330 Liability of master

CHAPTER XXIY.

LIABILITY OF MASTER TO ONE SERVANT FOR TORTS OF

ANOTHER SERVANT.

В§ 270. Classification of servants.

For our jtrescut purpose wu may divide all the servants of a

common master engaged in a common service into two classes,

namely, fellow-servants and vice-principals. In the first class

are included all the servants engaged in purely operative acts,

while in the second class are included all those to whom are

delegated what, for want of a better term, we may call admin-

Istrative acts.

It will be recalled that the distinction between an agent

and a servant lies in the nature of the act to be performed.

An agent is authorized to create new primary obligations ; a

servant is authorized to perform operative or ministerial acts

not intended to create new primary obligations.^ So also

the distinction between a fellow-servant and a vice-principal

lies in the nature of the act to be performed. If it be an

operative act, the employee is a fellow-servant of all other

employees ; if it be an administi'ative act, the employee is a

Vice-principal in the sense that his act is the act of the

master.

It will also be recalled that the distinction thus made

between agents and servants leads to im})ortant legal conse-

quences in fixing the liability of the employer.^ So also the

distinction here made between fellow-servants and vice-

principals leads to important legal consequences in fixing the

liability of a master to one servant for the tort of another.

It will also be recalled that the same employee may be both

an agent and servant.^ So also the same employee may be

1 Anle, §§ 4-G. 2 ^^^te, § 5. 8 Ayite, § 6.

FOE TORTS TO SERVANT. 331

both a fellow-servant and a vice-principal, for, since it is tlic

nature of the act to be performed that determines the classifi-

cation and its consequences, it is obvious that the same em-

ployee may perform at one moment an operative act and at

another moment an administrative act.i A few courts,

Indeed, insist that an employee whose chief duties are admin-

Istrative shall always be regarded as a vice-principal whatever

act he may happen to perform,^ but this is not in accord with

the reason of the case or with the weight of authority .^

The term " vice-principal " is not in all respects happily

chosen, since it carries with it a suggestion of the relation of

principal and agent, but it is now firmly fixed and serves its

purpose if correctly understood.

В§ 271. The fellow-servant rule.

To the rule that a master is liable for the torts of his ser-

Vant committed within the scope of the employment, there is

one highly important exception, known as the " fellow-servant

rule." This exception may be stated as follows : —

A master is not liable for personal injuries occasioned to

one servant by the tort of a fellow-servant employed in the

same common service, unless (1) the fellow-servant is acting

as a deputy-master or vice-principal,'* or (2) the master has'

negligently selected an incompetent fellow-servant, or negli-j

gently retained one,^ or (3) by statute the master is madq

liable to one servant for the wrongful act or default of i

fellow-servant.^

Various reasons have been given for this exception, the

most generally accepted being that there is in every such

contract of employment an implied terra that the servant

shall assume all the ordinary risks of the business, including

the negligence of fellow-servants under the limitations indi-

cated above.^ But this is rather an attempted assimilation of

1 Post, В§ 276. 2 Post, В§ 275. В» Post, В§ 276.

* Post, В§ 274. For convenience and simplicity this is put in the form

of an exception to the general rule.

5 Post, В§ 278.

6 Post, В§ 279.

' " When a man enters into the service of a master, he tacitly agrees

332 LIABILITY OF MASTER

the exception to recognized legal conceptions than a reason

or an explanation for the existence of the exception. Why

such a tacit term should be read into every contract of em-

ployment remains unexplained except upon an antecedent

theory that it is good general policy, serving useful social

and industrial ends, that it should be so.^ Whether such a

theory is well founded it is now too late to inquire except in

the consideration of remedial legislation. As a rule for the

guidance of courts in the administration of justice the excep-

tion is firmly established and is universally applied, though

not without important divergences in interpretation and in its

application to particular sets of facts, as, for instance, in the

meaning of " common service" and " deputy-master or vice-

principal," and, in general, in the determination in special