own misconduct and that no one should be punished for the misconduct of others. If, indeed, the person sought to be held can be found to be morally responsible for the misconduct of the other, as where he has directed or caused or participated in the act, no difficulty will be found in justifying a rule which would make him legally responsible. But in the great majority of the cases involving the question with which we are now concerned, not only has there been no direction or participation on the part of the master or employer, but he has usually taken every precaution to prevent the causing of the injury. The master is ordinarily in these cases entirely innocent morally of the injury committed by his servant. The servant is the guilty party, and is legally liable for his misconduct. If, then, it is suggested that we should hold the master liable, we are confronted by this problem: Why should the innocent be punished for the misconduct of the guilty? Why should a master, who is personally free from fault, be held responsible to pay damages for the misconduct of his servant? If we will stop to think about this question for a moment, and lay aside our preconceived notions of what ought to be based upon what is, we shall find that this question is not an easy one to answer. It is true that now for many years our law has held an innocent master responsible in many cases to third persons for injuries caused to them by the negligence or misconduct of his servant. Many efforts have been made to account for the existence of such a rule, but so far as I am aware no entirely satisfactory answer has ever been assigned for it. It seems upon the face of it to be unfair and unjust, and its application often involves consequences upon an innocent master which seem little short of cruel. When applied to a wealthy employer or to a great corporation its hardships do not seem so obvious, but when applied to a small farmer or a small tradesman who by many years of labor and self-denial has accumulated a little property, and who finds himself confronted with a claim for damages of ten or twenty or thirty thousand dollars because, in spite of his precautions, his careless servant has driven his team against another person

and killed or maimed him, the hardship of the rule so far as the master is concerned is more apparent.

Courts in many cases have been impressed with the hardship of the rule, and judges who have felt compelled by the law to apply it against the master, have often expressed that feeling in their opinions. Thus the Supreme Court of Louisiana in one case (49 La. Ann. 1471) said:

"We never apply this rule without a sense of the hardship on the master." "To visit a man with heavy damages for the negligence of a servant, when he is able to show that he exercised all possible care and precaution in the selection of him," said Justice Sharswood in Pennsylvania, "is apt to strike the common mind as unjust." (77 Pa. 238. See also 70 Pa. 125; 2 H. & N. 356; 9 Q. B. Div. 340.)

And the Supreme Court of New York has said:

"The rule itself does not spring directly from principles of natural justice and equity." "The dictates of natural justice, disconnected with principles of expediency would indicate that every individual should be responsible for his own wrong and that no person should be punished for the wrong of another." (6 Barb. 238.)

Notwithstanding such criticisms, however, the rule itself is abundantly established.

As has already been pointed out, many efforts have been made to account for it but, as is said by Sir Frederick Pollock in his treatise on the law of Torts (8th ed., p. 77):

"No reason for the rule, at any rate no satisfactory one, is commonly given in our books."

Mr. Justice Holmes, in his book on the Common Law, attempts to account for it upon historical reasons, and Professor Wigmore has made an elaborate study of its historical development, ( Harv. L. Rev. 315, 383); but if it had no other foundation than an historical one, it probably should not, and would not, long survive. It is sometimes said that, as the master is the one who put the original force in motion, he is the one who should answer for the consequences; but this seems to put the employment of an agent or servant upon the same perilous footing as the keeping of wild beasts or the employment of unusually dangerous forces. It is sometimes said that

the master is the one who is to get the benefit of the service and therefore he should take the burdens. But it is not true in the ordinary case that the master is the only one who receives the benefit. Being employed may be just as great a benefit to the servant as the employment of him may be to his master. From the standpoint of society at large the activities of the master and the activities of the servant may be equally beneficial. There is, however, an element of truth in the position. so far as the mere outsider is concerned. He is not directly benefited by the employment in the ordinary case. It is sometimes said that, granting that the master is entirely innocent, the third person injured is innocent also, and that as between two equally innocent parties the loss ought to fall upon the master because he is the one who first employed the servant and by whose act therefore the injury has been made possible. This course of reasoning, however, is not entirely satisfactory because there is no such general principle as that referred to, and if we concede that both parties are equally innocent we simply are adopting an arbitrary principle for fastening the responsibility upon one of them. It is sometimes said that the purpose of the rule is to secure greater care and diligence on the part of the master in the selection of his servants and control of his business, but if this be true, the rule does not accomplish its purpose because even if the master has exercised the utmost care in both respects he is nevertheless held liable. It is sometimes said that the master should be held because employers are, as a class, more apt to be pecuniarily responsible than employees, and therefore for the protection of third persons the remedy should be given against the employer. This argument, however, is one which must obviously be confined to very narrow limits because there can be no tenable theory that the obligations of one man may be shifted to another simply because the latter is more able financially to bear them. It is sometimes said that inasmuch as the master has given general commands to the servant to perform the service, it must be implied that he has commanded the act in question. This, however, is a mere

fiction and in many cases we would have the absurdity of a command implied in the face of unquestionable proof that the act was expressly forbidden.

The most potent reason to my mind for holding the master responsible is to some extent a composite of these various reasons. So far as the third person is concerned, who is not connected with the master's business, who is not participating in it, and who derives no direct benefit from its carrying on, it may well be that considerations of expediency, rather than those of natural justice, should permit the third person a remedy against the chief and responsible head of the enterprise, even though he be personally free from fault, and leave the latter to obtain reimbursement by the methods which the law gives him against the servant by whose negligence the master was thus made responsible. Practically, however, this remedy of the master is not likely to prove very efficacious.

Whatever may be thought about the reasons for this rule, two or three things are certain and significant. First, that the rule making the master liable does not depend upon foundations of natural justice, but is defended upon considerations of expediency. Second, that in all the cases which arose during the time. the rule was taking shape, the person injured was a third person; and thirdly, that of the various considerations of expediency urged in its support the most important and significant contemplate that the person seeking a recovery is an outsider, in no way participating in or connected with the enterprise.

It is also true that the rule that the master should be liable, or as it is more shortly put, the rule of respondeat superior, is not a statement of a universal principle at all, but is in itself an exception to a more general rule and is based merely upon considerations of expediency. As is well stated by Mr. Beven in his work on Negligence. (3d ed., Vol. I, p. 657.)

"There is no general rule making one man liable for the negligence of another. The rule of law is the other way. Culpa tenet suos auctores tantum. To this law there has long been an exception established,—that the master must answer for the act of his servant when strangers are injured thereby."

Or, as stated by Mr. Wood in his treatise on Master and Servant (Sec. 277):

"The doctrine holding a master liable for the wrongful acts of his servant * * * is in direct antagonism with that broader doctrine, that every person shall be held to answer for his own wrongs; therefore it is regarded with much jealousy by the courts, and is circumscribed into as narrow limits as is consistent with the true interests of society."

This rule of law that the master was liable to strangers for the negligence of his servants had been settled for many generations before the question arose whether the master should also be liable to one servant for an injury which the latter sustained by reason of the negligence of a fellow servant. question was first suggested in the famous English case of Priestly v. Fowler (3 M. & W. 1), decided in 1837. This case, however, did not squarely raise the question, but it came directly before an American court in 1841 in the case of Murray v. South Carolina Ry. Co. (McMullen's Law 385). In the following year the question was again presented, this time to the Supreme Judicial Court of Massachusetts, in the case of Farwell v. Boston & Worcester Railroad Corporation (4 Metcalf 49). The action was by an engineer against the railroad company to recover damages for an injury caused to the engineer by the negligence of a switchman. No fault on the part of the company in the selection or retention of such switchman or in the general management of its business was suggested. The question was argued by distinguished counsel, and the opinion of the court was written by Chief Justice Shaw, who is everywhere conceded to have been one of the ablest judges which this country has ever produced. He examined the question with great thoroughness and his opinion has since been recognized both in England and America as the most authoritative exposition which has ever been made of the principles which control the determination of the question now considered. The question was obviously a new question, and it was significant that never before in the history of English law had it been seriously contended that such an action could be maintained. The question, as will