On Petition for Rehearing.
Per Curiam.Defendants have petitioned for a rehearing. In the petition for rehearing it is said: “I contend that the court has wholly *245overlooked § 6107, Comp. Laws 1913, although it is quoted in the opinion.” That section provides in plain language of unmistakable meaning that “an employer is not bound to indemnify his employee for losses suffered by the latter ... in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee.” This section is in the Civil Code of this state, and § 4331, Comp. Laws 1913, at the beginning of that Code provides that “in this state there is no common law in any case where the law is declared by these Codes.”
The common-law rule is that a master must use the same care in retaining a servant after he has hired him, as he must .use in hiring him in the first place. Clearly the rule under our statute in this particular is not the same as the common-law rule, for the statute by exclusion specifically says that the master shall not be liable for retaining a careless employee unless he was negligent in the first place in hiring ‘him. ITence there is no object in citing the common-law rule in support of an adverse opinion on this point, because it will not bear-analysis.
It will be noted that it is the contention of the defendants that the legislature, in enacting § 6107, Comp. Laws 1913, intended to and did provide a rule even more harsh (from the standpoint of the servant) than the common-law rule. If the statute means what defendants contend it means, then a master may, if he uses due care in hiring a servant, retain such servant regardless of how incompetent and unfit he may subsequently be demonstrated to be, and the master will not thereby violate any duty which he owes to the other servants employed by him as co-employees of such unfit servant. The defendants in effect contend that the word “selection” must be construed to bo synonymous with and to mean “hire.” We believe the contention to be wholly unfounded. Section 6107, supra, must be read in connection with the sections which precede and follow it. Section 6106, Comp. Laws 1913, reads: “An employer must indemnify his employee, except as prescribed in the next section, for all that he necessarily expends or loses in direct consequence of the discharge of his duties as such or of his obedience to the directions of the employer, even though unlawful, unless the employee at the time of obeying such *246directions believed them to be unlawful.” Section 6108 reads: “An employer must, in all cases, indemnify his employee for losses caused by the former’s want of ordinary care.”
These statutes (§§ 6106-6108) recognize that the master owes certain duties to his servants. That, among others, it is the duty of the master to use ordinary care in the selection of servants employed by him. This duty—like the duty to furnish reasonably safe and suitable appliances with which, and a suitable place in which, to work— is a continuous one. Labatt, Mast. & S. §§ 1079, 1009, et seq.
It may be noted that § 6107, Comp. Laws 1913, as well as §§ 6106 and 6108, were originally taken from California. See Cal. Civ. Code, §§ 1969-1971. In Grier v. Los Angeles Consol. Electric R. Co. 108 Cal. 129, 41 Pac. 22, the same contention was advanced as that now advanced by the defendants in their petition for rehearing, but the supreme court of California refused to construe the statute in the manner suggested, and held that “lack of ordinary care may as well be shown by the retention of an unfit employee after knowledge of the fact, as by failure to use due diligence at the time of his selection, and in either case the liability of the employer attaches.” 108 Cal. 133.
We adhere to the construction which we placed upon the statute in the former opinion.
It is also contended that we erred in holding that, under the evidence, the questions of contributory negligence and assumption of risk were for the jury. Further consideration of this question has not altered the views which we entertained and expressed in the former opinion.
A rehearing is denied.
Christian son, Oh. J., and Grace and Birdzell, JJ., concur.