was caused by the negligence of a fellow serv- (started late for church. At the time of the ant, it must appear that the plaintiff was a accident the car was traveling at a rapid servant of the defendant at the time of the accident, that the accident was caused by the speed of 30 miles an hour. The car was in It had descended a hill, negligence of the chauffeur, and that the rela- good condition. tion between the chauffeur and the servant at and was at the foot where the road was subthe time of the accident was that of fellow stantially straight and level and of macad[Ed. Note.-For other cases, see Master and am, in fairly good condition, when sudServant, Cent. Dig. 88 318-325; Dec. Dig. denly it left the highway and landed against 159.*] some trees outside the highway; the car be servants. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 318-325; Dec. Dig. 8 159.*] 4. MASTER AND SERVANT (§ 201*)—MASTER'S 3. MASTER AND SERVANT (§ 159*)-MASTER'S ing at an angle of 45 degrees with the LIABILITY FOR INJURIES TO SERVANT-NEG-highway. As a consequence the car was LIGENCE OF FELLOW SERVANT-NATURE OF badly damaged, and the plaintiff suffered THE ACT. A reasonably The test of the master's responsibility for the injuries complained of. the negligence of a fellow servant is the char- competent chauffeur, in the exercise of due acter of the duty violated. care, ought to be able to keep a passenger automobile, which was in good condition, in the traveled way of an unobstructed highway, which was level and straight and in reasonably good condition. The cause of the automobile leaving the highway was due to the fact that the chauffeur took his hand from the steering wheel for a moment in order to pull his cap over his eyes and prevent the rays of the sun being reflected from the brass lamps of the car into his eyes, and the speed of the car was then so great that it, not being under control for a brief space of time, plunged off the highway. As soon as the rays of the sun thus blinded the chauffeur, as the jury might reasonably have found, it was his duty to have stopped the car; had he done so the accident would have been avoided. The only logical conclusion to be drawn from the facts proven was [Ed. Note.-For other cases, see Master and that the cause of the accident was the drivServant, Cent. Dig. §§ 166-170; Dec. Dig. 8ing of the car in a negligent manner. The 100.*] Where a servant violated a duty of the master, the defense of a fellow servant is not available, since the master is responsible for the performance of his duties, either by himself or by another. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 515-534; Dec. Dig. 8 201.*] 5. MASTER AND SERVANT (§ 100*)-MASTER'S LIABILITY FOR INJURIES TO SERVANT-DuTIES OF MASTER-CONTRACT. A master may, by contract which is not prohibited by law, extend the range of his duties beyond the duties, as to place and appliances for work and the selection of colaborers, imposed upon him by law. defendant claimed upon the trial that the 6. MASTER AND SERVANT (§ 192*)-MASTER'S injuries to the plaintiff, if any, were occaLIABILITY FOR INJURY TO SERVANT-RELATION OF PARTIES. Where the terms of the contract of employment of a domestic servant provided that the employer was to take her to church in his automobile on Sunday, the servant was not engaged in the master's work when she was on her way to church, and was not a fellow servant of the chauffeur. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 379-381; Dec. Dig. 8 192.*] Appeal from Superior Court, Fairfield County; Lucien F. Burpee, Judge. Action by Jennie O'Bierne against George A. Stafford. Judgment for the plaintiff, and defendant appeals. Affirmed. Carl Foster, of Bridgeport, for appellant. George E. Beers, of New Haven, and Richmond J. Reese, of Greenwich, for appellee. sioned by the acts of a fellow servant and, as we understand the record, requested the court upon this ground to direct a verdict for the defendant. [2] The fellow-servant defense cannot prevail in this case, unless it appear from the evidence: First, that the plaintiff, Miss O'Bierne, was an employé of the defendant at the time of the accident; second, that the accident resulted from the negligence alleged of the chauffeur, McAuliffe; and, third, that the relation of McAuliffe to Miss O'Bierne at that time was that of fellow servants. Sullivan v. N. Y., N. H. & H. R. Co., 73 Conn. 203, 214, 47 Atl. 131. We have already considered the second of these conditions. Let us examine briefly the third and first condition in this order. [3] The character of the duty violated is the test of the master's responsibility. MeElligott v. Randolph, 61 Conn. 157, 164, 22 Atl. 1094, 29 Am. St. Rep. 181. WHEELER, J. [1] The jury might reasonably have found these facts: The plaintiff was engaged in the service of the defendant as a domestic servant, and as a part of the contract of employment the defendant contracted to take the plaintiff to church each Sunday in his automobile. The defendant's chauffeur, McAuliffe, was, at the time of the accident, taking the plaintiff to church in pursuance of the defendant's contract. He 59 Atl. 502. [4] Was the defendant bound to perform the duty toward Miss O'Bierne which McAuliffe neglected to perform? If so, the negligence of McAuliffe was his. Peterson v. N. Y., N. H. & H. R. Co., 77 Conn. 351, If the duty violated was the master's, the defense of fellow servant is never available. Messinger v. N. Y., N. H. & H. R. Co., 85 Conn. 467, 474, 83 Atl. 631. The master may perform his duty personally, or by another; in either case the failure to perform the duty with reasonable care will impose a liability upon the master for consequent damages. McElligott v. Randolph, supra. [5] The law places upon the master a positive duty as to the place, appliances, instrumentalities, and colaborers he shall provide for his servant. He may, by his contract of employment, extend the range of his duty. The parties are not restricted in their right of contract save by law. Whatever the master contracts to do within the law he must perform; he cannot by delegation escape the consequences of his nonperformance. [6] Let us next ascertain if Miss O'Bierne at the time of the accident was an employé of the defendant. She was his house servant, and in one sense continued in his employ during the period of employment wherever she might be and whether upon her own or her master's business. Her churchgoing cannot be said to have been connected with that employment. It was no part of her duty as a servant to go to church. She was free, to go or not, and to choose the church she would go to. She was under no obligation to ride in the car; she was performing no service for him in so doing. On the contrary, he was rendering her the service required by his contract. The defendant did not pay her to ride in his car; she paid the defendant for the ride. This was as much a part consideration for her services as the wages paid her. On the way to and from the church her time was her own. She was traveling for her own purposes, and the right of the defendant to her services at this time was not "merely dormant, but wholly suspended." As she was not engaged in the defendant's work when she was injured, she was not a coemployé with McAuliffe. There are numerous cases of railroad employés whose contracts of employment included transportation to and from work who, while so traveling, had been injured by the negligence of the employés operating the train. In the best reasoned of these opinions, and in the greater number, these employés have been held to have been passengers, and not engaged in a common employment with the negligent employé of the railroad. In McNulty v. Penn. R. Co., 182 Pa. 479, 38 Atl. 524, 38 L. R. A. 376, 61 Am. St. Rep. 721, the court held that one employed by a railroad at a certain wage and free transportation to and from his home was a passenger while traveling to his home after his day's work, saying: "In the case at bar, the transportation from and to his home to which the deceased, McNulty, was entitled was not in any sense a service, or connected with any service, that he was rendering to the defendant company, but it was a service which the latter, by the terms of its contract, was required to render to him. He was under no obligation to ride on the cars, but there was an obligation on the part of the company to afford him an opportunity of doing so, if he saw fit to avail himself of it; and, when he exercised the right to which he was thus entitled, and entered the car for the sole purpose of being transported to Bristol, he was a passenger in the full sense of the word, and not an employé of the defendant." Dickinson v. West End St. Ry. Co., 177 Mass. 365, 59 N. E. 60, 52 L. R. A. 326, 83 Am. St. Rep. 284; Doyle v. Fitchburg Railroad Co., 162. Mass. 66, 37 N. E. 770, 25 L. R. A. 157, 44 Am. St. Rep. 335; Hebert v. Portland Railway Co., 103 Me. 315, 321, 69 Atl. 266, 125 Am. St. Rep. 297, 13 Ann. Cas. 886; Enos v. R. I. S. Railway Co., 28 R. I. 291, 67 Atl. 5, 12 L. R. A. (N. S.) 244; Transit Co. v. Venable, 105 Tenn. 460, 58 S. W. 861; Peterson v. Seattle Co., 23 Wash. 615, 63 Pac. 539, 65 Pac. 543, 53 L. R. A. 586; State v. Western Md. R. Co., 63 Md. 433, 441; Labatt on Master & Servant (2d Ed.) § 624. Pigeon v. Lane, 80 Conn. 237, 244, 67 Atl. 886, 11 Ann. Cas. 371, cites several of these cases, and holds to their doctrine. The two rulings on evidence complained of were correctly decided. There is no error. The other Judges concurred. (87 Conn. 350) Appeal of MARENNA. (Supreme Court of Errors of Connecticut. July 25, 1913.) 1. INTOXICATING LIQUORS (§ 59*)—ELIGIBIL ITY FOR LICENSE-STATUTE-CONSTRUCTION. Under Gen. St. 1902, § 2643, authorizing county commissioners to license suitable persons to sell spirituous and intoxicating liquors at suitable places, a locality where there already exists a sufficient number of licensed places is an unsuitable place. [Ed. Note.-For other cases, se Intoxicating Liquors, Cent. Dig. § 59; Dec. Dig. § 59.*] INTOXICATING LIQUORS (8 104*)—LICENSE 2. -CHANGE OF LOCATION. An application for a removal permit by a licensed liquor dealer under Gen. St. 1902, § 2669, is to be treated as an application for a new license at the place to which the business is to be removed. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 109; Dec. Dig. § 104.*] 3. INTOXICATING LIQUORS (§ 104*)-LICENSE -CHANGE OF LOCATION. Gen. St. 1902, § 2662, authorizing the licensing The fact that a dealer is licensed under of reputable wholesale dealers, who do not sell to be drunk on the premises, at a reduced rate, does not authorize the county commising the county commissioners to license suitasioners, under Gen. St. 1902, § 2643, authorizble persons to sell intoxicating liquors at suita ble places, to permit such a dealer to remove to an unsuitable place under the statute. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 109; Dec. Dig. 8 104.*] Appeal from Superior Court, New Haven County; William H. Williams, Judge. Application by Joseph Quint, a licensed liquor dealer, for permission to change the location of his business, which was granted by the county commissioners. From a judgment of the superior court, on appeal by Michaele Marenna, a taxpayer, holding that the action of the county commissioners was illegal, Quint and the commissioners appeal. Affirmed. Howard C. Webb, of New Haven, for appellants. David E. FitzGerald and Daniel J. Bailey, both of New Haven, for appellee. be drunk upon the premises. The county commissioners in granting the removal to this place were controlled by their belief that, because the liquors to be sold by the appellant were not to be drunk upon the premises, the giving of permission to remove his place to the new locality was not inconsistent with their judgment that sufficient licensed places existed there. This assumes either that a special license of this kind may be granted to sell in unsuitable places or that a place situated in a locality where there are already sufficient licensed places is not an unsuitable place for such a license. The first assumption is clearly untenable. The business permitted under such a license is retail as well as wholesale. It will not be claimed that such a business could be permitted adjoining a schoolhouse or church or at the THAYER, J. [1, 2] By section 2643 of the door of a manufactory or in a residential General Statutes the county commissioners | neighborhood. And no good reason is apparare authorized to license suitable persons to ent why the fact that the liquors sold under sell spirituous and intoxicating liquors at this special license are not to be drunk upon suitable places. The application for a remov- the premises should render eligible for such a al permit by a licensed person under section license a locality which is ineligible for a gen2669 of the statute is to be treated as an ap- eral license. The license contemplates that plication for a new license at the place to the wholesaler will do a retail business, for which the business is to be removed. Bor- liquors sold in wholesale quantities are not mann's Appeal, 81 Conn. 458, 461, 71 Atl. 502. ordinarily sold to be drunk upon the premises. A locality where there already exists a suffi- The presumption is that liquors purchased in cient number of licensed places is an unsuit- quantities as small as a gill at such a place able locality for the licensing of other places. are purchased for immediate consumption in D'Amato's Appeal, 80 Conn. 357, 362, 68 Atl. the immediate neighborhood. The fact that 445. It is found that, before granting the the liquors sold under such a license are not permission to remove asked for in the pres- to be drunk upon the premises where purent case, the county commissioners had found chased may remove from the place some of that sufficient licensed places existed in the the objectionable features of the ordinary locality to which the removal was to be made liquor saloon. It was doubtless for this reaand had refused to license other places in son that permission was given to grant such that locality, and it was conceded upon the licenses to "respectable wholesale dealers" trial that too many licensed saloons existed at a reduced license fee. All wholesale dealthere at the time that the permission to re- ers may under their general license sell at remove there was sought and given. The coun- tail liquors to be drunk upon their premises ty commissioners therefore could not law- or elsewhere. The provision of the statute fully grant a new license to sell spirituous that licenses should only be granted to suitand intoxicating liquors in that locality. able persons to sell in suitable places has always applied to them. The law prescribed no different form of license and no different license fee for them than for the ordinary retail dealer. They could thus sell at retail the same as any other dealer under the general license. Section 2662, permitting the grant of the special licenses, does not expressly provide that the licensees under them may be permitted to sell in localities where prior to the statute they could not, and where now other wholesale dealers and retail dealers may not be permitted to sell. It allows a reduced license fee in consideration of the fact that liquors sold upon the licensed premises are not to be drunk there. This is all that it does provide for. We think that the commissioners had no authority to grant the removal of a business thus licensed in one place to another where in their opinion sufficient licensed places already [3] The applicant's license was a special one, granted under that provision of section 2662 of the statutes which makes exceptions in favor of reputable wholesale dealers who do not sell to be drunk on the premises and reputable hotels in places of less than 4,500 inhabitants in respect to the amount of the license fee to be paid. The applicant claims that such licenses may be granted to sell in a locality where there are already sufficient licensed places, and consequently that he might properly be permitted to remove his licensed business to such a place. The applicant, as it is found, has complied with the laws of the United States with respect to the payment of special taxes authorizing the sale of intoxicating liquors at both wholesale and retail, and contemplates selling such liquors at the Oak street place in quantities from one gill upward, but not to existed, and that the court's finding to this ers and Isaac Gibbs, Jr., county road eneffect was correct. gineer, of Kent county, to recover for an There is no error. The other Judges con- injury to his horse while being driven over cur. (120 Md. 153) one of the public roads of said county. The amended declaration charges that the defendants are bound to keep the public RICHARDSON v. KENT COUNTY COM'RS roads of the county in repair and in such et al. (Court of Appeals of Maryland. April 8, 1913.) 1. HIGHWAYS (§ 198*)-ROAD COMMISSIONERS -LIABILITY. Under Code Pub. Civ. Laws, art. 25, §§ 1, 2, 4, and 7, and Code Pub. Loc. Laws, art. 15, § 80, the county commissioners of Kent county are given control of the public roads of the county, are charged with the duty of keeping them in good repair, and are supplied with the means of discharging this duty, and they have therefore been uniformly held liable for injuries caused by any defect in a public road due to their negligence, and the Legislature did not intend by Acts 1910, c. 403, §§ 167a, 167b, 167c, 167d, 167e, 167h, 167k, authorizing the appointment by the Governor of a county road engineer for Kent county and committing to him the actual work of repairing and constructing public roads and bridges of the county and requiring him to see that no obstruction is permitted on same, to divest the county commissioners of all control and power, and transfer to the engineer the powers and duties of the county commissioners to the extent of relieving them of all liability for defects in the public roads. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 504-507; Dec. Dig. § 198.*] 2. HIGHWAYS (§ 198*)-ROAD COMMISSIONERS. That the county road engineer is not appointed or subject to be removed by the county road commissioners does not determine that they have no responsibility for the condition of a public road. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 504-507; Dec. Dig. § 198.*] 3. HIGHWAYS (§ 198*)-ENGINEER-LIABILITY. The county road engineer of Kent county, appointed under Acts 1910, c. 403, creating his office and giving him charge, control, and supervision of the working, repairing, and reconstructing of the public roads of the county, is not liable for an injury caused by a defect in a public road, due to his negligence, since he is in a large measure subject to the control of the county road commissioners, and in respect to liability should be considered as the agent of the county commissioners. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 504-507; Dec. Dig. § 198.*] condition as to "afford free and safe passage over the same"; that "one of said roads, namely, the public road leading from Langford to St. Paul Church," on the 29th day of May, 1911, "was negligently suffered by the defendants to be out of repair and in an unsafe condition for travel over the same by suffering a large hole to be and remain in the bed of said road for a long time, whereby the plaintiff's horse, while traveling over said road and being properly driven along" the same with due care, "was seriously injured," etc. The defendants filed separate demurrers to the declaration; the demurrers were sustained by the circuit court for Talbot county, to which the case was removed for trial; and, from a judgment in favor of the defendants, the plaintiff has appealed. The county commissioners base their demurrer upon the ground that by the Acts of 1910, c. 403, which was approved April 7, 1910, and became effective from that date, they were completely divested of all control of the public roads of the county and thereby relieved of responsibility for their condition, while the position of the county road engineer is that the statute does not provide a fund out of which he can satisfy a judgment for damages resulting from an unsafe condition of the public roads of the county, and that he is not therefore liable. [1] By sections 1, 2, and 7 of article 25 of the Code of 1912 the county commissioners of each county in the state are declared to be a corporation and are given "charge of and control over the property owned by the county, and over county roads and bridges." They are authorized to make rules and regulations for repairing the public roads, to provide for the payment of the cost of the same, to levy all "needful taxes," and to pay all Appeal from Circuit Court, Talbot County; Wm. H. Adkins and Philemon B. Hopper, | claims against the county, and section 4 proJudges. vides that they may sue and be sued. Section 80 of article 15 of the Code of Public Local Laws also provides that "the county commissioners shall have the general supervision of the public roads in Kent county, and the work done thereon," etc. Under these and like provisions it has been uniformly held in this state that, as the county commissioners are given control of the public roads, are charged with the duty of keeping them in good repair, and are supplied with the means of discharging that duty and to meet their liability, they are liable for injuries caused by any defect in a public road due to their negligence. Co. Com'rs v. Duckett, 20 Md. 468, 83 Am. Dec. 557; County er amount in any one fiscal year than the amount levied by the county commissioners for the purpose, without obtaining the permission in writing of said commissioners. He shall appear before the commissioners at their first meeting in each and every month and make a statement to them of the work done, material furnished, and money expended. He shall examine and certify to the correctness of all bills and accounts of any work done or materials furnished on any one of the public roads or bridges in Kent county before the same shall be paid by the county commissioners," and by this section he is further required "to make out annually in writing a detail report to the commissioners of all work done on the county roads and bridges for the year, together with the names of all persons working on said roads and bridges, or furnishing material," etc. Section 167h provides that, when any person desires to improve any public road "to an extent beyond that contemplated by the" engineer, he may apply to the county commissioners who shall thereupon order the engineer to examine the location, etc., "and if he shall be of the opinion that the public interest will be promoted thereby he, shall report his determination to the county commissioners, setting forth his reasons for such determination, and an estimate of the cost," and, if the county commissioners shall approve the report, they shall direct the expenditure of an amount not exceeding one-half of such estimate, "to be paid out of the road levy or other moneys belonging to the county"; and section 167k provides that, if the engineer finds it necessary "to open an outlet or water course through private property” in order to secure "proper drainage of any public road," he shall so inform the county commissioners, who are authorized to condemn the land necessary for such outlet. Com'rs v. Gibson, 36 Md. 229; Flynn v. Can- | carts, wagons, and other machinery and imton Co., 40 Md. 312, 17 Am. Rep. 603; Coun- plements which may be purchased by the ty Com'rs v. Duvall, 54 Md. 350, 39 Am. Rep. county commissioners for the use of said 393; Baltimore County v. Wilson, 97 Md. roads. He shall not work out or expend on 207, 54 Atl. 71, 56 Atl. 596; Adams v. Somer- | the roads and bridges of said county a greatset Co., 106 Md. 197, 66 Atl. 695; Anne Arundel County v. Carr, 111 Md. 141, 73 Atl. 668. The Acts of 1910, c. 403, which adds a number of new sections to the Code of Public Local Laws, entitled "Kent County," subtitle "Roads," declares in section 167a that "the county commissioners of Kent county are authorized and empowered to control, and regulate the public roads and bridges in said county, subject to the provisions of this act." Section 167b provides that the county commissioners shall levy a tax of not less than 20 cents on the $100, to be used for the repair and reconstruction of the public roads and bridges in the county; that they may appropriate or levy such other sums as they may deem requisite for building new bridges and opening new roads, and for repairing and reconstructing the public roads and bridges, and that the taxes so levied and collected shall be "disbursed" by them "upon the roads and bridges" in the manner provided by the act. Section 167c requires the Governor to appoint some competent person, "who shall have a sufficient knowledge of civil engineering to enable him to accurately make surveys, plats, profiles and specifications of, or the grading, draining, maintenance, repairs and reconstruction of the public roads of said county, and also to do the nec essary engineering work for the building or rebuilding of bridges," county road engineer for Kent county for the term of six years at a salary of $1,600 a year; and section 167d provides for his removal by the Governor, upon the sworn complaint of ten or more resident taxpayers, and after notice and a hearing, for incompetency, neglect of duty, or misconduct in office. Section 167e requires the engineer to reside in Kent county "during the term of his office," and then declares that he "shall have entire charge, control, and supervision of the working, repairing, and reconstructing of the public roads and bridges of Kent county and the purchase of the material therefor, and shall make all specifications for the building of new roads and bridges, and shall see that no obstruction, hindrance, or injury is or shall be permitted upon any road or bridge under his supervision as aforesaid. He shall employ such help, terms, and implements and contract for and purchase such material as he may deem necessary for the working, repairing, and reconstructing said roads and bridges, to be paid for by the county commissioners, provided that he shall not employ any laborer to be paid a greater amount than $1.50 per day, without first obtaining the written consent of the county commissioners for each person so employed. He It is quite apparent from this brief review of the important features of the act that, while it does commit to the judgment and supervision of the county road engineer the actual work of repairing and constructing the public roads and bridges of the county and require him to see that no obstruction is permitted on the same, it does not take from the county commissioners their general control of the public roads and bridges of the county, which is expressly reserved to them by section 167a. The road engineer is authorized to employ such help, teams, and implements and to purchase such material as he deems necessary, but he is not authorized to purchase the necessary teams, carts, wagons, and other implements and machinery, is limited in his expenditures to the |