13 Minn. 523. The relation of master and servant exists between father and daughter, where she, being twenty-nine years of age, resides with him, and by a tacit understanding continues to perform domestic duties, and is supplied by him with food and clothing: Lipe v. Eisenlerd, 32 N. Y. 229. A servant employed by a flour merchant to deliver his goods, who starts with a wagon-load of flour and bran for different customers, and leaves several bags of bran by the roadside while going to deliver the flour, intending to take the bran on his return, and thus gain time to attend to his own private business, must be regarded as acting for the master in leaving the bran, so as to make the latter liable for an injury caused by the fright of a horse in being driven by: Phelon v. Stiles, 43 Conn. 426.

If the hirer of a team with a driver agrees with the owner that he will furnish his own driver, the latter becomes his servant: Hofer v. Hodge, 52 Mich. 372; 50 Am. Rep. 256. When a person is injured by the negligent driving of the owner's team by his driver, both team and driver being hired by a third person, who requested the services of that particular driver, the owner is not liable, the driver being at the time the servant of the hirer: Joslin v. Grand Rapids Ice Co., 50 Mich. 516; 45 Am. Rep. 54. Where the owner furnishes a driver to manage his team, and the hirer acquires the right to superintend and direct the servant, the latter continues to be the servant of the owner, who is responsible for his negligence: Ames v. Jordan, 71 Me. 540; 36 Am. Rep. 352; Huff v. Ford, 126 Mass. 24; 30 Am. Rep. 645. A ferry-man transporting a stage and its passengers across a stream is, as to a passenger contracting with the stage company for transportation only over its route, to be regarded as the servant of the stage company: McLean v. Burbank, 11 Minn. 277. To the same effect, Hooper v. Wells, 27 Cal. 11.

If a contractor agrees with the trustees of an estate to take down a building for them under their direction, and subject to their approval, he is their servant, so as to make them liable for his negligence: Linnehan v. Rollins, 137 Mass. 123; 50 Am Rep. 287. When the owner of a quarry hires a party to go into the quarry to quarry stones therein, break the same to a certain size, and pile them up for measurement, but retains no other or further control over the employee, who furnishes the gunpowder and other tools, and is paid by the perch, the relation of master and servant exists, and the latter is liable for injury inflicted by the employee in destroying adjacent buildings while blasting with gunpowder: City of Tiffin v. McCormack, 34 Ohio St. 638; 32 Am. Rep. 408. A porter or other employee of the Pullman car company, where the car of such company forms a part of a regular train, is to be regarded as the servant of the company running such train: Williams v. Pullman Palace Car Co., 40 La. Ann. 417; 8 Am. St. Rep. 538; Pennsylvania Company v. Roy, 102 U. S. 451; Thorpe v. New York Central etc. R. R. Co., 76 N. Y. 402; 32 Am. Rep. 325. Where, under a contract, a party acts as yard-master and station-agent for a railroad company, with absolute control of the grounds, yards, buildings, engines, cars, and employees furnished by the company, such employees to be paid and controlled by him, and his whole work to be done to the satisfaction of the company's superintendent, who has power to revoke the contract if the work is unsatisfactory, the relation of master and servant exists between the contractor and the company, and the latter is liable for the negligence of the train-men under his control: Speed v. Atlantic etc. R. R. Co., 71 Mo. 303.

Shovelers engaged in transferring coal from a vessel at the dock into the ears of a railroad company, the apparatus used being supplied by the company and controlled by its servants, and the shovelers being paid from

money received by the company from the ship-holders for unloading, are the servants of the company: Daley v. Boston etc. R. R. Co., 147 Mass. 101. But a stevedore employed to load or unload a vessel for a gross sum is not the servant of the owner of the vessel, so as to make him liable for the negligence of the men employed by the stevedore: Sweeny v. Murphy, 32 La. Ann. 628; Pingree v. Leyland, 135 Mass. 398. A pilot, while he has charge of a vessel, is the servant of the owner: Yates v. Brown, 25 Mass. 23. Still, where a vessel is being towed by a steam-tug, the master and crew of the latter are not the servants of the owner of the former: Sproul v. Hemming way, 14 Pick. 1. A farm employee who is to receive a part of the crop as compensation for his services is the servant of the land-owner: Richey v. Dupre, 20 S. C. 6.

A railroad company, accepting the services of a gateman employed by an. other company owning the road used by it, thereby recognizes such gateman as its servant, and is liable for his negligence: Cleveland etc. R'y Co. v. Schneider, 45 Ohio St. 678. One may be the servant of another, so far as a claim for services is concerned, even though at the same time he was in the employ of a third person both in and out of the business hours of the latter: Wallace v. De Young, 98 Ill. 638; 38 Am. Rep. 108.

The principle of respondeat superior applies to municipal corporations, where the acts of their servants refer to powers and duties ministerial in their nature and character: Toledo v. Cone, 41 Ohio St. 149; Lloyd v. Mayor of New York, 5 N. Y. 369; 55 Am. Dec. 347; Conrad v. Ithaca, 16 N. Y. 158; but a public officer elected or appointed in a city to perform public duties prescribed by statute, and not for the benefit of the city in its corporate capacity, is not the servant of the town so as to make the latter liable for his negligence: Hafford v. New Bedford, 82 Mass. 297; Dunbar v. Boston, 112 Mass. 75; Alger v. Easton, 119 Mass. 77.

A newsboy permitted to pass in and out of street-cars, but not in the em ploy of the company, is not the servant of the company: Philadelphia Traction Co. v. Orbann, 119 Pa. St. 37. So a postal-clerk is not the servant of the company on whose train he runs: Muster v. Chicago etc. R. R. Co., 61 Wis. 325; 50 Am. Rep. 141. A licensee of the exclusive privilege of enter ing trains for the purpose of selling and supplying lunches to passengers is not the servant of the railroad company: Fluker v. Georgia R. R. etc. Co., 81 Ga. 461; 12 Am. St. Rep. 328. A store-keeper who sells merchandise, and then permits or directs the purchaser's servant to remove it by throwing it from an upper window into the street, does not, by so doing, make the servant his servant so as to be liable for his act: McCullough v. Shoneman, 105 Pa. St. 169; 51 Am. Rep. 194. A landlord is not liable to a servant of the tenant for an injury resulting from the negligence of the latter, unless it arose from some unperformed duty remaining upon the landlord, even though the servant was originally his servant, was ignorant of the lease, and supposed himself still in the employment of the landlord: Crusselle v. Pugh, 67 Ga. 430; 44 Am. Rep. 724. When a master sends his servant to deliver a load of merchandise to a customer at a distance, and upon his arrival the customer requests him to take the merchandise to another person, at a considerable distance farther on, and while there get some freight, and bring it to him, while so engaged the servant is not in the employ of the first master so as to make him liable for his negligence: Stone v. Hills, 45 Conn. 44; 29 Am. Rep. 635. If a clerk is in the employment of a merchant, and the latter, with another, forms a partnership in the same business, after which the clerk enters into the service of the firm, his employment with the first master is

at an end, and upon receiving the wages due up to the time of the formation of the partnership, and a refusal to work without an increase in salary, he cannot, upon being discharged, recover from the original employer: Ander son v. Freeman, 75 Ga. 93. A police-officer is not the servant of the city appointing him, so as to exonerate it from liability for injury sustained by him because of a defective highway: Kimball v. Boston, 1 Allen, 417.

One who contracts with another to do a specific piece of work for him, which work is lawful in its nature, and who furnishes and has the absolute control of his assistants, and who executes the work entirely in accord with his own ideas, or with a plan previously given him by the person for whom the work is done, without being subject to the latter's orders in respect to the details of the work, with absolute control thereof, is not a servant of his employer, but is an independent contractor, and a person injured by his negligence in the performance of the work has no right of action against the party for whose benefit the work is done. In other words, neither an inde pendent contractor nor his assistants are the servants of the party with whom he contracts, and the only question to be determined in fixing the liability is as to who has the control of those employed in the work, and control of the manner in which it is done. If one contracts with another to perform lawful work without reserving any control of those employed in the work, or the manner in which it is to be done, the contractor who controls and directs those engaged in the work, and not the party for whom it is done, is the master, and liable for their negligence. If, however, the party for whom the work is done reserves such control, he is liable as the master. To this effect the authorities are numerous and harmonious. Among them are St. Louis etc. R'y Co. v. Yonley, 53 Ark. 503; Hale v. Johnson, 80 Ill. 185; West v. St. Louis etc. R. R. Co., 63 Ill. 545; Wray v. Evans, 80 Pa. St. 102; Reed v. Allegheny City, 79 Pa. St. 300; Edmundson v. Pittsburgh etc. R. R. Co., 111 Pa. St. 316; Smith v. Simmons, 103 Pa. St. 32; 49 Am. Rep. 113; Miller v. Minnesota etc. R'y Co., 76 Iowa, 655; 14 Am. St. Rep. 258; Brown v. McLeish, 71 Iowa, 381; Du Pratt v. Lick, 38 Cal. 691; Powell v. Construction Co., 88 Tenn. 692; McCafferty v. Spuyten Duyvil etc. R. R. Co., 61 N. Y. 178; 19 Am. Rep. 267; Coughty v. Globe Woolen Co., 56 N. Y. 124; New Orleans etc. R. R. Co. v. Reese, 61 Miss. 581; Robinson v. Webb, 11 Bush, 464; Fuller v. Citizens' Bank, 15 Fed. Rep. 875; Hitte v. Republican Valley R. R. Co., 19 Neb. 620; Bennett v. Truebody, 66 Cal. 509; 56 Am. Rep. 117; Bailey v. Troy etc. R. R. Co., 57 Vt. 252; 52 Am. Rep. 129; Fink v. Missouri Furnace Co., 82 Mo. 276; 52 Am. Rep. 376; Carter v. Berlin Mills, 58 N. H. 52; 42 Am. Rep. 572; McCarthy v. Second Parish of Portland, 71 Me. 318; 36 Am. Rep. 320.

One who voluntarily undertakes to perform services for another, who assents thereto, stands in the relation of servant to the latter while so engaged: Barstow v. Old Colony R. R. Co., 143 Mass. 535; Union R'y etc. Co. v. Kalla her, 114 Ill. 325.

SAVANNAH STREET RAILROAD COMPANY v. BRYAN.

[86 GEORGIA, 812.]

MASTER AND SERVANT-MASTER'S LIABILITY FOR VIOLENCE OF SERVANT. A railroad company is liable for the unlawful violence and misbehavior of its employees, both on the cars and at the office of the company. The rule is here applied to a battery committed by a conductor upon a passenger on the car, and repeated afterwards at the company's office: Lawton and Cunningham, and E. S. Elliott, for the plaintiff in error.

Garrard and Meldrim, for the defendant in error.

BLECKLEY, C. J. The jury found for the plaintiff below two thousand dollars. The motion for a new trial complains of no error by the court, but attacks the verdict as contrary to law, to evidence, etc., and as excessive in amount. The motion was overruled. This was an approval of the verdict by the presiding judge.

Treating the testimony of the plaintiff and his witnesses as reliable, and as presenting the whole truth of the case, there can be no doubt that the verdict was warranted in all respects. The plaintiff, being a passenger on a street-car, was called upon by the conductor for his fare. He had money in his pocket, and telling the conductor to wait a minute, was feeling for a nickel, when he was seized by the conductor, and ordered off the car. A struggle ensued, and the conductor kicked him off the platform, the car being in rapid motion. The plaintiff then repaired immediately to the office of the company for the purpose of making complaint to the superintendent. He reached the office in about eighteen or twenty minutes. The conductor arrived at or near the same time. The conductor cursed him, kicked him again twice, hit him with his fist, and shoved him away. Others present took part with the conductor, and plaintiff was badly beaten. The conductor plunged a knife into him. His left arm was broken, and the cut with the knife was in the back of the head. He became unconscious, and was afterwards picked up by a policeman some two blocks distant from the office. He could not say exactly where and at what time he was cut, but he saw the conductor, while on the platform of the office, draw a knife from his pocket, and open it with his teeth. The evidence adduced by the company conflicted with this account in several material respects, but that conflict counts for nothing on this writ of error, the jury having found in favor of the

plaintiff, and their finding having been approved by the presiding judge. The company is responsible for the unlawful violence and misbehavior of its employees, both on the cars and at the office: Gassway v. Atlanta etc. R. R. Co., 58 Ga. 216; Peeples v. Brunswick etc. R. R. Co., 60 Ga. 281; Western and Atlantic R. R. Co. v. Turner, 72 Ga. 292; 53 Am. Rep. 842; City and Suburban R'y Co. v. Brauss, 70 Ga. 368; Christian v. Columbus etc. R'y Co., 79 Ga. 460.

There was no error in denying the motion for a new trial. Judgment affirmed.

MASTER AND SERVANT-LIABILITY OF MASTER FOR SERVANT'S TORTS. — The master is liable for the torts of his servant committed in the course of his employment: McClung v. Dearborne, 134 Pa. St. 396; 19 Am. St. Rep. 708, and note. This rule is applied to an assault and battery committed by a railway conductor upon a passenger on a railway train: Dillingham v. Russell, 73 Tex. 47; 15 Am. St. Rep. 753, and note. In Brazil v. Peterson, 44 Minn. 212, where a barkeeper of a saloon assaulted a person who was in the saloon in an intoxicated and helpless condition, the court decided that the proprietor of the saloon was liable. A master cannot be held responsible for the acts of a servant done in violation of his orders and beyond the scope of his employment: Andrews v. Green, 62 N. H. 436.

BENNETT V. STATE.

[86 GEORGIA, 401.]

CRIMINAL LAW - CHARACTER PRESUMPTION IN ABSENCE OF PROOF
An accused is not bound to put his character in issue. His omission to

do so, or to show good character, does not justify a presumption that his character is bad, from which an inference of guilt can be drawn. CRIMINAL LAW - CHARACTER PRESUMPTION. - The character of a party accused of crime is presumed to be good, until the contrary is proved. CRIMINAL LAW - CHARACTER. - GUILT OF ACCUSED must be proved beyond a reasonable doubt, whether his character is good or bad. CRIMINAL LAW-CHARACTER - COMMENTS OF COUNSEL. It is reversible error to allow counsel for the prosecution to argue, against objection, that want of testimony as to the character of the accused authorizes the jury to infer that his character is bad, although his counsel, in argument as to his good character, has gone outside the evidence.

McCurry and Proffitt, for the plaintiff in error.

W. M. Howard, solicitor-general, and Harrison and Peeples, for the state.

SIMMONS, J. Bennett was tried for the offense of burglary, and was convicted. He made a motion for a new trial, which was refused, and he excepted. One of the grounds of the

AM. ST. REP., VOL. XXII.-30