner v. Heuvelman, 45 N. Y. Carolina case, it was held that a railroad Super. Ct. 88 ; Lake Superior Iron Co. v. company is liable to an employee injured Erickson, 39 Mich. 492; Devany v. Vulcan by the negligence of a superior fellow. Iron Works, 4 Mo. App. 236; Brabbets v. servant, whose directions he is bound to Chicago, &c. R. R. Co., 38 Wis. 289; Louis. obey. Cowles v. Richmond, &c. R.R. Co., ville, &c. R. R. Co. v. Blair, 1 Tenn. Ch. 84 N. C. 309. This is undoubtedly too 351; Lalor v. Chicago, &c. R. R. Co., 52 Ill. broad a statement of the rule. 401 ; Speed v. Atlantic, &c. R. R. Co., 71 There has also been a limitation to the Mo. 303 ; Brothers v. Carter, 52 Mo. 373 ; rule established, that, if the two servants Meara v. Holbrook, 20 Ohio St. 137. are employed in totally distinct depart.

While, however, this general tendency ments of the employment, they are not has been acknowledged in most of the fellow-servants in such a sense as to excul. United States, the various decisions of the pate the master (Ryan v. Chicago, &c. R. R. courts in which they have either stated Co., 60 ml. 171); e. g. those who supply the principles by which such cases of "sub- machinery are not fellow-servants with stituted master" should be regulated, or those who use it (Ford v. Fitchburg R. R. have decided in particular instances wheth. Co., 110 Mass. 240; Flike v. Boston, &c. er a particular servant occupies such a R.R.Co., 53 N. Y. 549 ; Vautrain v. St. relation to his master and to the other Louis, &c. Ry. Co., 8 Mo. App. 538). But servants as to constitute him, with regard the decisions are very conflicting, and the w them, the representative of the master, best ones seem to limit the cases where a in such a way as to render the master liability is imposed on the master so liable for the negligence of such servants, strictly as to render the distinction of not if another servant is injured by it, show much value. Thus it has been held that the greatest variance, and make it impos. a laborer and engineman engaged together sible in every case to say what the law of in the depot grounds (Chicago, &c.R.R. that case will be except by comparing the Co. v. Murphy, 53 Ill. 336), were fellow, various decisions of the State in which that servants. So of a milesman and general particular case arises. To follow out the traffic manager (Carney v. Belfast, &c. Ry. decisions on these points with such mi. Co., Ir. Law T. 217 (1875)); and a work. nuteness would evidently be foreign to the man in the colliery and the manager (Har. plan of a work like this treatise on Evi- rell v. Landen Steel Co., 31 L. T. N. 8. dence. The general principle, so far as it 433) are. So are a road-master and a has taken any distinct form, has been de. laborer employed by him to work in repairing the road (Lawler c. Androscoggin McEnery, 91 Pa. St. 185). The burden R. R. Co., 62 Me. 463); or a road-master of proving lack of ordinary care is on the and an engineer or a fireman (Walker v. plaintiff, as in all cases where negligence Boston, & R. R. ('0., 128 Mass. 8); and a is the gist of the action. Kranz v. White, telegraph operator at a railroad station and sup. ; Porter v. Hannibal, &c. R.R. Co., an engineer (Dava v. New York, &c. R. R. sup. ; De Graff v. New York Central, &c. Co., 23 Hun (N. Y.), 473) ; so a switch. R.R.Co., 76 N. Y. 125; Crandall v. Mcman and the engineer of a switch-engine Ilrath, 24 Minn. 127 ; Nolan v. Schickle, (Chicago, &. R. R. Co. v. Henry, 7 n. 3 Mo. App. 300. The master is also bound App. 322). Cf. Albro v. Agawam Canal Co., to notify the servant of any special danger 6 Cush. 75; Brown v. Maxwell, 6 Hill,

592; known to him, and not open to the obserCoon v. Syracuse, &c. R. R. Co., 6 Barb. vation of the servant as well. Smith v. 231; Ryan v. Cumberland,&c. R. R. Co., 23 Oxford Iron Co., 42 N. J. L. 467 ; Dow. Pa. St. 389 ; Hutchinson v. York, &c. Ry. ling v. Allen, 6 Mo. App. 195 ; Baxter Co.,5 W. H. & G. 343; Wigmore v. Jay, ld. v. Roberts, 44 Cal. 187 ; Perry v. Marsh, 354 ; Seymour v. Maddox, 16 Ad. & El. 25 Ala. 659; Williams v. Clough, 3 H. & N. S. 326. And some cases go so far as N. 258 ; Murphy v. Phillips' Ex., 24 to hold that all who serve the same master, W. R. 647. work under the same control, derive au- But the servant cannot recover damages thority and compensation from the same of his master for injuries resulting from source, and are engaged in the same gen. the risks attendant upon the employment, eral business, though it may be in different if he knows of their existence. Deforest grades and departments of it, are fellow- v. Jewett, 23 Hun (N. Y.), 490; Cowles v. servants, each taking the risk of the other's Richmond, &c. Ry. Co., 84 N. C. 309 : negligence. Wonder v. B. & Oh. R. R. Chicago, &c. R.R. Co. v. Abend, 7 Ill. App. Co., 32 Md. 411; Hard v. Vt. &c. R. R., 130; Sowden v. Idabo Quartz Mining Co., 32 Vt. 473.

55 Cal. 443 ; Kelley v. Silver Spring Another attempt (less legitimate than Bleaching Co., 12 R. I. 112 ; Holmes v. the two former ones) has been made to Clark, 7 H. & N. 937 ; ('oonibs v. N. B. avoid the hardships of this rule, by submit- Cordage Co., 102 Mass. 572 ; Hayden v. ting the question of whether the servants are Smithville Manuf. Co., 29 Conn. 548; Rose in a common employment to the jury. Hass v. B. & A. R. R. Co., 58 N. Y. 217. But v. Philadelphia S. S. Co., 88 Pa. Št. 269; if the servant notifies the master of a proHolton v. Daly, 4 Ill. App. 25; Devine v. bable danger against which the master in Tarrytown, &c. Gaslight Co., 22 Hun good faith ought to provide, but neglects (N. Y.), 26.

so to do, and the servant, by request conOn some points, however, the liability tinuing his services as before, is injured, of the master for negligence, even towards he may recover. Hough v. Texas, &c.R.R. his servant, is unquestioned; for instance, Co., 100 U. S. 213 : Conroy v. Vulcan that the master must provide suitable ser- Iron Works, 6 Mo. App. 102 ; Patterson vants, machinery, and materials, is uni. v. Pitts. & Conn. R. R. Co., 76 Pa. St. versally conceded. McMahon v. Henning, 1 389. See also, upon the general question McCrary C. C. 516 ; Painton v. Northern of the liability of the master to his servant, Cent. R. R. Co., 83 N.Y. 7; Kain v. Smith, a valuable paper prepared by Judge Cooley, 80 N. Y. 458 ; Holden v. Fitchburg R. R. with his usual accuracy and fulness, which Co., 129 Mass. 268 ; Stetler v. Chicago, &c. contains this summary : “Perhaps this R. R. Co., 49 Wis. 609; Fuller v. Jewett, whole subject may he summed up in a 80 N. Y. 46; Brann v. Chicago, &c. R. R. single sentence as follows: The rule that Co., 53 Iowa, 595; Ford v. Fitchburg R. R. the master is responsible to persons who Co., 110 Mass. 241; Albro v. Agawam Canal are injured by the negligence of those in Co., 6 Cush. 75. (It has been held that his service is subject to this general exthis does not include supplying the rooms ception, that he is not responsible to one in mills and large buildings with fire- person in his employ for an injury occaescapes. Keith v. Granite Mills, 126 Mass. sioned by the negligence of another in the 90: Jones v. Same, 126 Mass. 84); though same service, unless generally or in respect it is held that reasonable diligence in selec. of the particular duty there resting upon tion is all that is required (Little Rock, the negligent employee, the latter so far &c. R. R. Co. v. Duffey, 35 Ark. 602; Chi- occupied the position of his principal as cago, &c. R. R. Co. v. Mahoney, 4 Ill. App. to render the principal chargeable for his 262; Cowles v. Richmond, &c. R. R. Co., 84 negligence, as for a personal fault." SouthN. C. 309 ; Kranz v. White, 8 Ill. App. ern Law Review, vol. ii. N. s. No. 1, April, 583. Cf. Porter v. Hannibal, &c. R. R. Co., 1876. 71 Mo. 66 ; Mansfield Coal & Coke Co. v.

COVENANT.1

§ 233. No general issue. In this action, by the common law, there is no general issue or plea, which amounts to a general traverse of the whole declaration, and of course obliges the plaintiff to prove the whole;? but the evidence is strictly confined to the particular issue raised by a special plea, such as non est factum, which will be treated under the head of Deed; and Duress, Infancy, Release, &c., which will be considered under those titles. The liability of an heir, on the covenant of his ancestor, will be treated under the head of Heir.

§ 234. Non est factum. If the deed is not put in issue by the plea of non est factum, the defendant, by the rules of the common law, is understood to admit 80 much of the deed as is spread upon the record. If the plaintiff would avail himself of any other part of the deed, he must prove the instrument, by the attesting witnesses, or by secondary evidence in the usual way.3

$ 235. Conditions precedent. If the plaintiff's right of action depends on the performance of a condition precedent, which is put in issue, he must prove a performance according to the terms of the covenant. It will not suffice, in an action on a specialty, to show that other terms have been substituted by parol, although the substituted agreement has been fully performed. Thus, where the plaintiff sued in covenant for the agreed price for building two houses, which he bound himself to finish by a certain day, and averred performance in the terms of the covenant, proof of a parol enlargement of the time, and of performance accordingly, was held inadmissible.5

i For a full and an elaborate discussion of the doctrine of Covenants for Title, the student is referred to the recent work of Mr. Rawle, on that subject.

2 1 Chitty on Pl. 428. In some of the United States, under statutes for the abolishment of special pleading, the plea of non est factum has been adopted in practice, as being in effect a general traverse of the declaration. Granger v. Granger, 6 Ohio, 41; Provost v. Calder, 2 Wend. 517.

8 Williams v. Sills, 2 Campb. 519 ; ante, vol. i. $8 569-582.

4 1 Chitty on Pl. 280 ; 3 T. R. 592. But if the original agreement was not under seal, evidence of a parol enlargement of the time, with performance accordingly, is admissible. Ante, vol. i. $ 304.

6 Littler v. Holland, 3 T. R. 590. And see Maryon v. Carter, 4 C. & P. 295 ; Paradine v. Jane, Aleyn, 26 ; Campbell v. Jones, 6 T. Ř. 571.

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§ 236. Breach of covenant. The breach, also, must be proved as laid in the declaration. And here it is a general principle, that where the party destroys that which was a subject of his agreement, or voluntarily puts it out of his power to perform that which he engaged to perform, it is a breach of his covenant.' (a) Thus, if he covenant to deliver the grains, made in his brewery, and before delivery he renders them unfit for use by mixing hops with them ;2 or, to deliver up a certain obligation of the covenantee, and before delivery he recovers judgment upon it;3 or, to permit the covenantee to sue in his name, agreeing to assign to him the judgment when recovered, and before assignment he releases the judgment debtor;4 or, that certain goods of a debtor shall be forthcoming to the officer, and in the mean time he causes them to be seized on process in his own favor,5 (6) — the covenant is broken. And in regard to covenants of indemnity, this distinction has been taken, - that where the covenant is to indemnify against a liability already incurred, it is not broken till the covenantee is sued upon that liability ; but where the debt or

1 Hopkins v. Young, 11 Mass. 302. But if the covenantor involuntarily becomes unable to perform, but the disability is removed before the day of performance arrives, it is no breach. Heard v. Bowers, 23 Pick. 455. Where the performance of a duty is rendered impossible, by the act of God, if the duty was created by the law alone, he is . excused ; but if the duty was created by his own contract, he is still answerable for the non-performance. See Platt on Covenants, p. 582, and cases there cited. Regina v. Justices of Leicestershire, 15 Ad. & El. N. s. 88. A covenant to keep in repair is broken if the lessee pull down the buildings ; but a covenant to leave the premises in repair is not, provided he rebuilds them within the term. Shep. Touchst. p. 173.

2 Griffith v. Goodhand, T. Raym. 464. And see Mayne's Case, 5 Co. 21. 3 Teat's Case, Cro. El. 7.

4 Hopkins v. Young, 11 Mass. 302. 5 Whitman v. Slack, 1 Harringt. 144. The neglect of an officer to return an execution, under which he has sold an equity of redemption, has been held a breach of the covenant in his deed of sale, that he had obeyed all the requisitions of law in the proceeding. Wade v. Merwin, 11 Pick. 280.

(a) Greenwood v. Wilton Railw., 23 Rogers v. Danforth, 1 Stockt. (N. J.) 289. N. H. 261.

A covenanted to convey to B certain land, (6) When the covenant is in the al. “ being the same land which was purternative, the covenantor has an election chased from government by C & D, and which to perform, and if he vloes either, by said C & D sold to A.” It was held there is no breach. Stewart v. Bedell, 79 that parol evidence was inadmissible to Pa. St. 336. It is sufficient proof of the show that the land intended to be embreach of a covenant against incumbrances braced in the covenant was land conveyed if it is proved that there was an existing to A by C alone, or D alone, for the coveincumbrance at the time the covenant was nant was not silent or ambiguous on that made. Chapman v. Kimball, 7 Neb. 399. subject. Marshall v. Haney, 4 Md. 498. Where there was a covenant prohibiting A covenant for payment of a sum certain, the erection of a forge or furnace for the although the duty does not accrue until manufacturing of iron, proof of the erection after notice given, cannot be discharged of buildings in wbich were forges for heat- by parol before breach. Spence v. Healey, ing, moulding, and working iron was held 20 Eng. L. & Eq. 337. not to amount to proof of a breach thereof.

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