Vant of the hirer and a fellow-servant of the hirer's regular

workmen? Here, again, the answer must depend upon the

facts as to the extent of the hirer's control and the under-

standing or assent of the workman. Where an employer was

asked to send a workman to make rcj)airs upon the hirer's

mill or elevator, it was held that the workman was a servant

for the time being of the hirer and a fellow-servant of the

hirer's regular employees.^ In both cases it would seem that

the workman understood the situation and imi)liedly sub-

mitted himself to the temporary master. In like manner a

contractor doing work on another's premises may temporarily

borrow an employee of that other under such circumstances

as to render the employee temporarily the servant of the

contractor,^

В§ 232. Physicians employed for benefit of servants or passengers.

If a railroad or other comi)any employs a competent physi-

cian or surgeon to attend persons injured in its service or

business, such physician or surgeon is not the servant of the

company and the company is not liable for his negligence or

malpractice,* even though by law the company is required to

1 Delaware, Lackawanna, &c. R. Co., v. W. R. Hardy, 59 N. J. L. 35.

2 Ewan V. Lippincott, 47 X. J. L. 192; Hasty v. Sears, 157 jNIass. 123;

Samuelian v. American Tool Co., 168 Mass. 12. See also Wyllie v.

Palmer, 137 N. Y. 248.

8 Higgins V. W. U. Tel. Co., 156 N. Y. 75.

* Laul.hpim V. DeK. N. S. Co., 107 N. Y. 228; Secord v. Ry., 18 Fed.

R. 221 ; Quiiin v. R., 94 Tenn. 713; York v. Chicago, &c. R., 98 Iowa,

544 ; Atchison, &c. R. v. Zeiler, 54 Kans. 340 ; Pittsburgh, &c. R. v.

Sullivan, 141 Ind. 83.

TRANSFER OF SERVICE. 285

provide a duly qualified medical practitioner.^ The passenger

or employee may avail himself of the services of such practi-

tioner or not, and the company has practically no control over

the treatment or care given by the physician to his patient.

But wiierc the company deducts a fixed sum from the wages

of employees with which to provide hospital facilities and sur-

geons, it is liable to an employee for damages resulting from

its negligence in providing an incompetent surgeon.'-^ The

liability of charity hospitals is considered hereafter.^

В§ 233. Sleeping-car porters also servants of railroad company.

It has been held that the conductor and porter of a drawing-

room car or a sleeping car are the servants of the railroad

company which makes this car a part of its train, although

the car is owned and operated by a separate company and the

conductor and porter are employees of that company. The

negligence or wilful wrongs of such servants as to matters

involving the safety or security of passengers, is the negli-

gence or wrong of the railroad company.*

В» Allan V. State Steamship Co., 132 N. Y. 91; O'Brien v. Cunard

Steamship Co., 154 Mass. 272.

2 Wabash R. v. Kelley, 153 Ind. 119. See also Richardson v. Carbon

Hill Coal Co., 10 Wash. 648 ; Cummings v. Chicago, &c. R., 89 111. App.

199.

8 Post, В§ 261.

* Thorpe v. N. Y. C. & H. R. R., 76 N. Y. 402; Dwinelle v. N. Y. C.

& H. R. R., 120 N. Y. 117 ; Pennsylvania Co. v. Roy, 102 U. S. 451;

Railroad Co. v. Walrath, 38 Oh. St. 461 ; Williams v. Pullman Palace

Car Co., 40 La. An. 417.

286 WHO IS A SERVANT?

CHAPTER XTX.

COMPULSORY EMPLOYMENT OR SERVICE.

В§ 234. Meaning.

Freedom of choice of servants seems to be necessary in order

that the master should be liable for the servants' defaults.

Freedom of choice of masters, or at least of service, seems to

be necessary in order that the servant should be held to have

assumed the risks of his employment. If, therefore, one is

compelled by law to accept the services of another, he ought

not to be held liable for the injuries occasioned by that other's

acts or omissions. If, on the other hand, one is compelled

by law to serve another, he ought not to be held to be a

fellow-servant of other employees so as to bar him from

recovering for their negligence, since the basis of the fellow-

servant rule is that the servant in entering the employment