"effective cause," though not the only effective cause, the result is in law attributable to it (s) (17).

Common Law Principles Subject to Qualifications.— It can easily be seen that if the two principles of the common law which we have noticed had been universally, perhaps even logically, applied they would have been sufficient to fix liability on the employer in the case of a workman injured during his employment, either through the negligence of the employer himself, or through that of a fellow-servant, and would have rendered unnecessary the Employers' Liability Act, 1880, and, though in lesser degree, any Workmen's Compensation Acts.

Few, if any, common law principles are capable of universal application, and the principles under consideration form no exceptions to this rule. From early times, probably from the time of their first judicial enunciation, they have been treated as subject to exemption and qualification, often the result of the application to, and the operation upon them of other recognised rules of the common law.

Personal Actions often Die with the Person.-The common law rule that every personal action dies with the person entitled to bring it, or on the death of the person against whom it can be brought (actio personalis moritur cum personá) (18) had the effect of relieving an employer from responsibility for all injuries causing death, as it had of relieving his estate from liability in

(s) Englehart v. Farrant & Co., [1897] 1 Q. B. 240; Mann v. Ward, 8 T. L. R. 699; British Mutual Banking Co. v. Charnwood Forest Rail. Co., 18 Q. B. D. 714; McCord v. Cammell, [1896] A. C. 57; McDowall v. Great Western Rail. Co., [1903] 2 K. B. 331.

Canadian Notes.

(17) Myers v. Sault Ste. Marie Pulp and Paper Co., 3 O. L. R. 600; 33 S. C. R. 23; and see Deyo v. Kingston and Pembroke Rail., 8 O. L. R. 588; 4 C. Ry. C. 42.

(18) This maxim was discussed In re “ The Garland"; Monaghan v. Horne, 7 S. C. R. 409.

cases where his death occurred before judgment could be recovered against him.

Although since the year 1846, the effect of the Fatal Accidents Act, commonly called Lord Campbell's Act (9 & 10 Vict. c. 93) (19), has been to alter this in the case of injury resulting in the workman's death where a cause of action would otherwise exist, and although (as we shall hereafter see) the death of the employer will be no bar to a claim under the Workmen's Compensation Act, 1906, the common law rule remains, and in some cases may yet apply (t) (20).

Common Employment.-As affecting workmen, by far the greatest blow to any practical utility otherwise resulting to them from the common law doctrine that the master is responsible for the acts of the servants, was dealt by a decision of the Court of Exchequer in the year 1837, in the much discussed case of Priestley v. Fowler (u). This case decided that the rule expressed by the maxim "qui facit per alium facit per se,” a rule of general application to most other relationships, should, nevertheless, not apply to the relationship of master and servant, in such a manner as to fix the master with liability to his servants for the acts of fellow-servants. Thus became established what has

(t) See post, Chap. III.-" Action under Lord Campbell's Act." (u) 3 M. & W. 1.

Canadian Notes.

(19) The corresponding Acts in force in Canada are R. S. O., 1897, c. 166; R. S. M., 1902, c. 31; R. S. B. C., 1897, c. 58; R. S. N. S., 1900, c. 178; R. S. N. B., 1903, c. 79; Laws of P. E. I., 1847, c. 19; General Ordinances, N. W. T., 1905, p. 195; Consolidated Ordinances, Yukon, 1902, c. 44; Quebec Civil Code, Art. 1056; and see p. 180, note 154.

(20) In the Ontario, Manitoba, British Columbia, Nova Scotia, and New Brunswick Acts, analogous to the English Employers' Liability Act, Employer" includes the "legal personal representatives of a deceased employer," and, except in the case of Manitoba, all the Acts mentioned expressly provide that an action shall lie or be maintained against the representatives of a deceased employer. See Appendix, pp. 960, 940, 955, and 946; and also N. W. T. Ord., c. 13, of 1900, Appendix, p. 953.

become known as the "doctrine of common employment" (x) (21).

It may be enunciated as follows: If the person occasioning and the person suffering injury are fellowworkmen engaged in a common employment and having a common master, such master is not responsible for the consequences of the injury.

This principle of exemption of the master from liability has been defended upon many grounds, the most usual one being that the workman has made an implied contract with his master to take the risks of the employment, including the risk of injury caused by his fellowworkmen.

The next English case in which the "doctrine of common employment" came before the courts-Hutchinson v. York, Newcastle, and Berwick Rail. Co. (y), was decided in the year 1850, upon the above reasoning. In delivering judgment, ALDERSON, B., says: "They"

(x) It has been stated that this doctrine must have been recognised long before the decision in Priestley v. Fowler. See remarks of POLLOCK, C.B., in Vose v. Lancashire and Yorkshire Rail. Co., 2 H. & N. 728.

(y) 5 Exch. 343; 19 L. J. Exch. 296.

Canadian Notes.

(21) Woods v. Toronto Bolt and Forging Co., 11 O. L. R. 216; Plant v. Grand Trunk Rail., 27 U. C. R. 78; May v. Ontario and Quebec Rail. Co., 10 O. R. 70; Rudd v. Bell, 13 O. R. 47; Matthews v. Hamilton Powder Co., 14 Ont. A. R. 261; Ferguson v. Galt Public School Board, 27 Ont. A. R. 480; Carnahan v. Robt. Simpson Co., 32 O. R. 328; Hastings v. Le Roi, No. 2, Limited, 10 B. C. R. 9; 34 S. C. R. 177; Hosking v. Le Roi, No. 2, Limited, 9 B. C. R. 551; 34 S. C. R. 244; Dixon v. Winnipeg Electric Street Rail., 11 Man. R. 528.

Common employment as a defence was abolished by the N. W. T. Ordinance, c. 13, of 1900, " any contract or agreement to the contrary notwithstanding;" see General Ordinances, 1905, p. 1262, Appendix, pp. 953-4. This enactment is now in force in Alberta and Saskatchewan. By the New Brunswick Act of 1908, 8 Edw. 7 (N. B.), c. 31 (see Appendix, p. 947), the employer is made liable for personal injury caused to a workman by reason of the negligence of the employer or any person in the service of the employer.

The doctrine of common employment is not recognised in Quebec: Reg. v. Filion, 4 Ex. C. R. 134; 24 S. C. R. 482; Reg. v. Grenier, 6 Ex. C. R. 276; 30 S. C. R. 42; 2 C. Ry. C. 409; Asbestos and Asbestic Co. v. Durand, Q. R. 19 S. C. 39; 30 Š. C. R. 285; The King v. Armstrong, 11 Exch. C. R. 119; 40 S. C. R. 229; Logan v. Lee, Q. R. 31 S. C. 469; 39 S. C. R. 311; Great Northern Rail. v. Cyr, Q. R. 18 K. B.

410.

(i.e. the servant causing and the servant suffering the injury) "have both engaged in a common service, the duties of which impose a certain risk on both of them, and in case of negligence on the part of the other, the party injured knows that the negligence is that of his fellow-servant and not of his master. He knew when he was engaged in the service that he was exposed to the risk of injury, not only from his own want of skill and care, but also from the want of it on the part of his fellow-servants, and he must be supposed to have contracted on the terms that, as between himself and his master, he would run this risk (22).

Common Employment Founded on Unsound Reasoning. It is not difficult to discover the unsoundness of such a system of reasoning. The workman makes no contract to take the consequences of the negligence of his fellow-workmen; he would be generally very unwilling to do so. The only ground for implying such assent is, that he has entered into association with others upon work, in the course of which he knows there is risk of injury arising from the negligence of those with whom he thus places himself in contact. If from this knowledge of risk a contract to exclude the principle of respondeat superior is to be implied, then it should be implied in the case of passengers upon railways and other public conveyances, and, indeed, in the case of everyone who voluntarily subjects himself to the ordinary dangers of street traffic.

The principle that a workman, who enters into an

Canadian Notes.

(22) Dixon v. Winnipeg Electric Street Rail., 11 Man. R. 528; see DUBUC, J., at p. 535. The master may be liable for negligence in employing persons known to be incompetent: see Deverill v. Grand Trunk Rail., 25 U. C. R. 517. But the duty of selecting fellow workers may be delegated: Wilson v. Hume, 30 U. C. C. P. 542. The master has been held liable for defects in machinery notwithstanding that the accident has been partly occasioned by acts of fellow servants: McKelvey v. Le Roi Mining Co., 9 B. C. R. 62; 32 S. C. R. 664; Canada Woollen Mills v. Traplin, 35 S. C. R. 424.

employment, takes all the risks incidental thereto, being once admitted, has been since repeatedly followed. Thus, in Wigmore v. Jay (2), where the administratrix of a bricklayer sued under Lord Campbell's Act for damages for loss sustained by her husband's death whilst in defendant's employment, judgment was given for the defendant, upon the ground that the negligence which led to the injury was that of the defendant's foreman, who was a fellow-workman with the workman injured (23).

"Common

Final Establishment of Doctrine of Employment."-In the year 1858, the case of Bartonshill Coal Co. v. Reid (a), brought to the House of Lords on appeal from the Court of Session in Scotland, firmly and finally established not only the fact that the law of the two countries with respect to "common employment" was identical, but also the doctrine itself, on such authority and after such research that it has never since been questioned.

The dispute was as to whether a company of mineowners was liable, under Lord Campbell's Act, to make compensation to the family of one of their miners, who was killed whilst being drawn up out of the mine, through the negligence of the company's engineer. It was held that the company was not liable. Lord CRANWORTH, in delivering judgment, after two years' consideration, thus sums up the law on the subject:

"When the workman contracts to do work of any particular sort, he knows, or ought to know, to what risk he is exposing himself; he knows, if such be the nature of the risk, that want of care on the part of a fellow-workman may be injurious or fatal to him, and that against

(2) 5 Exch. 354. See also Seymour v. Maddox, 16 Q. B. 326; 20 L. J. Q. B. 327.

(a) 3 Macq. H. L. Cas. 266.

Canadian Notes.

(23) McFarlane v. Gilmour, 5 O. R. 302; Rudd v. Bell, 18 O. R. 47.

E.L.

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