Is injured through the negligence of a member of the crew.

In such case is the pilot barred of recovery upon the ground

that his injury is due to the negligence of a fellow-servant ?

Where the statute made the employment of the pilot com-

pulsory and also compelled the pilot to serve, and also fixed

the compensation, and further provided that the owner should

not be liable for the pilot as for a servant, it was held that

the pilot was not a fellow-servant of the crew and could

recover for injuries sustained through the negligence of one

of them.^

If a convict is hired out by the state to an employer, there

are two questions : (1) Is the employer liable as master for

the torts of such convict ? (2) Is the convict a servant

within the meaning of the fellow-servant rule ?

Upon the first point there would seem to be no difficulty,

since the employer has had entire freedom of choice and ought

to be liable for the act of the convict in the same way as for

the act of any other servant. He is also liable to such ser-

vant for defects in machinery or other breach of his duty as

master.*

Upon the second point the case stands upon a different

basis. The convict has had no freedom of choice, has not

chosen his master, and ought not to be held, therefore, to have

1 The China, 7 Wall. (U. S.) 53 ; Ralli i'. Troop, 157 U. S. 386, 402 ;

The John G. Stevens, 170 U. S. 113, 120; The Barnstable, 181 U. S.

464. The English decisions are to the contrary.

2 Homer Ramsdell Transportation Co. v. La Compaguie Generale

Transatlanlique, 21 S. C. Rep. 831.

8 Smith V. Steele, L. R. 10 Q. B. 125.

* Hartwig v. Bay State, &c. Co., 43 Hun (N. Y,), 425.

COMPULSORY EMPLOYMENT OR SERVICE. 289

assumed any of the risks connected with the service. He is

not a fellow-servant of free employees and may therefoi'e

recover for injuries occasioned by their negligence.^ He is

not free to refuse obedience to any command, and this want

of freedom of action may negative the existence of contribu-

tory negligence.^

В§ 237. Parent and child.

A parent is liable for the torts of his minor children living

with him only when he would be liable for the tort of a con-

tract servant under similar circumstances or when he partici-

pates in the tort by authorizing or ratifying it. There is no

such relation existing between the parent and child as will

make the acts of the child any more binding upon the parent

than the acts of any other person. Accordingly, if the child

commits a tort not in the course of the parent's affairs and

neither authorized nor ratified by the parent, the latter is not

liable for the consequences of such act.^ Evidence tending to

connect the parent with the wrongful act, as that he had

acquiesced in former similar acts of the child upon his prem-

ises, is competent and should be received,'^ but this is not on

the ground of agency. Since an unemancipated minor child

can have no action against his parent for a personal tort,^ it

follows that the question whether a minor child compelled by

law to serve his parent is a fellow-servant of other servants

of the parent, cannot arise.

В§ .238. Husband and -wife.

The common law liability of a husband for his wife's torts

did not rest upon the doctrine of agency. It extended to a

liability for ante-nuptial torts where no such agency could

have been predicated.^ It rested upon the necessity of joining

1 Buckalew v. Tennessee Coal, &c. Co., 112 Ala. 146; Boswell v. Barn-

hart, 96 Ga. 521.

2 Dalheim v. Lemon, 45 Fed Rep. 225, 233.

8 Tifft V. Tifft, 4 Denio (N. Y), 175; Paul v. Hummel, 43 Mo. 119 ;

Brohl V. Lingeman, 41 Mich. 711 ; Baker v. Morris, 33 Kans. 580.

* Hoverson v. Noker, 60 Wis. 511.

6 Hewlett V. George, 68 Miss. 703.

В® Hawk V. Harman, 5 Binney (Pa.), 43.

19

290 WHO IS A SERVANT?

the liiisbancl in all actions against the wife and upon the fact

that he became entitled to her personalty and the usufruct

of her realty. In cases where he was not, in fact, a participant

in the tort, it was necessary to join the wife in the action ;

but where the tort was committed in the husband's presence

and by his command or encouragement, he could be sued

alone.' A wife could, of course, be a servant in fact and

act under authority, and in such case the husband's liability

might be put ui)on the ordinary rule of agency.

Modern statutes which give to married women the control

and benefit of their own property and enable them to sue or

to be sued alone, have greatly modified the common law

doctrine of the husband's liability for his wife's torts.

Since a husband cannot be sued by his wife for a personal

tort during the marital relation, or even after divorce for a

personal tort committed during the marital relation,^ it fol-

lows that the question whether she is a fellow-servant of

other servants of the husband, cannot well arise.