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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 officers 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

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tion 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 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.

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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 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

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.

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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. lett (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

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