1 Sweeney V. Berlin, &c. Co., 101 n". Y. 520; Dougherty V. West Supe-

rior Iron Co., 88 Wis. 343.

2 ]\Ia.son V. Richmond, &c. R., Ill N. C 482; Richmond, &c. R. v. Nor-

ment, 84 Va. 167.

' Fitzgerald v. Connecticut Paper Co., 155 Mass. 155.

* Illinois Steel Co. v. Mann, 170 111. 200.

^ Ibid., dissenting opinion.

8 Hough V. Texas, &c. R., 100 u. S. 213 ; Northern Pac. R. V. Bab-

cock, 154 U. S. 10(1; Smith v. Backus, 64 'SUnn. 447; Laning v. N. Y. Cent.,

&c. R., 49 N. Y. 521; Indianapolis, cScc. R. c. Watson, 114 Ind. 20.

в– ' Chicago Brick Co. v. Sol)kowiak, 148 111. 573 ; ^^'agner v. Jayne Chem-

Ical Co., 147 Pa. St. 475; Haas V. Balch, 50 Fed. Rep. 984. Cf. Davis V.

Forbes, 171 Mass. 548.

s Elliott V. Chicago, &c. Ry., 150 U. S. 245; Pennsylvania R. v. Zink,

126 Pa. St. 288.

TO SERVANTS FOR HIS OWN TORTS. 357

merely a part of the general doctrine of contributory negli-

gence. The distinction between assumption of risk and con-

tributory negligence must be kept in mind.^ Both issues

may be raised in the same case. For instance, plaintiff al-

leges that the platform on which he worked was unsafe and

that it was unlighted. If it was unsafe the question is, did

he assume the risk ? If it was unlighted but suitable torches

were furnished which plaintiff failed to use, the question is,

was plaintiff guilty of contributory negligence "i^

В§ 285. Wilful torts.

A master is liable to a servant for wilful torts committed

against him as he is to any other person. In certain cases,

however, the law allows a defence of justification or excuse

or privilege based upon the relationship, as, for instance, the

defence of discipline in an action for assault upon a seaman,^

or of privileged communication in an action for slander in

giving the servant a bad character.

If a master is asked the character of a servant who is or

has been in his employ his communication to another actual

or prospective master is conditionally privileged.^ If he vol-

unteers the information he may be privileged under certain

circumstances, but stronger evidence of bona fides will be

required.^ If he has given a favorable character and after-

wards discovers facts which lead him to doubt the character

of the servant, he is privileged to volunteer the new facts to

the employer.*' If he dismisses a servant, he may inform his

other servants of the reason.^ His conditional privilege is

overcome, however, by proof of express malice. That what

he said was false is not proof of malice ; but that he knew

1 Narramore v. Cleveland, &c. R., 96 Fed. Rep. 298.

2 Kaaie v. Troy Steel Co., 139 N. Y. 369.

8 Michaelson v. Denison, 3 Day (Conn.), 294; Brown v. Howard, 14

Johns. (N. Y.) 119.

< Pattison v. Jones, 8 B. & C. 578.

6 Ibid.

6 Fowles V. Bowen, 30 N. Y. 20.

' Somerville v. Hawkins, 10 C. B. 583; Hunt v. Great N. Ry , 1891,

2 Q. B. 189.

353 LIABILITY OF MASTER TO SERVANTS FOR HIS OWN TORTS.

it to be false is the best evidence, and that he knew it to be

false may be inferred from the fact that he is giving a bad

character in order to compel the servant to remain in his

own service.^

A.t common law a master is under no obligation to give his

servant a letter of recommendation or any statement as to

his character upon the termination of the relationship.^ This

question has been revived in modern cases in consequence

of a system of " clearance cards " adopted by raili-oads where-

by an employee leaving the service is given a statement as

to the cause of his departure from it. But it is held that in

the absence of a contract to give such a card, or of an es-

tablished usage in view of which contracts of service are

made, there is no obligation resting upon the master to give

the card.^ But it has been held that when a class of em-

ployers mutually agree not to employ a servant formerly in

the service of another without the presentation of a clearance

card, that it becomes the duty of any party to such agi'eement

to give a clearance card to a servant entitled to it, and that

withholding it is equivalent to a statement that the servant

is within a proscribed class."*

Blacklisting employees, that is circulating a list of dis-

charged employees among a class of employers who have an

understanding that they will not employ persons so listed, is

an actionable wrong for which the blacklisted employee may

have an action at law,^ but not, it seems, an injunction.^

Many states make such blacklisting a crime."

1 Jackson v. Hopperton, 16 C. B. N. s. 829.

2 Carrol v. Bird, 3 Esp. 201; Cleveland, &c. R. r. Jenkins, 17i 111. 398.

* Cleveland, &c. R. v. Jenkins, supra.

* New York, &c. Ry. v. SchafEer, 17 Ohio Circ. Ct. Rep. 77.

6 Blumenthal v. Shaw, 77 Fed. Rep. 954 ; Hundley v. Louisville, &c.

R. (Ky.). 48 S. W. 429; Mattison v. L. S. & M. S. Ry.. 3 Oil. Dec. 526.

8 Worthiniiton v. Waring, 157 INIass. 421.

T Colorado L. 1897, c. 31 ; Conn. L. 1897, c. 184 ; Towa Code, В§ 5027 ;

Minn. L. 1892, c. 174; Mo. L. 1891, p. 122; N. Dak. Const., В§ 212,

Code, В§ 7U42 ; Wis. Stat., В§ 4466 6.

PART IV.

LIABILITY OF SERVANT FOR TORTS.

В§ 286. Introductory.

A servant's torts may be either those of non-feasance or

those of misfeasance. The injured party may be either the

master, a fellow-servant, or a stranger. We have now to

consider each of these cases.