52 Mo. 372 (Mo. 1873), William Brothers v. Cartter

Citation:52 Mo. 372
Opinion Judge:WAGNER, Judge.
Party Name:WILLIAM BROTHERS, Respondent, v. MILO S. CARTTER, et al., Appellants.
Attorney:Lackland, Martin & Lackland, and Dryden & Dryden, for Appellants. Steward & Wieting, for Respondent.
Court:Supreme Court of Missouri
 
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Page 372

52 Mo. 372 (Mo. 1873)

WILLIAM BROTHERS, Respondent,

v.

MILO S. CARTTER, et al., Appellants.

Supreme Court of Missouri.

March Term, 1873

Appeal from St. Louis Circuit Court.

Lackland, Martin & Lackland, and Dryden & Dryden, for Appellants.

I. The plaintiff could judge of the sufficiency of the braces, and other timbers, as well as the defendants. In such cases the master is not liable. (Williams vs. Clough, 3 H. & N.?? 259; Dynen vs. Leach, 26 Law Journal, [N. S.] Exch., 221; Wright vs. N.Y. Cent. R. R., 23 N.Y. 566; Hayden vs. Smithville Manuf'g Co., 29 Conn. 548; Griffith vs. Gidlow, 3 Hurlst, & Norm., 648; Devitt vs. Pac. R. R., 50 Mo. 302; Warner vs. Erie R. R. Co., 39 N.Y. 470; Ormond vs. Holland, El. B. & El., 100.)

II. The evidence showed that the failure to supply was the act or omission either of Graham or Logan. They were fellow servants with plaintiff. The doctrine claimed by plaintiff's counsel, that a superintendent, such as Graham, is a " representative," or " alter ego " of the master, is not well founded. (Wilson vs. Merry, 1 Scotch & Div., Appeals 326; Feltham vs. England, 2 Queen's B., 32; Gallaher vs. Piper, 16 C. B. [N. S.] 680, and note to same; Searle vs. Lindsay, 11 C. B. [N. S.] 430; Wigmore vs. Jay, 5 Exch. 354; Albro vs, Awagam Can. Co., 6 Cush. 75; Wright vs. New York Cent. R. R., 25 N.Y. 562; Warner vs. Erie R. R. Co., 39 N.Y. 470; Faulkner vs. Erie R. R., 49 Barb. 324; McDermott vs. Pacific R. R., 30 Mo. 115; Caldwell vs. Brown, 53 Pa. St., 453.)

III. The duty of finding, selecting, and furnishing the materials necessary for a work, is one which the master must very often entrust to his servants. He cannot give personal attention to that part of the business, any more than he can to the details of the application of the material furnished. He can no more foresee and prevent the neglect of his servants in furnishing than he can their neglect in applying. The fellow servant can foresee such neglect as well as the master, and takes the risk of it. ( Wright vs. N.Y. Cent. R. R., 25 N.Y. 572; Gallaher vs. Piper, 16 C. B. (N. S.) 680; Warner vs. Erie R. R. Co., 39 N.Y. 470; Priestly vs. Fowler, 3 M. & W., 1.)

Steward & Wieting, for Respondent.

The master cannot evade his responsibility by delegating to another the power to employ and discharge servants and to provide suitable materials. (Shearman & Redfield, on Negli...

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