might be called upon to do it, though in fact no such demand is made upon him by one authorized to make it.48

Again, even granting the existence of an emergency, it may be a grave question as to whether the servant's act was necessary. In the early cases of Low v. Pearson 49 and Losh v. Evans 50 it would appear that the act of the unskilled servant in meddling with the machinery was wholly officious. There was no necessity for the claimant in Low v. Pearson, a boy employed to make balls of clay, to clean the machine. While he probably intended to be helpful, his aid was not required. In Losh v. Evans the girl who tried to start the machinery was taking a risk entirely out of proportion to the time which she would, if successful, have saved. Nor in either case was the act done in response to a request for help from those who were doing the work as part of their regular duties, as in Menzies v. McQuibban and Goslan v. Gillies, which may well be an important factor.

Another important question is how far a servant is entitled to go outside his appointed sphere in obedience to the orders of a superior. Of course, if such superior has the power to fix the spheres of labor for the workman, a workman, by obeying them, merely passes into a new "course of employment"; but even if he has not, it seems that the servant is justified if he honestly believe that such superior is authorized to employ him.51 Honesty of the claimant's belief is, as in Harrison v. Whittaker Bros.,52 the test of his right to compensation, and the same uncertainty, the same incentive to fraudulent claims and defenses designed to tire out the claimant is created. Yet if, as seems to be the case, the question of the servant's right to do work different from that which he is employed to do depends upon whether it is to the master's interest that he should do so, it

48 As in Menzies v. McQuibban, 2 Fraser 732 (Scot. Ct. Sess., 1910). This in addition tends to show that, while the workman was not strictly within the line of his duty on this particular occasion, it was not outside the class of work for which the master believed him fitted, and therefore was willing to assume the risk of compensating him if injured while doing it.

49 [1899] 1 Q. B. 261, 1 W. C. C. 5.

50 19 T. L. R. 142, 5 W. C. C. 17 (C. A., 1903).

51 Brown v. Scott, The Times, June 12, 1899, 1 W. C. C. 11 (C. A.), where, however, the injured boy was a general helper, "a jack-of-all-trades." See also Menzies v. McQuibban, supra. But see Edwards v. International Coal Co., The Times, Nov. 13, 1899, 5 W. C. C. 21 (C. A.).

52 16 T. L. R. 108, 2 W. C. C. 12 (C. A., 1900), ante, n. 46.

would appear that on the whole it is better to risk an occasional additional liability rather than that all discipline should be destroyed by requiring the servant to demand proof of his superior's right to give an order before obeying it, and there is much to be said in favor of the view expressed in Statham v. Galloway 53 that discipline requires a servant to obey orders of a superior though he knows they are unauthorized; indeed the workman has usually no actual choice, save that between obedience and immediate or future dismissal.

Two conceptions dominate the decisions. One is that it is the master's right to manage the business as he pleases, and not to be subject to any risk of liability other than that incident to his business as he has divided it. The other is that the strict requirements are relaxed when it is to the master's interest that they be relaxed. Compensation is for good servants who remain where they are put, or who only stray therefrom when they can more effectively serve their master by so doing. They may not add new risks not capable of being foreseen by their master when he engages them and designates their field of labor, unless by so doing they will probably save him from enough harm to compensate him for the added risks. The servant must serve in the master's way, as he is directed, or, emergencies, as he has reason to believe the master would approve were he present, or as he, as a faithful servant owing to his master fealty and aid in time of peril, ought. There is no compensation for the servant "who can behave but won't," or who sets up his own will against his master's as to how the business can best be served.

in

The same general principles seem to apply where the workman has gone into "a territory with which he has nothing to do," and does his appointed work at some other place than that designated by the master or which is expressly prohibited by him. The one place may be so far distant, so entirely distinct from the other, that work, done at the one place, though otherwise of the same general nature as that done at the other, may well be regarded as a substantially different kind of employment, so that the choice of the place not designated may of itself put the servant outside the

53 109 L. T. J. 133, 2 W. C. C. 149 (Manchester Co. Ct., 1900). The whole opinion of Judge Parry is very interesting and suggestive. Compare with it McNicholas v. Dawson, 15 T. L. R. 242, 1 W. C. C. 80 (C. A., 1899).

course of his employment. As the master is answerable for injuries due to the nature and condition of the place of work, it is evident that an unauthorized change in the locus of the work does materially alter, without the master's consent, the risk of injury to the workman and so, if compensation were allowed, the risk of liability to the master.54

A servant also places himself outside of his employment if during his working hours and while upon his master's premises, and at the very scene of his appointed labors, he devote a part of that time, whether that during which he should be actually engaged upon his master's work or that during which he is left at leisure, to acts the sole object of which is to further some purely private object of his own, and which are neither appropriate nor intended to further his master's business, nor, like eating or resting, necessarily incident to any long-continued employment. Such acts have no relation to his employment save that they are done during his working hours or upon his employer's premises, or with his employer's tools or appliances. He ceases to serve his master, and becomes as it were his own servant, and is regarded as having completely quitted his employment for the time being as though he left his master's premises upon a private errand of his own.55 And it seems to be

54 See the instance given by Buckley, L. J., in Harding v. Brynddu Colliery Co., [1911] 2 K. B. 747, 751, 4 B. W. C. C. 269, of a quarryman employed to quarry stone in quarry A., who goes to another quarry owned by his employer and is injured while working there. No actual case of this sort has been decided. On principle it would seem that if the second quarry was no more dangerous than the other and the workman's services were actually of use to the employer there, the servant should recover, especially if he had honestly misunderstood the directions of his master.

55 Smith v. Lancashire & Yorkshire Ry., [1899] 1 Q. B. 141, 1 W. C. C. 1 (in which a railway porter got on the footboard of a moving train to speak to a friend and was there injured); Reed v. Great Western Ry., [1909] A. C. 31, 2 B. W. C. C. 109 (engine driver crossing tracks on his return from visit to another driver to whom he had returned a book); Williams v. Wigan Coal and Iron Co., 3 B. W. C. C. 65 (C. A., 1909) (engine driver boarding slowly moving engine to give another driver wages paid by mistake to the claimant); Hendry v. Caledonian R. Co., [1907] Scot. Sess. Cas. 732, 44 Scot. L. Rep. 584 (fish porter going over railroad tracks to inquire how many fish trucks were expected); Callaghan v. Maxwell, 2 Fraser 420 (Scot. Ct. Sess., 1900) (girl leaving her place to speak to a fellow workgirl. She had been forbidden to leave and the danger of so doing had been pointed out to her); and see the recent case of Curtis v. Talbot (C. A., Oct., 1911), briefly reported, in 131 L. T. J. 552 (surgeon volunteering as subject of scientific experiment). In the Hendry case an effort is made to distinguish Goodlet v. Caledonian R. Co., 4 Fraser 986 (Scot. Ct. Sess., 1902), where an engineer, who, having occasion to cross certain tracks to perform one of his duties, went further and crossed other tracks to speak to a fellow workman, and was struck by a train while

immaterial whether he is by so doing wrongfully converting his master's time to his own use, as where his work demands all of his time, or whether the master expressly permits or tacitly tolerates his servant devoting part of his working hours to his own purposes.

In the early cases the courts regard the "course of employment" as the important factor. In the later cases, on the contrary, the principal inquiry is whether the injury arose "out of" the employment. The same circumstances which in the early cases are held to take an injury out of the course of employment, the later cases regard as showing that it did not arise thereout.56 A workman by officiously doing work or choosing a working place generically different from that assigned him by his master, or who has devoted part of his working time to his personal interests, is held in the later cases not to have put himself outside "the course of his employment," but to have created new risks not incidental to his employment nor within the contract of employment made with the master, so that his injury does not arise "out of" his employment.

Though the work officiously undertaken is not so generically different from, or the place selected so foreign to, that designated by the master that the servant is ipso facto put outside the course of his employment, and though the workman's object is not so personal that in pursuing it he temporarily quits his employment, yet the combination of these two elements, deviation and selfinterest, neither by itself sufficient to take the injury out of the returning and before he got back to the tracks where his duties lay, was held entitled to compensation, on the ground that the fish porter's work did not require him, like that of an engine driver, to cross tracks nor subject him to the risk of being run down by trains. In view of the decision in the House of Lords in Reed v. Great Western Ry., supra, where the plaintiff, an engine driver, was run down under very similar circumstances, this distinction seems unsound. It seems to be immaterial that the sufferer was normally subjected to similar risks in the course of doing his appointed work, if in fact the particular risk which injures him was one to which his regular labor would not on the particular occasion have subjected him.

56 Even in the earlier cases there are distinct intimations that the liability imposed upon the master by the act is to be confined to those risks which at the time he employs the workman he could contemplate such workman would run. And, at least since the case of Challis v. London & South Western Ry., [1905] 2 K. B. 154, 7 W. C. C. 23, it has been consistently held that only those injuries arise out of the employment which result from risks commonly incidental thereto, that is, risks to which the employer when he engaged the workman and assigned him his duties does or ought to contemplate that the workman will be exposed in consequence of his employment upon the particular work assigned to him.

course of employment or prevent it from arising thereout, is held in the earlier cases to do the first and in the later cases the last. If the servant is injured in doing work other than that specifically assigned to him, though not generically different therefrom, his object in doing it is decisive of his right to compensation.57 And, as has been seen, he may in cases of emergency do things utterly different in kind from those he is employed to do and which are normally forbidden. And where the workman is working at some unpermitted or prohibited place on the premises where his work ought to be done, though there is no such complete departure from the designated place of work as ipso facto to place him outside his employment, the test applied to determine the right to compensation is whether the servant has gone to the unpermitted premises for his own purposes or for the purpose of accomplishing the work entrusted to him, and whether he has thereby substantially increased the risks incident to his employment.58 This is well

66

57 In Whitehead v. Reader, [1901] 2 K. B. 48, 3 W. C. C. 40, ante, n. 38, great stress is laid on the fact that the claimant, an operative, injured while adjusting the belt of his machine, was "not officiously or for his own purposes meddling with that machinery." So in Goslan v. Gillies and Menzies v. McQuibban, supra, when the servant was allowed compensation, his sole object was to further his master's interests. Compare Tobin v. Hearn, [1910] 2 I. R. 639, ante, n. 39, with Cronin v. Silver, 4 B. W. C. C. 221 (C. A., 1911). In each case the claimant was injured by a machine other than that he or she was employed to operate. In the first case compensation was awarded since the claimant was "not actuated by mischief or meddlesome curiosity," in which case he could clearly not have recovered, Furniss v. Gartside, 4 B. W. C. C. 411 (C. A., 1911), but was acting under the mistaken idea that he was furthering his master's interests." In the second case compensation was denied because her injury "was proved to have been occasioned by her either working or meddling with a machine with which she had no business to meddle and as to which it was a mere guess that it could be in any way connected with her employment." See also Whelan v. Moore, 43 Ir. L. T. 205, 2 B. W. C. C. 114 (C. A., Ir., 1909), where, against the express orders of their employer, the crew of a canal changed places by an arrangement among themselves and the driver in steering the boat fell into the canal and was drowned. See, however, Cambrook v. George, 114 L. T. J. 550, 5 W. C. C. 26 (Bridgend Co. Ct., 1903), in which case, however, it appeared that it was customary to change places and that the master's representative had been present while the servants were so working and had made no objection. So, while he testified he knew nothing of the change and would not have permitted it if he had known, the servants had reason honestly to believe that the change was at least tolerated.

58 In Harding v. Brynddu Colliery Co., [1911] 2 K. B. 747, 4 B. W. C. C. 269, ante, n. 54, Buckley, L. J., expresses the opinion that the workman's object in going to a prohibited place of work was immaterial. The master's prohibition so "fenced off" such place from "the area in which the employment was to take place" that it was "altogether outside the area of his employment." While regarding the servant's