Opinion of the Court-DUNBAR, J. [19 Wash. one of the laborers, the master could not justly be held liable; and the doctrine of fellow servants, for obviously just reasons, was applied, for the laborers had in hand and under their control the performance of this work and were in a sense both of them agents or vice-principals of the master. In manufacturing employments it was the same. The doctrine was applied simply and humanely on the theory that, standing on a level with each other, both as to employment and authority, they had notice which the master necessarily could not have of the dangers liable to result from the action of the workers; and, in thus noticing and continuing in the employment without an attempt to rectify it, to them it was a disclosed or apparent danger, the perils of which they assumed, and the doctrine of nonliability of the master for the action of fellow servants must be sustained upon this principle, if sustained at all. But with the increasing of manufacturing and transportation business, with the complications arising from this increasing business and the introduction of new methods and new conditions, these plain principles, it seems to us, have been lost sight of by many courts, or rather their application has not been consistent with the changing conditions. Plain terms have received artificial, instead of common sense and practical, construction. The result has been exactly the opposite from the intention in the original application of the rule, and employees have been unjustly held responsible for the actions of persons in whose employment they had no authority, whose competency they had no way of testing, over whose actions they had no advisory control and no chance of observation, and, more than this, whose peremptory orders they were compelled to obey. The result has been that this principle, which in its primary application was just and beneficent, has been made, by inharmonious and indiscriminate application, to work oppressive June, 1898. ] Opinion of the Court-DUNBar, J. wrong. It is gratifying, however, to observe that recently judicial opinion seems to favor a restriction of the doctrine of non-liability for the actions of fellow servants, and the English rule, that a servant in command is a fellow servant, has been repudiated by a great majority of the American cases, and it seems now to be pretty well established that, in order to constitute one a fellow servant, he must be in the same common employment with the one who has suffered from his negligence. Shearman & Redfield, Negligence (4th ed.), § 234. And the question of whether particular employees are fellow servants is in some states submitted to the jury. Mullan v. Philadelphia & S. M. S. Co., 78 Pa. St. 25 (21 Am. Rep. 2). The rule was announced in that case that the risk which the laborer assumes from the neglect of his fellow is where they are co-operating in the same business, so that he knows that the employment is one of the incidents of their common service. It has been held in Georgia that none are deemed to be in a common employment who have no opportunity to use precautions against each other's negligence. Cooper v. Mullins, 30 Ga. 146 (76 Am. Dec. 638). And this, we think, is in strict consonance with the just theory upon which the rule was first recognized. Applying these principles to the case at bar, it seems to us that the millwright, in this instance, could in no sense be considered a fellow servant of the sawyer below. He was not in the same employment. He was not engaged in manufacturing lumber, which was the business of the mill. The sawyer had no opportunity to use precautions against his negligent acts. It is the conceded duty of the master to furnish a safe place for the employee to work in. If the original construction of these beams had been faulty, there is no question of the liability of the master. If this chisel had been left upon this beam when the mill was originally Opinion of the Court- DUNBAR, J. [19 Wash. constructed and before the manufacturing business commenced, and had fallen off upon one of the workmen, it cannot be said that the master had supplied the workman with a safe place to work. It would seem that, so far as the rights of the workmen were concerned, no different principle could be brought to bear against his interests, when the chisel which caused the injury was left upon the beam after he had gone to work, and because the construction which the millwright produced was produced after the original construction of the building. In Sadowski v. Michigan Car Co., 84 Mich. 100 (47 N. W. 598), the court said: "The rule adopted by the federal courts, and in most of the states, and which seems to us most in consonance with reason and humanity, is that those employed by the master to provide or to keep in repair the place, or to supply the machinery and tools for labor, are engaged in a different employment from those who are to use the place or appliance when provided, and they are not therefore, as to each other, fellow servants. In such case, the one whose duty it is to provide and look after the safety of the place where the work is to be done represents the master in such a sense that the latter is liable for his negligence." In Nord Deutscher Lloyd S. S. Co. v. Ingebregtsen, 57 N. J. Law, 400 (31 Atl. 619, 51 Am. St. Rep. 604) the court, in discussing this question, says, among other things: "In determining whether an employé, through whose negligence defects in the machinery have failed of discovery or repair, is a representative of the master in the discharge of the master's duty to the servant, or is a fellow servant of the latter, engaged in a common employment, many incongruous decisions have been rendered. On this topic a rational distinction would seem to be that, when the employé's duty to inspect or repair the apparatus is incidental to his duty to use the apparatus in the common employment, then he is not intrusted with the master's duty to his fellow servant, and the master is not responsible June, 1898.] Opinion of the Court-DUNBAR, J. to his fellow servant for his fault, but that, if the master has cast a duty of inspection or repair upon the employé who is not engaged in using the apparatus in a common employment with his fellow servant, then that employé, in that duty, represents the master, and the master is chargeable with his default." In this instance the master, through the millwright, was repairing or constructing a certain addition to this building. This was certainly a different employment from that in which the respondent was engaged, and the duty of the inspection of these repairs and of using the tools by which the repairs were made was a duty cast, by the very necessities of the employment, upon the millwright and not upon the sawyer. We think, therefore, that the millwright represented the master and, under the well recognized rule that the master cannot escape responsibility by delegating his power to another, we think the master in this instance was responsible for the negligent act of the millwright in leaving the chisel where it was liable to fall and injure workmen below. We find no error in the giving or refusing to give instructions by the court, and the judgment will therefore be affirmed. GORDON and REAVIS, JJ., concur. Opinion of the Court-GORDON, J. [19 Wash. [No. 2859. Decided June 24, 1898.] HARRIET LOEWENBERG, Respondent, v. J. N. GLOVER et al., Appellants. CANCELLATION OF DEED MISTAKE. Where a wife's separate property was included with that of her husband and that of the community in a deed given by him to secure certain creditors, the deed will be set aside as to her separate property when it was included without her knowledge, she being induced to sign the deed hurriedly without reading, on the representation that only the community property and the husband's separate property were covered by the instrument, and when her property formed no part of the consideration for the release by the creditors of their claims and no rights of innocent third parties have intervened. Appeal from Superior Court, Spokane County.-Hon. LEANDER H. PRATHER, Judge. Affirmed. Fenton, Bronaugh & Muir, Dolph, Mallory & Simon, J. W. Whalley, and Winfree & Coman, for appellants. Thomas C. Griffitts, for respondent. The opinion of the court was delivered by GORDON, J.-The object of this action is to cancel a deed of conveyance executed by Herman Loewenberg, Bernhard Loewenberg and the plaintiff, Harriet Loewenberg, to James N. Glover, as trustee, in so far as it purports to convey certain property described in the complaint, which is claimed by plaintiff in her own right, as her separate property. The decree of the lower court was in favor of plaintiff, and certain of the defendants have appealed therefrom. The undisputed facts in the case show that in the year 1889 the plaintiff, at that time and at all times since, the wife of Bernhard Loewenberg, purchased in her own right and with her separate funds the property involved |