contract. It is not his fault, however, if their value to the employer is destroyed by the act of some third person, and the employer is none the less bound to pay him the wages agreed upon for them. For instance, in a certain Alabama case one Parham employed a man named Tucker to go into Mississippi and get back some slaves for him. Tucker got them back and they were immediately attached by a creditor. Tucker had nevertheless fulfilled his contract.2

Loyalty and Obedience. Other duties which the employee owes his employer are those of loyalty and obedience. He must not do anything which may injure his employer's business, and has no right to engage in any employment which is in competition with it. Otherwise, the employee has a right to use his spare time as he likes, unless he has agreed by the contract to devote his entire time and attention to the business.

Sometimes, even in such a case, it has been held that the employee has a right to do something else which does not injure his employer where the employer fails to furnish him with work. In the California case of Stone v. Bancroft, Stone, a publisher who had been employed by Bancroft to devote his entire time to publishing the historian's works, did some work on a medical book while he was waiting for Bancroft to furnish him the manuscript. The court held that Bancroft could not complain, since he had given no work to the publisher. Bancroft was, of course, liable to pay him at the contract rate for the entire period of the engagement.

Part of the employee's duty of fidelity to his employer consists in keeping to himself any business matters of a confidential nature. If an employee discloses any secret processes -what are known as "trade secrets"-he is liable to his employer for damages.

Law clerks and lawyers' stenographers are privileged from

2 Wolfe v. Parham, 18 Ala. 441.

3139 Cal. 78 Pac. 1017; 72 Pac. 717.

testifying on the witness stand to any confidential communications from clients. This privilege does not extend to ordinary stenographers, bookkeepers, or clerks on the witness stand.

Liability of Employer in Using Force. The duty of obedience cannot be enforced by the use of violence on the part of the employer. Formerly a master was allowed to chastise his apprentice on the ground that he stood in loco parentis (in the place of a parent) to him. But there is no justification for an employer laying his hands on his employee nowadays, and he would be liable to an action for assault and battery if he did so.

Inventions. The patent rights to inventions which the employee makes in the course of his work belong to him and not to his employer, but it is probable that he would have to give the employer a right to make use of the inventions. It is common nowadays for employers to make some provision in the contract of employment for taking over inventions made by their employees.

Notes:

1. If the employer wishes anything more than ordinary skill from his employee, he must include the requirement in the contract.

2.

If the employer wishes to make any arrangement about inventions, he should come to an agreement with his employee and have that included in the

contract.

$271. Duties of Employer to Employee

The employer owes it to his employees to provide a safe, healthful, and suitable place to work in, and proper tools to work with. To do this, he must arrange for suitable inspection to see that things are in the proper condition and remain. so. And it is his duty to hire competent fellow-employees.

An employee is not required to expose himself to the danger of working with drunken, reckless, or incompetent associates.

Responsibility of Employer. These duties of the employer cannot be shirked. He is always responsible for failure to perform them, no matter whom he appoints to attend to them. He must keep buildings, etc., in proper repair, examine machinery to see that there are no dangerous defects in it, and inspect everything that comes to him from any other person to see that it is in safe condition before giving it to his employees to work with.

Co-operation of Employees with Employers. The law is reasonable. The employer is not responsible for an injury arising from an unknown defect, if he has used reasonable and proper inspection. He cannot be required to be continually inspecting; therefore it is the duty of employees to inform the employer of any defects which they notice. If they do not, and suffer injuries, they must usually take the consequences; but at the same time the employer is in a better position to be aware of defects than the employee, and where the defect is a hidden one, it is the employer's and not the employee's business to discover it.

It might be well to state that there are many regulations (hours, sanitation, etc.) which the statutes of each state require, and that often it is required to post a copy of the law on the walls of store or factory. (See also §§ 279, 280, on employers' liability and workmen's compensation acts.)

Limits of Liability. The employer will not be liable for the consequences of defects which nobody could have foreseen and prevented, such as the flying off of slivers of steel from crystallization, a defect which cannot be discovered without a chemical test and the breaking up of the steel in order to perform it. And he is not obliged to employ experts specially to make chemical and other scientific tests. He is required

to make only the ordinary tests employed by those engaged in that occupation.

If an employee is competent when hired and afterwards becomes reckless, drunken, or incompetent, and his acts take place without the knowledge of the foremen or superintendents, though these exercise reasonable supervision, the employer cannot be made liable for the consequences of such

acts.

Provision for Work. The employer must provide enough tools and employees to perform the work with safety to all. And he must make proper rules for the conduct of the work and see that they are carried out. Where the law requires safety appliances, seats for women, etc., the employer must comply with it; but in the absence of any statute on the subject he is not required to use the latest and best appliances if those which he has are such as are in ordinary use and are reasonably safe.

Instruction of Employees. It is his duty to instruct young and inexperienced employees in the proper way to make use of tools and machinery, and to warn them of any dangers. He is not responsible if his employees disobey his orders and are injured in consequence; but if their disobedience has been going on for some time, so that it ought to have been known to the foremen and others in charge if they had been reasonably diligent in their duties, or if it has been going on with their knowledge and consent, the employer will be considered to have consented to it and will be responsible for resulting injuries as though the rules had never been made.

If he allows young and inexperienced employees to work in places which tempt them to take risks, it has been held that he will be responsible for any injuries they may suffer in consequence. A case illustrating this point was that of a young boy set to work turning a wheel near the log carriage in a saw mill. The court said that it was tempting him to

follow his natural instincts to ride up and down on the log carriage, and that the employer was responsible for injuries for putting him in such a place.*

Employees Must Take Reasonable Care. After the employer has seen to the furnishing of sufficient and proper tools and a safe place to work, he is not responsible if the workmen themselves misuse them. When unfinished appliances, such as molds furnished in two or more parts to be put together, or lumber furnished for making a scaffold, are given to the workmen to be put together, if the men do the work improperly the injuries are not the employer's fault. But a permanent scaffold, such as those which are used to hold up steel framework until it is entirely finished, is part of the place to work. The employer would be responsible for its safety to any workmen other than those who erected the scaffold.

Where the workmen furnish tools and appliances, the employer is not responsible for the condition of such tools, nor for accidents which may result from using them.

But

Necessity for Inspection. Where the work is construction work, so that the workmen are constantly altering it themselves, the employer is liable only for proper and reasonable inspection from time to time, and not for accidents that occur from some alteration the men have made themselves. when men are working in a position of danger where they cannot be at the same time on the lookout for the danger and engaged in work, someone must be stationed to warn them. And, in the case of railway work, where there are low bridges which are dangerous to brakemen who must ride on top of freight cars in order to look after the brakes, some system of "tell-tales" or signals to warn them to stoop and avoid danger is necessary.

Further Liabilities of Employers. Employees are entitled

Marbury Lumber Co. v. Westbrook, 121 Ala. 179; 25 So. 793; 77 Am. St. Rep. 17.