Dwyer v. Am. Exp. Co.

• Decision Date: 24 May 1892
• Citation: 82 Wis. 307,52 N.W. 304
• Parties: DWYER v. AMERICAN EXP. CO.
• Court: Wisconsin Supreme Court

82 Wis. 307

52 N.W. 304

DWYER

v.AMERICAN EXP. CO.

Supreme Court of Wisconsin.

May 24, 1892.

Appeal from circuit court, Winnebago county; GEORGE W. BURNELL, Judge.

The facts fully appear in the following statement by LYON, C. J.:

Ten years ago the plaintiff brought an action against the defendant, the American Express Company, to recover damages for personal injuries which he claimed to have received in 1881, because of the negligence of one Colvin, who was alleged to be the agent and manager of the defendant's office at Oshkosh. The complaint alleged that plaintiff was employed by the express company to go with wagon loads of goods to and from the defendant's office and the railway depots in Oshkosh, and to load and unload such goods; that on a certain day Colvin drove one of defendant's teams, which was hauling a load of goods for the express company, so negligently that the plaintiff, who in the course of his employment was riding on the load, was injured; that case came to this court on an appeal from an order sustaining a general demurrer to the complaint. Such order was affirmed. 55 Wis. 453, 13 N. W. Rep. 471. This action was brought in 1886 to recover damages for the same injuries. The complaint herein differs from the complaint in the former action only in that it is now alleged that Colvin had all the authority of the express company at Oshkosh,--that is to say, he was defendant's vice principal there,--and that it was not his duty to drive the team which he was driving when the plaintiff was injured, “but that it was the duty of, and said work was performed by, servants employed by the defendant for that purpose.” The present appeal is by the defendant from an order overruling a general demurrer to the complaint. Reversed.Finches, Lynde & Miller, for appellant.

John Harrington and W. W. Quatermass, for respondent.

LYON, C. J., ( after stating the facts).

The complaint contains no averment that Colvin was an incompetent person to drive the team in question, or that there was any defect in the teams, wagons, or appliances for making shipments of goods. It is alleged in the complaint that the driving of the team was a duty of servants employed by the express company, and it is conceded that, were Colvin an ordinary hired servant of the company, the complaint would be defective, in that it fails to charge the company with any negligence or breach of duty to plaintiff in employinghim. So we have for determination the single question whether the mere fact that Colvin was the vice principal of the express company in the transaction of its general business at Oshkosh makes the company liable for his negligent driving of the team, when, were he not such vice principal, the company would not be thus liable, as was ruled on the appeal in the former action. This question has been determined both ways. The courts of some states hold that, if an employer put one servant under the control of another, such servants are not fellow servants, and the master is liable if the subordinate servant is injured by the negligence of the other, without regard to the nature of the work or business in which they were engaged at the time. The circuit court applied this rule when it overruled the demurrer to the complaint. Other courts adhere to the doctrine that, whether the relation of coemploye or fellow servant exists between different employes engaged in the same business for the same employer is not to be determined by the grade of rank of either servant, but by the character of the act being performed by them. “If it is an act that the law implies a contract duty on the part...