officials in the exercise of their functions are often called upon to exert extraordinary force, and at times to demand implicit obedience. If in so doing anyone is injured, it is inequitable that the official who is most frequently acting under orders, should be called upon to suffer. In addition to the common-law principles which may be adduced in support of the liability of the State or other public body, the matter turns frequently on the construction of statutes and constitutional law (Wäntig, p. 3). According to some laws the State is only liable in special cases where there was carelessness in choosing or in supervising the actions of the persons employed. According to another view, since the State must act by agents, it should only be liable in subsidium -i.e., if the injured person does not recover compensation against the actual wrong-doer. The more generally adopted view is that the injured person has a right of action against either the actual wrong-doer or the State, whichever he prefers. This is the general rule as it applies where the wrong-doer is a servant of a private individual (Stobbe, iii. 400, and Wäntig, p. 4, and authorities cited by both writers).

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CHAPTER II.

THE DEVELOPMENT OF THE GROUNDS OF LIABILITY IN GERMANY.

THE preceding examination of the laws of Germany and Austria has brought out the fact that the views of the Codes have met with much adverse criticism, and in several instances it has been found necessary to invoke the aid of the legislature in amending them. This was especially so as regards railways. Numerous writers have urged the advisability of making extensive alterations in the reasons for the liability, and so in the law itself. To this end numerous decisions of the Courts in Germany and Austria were tending.

The portion of the new German Code which deals with this matter was subjected to full and searching criticism by both lawyers and laymen.

The doctrine of culpa in eligendo might, as Randa remarks, have "sufficed for purely agricultural states, but does not hold good for modern industrial and trading relations.' A lamentable defect of the Civil Code consists in this, that the employer (foreman, conductor― Werkmeister, Unternehmer), with trifling exceptions, is not responsible for his servants either by obligation or without it, but only for the choice of his assistants, managers, journeymen Werkleiter, Gesellen, Arbeiter (Randa, " Drei Gutachten über beantragte Revision des 30 Hauptstuckes im ii. Theile des allgemeinen bürgerlichen Gesetzbuches," p. 129; Steinbach, 48).

PFAFF, in his work on the Austrian Law of Torts (Zur lehre von Schadensatz und Genugthung nach östereichischen Rechte, p. 85), is a strong opponent of the hitherto prevailing

theory of culpa in eligendo. He draws the two following conclusions:

(1.) "The responsibility of the master by no means only

exists in those cases in which it is expressly

declared by the code, but has a much widerreaching meaning, and

(2.) "It is in the spirit of the law to decide the question whether the responsibility rests in a given legal

relation, and in doubtful cases it should be de

cided rather in the affirmative than the negative." As regards contractual obligations, he lays down the rule on which the Code proceeds, "that he who, in fulfilling an obligation, makes use of a servant must answer for the fault of the latter" (p. 80), a principle which he would extend generally.

SCHREIBER has taken up the position so well known in English law, of qui facit per alium facit per se, when he says that the acts of a servant must be considered to be the acts of the master when done in the carrying out of any work undertaken by the latter (Schreiber, "Der Arbeitsrestrag nach heutigen österreichischen Privatrecht," p. 67). This statement, however, can only strictly be held to apply to authorised acts, not to acts that, although done by the agent or servant in the "carrying out of any work undertaken by the latter," are specifically unauthorised or even forbidden.

The practice of the Austrian Courts is also bringing about a state of things which can by no means be made to equate with the theory hitherto prevailing. A gascompany was compelled to make compensation to a person injured by an explosion caused through the carelessness of one of its employés. A company, said the Court, is bound to act by its servants; and it is therefore responsible (apparently absolutely) for the proper accomplishment of any work it has undertaken (Entscheidung vom 17th February, 1869, Z. 12256; Steinbach, p. 50).

On like grounds (i.e., the liability of the employer for his servant's act) a river conservancy board was held liable for

an accident caused to a passing barge, through a dredger having been left in such a position that the barge struck it, and sank (Entscheidung vom 30 Mai, 1879, Z. 2403; Steinbach, 51).

The same principle was extended in one case to an injury inflicted on a workman by reason of defective plant (Entscheidung vom 30 Sep., Z. 9073), and in another to an injury to a workman by reason of the carelessness of a foreman (Entscheidung vom 30 Aug., 1887, Z. 9656). In this latter case the Court said, " according to the fundamental rule of section 1297 of the Code, there is no doubt that a manufacturer, whose workmen are employed in a dangerous work, is bound to take precautions suited to the case to protect them. The persons (Organe) whom he employs for this purpose, and whose directions the workmen are bound to obey, must represent him, and he must therefore answer for their orders as his own."

These latter cases, though dealing with a part of the subject to be discussed later, are cited here as showing that the tendency of the Austrian Courts is not to confine the modern development of the master's liability to third persons only, but that the same principles are applied to cases where the injured person is a workman of the same master. The public and workmen are on the same footing. Austrian and German law knows nothing of any doctrine of common employment."

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As regards the German Empire, the passing of the Code of 1896 has, for the moment, settled the question of the development of the law.

In concluding his examination of the principles underlying the liability of one person for the acts of another, Dr. Wäntig, in the work to which reference has already been frequently made, argues against adopting the sweeping proposition of Article 1384 of the Code Civil. He admitted that an extension of the principles contained in the modern legislation, of which the Imperial Law of June, 1871 is an example, might be extended to other departments of life

but he contended that it would be sufficient for practical purposes if the alteration took the form of one in procedure-viz., by shifting the burden of proof. He contended that a man should be held liable for the acts of his servants until he has shown that he had exercised due care in the choice of persons in his employ. In other words, he suggested that the theory of culpa in eligendo should be retained, modified by the inversion of the burden of proof (see also Goldschmidt; Zeitschrift für Händelrecht Neue Folge Band, i. 371).

An examination of the memorial accompanying the draft Code shows that this is the view adopted ("Denkschrift zum Entwurf eines Bürgerlichen Gesetzbuchs," p. 100). The statements of the memorial on this head are short, and are of sufficient interest to justify their being set forth at length.

"In French law (Code Civil, Art. 1384) a far-reaching liability of masters for the wrongful acts (für die unerlaubten Handlungen) of their servants is admitted. The draft (sec. 815) starts from the standpoint of the Common and Prussian Law (A.L.R. i. 6, secs. 53, 64, 65; i. 13, sec. 86. Cp. also Sächs' Gesetzbuch, sec. 779) that a fault on the part of the master is the only justification for holding him responsible for the acts of his workmen. Nevertheless the position of the injured person is so far considerably lightened, that it does not impose on him proof of the fault of the master, but imposes on him (the master) the burden of proof of his innocence. The master can easily bring the proof in a given case; whilst, on the other hand, the burden of proof would often destroy the claim of the injured person. The master is by this (section) bound to compensate the injured person for the damage which his employé has done in the execution of the master's command and not only in its execution. This duty of making compensation does not exist when the master proves that he has observed due care in the choice of the person and the arrangement of the plant, or that the damage would not