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not demand any special changes in the modes well as apparent, was held to be as obligatory of electing judges, and that, among the many upon the defendant, as if the original proprojects of “Reform” that have recently ceeding had been strictly regular. On this been suggested and advocated in Bar Asso- point the court says: ciations, legal journals, and newspapers, this "A corporation, like a natural person, may is entitled to as little favor as any. Far more ratify any act of its agent or any one profesimportant than the mode of his election, is sing to act by its authority, which it has the the independence of the judge, and this can

power to perform.” ? be most effectually secured by a reasonably And it proceeds to define ratification thus: long term of office and a liberal salary.

“Ratification takes place when one person adopts a contract made for him or in his name, which is not binding on him because

the one who made it was not duly authorized NOTES OF RECENT DECISIONS. to do so. Ratification is a question of fact:

and in the great majority of instances turns BURDEN OF PROOF-RATIFICATION OF LEASE

on the conduct of the principal in relation to -ESTOPPEL-JUDGMENT BY DEFAULT.—In a

the alleged contract or the subject of it, from casel recently decided in the United States which his purpose and intention thereabout Circuit Court for Oregon there are several may be reasonably inferred. And generally, rulings which we deem worthy of note. IL deliberate and repeated acts of the principal seems that at a meeting of the directors of a with a knowledge of the facts, that are concorporation a lease was authorized which its

sistent with an intention to adopt the contract, officers proceeded to execute, and


or inconsistent with a contrary intention, are the lessee proceeded to act. In the suit under

suflicient evidence of ratification.” consideration, the lessor corporation denied And for the purposes of establishing a ratby answer the validity of the lease, because,

ification, there is a presumption that whatever at the meeting at which it was authorized, is done by the officers of a corporation under there was not a quorum of the directors pre- its corporate seal, nothing appearing to the sent. The plaintiff, also a corporation, re- contrary, is lawfully done. plied that it had no knowledge or notice of a Upon the question how far a defendant is want of a quorum at the meeting. There is estopped by a judgment by default, the court a further reply of ratification by the defend- held that a judgment by default, like a judgant, of the contract of lease in question. ment upon contest, is conclusive of all that

As to the burden of proof, the court held it professes to decide, as determined by the that it lay upon the defendant to prove the pleadings, and that such a judgment so renallegation it made, that the lease in question dered, is conclusive, as between the parties was executed by authority of a meeting of to the action, as to every matter well pleaded the board at which a legal quorum was not therein and necessary to the judgment. And present. It admitted the prima facie case it would appear that such a judgment may be made by the answer, but sought to avoid it by replied to a plea in a subsequent action benew matter, the illegality of the meeting, and

tween the same parties involving the same isthis, it was incumbent upon the defendant to

sues, setting up matter that might have been prove. In view, however, of the further

pleaded to the former action. ruling of the court, the questions whether the meeting was legal or illegal, and whether the 2 Eureka Co. v. Bailey Co., 11 Wall. 491; Gold Min

ing Co. v. National Bank, 6 Otto, 644; Witt v. Mayor, plaintiff had or had not notice that a quorum

5 Rob. (N. Y.) 259; The E. C. Society v. The Episcowas not present at the meeting were, as we pal Church, 1 Pick, 375; P. R. M. Co. v. D. S. & G. R. think, immaterial issues, for it being con

Ry. Co., 7 Saw. 67.

3 Story on Agency, $$_253-260. ed that a lease was made by apparent author- 4 Bank v. Dodridge, 12 Wheat. 70; McKeon v. Citiity, the subsequent ratification of it by au- zen's etc. Co. 42 Mo. 79.

5 Bigelow on Estoppel, 27. thority of the defendant company, real, as

1 Oregonian R. R. Co. v. Railway & Nav. Co., Ore. onian, Sep. 16, 1886.

STATUTE OF LIMITATIONS—IMMUNITY OF THE fested its intention that they should be so UNITED STATES—Trust Funds.—The Supreme bound.? The nature and legal effect of any Court of the United States before its adjourn- | contract, indeed, are not changed by its ment in the spring of 1886, decided a case transfer to the United States. When the

of some interest involving the statute of limi- United States, throngh their lawfully author

tations, its application to the United States

ized agents, become the owners of negotiable as to demands held by it against citizens, and paper, they are obliged to give the same no-the questions whether the immunity of the tice to charge an indorser as would be required government from the operation of the statute

of a private holder.8 They take such paper is affected at all, and to what extent by the subject to all the equities existing against the time and mode of acquiring such claims, and person from whom they purchase at the time by the fact that they are held in trust for oth

when they acquire their title; and cannot ers. The case in brief was this: The United therefore maintain an action upon it, if at States in 1832, made a treaty with the Chick that time all right of action of that person asaw Nation of Indians, by which the United

was extinguished, or was barred by the statStates Government became the trustee for ute of limitations.9 But if the bar of the the Indian Nation to hold an invest for the

statute is not complete when the United States benefit of the Nation certain funds, the pro become the owners and holders of the paper, ceeds of the sale of the Indian lands, and sub it appears to us, notwithstanding the dictum sequently, in 1852 invested a portion of such

of Cowen, J., in U. S. v. White, 10 impossible funds in the bonds (with coupons attached) of to hold that the statute could afterwards run the defendant company. Still later, in 1878, against the United States.!

In the present the United States accounted with the Indian case, the United States bought the coupons Nation and closed the trust, satisfying the sued on, and the bonds to which they were Indians otherwise, and retaining the coupons annexed, long before any of them became in suit as the property of the government. payable, or the statute of limitations had beThe bands themselves, and later coupons gun to run against the right of any holder to than those in suit, were all duly paid. The

sue thereon.

The money with which they defence insisted on was the Statute of Limi

were bought was money received by the tations, that, as the United States held the

United States from the sale of the lands ceded coupons as trustee, at the time of their ma

to them by the Chickasaw Nation of Indians. turity, the Statute of Limitations then began Those lands, the money received from their to run, and that the bar was complete. The sale, and the securities in which that money Circuit Court of the United States instructed

was invested, were held by the United States, the jury that the plaintiff's action was barred in trust, to be applied for the benefit of those by the statute, and judgment for defendant

Indians, in performance of the obligation aswas rendered accordingly. The Supreme sumed by the United States by treaties with Court reversed this judgment, and in deliv them. The securities were thus held by the ering the opinion of the court, Mr. Justice United States for a public use in the highest Gray furnished an admissible compendium sense, the performance of a quasi internaon the law of the subject. He said:

tional obligation; and they continued to be It is settled beyond doubt or controversy so held until that obligation had been per-upon the foundation of the great principle formed and discharged, after which they of public policy, applicable to all govern were held by the United States, like all other ments alike, which forbids that the public interests should be prejudiced by the negligence

7 Lindsey v. Lessee of Miller, 6 Pet. 666; U. S. v..

Knight, 14 Ib. 301, 315; Gibson v. Chouteau, 13 Wall.. of the officers or agents to whose care they

92; U. S. v. Thompson, 98 C. S. 486; Fink v. O'Neil, are confided—that the United States, assert 106 Ib. 272, 281.

8 U. S. v. Barker's Adm'r, 4 Wash. C. C. 464, and 12 ing rights vested in them as a sovereign gov

Wheat. 559; U. S. v. Bank of Metropolis, 15 Pet. 377, ernment, are not bound by any statute of 392, 393; Cooke v. U. S., 91 U. S. 389, 396, 398. limitations, unless Congress has clearly mani

9 U. S. v. Buford, 3 Pet. 12, 30; King v. Morrall, 6 Price, 24.

10 2 Hill (N. Y.), 59, 61. 6 United States v. Nashville, etc. Co., April 26, 1886; 11 Lambert v. Taylor, 4 B. & C. 138; S. C. 6 D. & R., 22 The Reporter, 321.



ers. 13

property of the government, for the ordinary partly because of the number of persons afpublic uses. The necessary conclusion is fected by it, and partly by reason of the dethat the statute of limitations of Tennessee gree of their interest; for the questions ocnever ran against the right of action of the curring on this subject are not remote and United States upon these coupons, either theoretical, but are practical, and frequently while the United States held them in trust for of vital moment to the parties. the Indians, or since they have held them for Nor is the topic free from perplexity. Owother public uses; and that the decision of ing to the complex relations of the employthe circuit court was erroneous.

ees of large corporations, it is often difficult This case does not present the question. to decide who are fellow-servants, to the inWhat effect the statute of limitations may tent of exempting the master from liability. have in an action on a contract in which the

But the obscurity and apparent confusion in United States have nothing but the formal which this doctrine has hitherto been involved, title, and the whole interest belongs to oth- have arisen largely from a prevailing misap

prehension of the principles upon which it is

founded. In view, therefore, of its import12 Van Brocklin v. Tennessee, 117 U. S. 151, 158. ance and difficulty, the subject is worthy of 15 Maryland v. Baldwin, 112 U.S. 490; Miller v. State

close and thoughtful attention. 38 Ala. 600.

The legal proposition in question, known as the doctrine of “common employment."

may be stated as follows: When a master uses LIABILITY OF AN EMPLOYER TO AN

due care in selecting competent and trustEMPLOYEE INJURED BY THE NEG

worthy servants, and in furnishing suitable LIGENCE OF A FELLOW EMPLOYEE. means for the service, he is not responsible to

one person in his employ for a personal inI. Introduction.

jury occasioned by the negligence of another Importance and difficulty of the subject.

in the same service, unless the latter was ocGeneral misapprehension regarding it. Statement of the doctrine of common em

cupying the position, or performing a duty of ployment.

the principal. II. General Principles Involved.

It shall be the object of this paper to point Rule.-One is liable only for his own wrongful act.

out the fundamental principles and rules of Exceptions.

law involved, and thus to reduce this branch Respondeat superior.

of the law of master and servant to a more Qui facit per alium facit per se. Origin and extent of exceptions.

logical and consistent whole; to show that Rule as to co-servant.

there are sound legal maxims in accordance Foundation of the rule. Early cases.

with which, questions that arise under this III. Present status of the doctrine of common em- head may be definitely solved ; and, finally, ployment.

to state the law as it exists, as clearly, conHxtent of the rule. Duties of the master.

cisely and accurately as may be.
Who are fellow-servants?

II. In considering the question of a
What constitutes common employment?

ter's liability to a servant for an injury to the IV. Conclusion. The law in other countries.

latter, occasioned by the negligence of a coStatutory changes.

servant, the first and most elementary princi

ple to be borne in mind is, that primarily a “If law be a science and really deserve so sublime a man is liable for his own acts only, and not name, it must be founded on principle, and claim an exalted rank in the Empire of Reason."-Sir William

for those of others. It has been common to Jones.

assume that the master would be liable in the The frequeucy with which the courts are absence of any rule of law to the contrary, called upon to decide questions arising from and then to seek to explain away his liability. the doctrine of common employment, bears This is an error which has rendered the subwitness to the importance and difficulty of ject needlessly diflicult and obscure. Instead the subject. In this age of great industrial of starting, as is generally done, with the enterprises, this branch of law is important, maxims respondeat superior and qui facit per


new cases.


alium facit per se, a more accurate and logi is obviously just. That he should be liable eal method of treating the subject, would be for the act of another which he not only did to regard these as the exceptions to the gen not command, but, perhaps, even forbade to eral proposition above stated.

he done, must be justified upon the ground . Though the principle may be supposed to of public policy rather than of natural jushave existed in the bosom of the law from tice. Such, however, is the well established time immemorial, the doctrine of common and eminently satisfactory and salutary exemployment is the result of modern legisla- ception as to a master's liability to a stranger tive and judicial action; the earliest case in injured by a servant acting in the line of his which the doctrine was declared, Priestly v. duty. Should the same exception be exFowler,' was decided in 1837. Nevertheless, tended to the case of a servant injured by a to understand thoroughly the present law

fellow-servant? governing a master's liability, it is necessary This question seems seldom to have been to trace the history of the principles involved, examined in a thorough, unprejudiced and and especially of the maxims respondeat su comprehensive manner. Justice Story, with perior and qui facit per alium facit per se, bis usual breadth of view in speaking of the though the latter applies to principal and doctrine of common employment, says, that agent, rather than to master and servant. in attempting the solution of the new cases

The relations of master and slave, under which will arise on this subject, “It would be the Roman law, and of lord and vassal, un well to settle more definitely than has yet der the feudal system, were such that no been done, the grounds upon which a master question of the kind under consideration is in any case made liable for the negligence could arise under those systems. By the Eng of his servant toward a stranger to the agenlish common law the master is liable to his cy; and to see what and how many of such servant for bis individual wrong ;? a servant reasons apply, and with what force, to such is likewise liable to his fellow-servant.: Such

This seems never, as yet, to have was not the case under the Roman law, where been attempted. neither son nor slave was sui juris; the puter In analyzing the reasons for the present familias was the only one who could sue or rule, it is, perhaps, best to examine first be sued. The doctrine of respondeat supe the early cases in which it was first enunciarior, therefore, was a natural development of ted. Although the case of Priestley v. the latter system. The rule qui facit, etc., Fowler, did not distinctly declare the docis derived from the same source.

trine, it is generally referred to as the first These maxims were first introduced into recorded case on the subject. A butcher's the English law on grounds of public policy, servant was sent to deliver meat on a van about the time of Lord Holt; 4 the earliest which had been loaded by a fellow-servant, recorded case being, it is said, the old case but loaded too heavily, in consequence of of Michael v. Allestree.5 From the days of which the van broke down, and the man's Charles II. such has been the rule of thigh was broken. the common law of England, though we have In deciding that the butcher was not liable, high judicial authority for saying that, before Lord Abinger, admitting that there was no that time, “there is no instance of a master precedent for the action, and basing his debeing liable for the negligence of his ser cision upon general principles, said that the vant.? That a man should be liable for an plaintiff must have known as well as the masinjury occasioned by his own act or neglect ter, and probably better, whether the van

was sufficient; and that the consequences of 13 Mees. & Wels. 1.

a decision in favor of the servant would be 2 Ashworth v. Stanwix, 3 El. & El. 701; Flike v. Bos

alarming, subjecting the master to unknown ton, etc. R. R. Co. 53 N. Y. 550. 3 Swanson v. Northeastern Ry. Co., 3 Exch. Div. 341,

and unreasonable responsibilities, and encour343; Osborn v. Morgan, 130 Mass. 102.

aging the servant to omit the diligence and 4 Turberville v. Stampe, 1 Lord Raym. 264. (By

caution due to his master, “which diligence Lord Holt, 1698.) 6 2 Levinz' 172, (1688). 6 Austin's Lect. on Jurisp. (3rd Lond Ed. 513.)

& Story on Agency, 8th ed. p. 564, note. 7 House of Com. Docu. 1877, No. 285, p. viii,

93 M. & W. 1.

and caution, 'while they protect the master, and ordinary risks and perils incident to the are a much better security against any injury performance of such services, and in legal the servant may sustain by the negligence of presumption the compensation is adjusted others engaged under the same master, than accordingly. And we are not aware of any any recourse for damages could possibly af- principle which should except the perils arisford.”

ing from the carelessness and negligence of Priestley v. Fowler is the earlier authority, those who are in the same employment." but the case of Hutchinson v. York, New- It will be seen from the foregoing cases, castle and Berwick Railway Co.,10 has been that the authorities base the master's exempregarded as the leading English case upon the tion first, upon public policy, and, second, subject. In this case it is laid down that upon an implied contract. there is no implied contract of indemnity be- (1) The decisions have been justified upon tween employer and employed; but that, on grounds of public policy, because the oppothe contrary, there is an implied contract on site doctrine “would subject employees to the part of the servant to run the ordinary unreasonable and often ruinous responsibilirisks of the service. Baron Alderson, in ties, » 13 and would be an encouragement to delivering the opinion of the court, said: the servant to omit that diligence and caution “The principle is, that a servant, when he which are the best protection alike to the engages to serve a master, undertakes, as master, to the servant and to the public. between himself and his master, to run all (2) It has been objected to the argument the ordinary risks of the service, and this in

of an implied contract, that such a contract cludes the risk of negligence on the part of

is rarely in the mind either of master or sera fellow-servant whenever he is acting in dis

vant, when the contract of employment is charge of his duty as a servant of him who

made. Those who urge this objection, overis the common master of both.”

look the fact that this is but one of a large The earliest American case involving the

class of cases in which relations and duties doctrine of common employment was Murray imposed by law are set forth under the disv. South Carolina R. R. Co.,11 a South Caro

guise of fictitious agreements and promises, lina case decided in 1841, in which the care

a custom which permeates whole branches of lessness of an engineer resulted in injury to the common law; and, although the expresthe fireman. The court reached substanti

sion is, perhaps, an unfortunate one, there is ally the same conclusion as in Priestley v.

nothing peculiar in its employment bére. Fowler. But in this country, as in England,

(3) In addition to this, the rule seems to a later and more ably and thoroughly consid

be in accordance with natural justice. If it ered case is regarded as the leading author

is true that primarily a man is liable only for ity. This is the case of Farwell v. Boston &

his own wrongful acts, conversely it is equalWorcester R. R. Co.,!2 in which the opinion

ly true that every man must bear his own of the court was pronounced by Chief Jus

misfortunes. If the sufferer would have the tice Shaw. This opinion has been regarded

law interfere for his relief, it must be upon as one of the most profound and able to be

the ground that the injury was caused by the found in our reports, and has been exten

wrongful act or neglect of the defendant, sively cited on both sides of the Atlantic.

while the plaintiff himself was free from This was an action brought by an engineer

blame. This, extended by the maxims reto recover for damages caused by a misplaced

spondeat superior and qui facit, etc., may be switch. "The general rule," says Shaw, C.

taken as a general statement of the law, if J., "resulting from considerations as well of

we except the Illinois doctrine of comparajustice as of policy is, that he who engages

tive negligence. Now, applying these prinin the employment of another for the per

ciples to the case of a servant injured by a formance of specified duties and services, for

fellow servant, if he would recover from the compensation, takes upon hiruself the natural

master, the burden is upon him to show good

reason why the latter should be liable. If 105 Exch. 343 (1850). 111 McMullan's Law, 385. . 12 4 Metc. 49.

18 Cooley on Torts, p. 541.

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