vict. Ibid. It was pointed out that an assumption of risk could not be charged to the convict, as he had no option of declining to perform the act or of leaving the services of the defendant.

And in Chattahoochee Brick Co. v. Braswell (1893) 92 Ga. 631, 18 S. E. 1015, it was held that the well-settled rule of law that a servant who voluntarily, and without objection, goes into a place which he knows to be dangerous, cannot hold his master liable for injuries to himself thus sustained, is not applicable to the case of a convict whose movements are absolutely controlled and directed by a guard, or "boss," whose orders he is compelled. to obey. The court said: "Ordinarily, where a servant is ordered by his master to engage in a work, or go into a place, which the servant knows to be dangerous, the latter is not bound to obey the order, and, if he does so with full knowledge of the impending peril, the master may not in law be liable for the consequences. In the present case, however, the plaintiff had no election. When the guard said 'Go,' he was obliged to go, and there is no hardship in compelling a corporation of which the guard was an employee to compensate the plaintiff for injuries received because of his obedience to the guard's commands."

Thus, the convict having been leased by the state to a penitentiary company, and that company having hired him, with other convicts, to another corporation engaged in the work of constructing a railroad, and he having been put to work under the control of a guard employed and paid by the latter corporation, and being required to obey the orders of such guard, this corporation is liable to the convict for injuries received in consequence of his having gone, under orders from the guard, into a place where a dangerous explosive was being used, although all the convicts so hired may have been under the general charge of a "captain" appointed by the governor; and this is true whether it was, or was not, lawful for such convicts to be placed under the control and management of the guard. Ibid.

The doctrine of the assumption of risks from the negligence of fellow servants is not applicable to a convict whose services are leased to an employer. Sloss Sheffield Steel & I. Co. v. Weir (1913) 179 Ala. 227, 60 So. 851; Buckalew v. Tennessee Coal, Iron & R. Co. (1896) 112 Ala. 146, 20 So. 606.

And in Boswell v. Barnhart (1895) 96 Ga. 521, 23 S. E. 414, the court, in holding that the fellow-servant doctrine was not applicable where the service was made compulsory as in the case of a convict working on a chaingang, said: "The ground upon which a master is relieved from liability to a servant for injuries resulting from the negligence of a fellow servant is that the servant, when he enters the employment of the master, impliedly contracts to assume the risk of such negligence, as one of the risks incident to the service, and that his compensation is fixed with reference to this; and clearly this reason cannot apply in the case of one not voluntarily in the service, but merely a prisoner, serving out his sentence for a violation of the law."

c. Contributory negligence.

In Sloss-Sheffield Steel & I. Co. v. Weir (1913) 179 Ala. 227, 60 So. 851, the court held that a plea that the convict entered the mine with knowledge that a part of the top or roof of the same was loose and in danger of falling, and with knowledge that, should the same fall when he was under or dangerously near it, the injury would result to him, but that nevertheless the intestate negligently went under or dangerously near the same, as a proximate consequence of which the roof fell upon him and injured him, was insufficient, inasmuch as contributory negligence implies the existence of freedom of choice, and, to have constituted this plea of contributory negligence a good plea to the complaint in the instant case, the defendant, in addition to averring that the convict, with knowledge of the danger of the roof falling, negligently went under it, should have averred that he voluntarily did so, as an act which could properly

charge a free man with negligence might not be evidence of negligence at all, when done by a prisoner engaged in forced labor.

And in Baltimore Boot & Shoe Mfg. Co. v. Jamar (1901) 93 Md. 404, 86 Am. St. Rep. 428, 49 Atl. 847, in an action by a convict injured by the fall of an elevator operated by a private corporation utilizing convict labor within the prison walls, it was held that the convict, whose duty it was to run the elevator, was not guilty of contributory negligence in going underneath the elevator at the time of his injury if it was necessary for him to do so in the ordinary and usual performance of operating it, and if he had been assigned to that duty in the penitentiary and was compelled to obey such assignment.

However, in Haigler v. Sloss-Sheffield Steel & I. Co. (1914) 187 Ala. 559, 65 So. 801, in an action to recover of the lessee for the death of a leased convict whose death resulted from being run over by a car in a coal mine, the court held that there was nothing in the nature of the intestate's servitude, or in the power or interest of his custodian, to warrant an inference that the intestate, while engaged in labor in the mine, was so narrowly confined as to leave no room for the operation of the right and instinct of self-preservation against sudden and momentary perils; and the trial court did not err in overruling a demurrer to the plea in the instant case, to the effect that the intestate knew of the approach of the car, and negligently failed to get to a near-by place of safety along the track.

d. Particular instances.

In Georgia one convicted of felony is not deemed to be civiliter mortuus, and such person may maintain an action for injuries received by him while in confinement. Dade Coal Co. v. Haslett (1889) 83 Ga. 549, 10 S. E. 435.

In Sloss-Sheffield Steel & I. Co. v. Dickinson (1910) 167 Ala. 211, 52 So. 594, the court held that if the servants of an employer to whom the convict was hired and worked under regulations prescribed by the state board of

convict inspectors, which board promulgated certain rules as to inflicting corporal punishment, wrongfully caused the convict to be whipped, the employer would be liable, even though the servant administering the whipping was a deputy warden of the state.

And in Tillar v. Reynolds (1910) 96 Ark. 358, 30 L.R.A. (N.S.) 1043, 131 S. W. 969, it was held that the owner of a convict farm was not absolved from liability in damages for the act of a warden whom he had placed in charge of the farm, in punishing a convict so severely that he died from the effects thereof, by the fact that the warden, although having authority to punish, disobeyed not only the instructions of the employer, but also the regulations. of the state authorities with respect to the severity of the punishment.

A leased convict may recover damages from the lessee for causing a "spur" to be fixed to his leg, resulting in his physical injury. Weigel v. McCloskey (1914) 113 Ark. 1, 166 S. W. 944, Ann. Cas. 1916C, 503.

A hirer of convict labor is liable for the negligence of a convict intrusted with the duty of superintendence over fellow convicts, and which negligence results in injury to one of the latter. Sloss-Sheffield Steel & I. Co. v. Weir (1913) 179 Ala. 227, 60 So. 851.

Thus, in an action for the death of a convict caused by the falling in of the roof of a mine, which it was the duty of another convict as an appointed foreman of the lessee of the convicts to prop up or support, the court held that a requested charge to the effect that if a convict met his death as a proximate consequence of working in an unsafe place, and that if the lessee exercised reasonable care in keeping such place in a safe condition, then the convict's administrator could not recover on account of the place being unsafe, was properly refused on the ground that it tended to eliminate the acts of the lessee's servants in the premises. Ibid.

And a chain-gang "boss," while acting in that capacity, is the alter ego of his employer, and the latter is responsible for any wrongful or negligent acts of such "boss" by which a

prisoner is deprived of his life. Boswell v. Barnhart (1895) 96 Ga. 521, 23 S. E. 414.

But, in Mason v. Hamby (1909) 6 Ga. App. 131, 64 S. E. 569, under a system whereby the lessees of convicts were to furnish suitable buildings, clothing, food, etc., but the prison commission was to appoint all wardens, guards, physicians, and other persons in charge of the men, the prison commission prescribing rules and regulations as to all matters relating to the care of the men, and the lessees being given the privilege of subletting the men, it was held that a lessee under such a contract was not charged with liability for torts committed by the wardens, guards, or "bosses," or by the sublessees.

And where under the state laws the absolute control, discipline, and punishment of leased convicts was vested in the state, it was held that a lessee of convict labor was not liable for the death of a convict who was killed by the fall of a crowded upper bunk which had been constructed under the supervision of a sergeant in charge of the convict camp who had been appointed by the state prison commissioners. Cunningham v. Moore (1881) 55 Tex. 373, 40 Am. Rep. 812.

In an action by a state convict working in the defendant's mine under a contract between the defendant and the state, to recover for injuries sustained by a rock falling from the roof of the mine, where the contract between the defendant and the state expressly provided that the state should have entire charge and control of the convicts, who were to be worked under mine foremen or pit bosses to be selected, controlled, and paid by the state, the mine to be worked according to the plans and specifications of the defendant's mining engineer, and the mine foreman and pit bosses were to see that the mine was worked according to the plans and directions and specifications made and given by the defendant's mining engineer, the court held that the defendant's mining engineer was not charged with any duty of inspecting the mines during the progress of mining operations for

the purpose of preventing or remedying dangerous conditions of entries and roofs arising from time to time from the operations of the miners in removing the coal such ephemeral conditions being, of course and of necessity, left to the foremen and bosses provided by the state, both for detection and correction, and with them the engineer had nothing whatever to do. Parker v. Sloss-Sheffield Steel & I. Co. (1917) 200 Ala. 566, 76 So. 924.

Nor was it the duty of the defendant's fire boss to examine the mine for loose or dangerous rock, and to warn the plaintiff of its presence, the undisputed evidence being that the only duty of the fire boss was to inspect for the presence of explosive gas, to warn of its presence, and to look out for proper ventilation. Ibid. And the gratuitous act of the fire boss on one occasion, in warning the state's mine foreman to keep his men out of a room because it was falling in, would not show that he had undertaken to discharge that duty, and that the miners relied on him to do so. Ibid.

In San Antonio & A. P. R. Co. v. Gonzales (1903) 31 Tex. Civ. App. 321, 72 S. W. 213, where a penitentiary convict hired by the state to a railroad company was in the custody and under the control of a sergeant in the employ of the state, who was also employed by the company as an assistant section foreman in working the gang of convicts, whose rations were furnished by the state, the court held that the railroad company was liable in damages for injuries suffered by the convict. who, while executing the order of the sergeant to load a sack of peas on one of the company's train cars to be carried to the convict commissary car, was struck by a brake rod negligently permitted by the company to project over the side of the car. The court observed that, even though a convict may be acting under the orders and instructions of an officer placed over him by the state, if while so acting he is injured by the negligence of a railway company, he is entitled to recover from it such damages as flow from the injuries inflicted by such negligence. It was pointed out that, though a

The

convict, the railway company owed him at least as much duty as it did members of the public liable to be where they would in all probability be injured by the projection of a brake rod propelled along its track. court held that the railway company would have been as much liable for the act of negligence causing the convict's injury if the work he was doing under the orders of the sergeant was for the state, as it would have been had the work been done under the sergeant's orders as an assistant foreman for the benefit of the railroad company.

A charge requested by the company, to the effect that if, at the time the convict was injured, he was disobeying the orders of the sergeant in attempting to throw a sack of peas upon a moving flat car loaded with dirt, and that in such disobedience he was struck on the head by a side brake of the flat car, he could not recover, no matter what condition the side brake was in, whether in or out of repair, was held by the court to be subject to the criticism that it ignored entirely the act of negligence of the company in operating its train with a brake rod bent and extending over the platform over which the convict was compelled to be at work by the orders of the sergeant, and would relieve the company from the act of such negligence, though it was shown to be the proximate and sufficient cause of the conviet's injury. Ibid. In this connection the court pointed out that a railway is responsible to persons who are injured, when they are where they had the right to be, and where the company might reasonably expect them to be, by the projection of anything from a car over where such persons were standing. Ibid. The court in the instant case called attention to the fact that the convict, by virtue of his status, in being where he was, had no volition, and the railway company, knowing that convicts would be ordered to the platform to remove the sacks to the commissary car, could not escape the responsibility for the injury it inflicted upon the convict by its negligence in running the car there

with a brake rod projecting over the platform where the sacks of peas were to be handled.

VIII. Of officers in charge of prisoners for improper treatment thereof. The marshal and policemen of a city, and any persons aiding and abetting them, are liable in damages for unnecessary cruelties and indignities inflicted by them on prisoners in their charge. Topeka v. Boutwell (1894) 53 Kan. 20, 27 L.R.A. 593, 35 Pac. 819.

And in Peters v. White (1899) 103 Tenn. 390, 53 S. W. 726, 13 Am. Crim. Rep. 107, the superintendent of a county workhouse was held liable for the unauthorized and illegal infliction of corporal punishment on a convict confined in the workhouse. Under a statute providing that any person refusing to work might be confined in solitary confinement, and fed on bread and water, "or subjected to such other punishment, not inconsistent with humanity, as may be deemed necessary by the commissioners for the government and control of the prisoner," the court held that the power to inflict corporal punishment upon the inmates of the workhouse could not be delegated to the superintendent by the commissioners, and, even if they could so delegate it, they would not themselves be justified in inflicting it, upon the impudent refusal of an inmate to comply with an illegal command of the superintendent. The court found it unnecessary to decide whether the commissioners could authorize the infliction of corporal punishment upon convicts in any case.

And in Perrine v. Planchard (1860) 15 La. Ann. 133, the keeper of a police jail of the city of New Orleans was held liable in damages for inflicting corporal punishment on a free woman of color while acting under the mistaken impression that she was a runaway slave whom he had been requested to chastise by her master.

And in Alvord v. Richmond (1895) 3 Ohio N. P. 136, it was held that a complaint alleging that the deputy marshal and marshal of a village confined a prisoner in a grossly unfit and dangerous lockup, which condition was

well known to the officers, and built a fire in a worn-out and cracked stove in such prison and left it unguarded, so that the prisoner was burned to death therein, stated a cause of action against both of these officers.

A marshal who makes a lawful arrest must use care to see that his prisoner is not oppressed or treated inhumanely, and, if a calaboose is in such an unfit condition as to make it dangerous to health to confine one therein, the marshal must not put a prisoner therein; and a failure to use such due care and accord ordinarily decent treatment will be a breach of his bond to faithfully perform his duty. Nixa v. McMullin (1917) 198 Mo. App. 1, 193 S. W. 596. And see Clark v. Kelly (1926) W. Va. A.L.R., 133 S. E. 365, in which a jailer was held liable for confining a prisoner in an unsanitary prison.

In Dabney v. Taliaferro (1826) 4 Rand. (Va.) 256, it was held that, under the principles of the common law and aside from any act of assembly, a jailer was bound to furnish covering and fire to a runaway slave confined in the county jail in midwinter.

And the sheriff as ex-officio jailer would, under the principle of qui facit per alium, facit per se, be liable for such neglect of duty, even though by his consent the keys of the jail were placed in the hands of another party who exercised complete control over the jail, unless the sheriff proved a regular appointment of this turnkey or servant as jailer. Ibid. The court found it unnecessary to decide whether, if the sheriff had regularly appointed the turnkey his deputy, he could thereby have relieved himself from all responsibility for the acts of the latter, but was inclined to believe that the sheriff, notwithstanding such appointment, would be liable, as in other cases, for the acts of his deputy.

The inference gathered from the case of Richardson v. Capwell (1924) 63 Utah, 616, 176 Pac. 205, is that a prisoner may recover from the town marshal for injuries sustained from insufficient nourishment, exposure to cold, and subjection to unsanitary conditions, in a town jail, where it was

the marshal's duty to see that the prisoners were furnished food and kept in a warm and sanitary building. This inference is gathered from a statement of the court that, "if plaintiff desires, he is entitled to have the question as to damages, if any, he may have sustained in these particulars, submitted to the jury."

But the justice of the peace, ordering the imprisonment of the plaintiff, could not be charged with any negligence in that regard, where it affirmatively appeared that he was in no way responsible for or connected with the imprisonment after the trial and conviction. Ibid.

However, in Williams v. Adams (1861) 3 Allen (Mass.) 171, it was held that a person in a house of correction in execution of a sentence of court, and who, while there confined in temporary solitary imprisonment for a violation of the rules of the prison, could not maintain an action against the master of the house of correction for mere negligence in failing to furnish sufficient food, clothing, and warmth of room, while thus in solitary confinement, in the absence of express malice or of such gross negligence as to authorize the inference of implied malice and intention to do the prisoner bodily injury. One reason advanced by the court in support of the holding in the instant case seems to have been that great inconvenience would result in case an action was allowed against the master of the house of correction for neglect of the various duties imposed upon him. The court said, after referring to the duty of the master to furnish food, fuel, and other necessaries to the prisoners in the house of correction: "These are duties required of the master. But if one prisoner can maintain his action against the master for his neglect of duty in providing for the inmates, all others can. The neg lect of any of these duties would be a default on the part of the master. We find that it is not universally true that, whenever there is a breach of public duty by negligence or misfeasance, any party who sustains an injury by it may have his action