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.1 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.2 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. 3 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 v. 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 v. 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, ld. 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 1 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. (b) (a) The case of Bush v. Steinman was examined at considerable length by Thomas, J., in Hilliard v. Richardson, 3 Gray (Mass.), 349, and its authority was denied. That case decides that the owner of land who employs a carpenter, for a specific price, to alter and repair a building thereon, and to furnish all materials for this purpose, is not liable for damages resulting to a third person from boards deposited in the highway in front of the land by a teamster in the employ of the carpenter, and intended to be used in such alteration and repair, and in accord with this decision is McCarthy v. Portland Second Parish, 71 Me. 318. Cf. Killea v. Faxon, 125 Mass. 485. (b) The general rule is, that the master is not liable to a servant for injuries caused by the negligence of a fellow-servant. This negligence is one of the risks which the servant takes into account in entering the employment. Kelley v. Boston Lead Co., 128 Mass. 456; Quincy Mining Co. v. Kitts, 42 Mich. 34; Gormley v. Öhio, &c. R.R.Co., 72 Ind. 31, et cases passim; Summerhays v. Kansas, &c. RR Co., 2 Col. T. 484; Mullan v. Philadelphia S. S. Co., 78 Pa. St. 25; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. St. 185. The hardships which this rule has brought about in cases where a large number of persons are employed in dangerous occupations, as railroad and other corporation employees, have caused very general dissatisfaction, and in many States the rule is entirely abrogated, either by the decisions of the court or by express statute. There is a general tendency in the American decisions to hold that one to whom the master entrusts the whole supervision of the employment, or possibly any separate department of the employment, is not a fellow-servant with other servants of the same master, but is a substituted master, and so renders the master liable. Crispin v. Babbitt, 81 N. Y. 516; Lake Shore, &c. R. R. Co. v. Lavelley, 36 Ohio St. 221; Heiner v. Heuvelman, 45 N. Y. Super. Ct. 88; Lake Superior Iron Co. v. Erickson, 39 Mich. 492; Devany v. Vulcan Iron Works, 4 Mo. App. 236; Brabbets v. Chicago, &c. R. R. Co., 38 Wis. 289; Louisville, &c. R. R. Co. v. Blair, 1 Tenn. Ch. 351; Lalor v. Chicago, &c. R. R. Co., 52 Ill. 401; Speed v. Atlantic, &c. R. R. Co., 71 Mo. 303; Brothers v. Carter, 52 Mo. 373; Meara v. Holbrook, 20 Ohio St. 137. While, however, this general tendency has been acknowledged in most of the United States, the various decisions of the courts in which they have either stated the principles by which such cases of “substituted master" should be regulated, or have decided in particular instances whether a particular servant occupies such a relation to his master and to the other servants as to constitute him, with regard to them, the representative of the master, in such a way as to render the master liable for the negligence of such servants, if another servant is injured by it, show the greatest variance, and make it impossible in every case to say what the law of that case will be except by comparing the various decisions of the State in which that particular case arises. To follow out the decisions on these points with such minuteness would evidently be foreign to the plan of a work like this treatise on Evidence. The general principle, so far as it has taken any distinct form, has been de scribed above. To illustrate this principle, the following cases may be of use, and especially if they are compared with the cases cited under the next exception to the general rule, which is closely connected with this exception, by which servants who are employed in distinct departments of the same employment are allowed to sue the master for the negligence of each other. The captain of a ship is not a fellowservant of the sailors, but is the agent of the owners of the vessel; and the owners are responsible for injuries resulting to a sailor through the negligence of the captain. Ramsay v. Quinn, 8 Irish Rep. (C. L.) 322, declining to follow Wilson v. Merry, 1 L. R. (1 Sc. App.) 326, which did not recognize any grade of service. A common laborer and a section "boss" on a railroad are not fellow-servants (Lou. & Nash. R. R. v. Blair, 1 Tenn. Ch. 351); nor such a laborer and a depot superintendent (Lalor v. Ch., B., & Q. R. R., 52 Ill. 401. Cf. Speed v. Atlantic, &c. R. R. Co., 71 Mo. 303); nor the receiver of a railroad and an employee of the road (Meara Adm. v. Holbrook, 20 Ohio St. 137). This distinction has been denied in Massachusetts. Albro v. Agawam Canal Co., 6 Cush. 75; Zeigler v. Day, 123 Mass. 152. In a North Carolina case, it was held that a railroad company is liable to an employee injured by the negligence of a superior fellowservant, whose directions he is bound to obey. Cowles v. Richmond, &c. R.R. Co., 84 N. C. 309. This is undoubtedly too broad a statement of the rule. There has also been a limitation to the rule established, that, if the two servants are employed in totally distinct departments of the employment, they are not fellow-servants in such a sense as to exculpate the master (Ryan v. Chicago, &c.R.R. Co., 60 Ill. 171); e. g. those who supply machinery are not fellow-servants with those who use it (Ford v. Fitchburg R. R. Co., 110 Mass. 240; Flike v. Boston, &c. R.R.Co., 53 N. Y. 549; Vautrain v. St. Louis, &c. Ry. Co., 8 Mo. App. 538). But the decisions are very conflicting, and the best ones seem to limit the cases where a liability is imposed on the master so strictly as to render the distinction of not much value. Thus it has been held that a laborer and engineman engaged together in the depot grounds (Chicago, &c. R. R. Co. v. Murphy, 53 Ill. 336), were fellowservants. So of a milesman and general traffic manager (Carney v. Belfast, &c. Ry. Co., Ir. Law T. 217 (1875)); and a workman in the colliery and the manager (Harrell v. Landen Steel Co., 31 L. T. N. S. 433) are. So are a road-master and a laborer employed by him to work in re pairing the road (Lawler v. Androscoggin R. R. Co., 62 Me. 463); or a road-master and an engineer or a fireman (Walker v. Boston, &. R. R. Co., 128 Mass. 8); and a telegraph operator at a railroad station and an engineer (Dana v. New York, &c. R. R. Co., 23 Hun (N. Y.), 473); so a switchman and the engineer of a switch-engine (Chicago, &, R. R. Co. v. Henry, 7 Ill. App. 322). Cf. Albro v. Agawam Canal Co., 6 Cush. 75; Brown v. Maxwell, 6 Hill, 592; Coon v. Syracuse, &c. R. R. Co., Barb. 231; Ryan v. Cumberland, &c. R. R. Co., 23 Pa. St. 389; Hutchinson v. York, &c. Ry. Co., 5 W. H. & G. 343; Wigmore v. Jay, Id. 354; Seymour v. Maddox, 16 Ad. & El. N. s. 326. And some cases go so far as to hold that all who serve the same master, work under the same control, derive authority and compensation from the same source, and are engaged in the same general business, though it may be in different grades and departments of it, are fellowservants, each taking the risk of the other's negligence. Wonder v. B. & Oh. R. R. Co., 32 Md. 411; Hard v. Vt. &c. R. R., 32 Vt. 473. Another attempt (less legitimate than the two former ones) has been made to avoid the hardships of this rule, by submitting the question of whether the servants are in a common employment to the jury. Hass v. Philadelphia S. S. Co., 88 Pa. St. 269; Holton v. Daly, 4 Ill. App. 25; Devine v. Tarrytown, &c. Gaslight Co., 22 Hun (N. Y.), 26. On some points, however, the liability of the master for negligence, even towards his servant, is unquestioned; for instance, that the master must provide suitable servants, machinery, and materials, is universally conceded. McMahon v. Henning, 1 McCrary C. C. 516; Painton v. Northern Cent. R. R. Co., 83 N. Y. 7; Kain v. Smith, 80 N. Y. 458; Holden v. Fitchburg R. R. Co., 129 Mass. 268; Stetler v. Chicago, &c. R. R. Co., 49 Wis. 609; Fuller v. Jewett, 80 N. Y. 46; Brann v. Chicago, &c. R. R. Co., 53 Iowa, 595; Ford v. Fitchburg R. R. Co.,110 Mass. 241; Albro v. Agawam Canal Co., 6 Cush. 75. (It has been held that this does not include supplying the rooms in mills and large buildings with fireescapes. Keith v. Granite Mills, 126 Mass. 90; Jones v. Same, 126 Mass. 84); though it is held that reasonable diligence in selection is all that is required (Little Rock, &c. R. R. Co. v. Duffey, 35 Ark. 602; Chicago, &c. R. R. Co. v. Mahoney, 4 Ill. App. 262; Cowles v. Richmond, &c. R. R. Co., 84 N. C. 309; Kranz v. White, 8 Ill. App. 583. Cf. Porter v. Hannibal, &c. R. R. Co., 71 Mo. 66; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. St. 185). The burden of proving lack of ordinary care is on the plaintiff, as in all cases where negligence is the gist of the action. Kranz v. White, sup.; Porter v. Hannibal, &c. R.R. Co., sup. De Graff v. New York Central, &c. R.R.Co., 76 N. Y. 125; Crandall v. McIlrath, 24 Minn. 127; Nolan v. Schickle, 3 Mo. App. 300. The master is also bound to notify the servant of any special danger known to him, and not open to the observation of the servant as well. Smith v. Oxford Iron Co., 42 N. J. L. 467; Dowling v. Allen, 6 Mo. App. 195; Baxter v. Roberts, 44 Cal. 187; Perry v. Marsh, 25 Ala. 659; Williams v. Clough, 3 H. & N. 258; Murphy v. Phillips' Ex., 24 W. R. 647. But the servant cannot recover damages of his master for injuries resulting from the risks attendant upon the employment, if he knows of their existence. Deforest v. Jewett, 23 Hun (N. Y.), 490; Cowles v. Richmond, &c. Ry. Co., 84 N. C. 309: Chicago, &c. R. R. Co. v. Abend, 7 Ill. App. 130; Sowden v. Idaho Quartz Mining Co., 55 Cal. 443; Kelley v. Silver Spring Bleaching Co., 12 R. I. 112; Holmes v. Clark, 7 H. & N. 937; Coombs v. N. B. Cordage Co., 102 Mass. 572; Hayden v. Smithville Manuf. Co., 29 Conn. 548; Rose v. B. & A. R. R. Co., 58 N. Y. 217. But if the servant notifies the master of a probable danger against which the master in good faith ought to provide, but neglects so to do, and the servant, by request continuing his services as before, is injured, he may recover. Hough v. Texas, &c.R.R. Co., 100 U. S. 213: Conroy v. Vulcan Iron Works, 6 Mo. App. 102; Patterson v. Pitts. & Conn. R. R. Co., 76 Pa. St. 389. See also, upon the general question of the liability of the master to his servant, a valuable paper prepared by Judge Cooley, with his usual accuracy and fulness, which contains this summary: "Perhaps this whole subject may be summed up in a single sentence as follows: The rule that the master is responsible to persons who are injured by the negligence of those in his service is subject to this general exception, that he is not responsible to one person in his employ for an injury occasioned by the negligence of another in the same service, unless generally or in respect of the particular duty there resting upon the negligent employee, the latter so far occupied the position of his principal as to render the principal chargeable for his negligence, as for a personal fault." Southern Law Review, vol. ii. N. s. No. 1, April, 1876. 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; 2 but the evidence is strictly confined to the particular issue raised by a special plea, such as non est fac tum, 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 so 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 1 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. 3 Williams v. Sills, 2 Campb. 519; ante, vol. i. §§ 569-582. 41 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. 5 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. R. 571. 3 § 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.1 (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; or, to deliver up a certain obligation of the covenantee, and before delivery he recovers judgment upon it; 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; 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 (b) — 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. 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. 46 (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, being the same land which was purchased from government by C & D, and by said C & D sold to A.' It was held that parol evidence was inadmissible to show that the land intended to be embraced in the covenant was land conveyed to A by C alone, or D alone, for the covenant was not silent or ambiguous on that subject. Marshall v. Haney, 4 Md. 498. A covenant for payment of a sum certain, although the duty does not accrue until after notice given, cannot be discharged by parol before breach. Spence v. Healey, 20 Eng. L. & Eq. 337. (b) When the covenant is in the alternative, the covenantor has an election which to perform, and if he does either, there is no breach. Stewart v. Bedell, 79 Pa. St. 336. It is sufficient proof of the breach of a covenant against incumbrances if it is proved that there was an existing incumbrance at the time the covenant was made. Chapman v. Kimball, 7 Neb. 399. Where there was a covenant prohibiting the erection of a forge or furnace for the manufacturing of iron, proof of the erection of buildings in which were forges for heating, moulding, and working iron was held not to amount to proof of a breach thereof. |