though a sheriff is liable for a trespass committed by his deputy alone, he cannot be sued therefor jointly with the deputy.144 In other states the more reasonable view is taken that officer and deputy are jointly responsible for misfeasances and malfeasances under color of authority.145

§ 83. When the Agent Follows an Independent Employment. Another phase of the nonliability of the master or principal is shown by the doctrine that where one employs a person to perform services who follows a distinct and independent occupation of his own, the employer is not responsible for the negligence or improper acts of the person so employed.146 This doctrine is applied where a physician sends a fellow-physician to attend a patient for him, the former not being liable for the unskillful or negligent acts of the latter in such case.1 And so where a railway company and other manufacturing corporations or individuals employing servants select a regular physician and surgeon to attend and care for employees who are injured, there is no liability on the part of such corporations or individuals for the acts of negligence of such physician or surgeon so long as the persons employed are possessed of ordinary skill and competency. The only liability

148

147

144 Campbell v. Phelps, 1 Pick. 62, 11 Am. Dec. 139; Draper v. Arnold, 12 Mass. 449; Parsons v. Winchell, 5 Cush. 592, 52 Am. Dec. 745; Pervear v. Kimball, 8 Allen, 199. See Elliott v. Hayden, 104 Mass. 180.

145 Morgan v. Chester, 4 Conn. 387; Waterbury v. Westervelt, 9 N. Y. 598; Coltraine v. McCaine, 3 Dev. 308, 24 Am. Dec. 256; Remlinger v. Weyker, 22 Wis. 383; Christian v. Hoover, 6 Yerg. 505.

146 Laugher v. Pointer, 5 Barn. & C. 547; Milligan v. Wedge, 4 Perry & D. 714; De Forrest v. Wright, 2 Mich. 368.

147 Myers v. Holborn, 58 N. J. L. 193, 55 Am. St. Rep. 606, 33 Atl. 389. See sec. 373, post.

148 Quinn v. Kansas City etc. R. R. Co., 94 Tenn. 713, 30 S. W.

149

of an employer, then, in such cases will be for negligence in the selection of physician or surgeon. The reason for this rule of nonliability is that the relation of master and servant cannot exist in such cases, because the employer has not the knowledge and skill to enable him to direct the person employed.

1036, 45 Am. St. Rep. 767, and note; Pittsburgh etc. Ry. Co. v. Sullivan, 141 Ind. 83, 50 Am. St. Rep. 313, 40 N. E. 138; Allan v. State S. S. Co., 132 N. Y. 91, 28 Am. St. Rep. 556, 30 N. E. 482; South Florida R. R. Co. v. Price, 32 Fla. 46, 13 South. 638.

149 Laubheim v. De Koninglyke etc. Co., 107 N. Y. 228, 1 Am. St. Rep. 815, 13 N. E. 781.

CHAPTER VI.

CONTRIBUTION BETWEEN WRONGDOERS.

§ 84. Contribution-Doctrine explained.

§ 85. Contribution applied to torts.

§ 86. Contribution between tort-fea sors-General doctrine.

§ 87. Same-Illustrations of application of rule to intentional acts. § 88. Contribution when parties presumed to know act is unlawful.

§ 89. Contribution when parties not conscious of wrongdoing.

§ 90. Contribution when wrong due to negligence.

§ 91. Contribution-Indemnity-Distinguished.

§ 92. Same continued-Where different duties are allotted to different parties.

§ 93. Contribution where one is responsible for acts of another. § 94. Contribution when offense malum prohibitum.

95. Contribution between parties suing out civil process.

§ 84. Contribution-Doctrine Explained. Contribution is an obligation which arises where a common burden is assumed by two or more persons, that when one has been compelled to bear it, he has a right to call upon those jointly bound with him to bear the same equally with him. It is governed by equitable, rather than legal, principles,1 and is not founded on contract, but upon the principle that equality of burden as to a common right is equity; where there is a common right the burden is common.2 The law requires equality, and one should not be obliged to bear the burden for all.3 "Contribution, it is true, is not contractual; it is an equity founded in acknowledged

1 Camp v. Bostwick, 20 Ohio St. 337, 5 Am. Rep. 669; Campbell v. Mesier, 4 Johns. Ch. 335, 8 Am. Dec. 570.

2 Vandiver v. Pollak, 107 Ala. 547, 54 Am. St. Rep. 118, 19 South.

3 Campbell v. Mesier, 4 Johns. Ch. 338, 8 Am. Dec. 570.

principles of natural justice."4 While this obligation is not based on contract, yet the law following equity implies a promise to contribute, or imposes an obligation upon equitable considerations, in order to afford a remedy."

The doctrine, it is claimed, has a more effectual operation in a court of equity than in a court of law." As far as courts of law have assumed jurisdiction upon this subject it is upon the ground of an implied assumpsit."

§ 85. Contribution Applied to Torts.-Contribution being founded upon principles of natural justice and equity, the obligation, not being contractual, must of necessity be limited in its application to cases where parties are without fault, or have not intentionally committed a wrong. It can therefore have no application to intentional joint wrongs or torts, as the law does not render assistance to those who base their cause of action on wrongful, immoral or illegal acts. A tort-feasor is not entitled to assistance in compelling his associates in wrongdoing to contribute to the common burden, when he has been compelled to bear it, as he is bound to do when called to respond to the injured party, because he does not come into court with clean hands, being himself at fault. The doctrine that there is no right of contribution between joint tort-feasors has received considerable attention by the courts, and the foregoing has been designated as the general rule. It is claimed also that there are so many exceptions to

4 54 Am. St. Rep. 123, note.

5 Tobias v. Rogers, 13 N. Y. 59. It is bottomed and fixed on general principles of justice: Campbell v. Mesier, 4 Johns. Ch. 335, 8 Am. Dec. 570.

6 Campbell v. Mesier, 4 Johns. Ch. 335, 8 Am. Dec. 570.

7 Id.; Craythorne v. Swinburne, 14 Ves. Jr. 164.

A care

it that it has ceased to be a general rule. ful scrutiny of some of the so-called exceptions leads to the inquiry whether or not they fall under the head of torts at all, and whether they do not more properly come within the meaning of quasi contracts. One author has well said that the statement that as between tort-feasors there is no contribution is inaccurate and misleading. The difficulty, it would

seem, lies in the manner of treating the subject in its relation to torts, by confusing it with principles differing radically from those which govern the relations and rights of wrongdoers. Courts and writers do not differentiate between the varied situa tions or relations of parties when it is sought to apply the doctrine. There is a radical distinction with respect to the relations which exist between the parties where contribution is allowed and when it is denied. It is not permitted where the parties have all acted in concert, or with unity of design, and the wrong is intentional or willful. The obstacle in the way of compelling contribution in such cases is intentional wrongdoing; but if parties are not aware that they are engaged in wrongdoing, do not intend to commit a wrong, or if it cannot be presumed that they knew they were committing a wrong, then they may come into court with clean hands and ask their comrades in a resulting wrong to bear their proportionate share of the common burden. Under such circumstances the parties are not in fact wrongdoers as between themselves. A wrong which is committed by an agent or servant is by direction; it is in fact the act of the principal

8 Goldsborough v. Darst, 9 Bradw. 205; Bailey v. Bussing, 28 Conn. 455; Vandiver v. Pollak, 107 Ala. 547, 54 Am. St. Rep. 118, 19 South. 180.

• Keener on Quasi Contracts, 408..