Voluntarily assumes the risks of the default of fellow-servants.

We have then to consider the case of compulsory employment

of a servant and the case of the com])ulsory rendering of ser-

Vices, in determining the question, Who is a servant ?

В§ 235. Liability for servant compulsorily employed.

In some cases — as in the em{)loyment of pilots — the em-

ployer is required by law to employ only regularly designated

or licensed persons and in some instances is bound to take

the first of such persons who presents himself. As the free-

dom of choice is thus limited — or entirely eliminated — the

question arises whether the employee is really the servant of

the employer so as to render the latter liable under the usual

doctrines applicable to master and servant.

The case of limited selection has generally been decided in

accordance with the usual doctrine of master and servant.

So long as there is a power of selection, even though among

COMPULSORY EMPLOYMENT OR SERVICE. 287

a small number, the employer chooses his own servant and

must remain liable for his acts within the scope of the em-

ployment. Thus where the statute required that any barge

navigating the Thames should have on board one authorized

or licensed bargeman (of whom it appeared there were about

six thousand), it was held that a proprietor of a barge was

liable for the negligence of one of the licensed bargemen

selected by him.^ And where pilotage statutes are construed

as not compulsory, the shipowner is held liable for tlie negli-

gence of the pilot.2 Where a mining company is required by

law to select an engineer from among those licensed by the

state, the company cannot escape liability for tlie incompe-

tence of an engineer so selected on the plea that the certificate

of the state examiners is conclusive as to the holder's com-

petence.^ But, contra, where the company was required to

employ a licensed foreman a statute making the company

liable for the foreman's negligence was declared unconstitu-

tional.4

If the employment of a particular person, or of the first of

a class to present himself, is compulsory, the employer is not

liable for the misconduct of such person. Thus, it is said

that a shipowner is not liable for the negligence of a com-

pulsory pilot, because the pilot is not deemed to be acting as

his servant, but as an officer imposed by the state.^ There

are numerous English authorities to support this proposition,^

and the English statutes now expressly provide that the

owner shall not be liable for the acts of the compulsory pilot.^

1 Martin v. Temperley, 4 Q. B. 298.

2 Bussey v. Donaldson, 4 Dall. (Pa.) 206; Yates v. Brown, 8 Pick.

(Mass.) 22; Dennison v. Seymour, 9 Wend. (N. Y.) 9.

3 Consolidated Coal Co. v. Seniger, 179 111. 370, 374-375.

* Durldu V. Kingston Coal Co., 171 Pa. St. 193.

* Story on Agency, В§ 456 a.

6 The Maria, 1 W. Rob. Adm. 95 ; Lucey v. Ingram, 6 M. & W. 302 ;

The Halley, L. R. 2 P. C. 193. But if the master still remains in con-

trol, although compelled to avail himself of the assistance of a pilot, the

shipowner is liable. The Guy Mannering, L. R. 7 P. D. 52; The

Agnes Otto, L. R. 12 P. D. 56; The Prins Hendrik, 1899, P. 177.

' Merchants' Shipping Act, 1894, В§ 633, replacing В§ 388 of Act of

1854.

288 WHO IS A SERVANT?

Wliilc it has been held by tlio Supreme Court of the United

States that under the maritime law the ship is liable for dam-

ages occasioned by the negligence of a compulsory pilot/ it

has recently been distinctly held that in an action at common

law the shipowner is not liable for injuries due to the negli-

gence of a pilot accepted compulsorily.^

В§ 236. Status of one compelled to serve.

The question concerning pilots also arises when the pilot