Page:North Dakota Reports (vol. 48).pdf/769

 findings of the jury that the plaintiff, at the time of the injury, was an employee of the Director General.

It will be noted that contract was made November 1, 1918. The evidence shows that prior to that date, namely, during the latter part of October, 1918, the plaintiff, at the direction of the proper employees of the Director General, went to Wilton and worked as a fireman on a locomotive doing work for the coal company similar to that which was done by the locomotive which plaintiff was firing on December 25, 1918. There is no direct evidence that the plaintiff was informed of the contract between the coal company and the Director General and the railway company. On the other hand, the plaintiff testified (and the jury iound) that he had no knowledge of any such contract; that while he worked at Wilton he supposed he was working for the railway administration, and that he had no idea that he was supposed to be an employee of the coal company. When the plaintiff entered into the employment of the railway administration certain obligations were assumed by both the employer and the employee. It would seem that an employer ought not to be permitted to transfer the employee to another master, and expose him to new risks incident to such new employment, unless the employee either expressly or impliedly consents to enter the new employment, and assumes the risks and obligations incident thereto. And that is the rule established by the authorities. See Bowie v. Coffin Valve Co., 200 Mass. 571, 86 N. E. 914; Del., L. & W. R. Co. v. Hardy, 59 N. J. Law, 35, 34 Atl. 986; 1 Labatt’s Master & Servant (2d ed.) § 53, p. 174; note, 37 L. R. A. 47. In Bowie v. Coffin Valve Co., supra, the Supreme Court of Massachusetts said that—

A servant “could not be transferred from one master to another without his consent either expressly given or implied from the nature and character of the work when compared with his ordinary employment.” 36 N. E. 915, 200 Mass. 578.

The same principle was enunciated by the Supreme Court of New Jersey in Del., L. & W. R. Co. v. Hardy, supra, in the following language:

“To establish the fact that the servant of one has thus transferred lis services to another pro hac vice, it must appear that he has assented, expressly or impliedly, to such transfer. No one could transfer the services of his servant to another master without the servant's consent. It must further appear that the servant has, in fact, entered upon the service and submitted himself to the direction and control of the new