1 Angel V. Felton, 8 Johns. (n. Y.) 149; Kosminsky V. Goldberg, 44

Ark. 401.

2 Phillips V. Barnet, 1 q. B. D. 436 ; Abbott V. Abbott, 67 Me. 304.

SUB-SEEVANTS AND VOLUNTEERS. 291

CHAPTER XX.

SUB-SERVANTS AND VOLUNTEERS.

В§ 239. Sub-servants.i

It is generally conceded that, aside from the cases of com-

pulsory employment or compulsory service just considered,

one is free to select his own servants, and that in order to

create the relation it is necessary to have the consent of both

parties, express or implied. Where, therefore, one servant

employs a sub-servant to assist liim in the master's business,

the sub-servant does not become the servant of the master

unless the first servant had authority to employ the sub-

servant or unless such employment was ratified by the master.^

Whether such authority may be derived from necessity has

already been considered.^ It has also been pointed out that

one may be liable for the consequences of the acts or omis-

sions of those who are not his servants at all upon the doc-

trine that " where a man is in possession of fixed property,

he must take care that it is so used and managed by those

whom he brings upon the premises as not to be dangerous

to others. In that view he is held liable, not for the negli-

gence of another, but for his own personal negligence in not

preventing or abating a nuisance on his own premises." *

It should also be noted that where a servant employs a

sub-servant, liability may attach to the master, not for the

mere negligence of the sub-servant, but for the concurring

negligence of the servant himself in intrusting the business

1 See ante, §§ 92-95.

2 Haluptzok V. Great Northern Ry., 55 IMinn. 446.

8 Ante, В§ 59 ; Gwilliara v. Twist, 1895, 2 Q. B. 84.

* Mitchell, J., in Haluptzok v. Great Northern Ry. , supra. Perhaps

Bush V. Stelnman, 1 Bos. & P., 404, and Althorf v. Wolfe, 22 N. Y. 355,

may be supported on this theory, though both cases have been much dis-

cussed and criticised.

292 WHO IS A SERVANT ?

to the sub-servant or in failing to use due care to conduct it

himself.^ In Althorf v. Wolft\^ a servant who had been

directed to remove the ice and snow from the roof of his

master's house, secured a friend to assist him, and, while

both were so engaged, a passer-by was struck by the falling

ice and killed. It was held that the owner (master) was

liable whether the ice that occasioned the injury was thrown

by the servant or his friend. The reasons given are diverse,

and the decision may rest upon the idea of implied authority,

or of ratification (of which there was some evidence), or of

the negligence of the servant in directing or controlling the

work, or of the duty of the occupier of premises not to permit

his i)roperty to become a nuisance-

Whatever other grounds of liability may exist, it is clear

upon princij)le that the master is not liable as master unless

the sub-servant has been engaged with his consent, express

or implied, or unless he has ratified the engagement, or un-

less there be established a case of necessity which may, after

all, be taken to be merely a case of the enlargement of the

authority because of the necessity.^

В§ 240. Volunteers.

A volunteer is one who, without the request or consent of

M or his authorized agent, undertakes to perform a service

for M. This may be as a mere interloper or it may be in

order to advance some interest of the volunteer or of his

master. In the first case the volunteer is essentially a tres-

passer, or at most a licensee, and his acts cannot bind M,*

nor can he recover for any injury he may suffer while in the

voluntary service.^ It is immaterial that he may have been

requested to assist by a servant of M, provided the servant

had no authority to engage assistants.^ Such request may

В» Booth I'. Mister, 7 Car. & P. 66 ; Althorf v. Wolfe, 22 N. Y. 355;

Engelhart v. Farrant, 1S97, 1 Q. B. 240.

^ 22 N. Y. 3.35.