Page:Harvard Law Review Volume 5.djvu/31

15 AGENCY. 15 torts of an independent contractor, or, in other words, that an inde- pendent contractor is not a servant. And here I hardly know whether to say that common-sense and tradition are in conflict, or that they are for once harmonious. On the one side it may be urged that when you have admitted that an agency may exist out- side the family relations, the question arises where you are to stop, and why, if a man who is working for another in one case is called his servant, he should not be called so in all. And it might be said that the only limit is found, not in theory, but in common-sense, which steps in and declares that if the employment is well recog- nized as very distinct, and all the circumstances are such as to show that it would be mere folly to pretend that the employer could exercise control in any practical sense, then the fiction is at an end. An evidence of the want of any more profound or logical reason might be sought in the different circumstances that have been laid hold of as tests, the objections that might be found to each, and in the fact that doubtful cases are now left to the jury. 1 On the other hand, it might be said that the master is made answerable for the consequences of the negligent acts " of those whom the law denominates his servants, because," in the language of that judgment which settled the distinction under considera- tion, 2 " such servants represent the master himself, and their acts 1 Among the facts upon which stress has been laid are the following : 1. Choice. Kelly v. Mayor of New York, 11 N. Y. 432, 436. See Walcott v. Swampscott, 1 Allen, ior, 103. But although it is true that the employer has not generally the choice of the contractor's servants, he has the choice of the contractor, yet he is no more liable for the contractor's negligence than for that of his servant. 2. Control. Sadler v. Hen- lock, 4 El. & Bl. 570, 578 (1855). Yet there was control in the leading case of Quar- man v. Burnett, 6 M. & W. 499 (1840), where the employee was held not to be the defendant's servant. Cf. Steel v. Lester, 3 C. P. D. 121 (1877J. 3. A round sum paid. But this was true in Sadler v. Henlock, sup., where the employee was held to be a servant. 4. Power to discharge. Burke v. Norwich & W. R.R., 34 Conn. 474 (1867). See Lane v. Cotton, 12 Mod. 472, 488, 489. But apart from the fact that this can only be important as to persons removed two stages from the alleged master, and not to determine whether a person directly employed by him is a servant or contractor, the power to discharge a contractor's servants may be given to the contractee without mak- ing him their master. Reedie v. London & Northwestern Ry. Co., 4 Exch. 244, 258. Robinson v. Webb, n Bush (Ky.), 464. 5. Notoriously distinct calling. Milligan v. Wedge, 12 Ad. & E. 737 (1840) ; Linton v. Smith, 8 Gray (Mass.), 47. This is a prac- tical distinction, based on common-sense, not directly on a logical working out of the theory of agency. Moreover, it is only a partial test. It does net apply to all the cases. In doubtful cases the matter seems now to be left to the jury, that ever-ready sword for the cutting of Gordian knots, as difficult questions of law generally are. 2 Littledale, J., in Laugher v. Pointer, 5 B. & C. 547, 553 (T. 7 G. IV. 1826).