is undeniable. Whether in a given instance he sustained that relationship to his employer is a question to be determined from the particular facts as proved. Having regard to the circumstances under which services of this description are ordinarily rendered, it is, perhaps, permissible to say that only a clear preponderance of evidence can warrant an af. firmative answer to this question. Massachusetts.-Morgan v. Smith (1893) 159 Mass. 570, 35 N. E. 101. Michigan.-Bissell v. Ford (1913) 176 Mich. 64, 141 N. W. 860. Missouri.-Scharff v. Southern Illinois Constr. Co. (1905) 115 Mo. App. 157, 92 S. W. 126; Jackson v. Butler (1913) 249 Mo. 342, 155 S. W. 1071. New Jersey.-Jansen v. Jersey City (1897) 61 N. J. L. 243, 39 Atl. 1025, 4 Am. Neg. Rep. 313. New York. Slater v. Mersereau (1876) 64 N. Y. 138. Wisconsin. Dodge v. McDonnell (1861) 14 Wis. 553. "The architect was not an independent contractor beyond the control of the defendant as to the manner of doing the work." Campbell v. Lunsford (1887) 83 Ala. 512, 3 So. 522, 13 Am. Neg. Cas. 164. 2 The statement made by Lindley, L. J., in Jolliffe v. Woodhouse (1894; C. A.) 10 Times L. R. (Eng.) 553, that it was no answer to the claim to say that the defendant had delegated the statutory duty in question "to his builder or architect," indicates that, upon the facts before him, he must have considered the architect, as well as the builder, to be an independent contractor. In Hudgins v. Hann (1917) 153 C. C. A. 313, 240 Fed. 387, an architect employed to supervise certain work was apparently assumed to be an independent contractor; but the nature of the relationship was not a material element in the case, the employer being held liable on the ground of his being subject to a non-delegable duty in respect of seeing that the work was carefully performed. 3 In Claffy v. Chicago Dock & Canal Co. (1911) 249 Ill. 210, 94 N. E. 551, the architect himself testified that the defendant relied upon him to superintend the work of erecting a building, and that he let the work to various contractors, under contracts On the other hand, it has been laid down that, so far as the preparation of the plans and specifications is concerned, an architect is an independent contractor whose negligence is not imputable to the owner of the building, unless a want of due care in selecting him is proved. A fortiori is he to be regarded as being prima facie an independent contractor, where he undertakes to execute the signed by defendant; that he looked after the work done by the various contractors, and, during a part of the time the work was in progress, was at the building every day, and at other times was there three or four times a week; that he issued vouchers, upon which the contractors were paid from time to time as the work progressed, and superintended the work throughout, for which he received the customary compensation paid architects in such cases. Held, that the architect could not, under the facts thus shown, be considered as an independent contractor, having exclusive control and charge of the building and the work. 4 Burke v. Ireland (1901) 166 N. Y. 305, 59 N. E. 914, 9 Am. Neg. Rep. 540, reversing (1900) 47 App. Div. 428, 62 N. Y. Supp. 453, by the appellate division architect was assumed to be the agent of the owner; but it was held that he had exceeded his authority in modifying the plans and specifications without the assent of the owner. For a detailed review of this case, see § 6 of the note in 18 A.L.R. pp. 801 et seq.); Fox v. Ireland (1900) 46 App. Div. 541, 61 N. Y. Supp. 1061; Uggla v. Brokaw (1902) 77 App. Div. 310, 79 N. Y. Supp. 244 (holding it to be a good defense that the preparation of the plans for the construction of the building in question had been delegated to a competent architect and engineers); (1907) 117 App. Div. 586, 102 N. Y. Supp. 857 (second appeal of the case last cited); White v. Green (1904) Tex. Civ. App., 82 S. W. 329; Valiquette v. Fraser (1904) 9 Ont. L. Rep. 57, affirmed by the court of appeal in (1906) 12 Ont. L. Rep. 4, and by the supreme court in (1907) 39 Can. S. C. 1 (where it was held that the owner of a building is entitled to rely upon the plans of a qualified architect). "Where injury is due to improper entire work, as well as to prepare the plans.5 But even under the circumstances the evidence may be such as to require the inference that, in respect of his supervision of the work, he was acting as agent of his employer. $ 5. Physicians and surgeons. The general rule is that an action for damage occasioned by the negligence or unskilfulness of a physician or surgeon engaged by one person to attend upon another cannot be maintained against the employer, unless he was himself chargeable with a want of proper care in respect of his having engaged a practitioner whom he knew, or ought to have known, to be incompetent.1 In most of the reported cases which illustrate this incident of such an employment, the determinant factors were (1) the status of the defendant as being a charitable institution or a municipal corporation, or (2) the construction inherent in the plan, a municipal corporation owning the building may nevertheless avoid liability for its fall, if it appear that the plan was prepared for it by a competent independent architect, upon whose judgment and advice the municipal officers relied, unless the plan was so obviously bad as to suggest insecurity to an ordinarily and reasonably prudent owner." Willard Bartlett, J., in concurring opinion in Herman v. Buffalo (1915) 214 N. Y. 316, 108 N. E. 451. In Pitcher v. Lennon (1896) 12 App. Div. 356, 42 N. Y. Supp. 156, it was not decided whether, under the particular circumstances shown, the architect was an independent contractor. In Voeckler v. Stroehmann's Vienna Bakery (1914) 75 W. Va. 384, 83 S. E. 1025, Ann. Cas. 1917A, 350, the conclusion that the architect was not an independent contractor was deduced from specific evidence which showed that he had "made no definite working plans," and that "the work was not committed to his judgment and control." For cases in which the liability of the architect for damage caused to his employer by defective plans was affirmed, see Lottman V. Barnett (1876) 62 Mo. 159; Lake v. McElfat nature and extent of the duty of such defendant in respect of procuring medical or surgical aid for the plaintiff. As these factors are operative, irrespective of whether the person employed was a servant or an independent contractor, the cases which turn upon them do not come within the scope of the present annotation, except in so far as one or the other of them may have been adverted to as supplying a separate reason for affirming the nonliability of the defendant. 2 The decisions of which the rationale is that physicians and surgeons are not the servants of their employers are referable to the conception that they are "professional men," who are engaged on the understanding that they are to "exercise their profession to the best of their abilities according to their own discretion; but in exercising it they are in no way under his orders or bound to obey his rick (1893) 139 N. Y. 349, 34 N. E. 922. In Blanchard v. Montreal (1912; Cir. Ct.) 18 Rev. Leg. N. S. (Can.) 489, it was laid down, arguendo, that an architect is not a "simple preposé," within the meaning of Quebec Civ. Code, art. 1054. 5 Boswell v. Laird (1857) 8 Cal. 469, 68 Am. Dec. 345, 10 Mor. Min. Rep. 616. See Hughbanks v. Boston Invest. Co. (1894) 92 Iowa, 267, 60 N. W. 640; Manton v. H. L. Stevens & Co. (1915) 170 Iowa, 495, 153 N. W. 87-both reviewed in § 30, note 3, infra. 1 Boring v. Chicago & E. R. Co. (1915) Ind. - 110 N. E. 545, rehearing denied in (1916) 185 Ind. 46, 113 N. E. 294, and cases cited in the following notes. 2 See, for example, Atchison, T. & S. F. R. Co. v. Zeiler (1894) 54 Kan. 340, 38 Pac. 282, where the decision was based partly upon the ground that a surgeon engaged to attend on a brakeman was not a servant of the railroad company, and partly upon the ground that its duty to the brakeman had been fully discharged when it employed a competent practitioner. For a full discussion of the liability of charitable institutions, see Labatt's Master & Servant, § 2506. directions." 3 This theory as to the nature of their position necessarily 3 Farwell, L. J., in Hillyer v. St. Bartholomew's Hospital [1909] 2 K. B. (Eng.) 820, 826, where the defendant was held not to be liable for an injury inflicted on the plaintiff while he was under the influence of anesthetics. Kennedy, L. J., made the following remarks: "The legal duty "The legal duty which the hospital authority undertakes towards a patient, to whom it gives the privilege of skilled surgical, medical, and nursing aid within its walls, is an inference of law from the facts. In my opinion it is not the ordinary duty of a person who deals with another through his servants or agents, and undertakes responsibility to that other person for damage resulting from any injury inflicted upon him by the negligence of those servants or agents. In my view, the duty which the law implies in the relation of the hospital authority to a patient, and the corresponding liability, are limited. The governors of a public hospital, by their admission of the patient to enjoy in the hospital the gratuitous benefit of its care, do, I think, undertake that the patient, whilst there, shall be treated only by experts, whether surgeons, physicians, or nurses, of whose professional competence the governors have taken reasonable care to assure themselves; and, further, that those experts shall have at their disposal, for the care and treatment of the patient, fit and proper apparatus and appliances. But I see no ground for holding it to be a right legal inference from the circumstances of the relation of hospital and patient that the hospital authority makes itself liable in damages, if members of its professional staff, of whose competence there is no question, act negligently towards the patient in some matter of professional care or skill, or neglect to use, or use negligently, in his treatment, the apparatus or appliances which are at their disposal. It must be understood that I am speaking only of the conduct of the hospital staff in matters of professional skill, in which the governors of the hospital neither do nor could properly interfere, either by rule or by supervision. It may well be--and for my part I should, as at present advised, be prepared to hold that the hospital authority is legally responsible to the patients for the due per formance of their servants, within the hospital, of their purely ministerial or administrative duties, such as, for example, attendance of nurses in the wards, the summoning of medical aid in cases of emergency, the supply of proper foods, and the like. The management of a hospital ought to make, and does make, its own regulations in respect of such matters of routine, and it is, in my judgment, legally responsible to the patients for their sufficiency, their propriety, and observance of them by the servants." Farwell, L. J., expressed his approval of the decision in Evans v. Liverpool Corp. [1906] 1 K. B. (Eng.) 160, 74 L. J. K. B. N. S. 742, 69 J. P. 263, 21 Times L. R. 558, 3 L. G. R. 868, where it was held by Walton, J. (sitting alone), that local authorities who provide for the use of the inhabitants of their district a hospital for the reception of persons suffering from contagious diseases are not liable for the negligence of their visiting physicians in prematurely discharging a patient, unless they have failed to exercise due care in selecting him. It was argued by counsel that the doctor was the servant of the defendants for the purpose of discharging the child, and that his negligence was imputable to them on this ground. The learned judge said: "The terms of his appointment, and the rules under which he acted, do not bear out this contention. No doubt he was an officer of the defendants, and was paid an annual salary, and in certain matters had to obey the directions of the committee; but the rules show that he was 'responsible for the treatment of the patients from the beginning to the end of their stay, and also for their freedom from infection when discharged;' that is, he was responsible for deciding whether or not they were free from infection when discharged. The rules are, in my opinion, perfectly plain. What the doctor really does is to advise the corporation, and he gives his opinion. as a medical man. If the defendants have employed a competent, skilful, and duly qualified medical man, they have done all that it was possible for them to do they cannot control his opinion in any kind of way; indeed, it would be wrong for them to attempt to do so; all they can do is employ a competent medical man, and to act implies that they are independent contractors-a designation which has upon his opinion and discharge the patient." In the Hillyer Case the true relation of the parties was declared to have been well stated in the following passage of the opinion in Glavin v. Rhode Island Hospital (1879) 12 R. I. 411, 34 Am. Rep. 675: "Here the physicians or surgeons are selected by the corporation or the trustees. But does it follow from this that they are the servants of the corporation? We think not. If A, out of charity, employs a physician to attend B, his sick neighbor, the physician does not become A's servant, and A, if he has been duly careful in selecting him, I will not be answerable to B for his malpractice. The reason is that A does not undertake to treat B through the agency of the physician, but only to procure for B the services of the physician. The relation of master and servant is not established between A and the physician. And so there is no such relation between the corporation and the physicians and surgeons who give their services at the hospital. It is true the corporation has power to dismiss them, but it has this power, not because they are its servants, but because of its control of the hospital where their services are rendered. They would not recognize the right of the corporation, while retaining them, to direct them in their treatment of patients." One of the points decided in that case was that the "interns," who, under the rules of the hospital, exercised to a limited extent the functions of surgeons, bore, so far as those functions were concerned, the same relationship to the hospital authorities as the visiting surgeons, but, with respect to their duty to send for those surgeons when their services were needed, occupied the position of servants whose negligence was imputable to the hospital. That exposition of the law was also approved in Foote v. Shaw Stewart [1912] S. C. 69, 49 Scot. L. R. 39, where the unsuccessful claimant was a paying patient in a public hospital. In Quinn v. Kansas City, M. & B. R. Co. (1895) 94 Tenn. 713, 28 L.R.A. 552, 45 Am. St. Rep. 767, 30 S. W. 1036, the court, after referring to various cases, proceeded thus: "If it 19 A.L.R.-75. sometimes been specifically applied to them.1 be, as these authorities indicate (and it cannot be otherwise), that the decisive test of this relationship, or even one of its decisive tests, is that the master has the right to select the end of the servant's employment, and that the master's uncontrolled will is the law of the servant 'in the means and methods' by which this end is to be reached, then it cannot be maintained that these surgeons were the 'servants' of this corporation. They were not employed to do ordinary corporate work, but to render services requiring special training, skill, and experience. To perform these services so as to make them effectual for the saving of life or limb, it was necessary that these surgeons should bring to their work not only their best skill, but the right to exercise it in accordance with their soundest judgment and without interference.' The doctrine that a physician or surgeon is not a servant or agent in the usual sense of those expressions was also laid down in Arkansas Midland R. Co. v. Pearson (1911) 98 Ark. 399, 34 L.R.A. (N.S.) 317, 135 S. W. 917. In Dyche v. Vicksburg, S. & P. R. Co. (1901) 79 Miss. 361, 30 So. 711, the following statement in Elliott on Railroads, § 225, was quoted with approval: "If a railroad exercises reasonable care in selecting a physician or surgeon to treat an injured employee, it is not liable for the acts of such surgeon or physician. The physician or surgeon so employed does not become the agent of the company." The actual decision was that the rule as to nonliability was applicable to a case in which the person treated was a trespasser. The cases in which the liability of a master for the negligence of physicians and surgeons regularly employed by him to attend on his servants has been discussed with reference, not to the nature of the relationship created by such employment, but to the extent of the obligations incurred by the master when he undertakes to provide medical treatment, do not fall within the scope of this section. For a review of cases of this type, see Labatt's Master & Servant, § 2005. 4 In Pearl v. West End Street R. Co. (1900) 176 Mass. 178, 49 L.R.A. In the great majority of instances the inference that it is the implied intention of the parties to contracts for the services of a medical practitioner, that he is not to be under the employer's control with respect to the details of his work, is corroborated by 826, 79 Am. St. Rep. 302, 57 N. E. 339, the grounds on which it was held that the defendant railway company could not be held liable for the negligence of a doctor sent by it to examine an injured passenger, who had instituted a suit for damages, were thus stated: "The doctor was not an agent or servant of the defendant in making his examination; he was an independent contractor. There is no more distinct calling than that of the doctor, and none in which the employee is more distinctly free from the control or direction of his employer. See Linton v. Smith (1857) 8 Gray (Mass.) 147; Milligan v. Wedge (1840) 12 Ad. & El. 741, 113 Eng. Reprint, 994, 10 L. J. Q. B. N. S. 19, 4 Perry & D. 714. In this case the doctor was informing himself according to the suggestions of his own judgment, in order to advise, and perhaps to testify for, the defendant. We must assume, in the absence of other evidence than his profession and his purpose, that what he should do, and how he should do it, were left wholly to him." An argument drawn from the liability of a litigant for his attorney was thus disposed of: "No argument can be trusted that relies on analogy. Perhaps the liability for an attorney rests on the fact that the very essence of his employment was to represent the person of a party to a suit. 'Attornatus fere in omnibus personam domini representat.' Bracton, fol. 342a. It must be remembered that this right of representation in a lawsuit was conceived with difficulty, and only gradually granted, and, as first allowed, seems to have been worked out through some sort of fictitious identification. Whether for that reason, or another, attorneys sometimes have been spoken of as servants (Anonymous (1676) 1 Mod. 210, 86 Eng. Reprint, 833), and their acts within the scope of their employment always have been said to be the acts of their clients (Parsons v. Loyd (1772) 3 Wils. 345, 95 Eng. Reprint, 1091; Barker v. Braham (1773) 2 W. Bl. 868, 96 Eng. Reprint, 511, 3 the consideration that the employer is a person who does not possess the technical skill which would qualify him to exercise such control, and that it would, for that reason, be highly inexpedient for him to attempt to exercise it. But, as the fundamental reaWils. 374, 95 Eng. Reprint, 1107; Bates v. Pilling (1826) 6 Barn. & C. 41, 108 Eng. Reprint, 368; Newberry v. Lee (1842) 3 Hill (N. Y.) 523; McAvoy v. Wright (1884) 137 Mass. 207). In short, the liability of client for attorney is the result of a special series of events, and cannot be allowed to found a general rule." In Haggerty v. St. Louis, K. & N. W. R. Co. (1903) 100 Mo. App. 426, 74 S. W. 456, where defendant company was held not to be liable for the negligence of a surgeon called in to attend on one of its servants, the court said: "In cases like this the surgeon is not regarded as sustaining, in full measure, the relation of servant to the railway company. That relation carries the right of direction and control of the servant by the master as to the mode in which the former shall do his work; and when an employer, instead of reserving, in terms or by implication, the right of direction, contracts for the exercise of independent judgment and skill on the part of the person employed, the latter is often regarded as a separate contractor, and alone responsible for his torts." 5 In Foote v. Shaw Stewart (1912) S. C. 69, 49 Scot. L. R. 39, it was observed with regard to the defendants: "It is obvious that they have, and can have, no means and no ability of control-no power or capacity of supervision over the professional treatment of their patients." In Haggerty v. St. Louis, K. & N. W. R. Co. (Mo.) supra, it was observed that, as the business managers and superintendents of railway companies and other employers "are not selected for their expert knowledge of medical and surgical matters, they are unfit to supervise the work of physicians, and therefore the doctrine of respondeat superior cannot well be applied to such matters. We think these are the real reasons why the courts have refused to extend the rule to them." The theory embodied in the last sentence of this passage is, it is submitted, inaccurate. From |