§ 944. Negligence of agents.- Bearing in mind the discriminations that must be made by parties engaging in different lines of business, the law of negligence differs in nothing, when applied to the agents of corporations, from its application to those of individual principals.1

It is no bar to actions founded on the negligence of agents that they were carefully selected with regard to competency and reliability since the disobedience of orders often constitutes the neglect complained of.2

The question whether an agent has been negligent in a particular case is one of mingled law and fact. Whether the conduct of a party in a given case amounts to negligence is for the court to determine; what his conduct has actually been is a question for the jury.

The subject of negligence is in itself sufficiently comprehensive for a separate treatise, and only a few illustrations of general principles as applied to the agents of corporations will be given.3

the second place the hatchet was furnished for an entirely different purpose. Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 110.

1 N. Y. & N. Haven R. R. Co. v. Schuyler, 34 N. Y. 30.

2 Bargate v. Shortridge, 31 Eng. L. & Eq. 46.

3 A special deposit had been made with a bank of a cask containing gold coin, it was shown that it had been the practice of the bank to receive a special deposit of money and other valuable things, but there was no regulation by law or provision of the charter on the subject. The cask with its contents having been lost or stolen and an action brought against the bank to recover the value of its contents it was held that the practice of the bank having been to receive such deposits it must be deemed the depository and not the cashier or other officer through whose particular agency the property had been received. Foster v. Essex Bank, 16 Mass. 479.

Where a special deposit of United States Bonds had been made with the bank by delivering them to a third party through mistake supposing him to be the depositor, but without ascertaining his identity, the bank was held liable. Lancaster Co. Nat. Bank v. Smith, 62 Pa. St. 47.

A national bank was held liable under similar circumstances for the value of United States Bonds deposited for safekeeping although the undertaking was without compensation. First Nat. Bank of Carlisle v. Graham, 79 Pa. St. 106. In the case of Pattison v. Syracuse Nat. Bank, 80 N. Y. 82, the Bank was held bound to make good the loss of a special deposit occasioned by the negligence of the teller who was in the habit of receiving special deposits with the

Telegraph companies are liable for the negligence of their employees in the transmission of messages received by them for transmission. Such negligence may consist in unnecessary delay in sending, in mistakes in sending, or in failure to transmit.1 They cannot escape liability for the negligence of agents by stipulating against such liability. In this country they are held to be agents of both sender and receiver of a message, and liable to both parties for negligence of their servants whereby a loss is caused to either."

Railroad companies are liable for injuries to persons at street crossings resulting from the negligence of their servants in operating trains.*

They are also liable for injuries to persons on rail

knowledge of the cashier in charge of the bank and of the directors. There are several cases in which an opposite view prevails to that taken in this case with respect to the liability of National Banks for loss through negligence of agents of special deposits. These decisions proceed on the ground that such banks have no corporate authority to receive special deposits. The case of Willey v. First Nat. Bank, 47 Vt. 546 and 50 Id. 389, goes to the extent of holding that, when a special deposit is received by a national bank, even in accordance with usage, and with the knowledge and acquiescence of the directors of the bank, it is not liable for its loss even by gross negligence, on the ground that the bank has no corporate capacity to receive such deposits for safekeeping, and therefore cannot empower any of its officers to incur liability in its behalf by so doing. Approved in Third Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278.

1 Rittenhouse v. Ind. Tel. Co., 44 N. Y. 263; Dela Grange v. So. West T. Co., 25 La. Ann. 383; Tyler v. West Un. Tel. Co., 60 Ill. 440; Bartlett v. West Un. Tel. Co., 62 Me. 209; Baldwin v. West Un. Tel. Co., 45 N. Y. 744; Sprague v. West Un. Tel. Co., 6 Daly, 200; De Rutte v. N. Y. Tel. Co., 1 Daly, 547; N. Y., etc., Tel. Co. v. Dryburg, 35 Pa. St. 298; Squire v. West Un. Tel. Co., 98 Mass. 232; W. U. Tel. Co. v. Ferguson, 57 Ind. 495.

2 U. S. Tel. Co. v. Gildersleeve, 29 Md. 232; West Un. Tel. Co. v. Fontaine, 58 Ga. 433; True v. International Tel. Co., 60 Me. 9; Gruinelly v. West Un. Tel. Co.. 113 Mass. 299; Breese v. U. S. Tel. Co., 48 N. Y. 132; Sweatland v. Ill. Tel. Co., 27 Ia. 433.

3 N. Y. Tel. Co. v. Dryburg, 36 Pa. St. 303; Elwood v. West Un. Tel. Co., 45 N. Y. 549; Bank v. West Un. Tel. Co., 52 Cal. 280; Rose v. West Un. Tel. Co., 3 Abb. Pr. N. S. 408; West Un. Tel. Co. v. Fenton, 52 Ind. 1; De Rutte v. N. Y., etc., Tel. Co., 1 Daly, 547; Leonard v. N. Y., etc., Tel. Co., 41 N. Y. 544.

* Sweeney v. Old Colony, etc., R. R. Co., 10 Allen, 368; Chicago, etc., R. R. Co. v. Gretzner, 46 Ill. 74; Penn. R. Co. v. Krick, 47 Ind. 368; Georgia R. Co, v. Wynn, 42 Ga. 331.

road tracks if properly there, or in getting off or on the trains and station platforms;2 or by agents in the management of trains; carriers are liable for all loss caused by unreasonable delay. Whatever the excuse for failure to carry goods to their destination within the usual times it must not consist, either in whole or in part, of the fault of the carrier or his agents, servants or employes; and the company is not relieved from its liability because the delay and loss were occasioned through the fault of nearly all its engineers, who suddenly, and by general understanding among themselves, quit work without notice to the company. Though the principal is liable for the torts and neglects of his agent, yet we are to understand the doctrine with its just limitations, that the tort or negligence occurs in the course of the agency. He is never liable for unauthorized, willful, or malicious acts or trespasses.1

§ 945. Liability for torts and neglects of sub-agents.— Generally a corporation is not liable in damages to the

1 Goodfellow v. Boston, etc., Co., 106 Mass. 46; Schultz v. Chicago, etc., R. R. Co., 44 Wis. 638.

2 Gaynor v. Old Colony R. Co., 100 Mass. 208; Green v. Erie R. R. Co., 11 Hun, 333.

3 Phila. R. R. Co. v. Derby, 14 How. 468; Hunter v. Hudson Ry. Iron Co., 20 Barb. 507; Drymala v. Thompson, 26 Minn. 40.

4 See Sherman & Redfield on Negligence, §§ 62, 63, 64, 68; Angell on Carriers, § 604; Redfield on Railways, § 381; Reeve's Domestic Relations, § 356; Scott & Jarnagin's Law of Telegraphs, § 69; American Leading Cases, vol, 1. p. 617; Wilson & Peverly, note, on p. 619; Smith's Leading Cases, vol. 1, part 2; note to Scott & Shepherd, p. 698, Ellis v. Turner, 8 Durn. & E. 533; Lyons v. Martin, 8 Ad. & E. 512; Coleman v. Riches, 29 Eng. L. & E. 323; Page v. Parker, 40 N. H. 68; Foster v. Essex Bank, 17 Mass. 494; Vanderbilt v. Richmond T. Co., 2 Comst. 479; Wright v. Wilcox, 19 Wend. 343; De Camp v. Miss. & Missouri R. R. Co., 12 Iowa, 348; Phil. & Read. R. O. Co. v. Derby, 14 How. 481; Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 110; Steamboat Ohio v. Stunt, 10 Ohio St. 582; Kline v. C. P. R. Co., 37 Cal. 400; Cox et al. v. Keahey. 36 Ala. 340; Thames Steamboat Co. v. Housatonic R. R. Co., 24 Conn. 40; Church v. Manfield, 20 Conn. 284; Giblin v. McMullin, Law Rep. 2 P. C. 319, 335; Bank of Ireland v. The trustees of Evans Charities, 5 H. L. Cas. 410.

injured party for torts and of subordinate employes of contractors when the latter assumes an immediate responsibility to the principal and the principal no relation to the sub-agent. But where the employment of the superior agent is general and not restricted to the performance of a specified undertaking, and he is not an intermediary between the sub-agent and the principal, the same liability exists for the negligence and torts of the sub-agents as in the case of other agents.'

Much will sometimes depend upon whether the subagent employed is fitted and qualified for the task to which he is assigned by his immediate superior.2

§ 946. Injury to employe through negligence of co-employe. An employer is not bound to indemnify his employe for losses suffered by the latter in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employe.

This rule is a result of modern decisions on the subject, and has in some states received statutory recognition.

At the present day no principle of law is more firmly established than that above stated.3

1 Where the agent of a telegraph company, without authority to employ a subagent, put another person in his place and sent a fictitious dispatch by means of which he defrauded a bank of a sum of money, it was held that the company was liable to make good the loss. Bank of Cal. v. W. U. Tel. Co., 52 Cal. 280; see Moore v. Thayer, 40 Cal. 517.

2 In Althart v. Wolfe, 22 N. Y. 365, the work in which defendant's servant was engaged was purely mechanical, requiring no special qualifications, and upon that ground, as well as upon others, the principal and not the intermediate agent was held liable. See Sherman & Redfield on Neg. 70, and cases cited.

3 The principle was first announced in the case of Murray v. S. C. R. R. Co., 36 Am. Dec. 268, and was soon after followed in Farwell v. Boston & Worcester R. R. Co., 4 Metc. 49. In the last case Justice SHAW made a very elaborate and learned exposition of the law. The reasoning advanced in support of his position were so convincing and luminous that the decision became the guide for

§ 947. When superior employe stands in place of principal. -Where an employe is injured through the negligence of a superior agent under whose control and direction he is employed, and who has general superintendence of all the work and authority to employ and discharge hands, the latter is a fellow servant with the subordinate, and their common principal is liable.1

Most of the statutes on this subject are but affirmances of the rule of the common law. Most American courts in declaring the common law hold that ar employe to whom the master delegates control of the business, including the power to employ and discharge

courts of first and last resort in all the other states and in England; also see Whalen v. Mad River & L. E. R. R. Co., 8 Ohio St. 249; Wondor v. Baltimore & Ohio R. R. Co., 32 Md. 411; s. c. 3 Am. Rep. 143; Gibson v. Milwaukee & P. R. W. Co., 23 Wis. 668; Fox v. Sandford, 4 Sneed, 36; McMahon v. Davidson, 12 Minn. 257; Searle v. Lindsay, 11 C. B. (N. S.), 429; Thayer v. St. Louis Alton, and T. R. R. Co., 22 Ind. 26; Yeomans v. Contra Costa S. N. Co., 44 Cal. 71; Jones v. Granite Mills, 126 Mass. 84; Murphy v. Boston & Albany R. R. Co., 59 How. Pr. 197; Peterson v. Whitebreast C. & M. Co., 50 Iowa, 673; S. C. 32 Am. Rep. 143; Potts v. Port Carlisle D. & R, W. Co., 2 L. T. (N. S.) 283; Smith v. Lowell Mfg. Co., 124 Mass. 114; McDonald v. Hazeltine, 53 Cal. 35; Michigan Cent. R. R. Co. v. Dolan, 32 Mich. 510.

1 McLean v. Blue Pt. Gravel M. Co., 51 Cal. 255. In a subsequent similar case the decision in the above case was relied upon on the one side and combated on the other by counsel, but was not referred to by the court although a directly opposite conclusion was reached. Beeson v. Green Mt. G. M. Co., 57; Cal. 20; cited and its principle reaffirmed in McKeene v. Cal. So. R. R. Co., 66 Cal. 302. In Brown v. Sennett, 68 Cal. 225 the same rule was applied to the case of an employe of a stevedore killed through the negligence of the foreman to whom the entire management and supervision had been given by the master. The decision in this case appears to be in accord with the weight of authority, and is undoubtedly sanctioned by sound reason everywhere. Sherman v. Redfield on Neg., sec. 102; Wharton on Neg., sec. 241. One who is president and member of the executive committee of a railroad company, and managing agent of the construction company that is building the road, and acts in both capacities according to his will and judgment in the construction, is liable for a trespass committed by a sub-contractor. St. Louis & C. Ry. Co. v. Drennan, 26 Ill. App. 263. But where one agrees to supply a railroad company with timber for construction of its road, and employes of sub-contractors under him commit trespasses in getting timbers for such construction, the railroad company is not liable under Code Ga., sec. 2962, providing that an employer is not liable for torts of his employes, engaged in an independent business, when there is no evidence of