for an action. There was no personal negligence of the master to be considered in the cases presented, and, obviously, there could be no liability upon him unless this familiar vicarious liability for injury to a stranger could be held to extend to injuries to his own servants, or unless some other consid erations of policy arising from the relations and affairs of master and servant demanded that for injury to a servant there be an arbitrary liability similar to that for injury to a stranger.

The courts, each in turn, found that the liability to which a master had theretofore been held for injury to a stranger did not by its origin and nature apply to cases of injured servants. Two of the cases, Priestley v. Fowler, and Murray v. Railroad Co., were decided as cases of first instance, the South Carolina court having apparently no knowledge of the earlier English case. In the bitterness of the assault upon the rule it is often overlooked that it was not an arbitrary enactment of some misguided lawgiver, but the result of the efforts of several judges of respectable authority to determine upon justice in the case at hand. And it is still difficult, to say the least, to point out any lack of logic

in their conclusion.

It may be well to note again that this liability to strangers, which they were called upon to extend and apply to the cases of injured servants is, itself, not an inevitable deduction from any of our principles of justice. It has been a growth and inheritance rather than a deliberately adopted rule, and has been justified by succeeding ages upon reasons of policy and convenience. Its origin has been traced partly to the liability of the Roman paterfamilias for the acts of those within his power, and partly to that of innkeepers, mariners, and persons in a few other situations, under the Roman law, for injuries caused by their servants, imposed by reason of the excep

(4) Paley (Moral Philos. Bk. 3, C. 11), concluded that the rule stood rather upon the authority of the law than upon any principle of natural justice.

tional confidence necessarily reposed in men engaging in those occupations, or by reason of other peculiarities in their situations.5

6

It has not passed unchallenged, even in the United States. In Shea v. Reems, the court said: "We never apply this rule without a sense of its hardships on the master;" and Sharswood, J., in Hays v. Miller, said: "To visit a man with heavy damages for the negligence of a servant, when he is able to show that he exercised all possible care and precaution in the selection of him, is apt to strike the common mind as unjust." It is not to be gainsaid, however, that the generality of men, nowadays, accept it as a just rule that the master shall be answerable to strangers for injuries caused by a servant's negligence, quite irrespective of any negligence on the part of the master himself, in selecting his servants or otherwise. Assuming the servant to be without property and the right of action against him to be valueless, an assumption which has from early. ages had much to do with this rule, it is wise that the loss caused by his negligence should fall upon the master rather than upon the stranger who had no hand in putting the dangerous agency in motion, and who has ordinarily no means or opportunity of protecting himself." As was said by one. of the Roman jurists, Ulpian, it is politic that the master should have the selection of servants at his peril.10

But this rule of vicarious liability has always been distinctly a rule of justice to one in the position of stranger to the employment and to the master's affairs. From its original in the Roman law, if it had such, down to its present form, it has in

variably been deduced from considerations of justice to such a person.11 It is not correct to say, therefore, that this ancient rule would logically render a master liable for an injury to one in his employment or household. It has no relation to such a person. He cannot be regarded in the same way, as being outside the pale of the master's business, and, therefore, naturally without knowledge of it, and without means and opportunity of protecting himself from its dangers. He is a voluntary participant in the promotion of that business, and being such, is not in a position to insist upon an arbitrary liability in the master for injury which may be incidental to the promotion of it. He could not logically profit by the maxim which based a liability upon a theory that the master and all his agencies were one.12

A few years after this conclusion was announced, the courts, after some differences of opinion, did assert an arbitrary, vicarious liability in the master, for injury caused one servant by negligence of another, that is, in the rule holding a master liable for negligence of a servant in furnishing tools or fellow-workmen, or in providing a safe place to work. 13 This was arrived at by arguing in terms of the law of contracts, to which it was the fashion to refer all legal duties, and by considering the workman as occupying substantially the position of an invited visitor with respect to the provisions naturally made before the work begins. The result, a contractual guarantee against the negligence of a servant in the respects mentioned, is a departure from the law of liability for negligence, and is to be reconciled with the fellow servant rule only upon the more or less arbitrary distinction which the courts constructed. This latter rule,

(12) Alderson B., in Hutchinson v. Ry. Co., 5 Exch. 343; Ld. Cranworth in Bartonshill Coal Co. v. Reid, 3 Macq. 282.

(13) Wright v. N. Y. C. R. R., 25 N. Y. 562; Wilson v. Merry, L. R. 1 Sc. App. 326, (cf. Cribb v. Kynoch Ltd.. 2 K. B. [1907] 548, 557); Laning v. N. Y. C. R., 49 N. Y. 521; Walker v. Bolling. 22 Ala., 294.

upon analysis, seems a perfectly logical result of the considerations detailed above, and it hardly deserves the strictures upon it as lacking reason. Writers of acknowledged ability have found it not only reasonable but wise as a rule of policy.14

It has been remarked by Pollock,15 citing M. Sainctelette, of Brussels, and M. Sauzet, of Lyons, that the fellow servant rule has no existence on the continent of Europe and this statement has been used widely in the attack upon the rule. But, it seems, in point of fact, that prior to the adoption of the workmen's insurance schemes of the last few years, it was a subject of much learned debate whether the laws of France, alone, furnished an exception to the general rule on the continent that a master was not liable for the negligence of one servant injuring another, always assuming the master to have been free from personal fault. And the majority of decisions and opinions were against the arguments of M. Sainctelette and M. Sauzet, to which Pollock referred.16 France, with a sweeping provision (Sec. 1384, Code Civil), that a master should be responsible for injuries caused by his servants, was the only field for such a debate. In the German speaking countries, a rule similar to the English rule of liability to a stranger, irrespective of negligence in the choice of the negligent servant, was arrived at only in recent times by adoption of the special provisions of the Roman law. Before the adoption of the Code of 1896, in Germany, a master could, in general, be held responsible only upon proof of negligence in selecting servants. By that Code the rule was relaxed to the extent of placing upon the master, in suits by injured servants, the burden of proving the exercise of care on his own part. The rule of liability only for negligence in selection of servants obtained generally outside of France; and under such a law no such distinction as the fellow servant rule

cluded that the common law rules of a master's liability to his servants do not afford a fair adjustment of the burden of injuries caused by the master's work, and therefore urge a reconstruction of the law governing their relation. And the argument is not one that can be dismissed lightly. In the last fifty years, the number and complexity of dangers surrounding most manual occupations have been enormously increased, in many instances quite beyond the limit of the protection which a laborer's own prudence and care can afford him.

In the conditions now existing many employments do involve the happening of accidents independent of any fault on the part of men, workmen or masters; what the continental writers term "professional risk." There is a vast difference between work in a rolling mill to-day, and that of driving a meat van or other work in 1840. And there is some justice in the complaint that all the profit and advantage of the improvements which have brought this about have accrued to employers, and to the community as a whole, while all the great incidental burden of injuries has been left, with its increase from year to year, upon the workmen; and that to such extent the employers and the remainder of the community have unjustly profited at the expense of the latter. In reply, it may be said that wages of workmen have also increased greatly during the same period, that accident insurance is available to them at small cost, and that the equalization of the burden, if such is necessary, is to be attained by keeping wages to a height which will enable workmen to purchase insurance rather than by imposing upon the master the duty of compensating each injured man, or insuring him. Such a solution would be highly desirable, if practicable, for it would avoid a resort to some form of paternalistic legal protection to the workmen; but, overlooking the difficulty in fixing upon a proper margin over the ideal "living wage," it is far from settled that the workmen, unaided, have the ability

to regulate their wages to accomplish it. Furthermore, the ordinary laborers are hardly to be trusted to use such a margin to provide themselves sufficient insurance.

In any view there appears the problem, whether the government shall provide paternalistic protection to any members of the community; shall government provide workmen compensation for injuries or only opportunity by the exercise of prudence and thrift, to provide themselves with compensation or insurance? And if government should still be confined to the providing of opportunity, what shall that office include? Should it not recognize the existing facts. of the conditions of employment, and the capacity and abilities of ordinary workmen, and provide opportunities to such men in such conditions, rather than to the ideal workmen of John Stuart Mill? Should it not,, on the other hand, however, leave much to be gained by individual thrift and prudence? It is not the purpose of this paper to follow out all these inquiries, or any of them. An answer cannot be attempted in a short space. However much justification may be found for it there is an insistent clamor for governmental interference to secure certain compensation to injured workmen, which is based upon a change of sociological views from those which prevailed in the middle of the last century; and this appears to be the single legitimate ground for changing the rules of law, if they should be changed at all.

Returning now to the amendments of the law familiar in the United States, it must be admitted that the abolition or curtailment of the master's ordinary defenses to a charge of legal liability does effectually re

move

the common law barriers in the way of compensating injured workmen at the expense of the master. But the law which results is altogether illogical and unequal in its working, and whatever vice there may have been in the old legal arrangement is corrected by another of no small proportions. The real purpose of the changes in the law is to impose a liability