Hussey v. Coger

• Decision Date: 05 March 1889
• Citation: 112 N.Y. 614,20 N.E. 556
• Parties: HUSSEY v. COGER.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 614

20 N.E. 556

HUSSEY

v.COGER.¹

Court of Appeals of New York.

March 5, 1889.

Appeal from supreme court, general term, First department.

Action by Mary Jane Hussey, as administratrix of William C. Hussey, deceased, against John J. Coger, to recover damages for alleged negligence, whereby plaintiff's intestate was injured while working upon the bulk-head of a steam-ship as an employe of defendant, under the direction and control of defendant's superintendent. Judgment for plaintiff, and defendant appeals.

Charles W. Dayton, for appellant.

Frank E. Blackwell, for respondent.

RUGER, C. J.

This action was instituted by a servent of the defendant to recover damages for an injury received in the course of his employment. After a verdict the servant died, and the action was revived by his administratrix, who was substituted as plaintiff to defend an appeal. While there was much controversy on the trial as to some of the collateral facts of the case, there was none as to the controlling circumstances which, in our judgment, determine the non-liability of the defendant. We are of the opinion that there was no evidence upon which a charge of negligence can justly be imputed to the defendant. The claim of liability is based upon the alleged negligence of the defendant in the performance of some duty which he, as master, owed to those in his employ, and which resulted in the accident from which the servant received his injury. The defendant was a carpenter and contractor, engaged in the business of altering and repairing the interior of vessels lying in the port of New York, for whosoever might need his services. He had entered into contract with the owners to make repairs upon the Wyoming, an ocean steamer, employed, among other things, in the transportation of fresh meat, and needing alterations in the hold to accommodate the traffic in which she was engaged. The defendant had employed for the performance of the work a superintendent who had general charge of the job, and authority to engage all workmen under him necessary to perform the contract. The plaintiff's intestate was a ship-joiner, and was one of the men so employed. The defendant exercised no personal supervision over the work, but devolved its whole management and control upon the superintendent, who was authorized to employ and discharge workmen, to regulate and direct the manner of their work, to provide the means and appliances necessary to its prosecution, and determine the time and place of its performance. The superintendent was employed by the master as his servant, but was delegated with the discharge of all those duties which, in the conduct of such work, rested upon the master to perform in respect to the persons employed thereon. So far as this action is concerned, he may therefore be regarded as standing in the place of master to the persons employed in the work. Corcoran v. Holbrook, 59 N. Y. 520;Pantzar v. Mining Co., 99 N. Y. 373, 2 N. E. Rep. 24.

It is not, however, every act of a superintendent for which a master is liable; for, notwithstanding his general supervisory power, he is still a servant, and, in respect to such work as properly belongs to a servant to do, is, while performing it, discharging the duty of a servant, for whose negligence and carelessness the master is not responsible to co-servants. Crispin v. Babbitt, 81 N. Y. 516.

It was said in the Crispin Case that ‘the liability of the master does not depend upon the grade or rank of the employe whose negligence causes the injury. A superintendent of a factory, although having power to employ men, or represent the master in other respects, is, in the management of the machinery, a fellow-servant of the other operatives. * * * The liability of the master is thus made to depend upon the character of the act in the performance of which the injury arises, without regard to the rank of the employe performing it. If it is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance. The converse of the proposition necessarily follows. If the act is one which pertains only to the duty of an operative, the employe performing it is a mere servant, and the master, although liable to strangers, is not liable to a fellow-servant for its improper performance.’ In that case, while the plaintiff was engaged in lifting the fly-wheel of an engine off its center, the superintendent carelessly let the steam on and started the wheel, throwing the plaintiff on to the gearing wheels, and thus occasioned the injuries complained of.

There is no question in this case but that the superintendent employed was a fit and competent person to have charge of the work to be done, or but that he was a skillful and experienced workman, and the sole question in the case is whether the special work in which he was engaged at the time of the accident belonged to the class which pertained to the duty of a master to perform or not. In considering this question it is not necessary to limit or restrict the rules defining the general duties and obligations of masters, engaged in mechanical employments, to their servants; for, under the broadest definition laid down in the authorities, we think the respondent fails to bring this case within the rule imposing liability upon masters. The case of Pantzar v. Mining Co., supra,...