In others. The English and Massachusetts cases were imme-

diately discussed in Story on Agency ,3 and through this classic

the fellow-servant doctrine was heralded to the profession at

large and received general recognition from the courts.

Such variations of the rule as are found in a few states are

rather the result of the shifting application of the rule than

of any essentially different statement of it. Such are the

" superior officer " doctrine of Ohio,* Nebraska,^ and one or

two other states ; ^ and the " different department " doctrine

of Illinois," Missouri,^ and some other states.^

1 Ru.ssell V. Hudson Riv. R. Co., 17 N. Y. 134; Sherman v. Rochester,

&c. R., 17 N. Y. 153 ; Wright v. New York Cent. R., 25 N. Y. 562 ; Cris-

pin V. Babbitt, 81 N. Y. 516.

2 23 Pa. St. 381 (1854).

8 2(1 ed., 1813; 3d ed., 1816, §§ 453 fM53/.

* Little Miami R. i;. Stevens, 20 Ohio, 415.

6 Union Pac. R. v. Doyle, 50 Neb. 5.')5.

6 Armstrong v. Oregon, &e. R., 8 Utah, 420; Richmond, &c. R. v.

Williams, 86 Va. 165 ; Nix v. Texas, &c. R., 82 Tex. 473.

7 Chicago, &c. R. v. Moranda, 93 111. 302.

8 Dixon V. Chicago, &c. R., 109 Mo. 413. В« Post, В§ 273.

FOR TORTS TO SERVANT. 335

The rule is of comparatively modern origin, but its almost

universal acceptance would seem to indicate that it rests on

some substantial considerations of public policy that have

constrained courts everywhere to follow it. It has been

modified, however, in some jurisdictions by legislative action,

of which more hereafter.^

В§ 273. "Fellow-servants employed in the same common service."

In order that the rule should apply it is necessary that the

servant injured and the servant at fault should be fellow-ser-

Vants employed in the same service. They must have a

common master, and for this reason it has been held that the

employees of a palace-car company are not fellow-servants of

the railj-oad company that hauls the palace car as a part of

its passenger train.^ This excludes from the category an

independent contractor ^ and the servants of such contractor

In their relation to the servants of the employer of the inde-

pendent contractor'^ or to the servants of another independent

contractor engaged by the same employer.^ It also excludes,

for another reason, compulsory servants, like pilots ^ and

convicts,^ since such servants not being free to contract

cannot be said to have contracted to assume the risks of the

negligence of those with whom they are compelled to work.

On the other hand there may be such a transfer of service

for the time being as to render the general servant of A

temporarily the servant of B and the fellow-servant of B's

servants.^

So a volunteer assumes the same risks as a servant by

contract, and becomes, therefore, while so volunteering, a

fellow-servant of the regular servants of the person in whose

1 Post, В§ 279.

2 Jones V. St. Louis S. W. Ry., 125 Mo. 668; Hughson v. Richmond,

&c. R. R., 2 D. C. App. Cas. 98.

8 Ante, В§ 218 et seq.

* Murray v. Dwight, 161 N. Y. 301.

6 Johnson v. Lindsay, 1891, A. C. 371.

6 Smith V. Steele, L. R. 10 Q. B. 125. See ante, В§ 236.

7 Buckalew v. Tennessee Coal Co., 112 Ala. 146. Ante, В§ 236.

8 Ewan V. Lippincott, 47 N. J. L. 192. See ante, В§ 228 et seq.

336 LIABILITY OF MASTER

interest he volunteers.^ Perhaps tlie better doctrine is that

the vohintcer is not a servant at all, and assumes all the risks

of the situation except that of wanton injury .^

The term fellow-servant also excludes such servants as,

under the test to be aj)i)lied in a particular jurisdiction, fall

within the category of deputy-master or vice-princij)al.^

" Employed in the same common service " has a narrower

meaning than " employed by the same master," since the

same person may be engaged in two or more enterprises

which have no essential relation to each other, or different

departments of the same general business may be so dis-

sociated as to be regarded as constituting different enter-

prises. An attempt has been made to refine upon this notion