authorities however has been steadily in the contrary direction, towards rejecting the exception and holding the principal liable1. All no doubt would agree that if the principal derived a benefit from his agent's fraud, without offering to return it upon discovering the deception practised, he would be liable.

Fellow servants.

For the torts committed by one of two or more servants to the damage of a fellow servant, the master is not liable, unless statute makes him liable. Cases of the kind seldom arise except in negligence, and hence the rule is commonly justified in terms relating to negligence. The servant, in entering the service, assumes, legally speaking, the risk of everything which is incidental to the employment, and this is declared to include the negligence of a fellow servant 2. But the exemption from liability is not, it seems, limited to cases of negligence; the employer, whether a master or a principal, probably is not liable at common law for damage wrongfully done by one servant or agent to his fellow in the course of the business, whatever the nature of the tort, whether of negligence, fraud, malice, or anything else.

The doctrine that the servant assumes the risk of negligence on the part of his fellows is not then broad enough, even if it were not, what it appears to be, an arbitrary doctrine, generally untrue in point of fact. It would be still less true to say that a servant assumes the risk of torts in general by his fellows. The truth appears to be that, without resorting to fiction, a servant stands in a different position towards his master from that of a stranger. This may be seen by supposing the case of a man's children, who in law are his servants, or of a man's domestic servants; the idea that one of these could sue the master for torts of another of them would be revolting. The case of non-domestic servants differs only in degree, and the degree of difference must be considerable to justify an alteration of the common law even in cases of negligence; much more so in other cases. Masters furnish the means of support for servants, and hence should

1 Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 (Ex. Ch.); Mackay v. Commercial Bank, L. R. 5 P. C. 394.

2 Post, chap. on Negligence.

not be liable to their servants unless they have done them wrong. The relation is beneficent towards the more dependent classes, and should not be discouraged.

Independent contractors.

The relation of servant or agent is one of strict dependence upon the authority of the employer; it is on that footing that the latter is liable. When the employment does not create dependence, when the person employed is, in the conduct of the employment, independent of the person engaging him, when in a word he is what is called in the books an 'independent contractor,' the employer is not liable for the torts of such contractor1; unless the misconduct of the contractor was itself also a breach of duty owed by the employer, as where there was a vice in the very undertaking2. Thus if I enter into contract with a builder to erect a house for me, or to make over a factory into a house, he alone will be liable to others, until I resume control, for torts committed in the course of the work, notwithstanding the fact that the work is done for me. And so in turn if he should employ an independent sub-contractor for part of the work, such as putting in the gas fittings, such sub-contractor, and not the chief contractor, much less the first employer, will be liable for torts committed in performing the sub-contract, until he turns over his work to the principal contractor3.

The qualifications to this doctrine, as has been indicated, are found in cases in which the employer owed some duty to others regardless of the 'independent contract,' which that contract does not relieve him of. Thus the owner of premises owes the duty to others not to maintain, or allow to be maintained, a nuisance upon his premises, and if in consequence of a contract with another a nuisance is created there, the owner will not escape liability because the person immediately guilty of causing it is an independent contractor.

The same would be true if the thing authorized to be done

1 Brown v. Accrington Cotton Co., 3 H. & C. 511; Hardaker v. Idle District Council, 1896, 1 Q. B. 335; post, chap. on Negligence, § 10.

2 Hardaker v. Idle District Council, 1896, 1 Q. B. 335, 341, 352; Penny v. Wimbledon District Council, 1899, 2 Q. B. 72, C. A.; post, pp. 335, 336.

3 Rapson v. Cubitt, 9 M. & W. 710; Overton v. Freeman, 11 C. B. 867; Murray v. Currie, L. R. 6 C. P. 24, 27, Willes, J.

by the contract were wholly illegal, or wholly without the sanction of law, as if a town, having no authority to lay gas pipes through its roads, should contract with a person to lay such pipes, and some one should be injured by nuisance, trespass, or negligence on the part of that person, in the work1. And the like would be true of cases in which a private corporation having special duties towards the general public, as in the case of a railway company, should employ an independent contractor to do work for it in premises which the company was bound to have in fit condition for business of the public; in such a case the railway company could not delegate or otherwise get rid of its own duty to the public. Liability in such cases, it should be noticed, is not confined to negligence.

misconduct as part of the cause of trouble.

§ 7. LEGAL CAUSE: CONTRIBUTORY FAULT

The defendant's misconduct must have been the legal cause, or part of the legal cause, of that of which the plaintiff Plaintiff's complains, to enable the plaintiff to recover judgment. Having regard to the defendant and third persons, it need not be the sole cause; it matters not that others helped the matter along, so far as the right of the injured person to sue any one (as well as all of them) is concerned. But considering only the person injured and the defendant, the defendant's conduct must have been the sole cause of complaint; if the plaintiff's own conduct made part of the cause of action, he cannot recover.

In such a case the defendant has violated no duty to the plaintiff, whatever duty he may have owed; it is the plaintiff and the defendant together who have done or omitted the thing complained of. And whatever might be said in favour of separating the conduct of the defendant from that of the plaintiff, where the plaintiff's conduct was not the sole cause of the injury, the courts generally have looked upon it as

1 Ellis v. Sheffield Gas Co., 2 El. & B. 767.

2 Holmes v. Northeastern Ry. Co., L. R. 4 Ex. 254; Smith v. London Docks Co., L. R. 3 C. P. 326.

unwise, if not impracticable, to attempt to administer the law in that way.

The courts however are very careful to distinguish mere conditions from legal causes1. In a certain sense of the word 'cause,' the plaintiff cannot but be part at least Conditions distinguished of the cause of his misfortune, for unless he or

from causes. his property was where he or it was at the time in question, no harm could have befallen him, and that of course whether his own conduct in the matter was wrongful or not. But that is not the conception of cause which the courts have adopted; the courts distinguish, as was just stated, between things or situations which are but conditions necessary to the happening of any misfortune, and things or situations which in themselves have the plain promise of misfortune. A result is, legally speaking, caused when it happens as the natural effect of that which brings it to pass; the case is this, that standing with knowledge or what should be accounted knowledge of certain facts, harm is likely to follow in natural course. Hence there can be no breach of duty by the defendant when, in such a case, the plaintiff himself does or omits to do the thing which, though in necessary connection with the defendant's misconduct, is likely to produce the harm.

On the other hand, if what the plaintiff has done or omitted was not likely to produce the harm, or any harm at all, his doing or omitting is no more than a condition to the result, and the defendant has violated his duty to the plaintiff. He alone, considering none but the plaintiff and the defendant, has caused the damage2.

The doctrine in question is obviously a general one, applying to all torts. As a matter of fact however it is seldom called into service except in cases of negligence; there almost exclusively it has found its development, and there it has special phases that will require particular examination when the subject of negligence is reached. The reader is accordingly referred to the chapter on Negligence for further information.

1 See e.g. Newcomb v. Boston Protective Department, 146 Mass. 596, which dwells upon the distinction.

2 The case is a phase of the maxim 'causa proxima, non remota, spectatur,' considered in the next section.

Causa proxima, non remota, spectatur.

§ 8. TERMINATION OF LIABILITY

Liability for tort having been incurred, how far does it extend? For it is obvious that a train of unfortunate results may follow. The general answer to the question, though scarcely an answer at all until explained, is that a man is liable for all such consequences of his torts, as, legally speaking, he has caused. This answer is often put in terms of a maxim or rule of the Roman law, adopted into our jurisprudence; 'causa proxima, non remota, spectatur,'-the law regards the 'proximate,' not the 'remote' cause.

With reference to this maxim, nothing could be more misleading than to take it in its plain, primary sense; in that sense the law as often regards the 'remote' and disregards the 'proximate' cause, as it does the contrary. A tosses a lighted squib into one of the booths of a market, and B, the owner of the booth, instinctively throws it out and it falls into the booth of C, who repeats the instinctive act, but now the squib strikes D in the face and puts out his eye. Cobviously is nearest, or 'proximate' in the primary sense, to D, and A is most remote' of all; and yet A is liable to D, and C probably is not; A is liable whether C is or is not, supposing that C has acted instinctively and not of purpose, negligence, or other wrongful conduct towards D1. It is obvious that the maxim is to be taken in some metaphysical sense; B and C must be regarded as machines, and the final result as happening in the natural course of things.

"Natural course of things' at outset.

'Results happening in the natural course of things' is the more common way of putting the case; a tort having been committed, the wrongdoer is liable for whatever happens in the natural course of things, having regard to the time when the tort was committed. The rule does not mean, broadly, that liability extends to whatever occurs in the course of nature; it means what occurs in the course of things natural or probable when