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 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. The 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 proxi were mate and sufficient cause of the convict'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 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) S. E. 365, in which a jailer was held liable for confining a prisoner in an unsanitary prison. W. Va. - A.L.R. - 133 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 neglect 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 against the party guilty of such violation. . . . It has been said . that where an individual sustains an injury by the neglect or default of another, the law gives no remedy. But there is another general principle of law more applicable to this case, that it is better that an individual should sustain an injury than that the public should suffer an inconvenience. And though the fear of introducing so much litigation ought not to prevent the plaintiff recovering, if by law he is entitled, yet it ought to have considerable weight in a case where it is admitted that there is no precedent of such an action having been before attempted.' These considerations are applicable to the present case. . The effect of maintaining actions like the present would be to transfer to the supervision of the courts of law the question of the proper management of our jails and houses of correction, and require them to pass upon all the alleged abuses arising from neglect by the officers to discharge the functions of their offices properly. And we cannot think that any such relation exists between a prisoner in a house of correction and the keeper thereof, as will authorize a civil action for any such neglect of duty by the keeper as those shown in the present case," And in O'Hare v. Jones (1894) 161 Mass. 391, 37 N. E. 371, the plaintiff, while serving at hard labor in a house of correction for the commission of a crime, was injured by having his hand caught in a planing machine upon which he had been set to work. The action was brought against the general superintendent of prisons for the commonwealth and the master of the house of correction in which the prisoner was confined, on the ground that these two were negligent in appointing the superintendent and instructor of the planing room, who was alleged to be an incompetent instructor and negligent in not providing a suitable machine and in improperly instructing the plaintiff in the use of it, and against this superintendent and instructor an action was also brought. It was held that neither of the defend 46 A.L.R.-8. ants was liable, inasmuch as they were public officers performing a public service. The court said: "It is inconsistent with the purpose for which prisons are established, and with the discipline which must be maintained over prisoners, that the officers should be responsible to the prisoners in private actions for mere negligence in the performance of their duties." And in Lunsford v. Johnston (1915) 5 Tenn. C. C. A. 565, affirmed in (1915) 132 Tenn. 615, 179 S. W. 151, 11 N. C. C. A. 638, it was held that the superintendent of a county workhouse was not liable for the act of a subordinate, a workhouse guard, appointed by the superintendent under proper legal authority and whose services were paid for by the county, who shot a convicted misdemeanant who was attempting to escape from the workhouse, the proof showing that the superintendent was not present when the shooting was done and knew nothing of it until after it had occurred; the opinion was based on the well-settled rule of law that a public officer is not responsible for the wrongful acts of a subordinate employed by him under proper legal authority, unless he has directed such an act to be done, or is guilty of negligence in respect of same, which directly and proximately contributes to the injury. It was further held that the guard was in no sense a servant of the superintendent, and the rule of respondeat superior did not apply. The court said: "In all of the cases it was held that public officers are not liable for the negligence of their subordinate officers, whether appointed by them or not; that the rule of respondeat superior does not apply. They are liable for their own negligence, and liability for that of their inferiors only arises where the latter are their personal agents or private servants. The exemption of a public officer from liability for the negligence of a subordinate official is said to rest on reasons of public policy." Nor were the sureties on the official bond of the superintendent liable on such bond for the shooting of the convict by a guard legally appointed by the superintendent and paid by the county, as the superintendent was not present when the shooting was done and knew nothing of it till after it had occurred. Ibid. And in Martin v. Moore (1904) 99 Md. 41, 57 Atl. 671, where the superintendent of a house of correction had ordered the plaintiff punished for a violation of the rules of the institution, the action was properly dismissed as to him, even though the punishment was inflicted in a malicious, wilful, and excessive manner, as there was no evidence to show that the superintendent was responsible for wrongful act. the And a complaint in an action against the warden and principal keeper of a prison, by a prisoner, to recover for cruel and unusual and unlawful punishment inflicted, fails to state facts sufficient to constitute a cause of action, where the punishments described in the complaint as having been inflicted seem to have been authorized by statute, if, in the opinion of the warden, it was deemed necessary in order to produce entire submission or obedience of the convict, and there was no allegation in the complaint that the acts done by the defendants were not in accordance with the regulations of the superintendent, or that they were not necessary for the proper punishment of the plaintiff, or to secure submission or obedience upon his part, or that they were not administered in accordance with the legal regulations upon that subject. Wightman v. Brush (1890) 32 N. Y. S. R. 78, 10 N. Y. Supp. 76. So, also, in Rose v. Toledo (1903) 24 Ohio C. C. 540, it was held that the superintendent of a city workhouse was a public officer, and in his official capacity was authorized to make reasonable rules and regulations for the government of the prison and to inflict reasonable punishments for their violation, and, in the absence of a showing of malice or intent to injure, could not be held liable for injuries to a prisoner confined in a dungeon of the workhouse for violation of the rules of the institution. And where the plaintiff was arrested by policemen and confined in jail, and later was removed by the janitor to a filthy, unsanitary cell, in which he suffered bodily pain and affliction, he could not recover for such injuries from the policemen or the city marshal, who maintained absolute control over him, in the absence of evidence that either of the defendants were responsible for the condition of the cell, or that they placed the prisoner therein or knew that he was confined in the cell in which this condition is shown to exist. Bishop v. Lucy (1899) 21 Tex. Civ. App. 326, 50 S. W. 1029. IX. Of officers in charge of prisoners for injury inflicted by one prisoner upon another prisoner. The general rule gathered from the cases which have considered the question as to the liability of an officer in charge of a jail or prison for an injury inflicted by one prisoner upon another prisoner is that, in order to hold the officer liable for such injuries, there must be knowledge on the part of such officer that such injury will be inflicted or good reason to anticipate danger thereof, and negligence in failing to prevent the injury. Thus, a sheriff is not responsible for a fatal assault committed by a convict on a prisoner committed to the county jail to await the action of the grand jury, where the sheriff was not bound to anticipate the assault, and did not know of any trouble in the jail. Gunther v. Johnson (1899) 36 App. Div. 437, 55 N. Y. Supp. 869. And one who, without the knowledge of the chief of police of the city, was placed in a prison cell with an insane prisoner, who had also been placed there without the knowledge of the chief of police, and who was injured by the insane prisoner, could not recover from the chief of police for a murderous assault committed upon him by the insane prisoner. Stinnett v. Sherman (1897) Tex. Civ. App. 43 S. W. 847. The court in the instant case held that duties imposed by a city ordinance upon the chief of police, that he should keep the prison in a cleanly and wholesome condition, and safely keep all prisoners confined |