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Detroit was not civilly liable for the misconduct of the officers of the Detroit House of Correction toward convicts, inasmuch as the government of the prison was, by statute, under the control of a board of inspectors with whose management of the prison the common council had no authority to interfere.

In Royce v. Salt Lake City (1897) 15 Utah, 401, 49 Pac. 290, it was held that where a city had no power to compel its prisoners to work, it was not liable to one set to work by the jailer to break rock, during which he was injured by being struck in the eye by a piece of rock broken by a fellow prisoner, since the jailer, in requiring the plaintiff to work breaking stone at the time he was injured, was acting ultra vires.

However, in the reported case (HILLMAN V. ANNISTON, ante, 89) by a four to three decision, the court held that a municipality was liable for the death of a convict working out a sentence on the streets of a city for violation of an ordinance, and who, while so doing, was killed as a result of the brutality of a guard in charge. The majority of the court took the view that the prisoner was working on an enterprise corporate in its character, and that, under such circumstances, it would be unjust to deny a recovery because the injured person was a convict, where at the same time a recovery would be allowed for injury to a third person free to avoid injury, or an employee who voluntarily engages in the service.

In Dube v. Montreal (1912) Quebec, —, 7 D. L. R. 87, the city was held liable for the death of a helplessly drunk prisoner injured by falling while being conducted downstairs to the jail, on account of negligence of the constables in not supporting him properly while conducting him. downstairs. The prisoner offered no resistance, and was guilty of no contributory negligence.

And in Johnson v. Municipality No. 1 (1850) 5 La. Ann. 100, a municipality was held liable for the negligence of the keeper of a jail in failing to advertise the detention of a slave in

the official gazette of the municipality in which the jail was situated, and in failing to furnish medical attention or the necessities of life to a sick slave who was confined in the jail and who died as a result of the lack of attention.

b. For injury to prisoner resulting from the burning of the prison.

A municipal corporation is not liable for injuries to a prisoner from the burning of its jail, lockup, or calaboose, even though the fire may have been due to the negligence of the officers in charge of the prison, or even though the injury resulting from the fire were attributable to the negligence of these officers. McAuliffe v. Victor (1900) 15 Colo. App. 337, 62 Pac. 231; Nichols v. Fountain (1914) 165 N. C. 166, 52 L.R.A. (N.S.) 942, 80 S. E. 1059, Ann. Cas. 1915D, 152, 8 N. C. C. A. 872; Alvord v. Richmond (1896) 3 Ohio N. P. 136, 4 Ohio S. & C. P. Dec. 177; Carty v. Winooski (1905) 78 Vt. 104, 2 L.R.A. (N.S.) 95, 62 Atl. 45, 6 Ann. Cas. 436, 19 Am. Neg. Rep. 565; Brown v. Guyandotte (1890) 34 W. Va. 299, 11 L.R.A. 121, 12 S. E. 707; McKenzie v. Chilliwhack (1909) 15 B. C. 256, affirmed in [1912] A. C. (Eng.) 888, 8 D. L. R. 692, Ann. Cas. 1913B, 1278 P. C.

Thus, in McAuliffe v. Victor (Colo.) supra, the court held that a city was not liable for injuries to a person confined in the city jail, caused by the burning thereof due to the negligence of the city. officials. In holding the city absolved from liability, the court took the view that the maintenance of a jail is the exercise by the municipality of judicial or governmental power, and the municipality would not be liable for injuries caused by the negligent acts of their public officers in the execution of such powers.

And in Nichols v. Fountain (1914) 165 N. C. 166, 52 L.R.A. (N.S.) 942, 80 S. E. 1059, Ann. Cas. 1915D, 152, 8 N. C. C. A. 872, supra, it was held that a small rural village was not liable for the death of a prisoner because of the act of its officer in placing him in a cell in a wooden building, without watchman or guard, while so intoxicated that he could not help himself,

because of which he was burned to death by the accidental burning of the building.

And in Alvord v. Richmond (1896) 3 Ohio N. P. 136, 4 Ohio S. & C. P. Dec. 177, it was held that a village was not liable for the carelessness and negligence of its officers and agents in building a fire in a worn-out and cracked stove in the village lockup, whereby it took fire and incinerated a prisoner confined therein without any means of escape.

So, too, in Carty v. Winooski (1905) 78 Vt. 104, 2 L.R.A. (N.S.) 95, 62 Atl. 45, 6 Ann. Cas. 436, 19 Am. Neg. Rep. 565, a municipal corporation was held not liable for the death of one confined in a lockup maintained by it, who was suffocated and killed by the smoke from a mattress which became ignited from some unknown cause, and without the fault of the intestate, as the maintenance by a municipal corporation of a lockup or jail for the confinement of persons under arrest is a governmental function for negligence in the performance of which it is not liable to persons injured.

In McKenzie v. Chilliwhack (B. C.) supra, a small rural village which, pursuant to its statutory duty, had erected a lockup, was not liable for the death of a drunken prisoner confined herein who had been searched and matches taken from him, and who was burned to death by fire of unknown origin in his cell during the temporary absence of the, jailer, who had left the prison to attend to his duty of lighting the street lamps.

c. For injury to prisoner by assault of other prisoners.

A municipal corporation is not liable for an assault committed by one prisoner upon another prisoner, even though the incarcerating officer or person in charge of the prison negligently confined the assaulting prisoncr in a cell or room with a prisoner whom he knew to be violent and likely to make an assault. Doster v. Atlanta (1884) 72 Ga. 233; Wilson v. Macon (1892) 88 Ga. 455, 14 S. E. 710; Morgan v. Shelbyville (1909) Ky. —, 121 S. W. 617; Davis v. Knoxville

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A municipal corporation is not liable for personal injuries sustained by one prisoner at the hands of another confined in the same cell or room of the city prison, notwithstanding the police officer who arrested the plaintiff and put him in prison may have been guilty of wrong or negligence in confining him with an intoxicated fellow prisoner, who was on that account violent and dangerous. Wilson v. Macon (1892) 88 Ga. 455, 14 S. E. 710. And in Morgan v..Shelbyville (1909)

Ky. —, 121 S. W. 617, in an action by one confined in a city guardhouse to recover from the city for an assault upon him by fellow prisoners, the complaint alleging that the city was negligent in failing to provide a suitable keeper or guard at the house where he was imprisoned, the court held that the rule as to the nonliability of a city for the negligence of its officers was not changed by the fact that all fines which were imposed by the city court for violations of ordinances of the city were, by virtue of statute, covered into the city's treasury, rather than paid over to the state.

Upon the ground that the city, in maintaining its jail, was engaged in the discharge of a public duty as an arm of the state, it was held in Davis v. Knoxville (1891) 90 Tenn. 599, 18 S. W. 254, that a city was not liable for an assault on a prisoner at the hands of another confined in the same cell or room of the city jail, although the city's servant in charge of the jail was negligent in confining him with the aggressor, who was known to be violent and quarrelsome.

VI. Of the state and public institutions.

The doctrine of respondeat superior is not applicable to a state, and the latter is not liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers or agents, unless it voluntarily assumes liability in such a case.

Thus, in Clodfelter v. State (1882) 86 N. C. 51, 41 Am. Rep. 440, the court reiterated the well-known rule that

the doctrine of respondeat superior does not prevail against the sovereign in the necessary employment of public agents, and thus held that a convict sentenced to hard labor in the state prison for a term of years could not recover against the state for physical injuries sustained while blasting along a railroad, a private enterprise, the injuries resulting from a premature explosion due to the failure of the supervising manager, under whose authority and control the convict was placed, in not supplying water in sufficient quantity to use in the operation. The court quoted as follows from the opinion of Mr. Justice Miller in the case of Gibbons v. United States (1869) 8 Wall. (U. S.) 269, 19 L. ed. 453: "No government has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers and agents.'" In answer to the contention that the convict was put to work in constructing a railroad, a private enterprise, and not employed at any public work when the accident occurred, and that the state had thus voluntarily assumed the responsibilities of one of its own citizens incurred under like circumstances, the court said: "We cannot recognize the distinction as affecting the results, nor feel the force of the reasoning by which it is sustained. We do not perceive why, when convicts are employed in quarrying rock for the construction of the penitentiary itself, the rule of liability should be different from that which controls when they are engaged in similar work to aid in the building of a railroad or other less public work. They are in both cases under the control and supervision of managers or overseers appointed by the public authorities, and the protection of law."

And in Lewis v. State (1884) 96 N. Y. 71, 48 Am. Rep. 607, in view of the rule that the doctrine of respondeat superior could not be applied to the state so as to make it liable for the negligence or misfeasance of its servants, it was held that a prisoner confined in a reformatory upon conviction of a crime could not recover from the state for injuries resulting from the

use of a defective tool, which defect he had previously called to the overseer's attention and which had been ignored by the latter. The court observed that the state by its legislature might voluntarily assume the application of the doctrine of respondeat superior.

And in Moffat v. State (1921) 116 Misc. 8, 189 N. Y. Supp. 360, where by a special statute a state convict was to be allowed a recovery for physical injuries sustained while doing work at the prison under the orders of one of the prison employees, in case of negligence on the part of the state or its employees and in the absence of contributory negligence on the part of the convict, the court points out that, in the absence of such a special statute, the state would not be liable, inasmuch as it is not answerable for injuries arising from the negligence of its of ficers and agents, unless such liability has been assumed by constitutional or legislative enactment. On a later appeal in (1923) 205 App. Div. 859, 197 N. Y. Supp. 931, the judgment was reversed and judgment directed in favor of the claimant, as the court found that the state and its officers and agents were not free from negligence, and that the chief engineer, having the work in charge, was negligent, causing the injury to the claimant.

In Kahn v. State (1921) 117 Misc. 186, 190 N. Y. Supp. 894, it was held that a statute enacted by the state legislature, conferring jurisdiction upon the court of claims to hear, audit and determine the alleged claim of a convict against the state for an injury alleged to have been sustained by him by reason of the negligence of the state and its employees while confined in prison, and while at work upon a machine in the prison, did not amount to an assumption of liability by the state, in view of the express provision of the statute that the facts establishing liability on the part of the state be proven to the satisfaction of the court; and the claim of the prisoner filed pursuant to this statute was dismissed, inasmuch as it failed to state facts sufficient to constitute a cause of action.

In Metz v. Soule (1875) 40 Iowa, 236, the court held that a convict who petitioned the state for relief for injuries sustained while working for contractors in the state prison, and who was granted a monthly allowance by the legislature, could not subsequently recover of the contractors damages for such injuries, as there can be but one satisfaction for a wrong.

An industrial school created by statute for the sustenance and education of male orphans, and to which boys were committed from various counties by the overseers of the poor, justices of the peace, police magistrates, and judges, and which is not organized for profit, but utilizes the labor of its inmates on the farm and in the factory of the institution to provide for their sustenance, which is partly provided by the counties from which the boys are committed, is not liable to a boy lawfully committed thereto for a criminal offense, who was injured, as he alleged, while working at a machine in the institution which the managers of the institution had not instructed him in the use of, the court being of the opinion that the industrial school, in so far as the boy was concerned, was acting as a governmental agency for the care of juvenile convicts, and was entitled to the same immunity from liability for damages in case of such accidents as is conceded to the state and to all its municipal divisions. Corbett v. St. Vincent's Industrial School (1903) 177 N. Y. 16, 68 N. E. 997, 15 Am. Neg. Rep. 159.

And in Ackley v. Board of Education (1916) 174 App. Div. 44, 159 N. Y. Supp. 249, in which it was held that the status of one committed to a truant school, established by statute for the purpose of educating and teaching industrial pursuits to habitual and incorrigible truants, was analogous to that of a convict, and an inmate of such an institution cannot recover against the board of education for injuries received therein while working at an assigned task.

VII. Of lessee of convict labor.

a. In general; relation between lessee and convict.

Although the relation between the lessee and the convict is not strictly that of master and servant, it is generally held that the lessee is under a duty of care toward the convict quite analogous to the common-law duty which a master owes to a servant. And in some respects, as will subsequently appear, the convict is in a more favorable position than a servant, owing to the nonapplicability of the rule as to assumption of risk and the fellow-servant rule, and the restrictions on his freedom of action may in some circumstances repel the conclusion of contributory negligence which might be drawn in case of an ordinary servant or employee. The lessee is held to a master's liability to the convict with respect to those incidents of the employment over which he has the same measure of control that a master ordinarily has, and he is bound to furnish the convict with machinery fitted to and sufficient for the work, and to keep it in constant repair. And the lessee is responsible. for the wrongful or negligent acts of employees whom he puts in charge of such convict labor.

The relation of master and servant does not, in its strict sense or to its full extent, exist between a convict and a hirer of his labor from the prison authorities, but the hirer of such labor should be held to a master's liability to the convict whose labor he used, in respect to those incidents of the employment over which he has the same measure of control that a master ordinarily has, but not as to those features of the employment over which he is essentially deprived of such control. Baltimore Boot & Shoe Mfg. Co. v. Jamar (1901) 93 Md. 404, 86 Am. St. Rep. 428, 49 Atl. 847.

Applying these principles to the facts in Baltimore Boot & Shoe Mfg. Co. v. Jamar (Md.) supra, it was held that the relation which existed between the plaintiff convict and the contractor of his labor was in so far analogous to that of master and serv

ant that the contractor of such labor, who had full control over the construction and maintenance of the elevator and used that structure for its own benefit, should be held liable to the convict for any injury which he sustained by reason of the want of the exercise of reasonable care on the part of the contractor in providing and maintaining the elevator in a safe and sound condition.

So, also, in Hartwig v. Bay State Shoe & Leather Co. (1887) 43 Hun (N. Y.) 425, it was held that, although the usual relation of master and servant did not exist between a convict and a corporation to whom his labor had been "farmed out" by the county authorities, nevertheless a corporation was bound to furnish the convict with machinery fitted to and sufficient for the work, and to keep it in constant repair. Judgment for the convict was reversed in (1889) 118 N. Y. 664, 23 N. E. 24, on the ground that the convict was guilty of contributory negligence.

And in Sloss-Sheffield Steel & I. Co. v. Brewer (1924; C. C. A. 5th) 2 F. (2d) 401, it was held that allegations of a complaint to the effect that the plaintiff was a convict under the control of the defendant, at work in connection with the business of the latter, necessarily implied a relationship that required the defendant to exercise reasonable care for his safety; and a subsequent allegation that an agent of the defendant negligently operated a motor in the mine of the defendant wherein the plaintiff was working so as to injure the latter would, if proven, justify a recovery. And see also to the same effect, Red Feather Coal Co. v. Murchison (1918) 202 Ala. 289, 80 So. 354.

Also, in Dalheim v. Lemon (1891; C. C.) 45 Fed. 225, it was held that the fact that a convict whose labor was utilized by a firm of contractors constructing a building for the peritentiary, and who knowingly received the benefit of such labor, received no pay for his services, would not prevent the creation of the relation of employer and employee between the convict and the contractors, and, such

being the case, the ordinary rules as to the duty of the employer to furnish a reasonably safe place to work and safe appliances would be applicable, as well as the necessity for freedom from contributory negligence on the part of the convict, to entitle him to a recovery.

However, in Rayborn v. Patton (1890) 24 Ohio L. J. 434, 11 Ohio Dec. Reprint, 100, it was held that the relation of master and servant did not exist between a convict in the state penitentiary and a manufacturer who hired convict labor and furnished the machinery, under a statute expressly providing that the employment of the convict's labor should be under the direction and "immediate control" of the board of managers of the penitentiary, and a convict hired under such circumstances could not recover for injuries received while working for the manufacturer under a petition based on the theory of the relation of master and servant, as, in the absence of such a relationship, the general rules as to the duty of the master to provide for his servant and keep in repair safe tools, safe machinery, and safe appliances and a safe place in which to work, are inapplicable.

And in Rayborn v. Patton (Ohio) supra, it was held that the convict was guilty of guilty of contributory negligence justifying a dismissal of his action because of his failure to notify the prison guards of the dangerous situation in which he was working.

b. Assumption of risk; fellow-servant rule.

The assumption of risk doctrine is not applicable to the situation of a convict working for an employer. Sloss-Sheffield Steel & I. Co. v. Long (1910) 169 Ala. 337, 53 So. 910, Ann. Cas. 1912B, 564.

Thus, where a servant of an employer of convict labor acted within the scope of his authority in giving an order to a convict to use an unsafe mule, knowing that it was unsafe, or without exercising ordinary care to ascertain that it was safe, he would be guilty of negligence for which the employer would be liable to the con

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