REVIEWS. 147 view too seriously, and seem over eager to spell their rule out of cases which do not necessarily go to the full length. It must be remembered that aside from a vice-principal rule there is another rule imposing upon a master certain duties to his employees which he cannot delegate ; and if a master delegates a duty of this sort to a servant who fails to perform it, he is himself liable. The New York rule, which the reader is given to understand has the authors* support, is stated as providing that " a vice-principal is one to whom is deputed the discharge of some duty or the exercise of some potver which belongs to the master as such." § 231. This definition appears to confuse the two rules just alluded to. So far as the first part of the rule goes, that a master is liable to one servant for the act of another servant who is performing a duty belonging to the master, we agree ; he is liable, however, not because his servant is a vice- principal, but because he himself is under a duty the responsibility of which he cannot escape by delegating its performance. McKinney, Fellow- Servants, § 70 ; Bishop, Non-Contract Law, 665, note. As for the master being further liable for the acts of a servant to whom he has delegated merely his powers, we do not agree. Such a doctrine is not justified by any of the cases cited in New York, where the consideration has always been whether the act of the servant was one which the master was under a duty to do. Hmvkins v. N. K., L. E. (5r* W. R. R. Co., 142 N. Y. 416. Although the broader rule once had the sanction of the United States Supreme Court in the "Ross Case," we can hardly agree that later "the * Baugh Case' inferentially recognizes the rule," § 233, note 2 ; on the contrary, while the court takes pains to distinguish the former case, it seems " inferentially " to overrule it. The decision in the " Baugh Case " has since been followed by several courts, which have treated it as practically overriding the " Ross Case." 8 Harvard Law Review, 57, A few States, it must be admitted, fully support the broader rule ; but the rule should not be laid down too sweepingly. Its treatment in the text, moreover, appears to be inconsistent with § 232, note i, which deals with the master's liability as requiring that the act of the so- called vice-principal should be one which the master is under a duty to do, or else that the master himself be fixed with some personal wrong. That treatment is on principle the better one ; and the writers themselves apparently try to make all cases conform to that test. All cases in which the question is raised whether or not a general agent is a vice-principal are dealt with as cases where the principal has delegated the perform- ance of a duty to the agent, the theory being that principals owe a duty of superintendence even in matters of detail. It is doubtful, however, whether the principal ever does owe such a duty, apart from the duty to establish suitable regulations, furnish suitable appliances, and hire compe- tent servants. In the absence of such a duty, when a superintendent is appointed he is ordinarily under a duty sihiply to his employer, a duty like that of all the other employees ; and he is to all intents and purposes their fellow servant. If this rule ever works injustice, is it not by reason of the inherent evil of fellow-servant rule? The failure to distinguish between the vice-principal rule and the different phases of the rule im- posing on masters certain unassignable duties is to be regretted ; for a discussion that fails even to notice the distinction can hardly be consid- ered adequate. It is not intended by these criticisms to disparage the merit of this work of Shearman and Redfield. While we disagree with some of the
