MASTER AND SERVANT 1. Definition.—The relations between master and servant are in many respects similar to those between principal and agent. Frequently the words "serv ant" and "agent" are used interchangeably. Strictly speaking, they are not interchangeable; tho every servant is, in executing the duties required of him under his contract with his master, the agent of his master. An agent is a person authorized to do some act or acts in the name of another who is his principal. He acts for and represents his principal in dealings with third parties where obligations are created be tween the principal and such third parties.
A servant, while he is acting as a servant only, and not as an agent, performs operative acts, menial labor, office work, and so on, in the performance of which he does not come into contact with third persons in a representative capacity. My coachman, in the per formance of his usual duties as such, is my servant, and not my agent. But if I send him to buy a horse for me in my name, he becomes my agent for that pur pose, tho he is none the less my servant. So that a person may be both an agent and a servant at the same time. It is said that in order that there may be a contract of hiring and service there must be a mu tual agreement, express or implied, by which one per son is bound to hire and remunerate and another is bound to serve for some determinate time. There will be no contract of hire and service if the under standing is that the employer is to pay only while the servant remains, it being optional whether the serv ant will serve or the master employ.
2. Contract of hire and service.—If a special agree ment is entered into, then the terms of the agree ment must be observed and adhered to by both mas ter and servant. Where the agreement calls for serv ice for a. year or longer, generally it must be in writing and signed by the parties. But a binding agreement of service cannot be made for a longer pe riod than nine years. It has been held that where services have been rendered without an express con tract to pay for them, it is a question of fact whether or not there was an implied contract to pay for them, and the onus is upon the one seeking payment. Usually, however, where there is no express contract for hire and service, and the service is performed, there arises a presumption of contract, in which case the wage would be the customary wage paid for the particular kind of work in the locality. Where the services are rendered in such a case as between near relatives, the presumption is rather to the con trary. It then becomes necessary to prove an express hiring.
3. Independent contractor.—In order to be an in dependent contractor, a workman must be free from control, and must not be subject to the orders of any one as to the manner in which the work is to be done.
A wishes to have a building torn down to make way for a new one. He contracts that B shall tear down the building, take full control of the work, em ploy his own men and use his own methods. B is ex perienced in this kind of work, and A exercises no control or supervision. The work begins, and owing to the removal of parts of the roof which formed a counterweight for a heavy stone cornice, a part of the cornice falls into the street and kills a passerby. A is not responsible; B is, if negligence on his part is proved. If B had not been a competent person, and had not had experience in this class of work, A might be held liable for his negligence in employing an in competent workman. If after the work began, and before the accident, A had intervened and the work was henceforth done under their joint supervision, then the accident would be considered to have oc curred thru the negligence of both.' So it has been held that the act of committing work to a contractor to be executed, from which, if properly clone, no injurious consequences can arise, is to be dif ferentiated from the act of turning over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted. It may be just to hold the party authorizing the work in the former case exempt from liability for injury resulting from negligence which he had no reason to anticipate. There is good reason for holding him liable for injury caused by an act certain to be attended with injurious consequences if safeguards are not provided, no mat ter thru whose fault the omission to take the necessary measures for such prevention may arise. Hence, if an owner upon whose lands works are to be con structed„from the construction of which injury to ad joining premises must be expected to result, omits to take the necessary measures to prevent such mischief, he may be held Nor can the employer expect to escape liability by pleading that work has been intrusted to an independ ent contractor, if the thing contracted to be done is unlawful, or creates a public nuisance, or by statute must be done efficiently and it is done 4. Fellow-servant and vice-principal.—Who is a fellow-servant? In the English law provinces it will be of importance to know. A fellow-servant is one who is engaged with others for the same master in operative work. Their duties may not be similar, but they are fellow-servants if they are engaged in the same general business of their common employer. One may be of a higher grade than another, and these may not be engaged in the same particular work. In that they are performing operative acts for the gen eral furthering of the business, they are fellow-serv ants.