This was a general demurrer to plaintiff’s declaration, in which she declared against the Eagle and Phenix Manufacturing Company for the homicide of her husband; The demurrer was sustained and the action dismissed, and this judgment is assigned as error.
This ismn action authorized by statute, and the statute is codified in section 2971 of our Code. It authorizes the widow to sue for the homicide of her husband. The term homicide, used in the statute, means the killing of the husband in some unlawful manner. Code, §4313. Of course it cannot mean justifiable homicide, for it would be out of all reason to permit a recovery of damages from a person who had committed no unlawful act, but whom the law justified in doing what he did. The statute, therefore, means some grade of unlawful homicide. It is not alleged in the declaration that this corporation voluntarily through any agent or servant killed this man, nor is it averred that the homicide occurred by criminal negligence on the part of the company or any of its agents. The facts alleged do not show that any agent or servant of the corporation was guilty of murder or of any grade of manslaughter, voluntary or involuntary. If any criminality attached in this case, it was clearly unintentional, and must have made a case of involuntary manslaughter. Was it that offence ?
The Code, section 4327, declares that “ involuntary manslaughter shall consist in the killing of a human be. ing without any intention to do so, but in the commission of an unlawful act, or a lawful act which probably might produce such a consequence in an unlawful manner.” No unlawful act is alleged to have been committed here) nor any.lawful act which probably might produce such a consequence in an unlawful manner. The allegation is that the defendant employed a careless and negligent superintend*842ent to manage a derrick, and ropes, tackle, and machinery-attached, and one or more careless, incompetent and negligent laborers, whereby the plaintiff’s husband fell, by want of their care and diligence. It goes only to this extent. It does not make the case of voluntary or of involuntary manslaughter against anybody; and for such an accident, though it might have been avoided by care and diligence, we do not think that there can be a recovery under the statute. And so this court has held in principle. September term, 1880, Daley vs. Stoddard.
And here we might rest this case. But even if death had not ensued, and the action had been by the injured man for damages, under both the common law and the Code, we do not think the declaration sufficient. The Code'seems emphatic : “ The principal is not liable to one agent for injuries arising from the negligence or misconduct of other agents about the same business ; the exception in case of railroads has been previously stated.” Code, §2202. It is for his own negligence or misconduct that he is liable ; and hence his liability rests on his own negligence or misconduct in the employment of his agents, and if he uses ordinary diligence in employing competent men, it is enough to relieve him. Sherman and Redfield, par. 90; 2d Thompson on Negligence, 971. He is not liable for negligence of a fellow servant while engaged in the same employment, unless he has been negligent in the selection of that servant, or retained him after knowledge of his incompetency. Sherman and Redfield, par. 86; 2 Thompson, 951, 969, 970, and cases there cited. Nor will the fact that the person proved incompetent of itself, and without more, show negligence of the master, but it must further appear that the master knew, or might have known by ordinary diligence, the incompetency of the agent or servant. Law of. Master and Servant, 393, 429, 432; 2 Thompson, 969; Sherman and Redfield, 91; 1 American Railway R., 596.
To apply these principles to this case, — there is no alie*843gation that the defendant was negligent in employing the servants here, but.it is only alleged that it did employ those who were negligent as it turned out. There is no allegation that it did not use ordinary diligence to employ competent and careful men, or that it knew when employed that they were not such, or retained them after such knowledge. Squaring these allegations with the law, we do not see that, admitting all that is alleged in the declaration, there can be a recovery against the company. It is true that this defendant is a corporation, and .acts through agents, and can act in no other way; but we put its general agent, who employed these servants, precisely in the place of the company, and hold the company liable precisely to the extent that we would hold its general agent liable had he been principal. If he was negligent, and did not act with ordinary diligence in the employment of these servants for himself, he being a natural person and not acting for the corporation, then he would be personally liable; .and if acting as the agent of this corporation, to employ theoe servants, he was neglectful and did not use ordinary diligence, then the corporation would be-in like manner liable, but neither would be liable if ordinary diligence was used in the employment of the servants by him who employed them, whether as an individual or as the agent of the corporation.
An effort was made by the able counsel for the plaintiff in error to take this case out of these principles, on the ground that a special contract was made whereby it was stipulated and guaranteed that the company would employ competent and careful men ; but we do not see any special contract set out in the declaration. It seems to be merely based upon the general duty of the employer to the employe. It is not alleged that there was in terms any special contract. It is not alleged that the parties met and made a special contract with stipulations on each side, but the allegation is simply that of the employment of a man to do work and corresponding duty *844■on the part of the employer to furnish competent assistants. But if this employment had been a special contract, as it is set out, we do not see how it makes the duty stronger than that which the law annexes to every employment of a servant — the duty to use ordinary diligence to employ competent and skillful fellow-servants. "True, there might have been a contract made by which rthe competency and skill and care of the fellow-servants would have been warranted by the corporation, but certainly there is nothing of the sort alleged here. That one may waive the contract and sue for the tort as breach of duty, springing out of the contract, see 1 Add. on Torts, pp. 26 and 27, note 1; 2 Ib., 527; 13 Peters, 181; Pierce on R. R. Law, 487-90. This is a case of that sort, if there be any contract here other than ordinary employment.
One of these servants employed ip this work is called superintendent, and is alleged to have been at the head of the management of the derrick, etc.; but we do not see that he was such a general superintendent for this corporation as to make it liable as acting through him. On the contrary, the averment only makes him the head of a little job to do that job ; and to all intents and purposes a fellow-servant.
The law in respect to the liability of railroad companies and druggists rests on other grounds. Code, §§3005, 2083, 3036, 2202.
Judgment affirmed.