Beesley v. F.W. Wheeler & Co.

• Decision Date: 22 December 1894
• Citation: 103 Mich. 196,61 N.W. 658
• Parties: BEESLEY v. F. W. WHEELER & CO.
• Court: Michigan Supreme Court

61 N.W. 658

103 Mich. 196

BEESLEY v. F. W. WHEELER & CO.

Supreme Court of Michigan

December 22, 1894

Error to circuit court, Bay county; George P. Cobb, Judge.

Action by Joseph Beesley against F. W. Wheeler & Co., a corporation to recover damages for personal injuries, sustained by reason of the breaking of a scaffold on which plaintiff was standing while at work. From a judgment in favor of plaintiff defendant brings error. Reversed.

Moore & Moore (McDonell & Hall, of counsel), for appellant.

Shepard & Lyon, for appellee.

Hooker J.

The defendant is engaged in building steel vessels, in the construction of which scaffolds are necessary at various stages of the work. It employs about 300 men, of various trades, including fitters, bolters, chippers, drillers riveters, searchers, and carpenters. These men are continuously employed, and all are subject to the control of the superintendent. The labor is divided among the artisans and to the carpenters is apportioned the building of scaffolds, though they are sometimes assisted by others. The plaintiff, a searcher, i. e. one who goes over the work, and supplies omitted rivets, after the riveters of the plates of the vessel are through, was injured by the breaking of a weak putlog, selected and used by the carpenters who built the scaffold; and his right to recover hinges upon the question of whether or not he and the carpenter were fellow servants in such a sense as to prevent the application of the rule that it was the duty of the master to provide a reasonably safe place for the plaintiff to work. The doctrine which relieves the master from liability for injuries caused by the negligence of fellow servants is of wide application. It originated in cases where servants were engaged in a common enterprise, wherein, by reason of the negligence of one, another was hurt. It modified the doctrine that the principal is liable for the negligent acts of his agent, upon the theory that the servant assumed the ordinary dangers incident to the employment, and that "an obligation on the part of the master to take more care of the servant than he may reasonably be expected to take of himself will not be implied." Chief Justice Shaw, in the case of Farwell v. Railway Co., 4 Metc. (Mass.) 49, after discussing the liability of common carriers to their patrons, says: "They are held to the strictest responsibility for care, vigilance, and skill on the part of themselves and all persons employed by them, and they are paid accordingly. The rule is founded on the expediency of throwing the risk upon those who can best guard against it." He continues: "We are of the opinion that these considerations apply strongly to the case in question. Where several parties are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, and can give notice of any misconduct, incapacity, or neglect of duty, and leave the service if the common employer will not take such precautions, and employ such agents, as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other. Regarding it in this light, it is the ordinary case of one sustaining an injury in the course of his own employment, in which he must bear the loss himself, or seek his remedy, if he have any, against the actual wrongdoer." This rule is of such general application that the citation of authorities to support it is unnecessary. Much difficulty has been found in discovering a true test of its application, and the decisions are consequently somewhat inharmonious. The rule that the master is bound to provide his servant with reasonably safe machinery, and a proper and reasonably safe place to work, has sometimes been invoked or overlooked when perhaps it should not have been, and the two rules, running parallel in close proximity, have led to improper applications of both. There are some courts which have held that, in order to constitute servants of the same master fellow servants, it is not enough that they were engaged in doing parts of some work not requiring co-operation, nor bringing the servants together or into such personal relations that they could have exercised an influence, one upon the other, promotive of proper precaution, in respect to their mutual safety. This doctrine finds its favorite fields where large enterprises result in systematic division of labor. Several of the states recognize it, and adjudicated cases from Illinois, Tennessee, Virginia, Kentucky, and Georgia should perhaps be read in the light of this limitation of the general rule. But it is not the prevailing doctrine, as will be seen from an investigation of cases from most of the states, including our own; and it can be maintained only by overthrowing the rule that the implied contract of the master ends with indemnity against his own negligence, and does not extend to that of coemploy�s engaged in the same enterprise. For a discussion of the subject, see Farwell v. Railroad Co., 4 Metc. (Mass.) 49; Brodeur v. Valley Falls Co. (R. I.) 17 A. 54. See, also, Hoar v. Merritt, 62 Mich. 386, 29 N.W. 15; Mining Co. v. Kitts, 42 Mich. 34, 3 N.W. 240; Dewey v. Parke, 76 Mich. 631, 43 N.W. 644; To view preceding link please click here Baron v. Navigation Co., 91 Mich. 585, 52 N.W. 22. Another attack upon the rule is made by the superior servant, as contradistinguished from the alter ego, or vice-principal, limitation. As might be expected from their adherence to the "division of labor doctrine," hereinbefore mentioned, the courts of Illinois, Tennessee, Virginia, Kentucky, and Georgia have adopted the "superior servant" rule. Similar cases can also be found in Ohio, North Carolina, West Virginia, Kansas, Nebraska, Missouri, and the federal courts. On the contrary, New York, Maine, Pennsylvania, Massachusetts, Maryland, Indiana, Michigan, Minnesota, California, and Texas have repudiated the doctrine. The English courts also refuse to adopt it. These decisions hold that this doctrine ignores the true criterion of fellow service. The cases upholding the limitations of the rule in these particulars are frequently cited in accident cases, and in hard or doubtful ones may sometimes lead to departures from the true rule. Greater or less obscurity inevitably followed, and no end of trouble from the consequences, where they are irreconcilable with the other rule.

It must not be assumed that there is no limitation to the doctrine of immunity on the part of the master. The law clearly imposes duties upon the master, from the discharge of which he cannot shelter himself by the interposition of an agent or servant, or the "fellow servant" rule. He may assume liability for accidents suffered by his servant in the course of his employment, either expressly or by implication, where it is plain that it was the intention of both parties that he should, or where he is personally present, directing the negligent act. Again, where the rule that he must provide a reasonably safe place and machinery applies, the responsibility is his. In all of these cases he is held liable, because the negligence is his. As said by a text writer: "The true test, it is believed, whether an employ� occupies the position of a fellow servant to another employ�, or is a representative of the master, is to be found, not from the grade or rank of the offending or injured servant, but is to be determined by the character of the act being performed by the offending servant, by which another employ� is injured; or, in other words, whether the person whose status is in question is charged with the performance of a duty which properly belongs to the master." McKin. Fel. Serv.� 23; Flike v. Railroad Co., 53 N.Y. 549; Crispin v. Babbitt, 81 N.Y. 516; Ford v. Railroad Co., 110 Mass. 240; Anderson v. Bennett (Or.) 19 P. 765. It would seem that this must be the governing principle, unless the limitations hereinbefore discussed are adopted, which, as stated, is not the case in this state. This discussion of the "superior servant" question must not be considered as necessarily involving that of "alter ego." If the liability of the master is in all cases to depend upon the rule above mentioned, it matters little whether the offender is called "alter ego" or "servant." It is only when the act is one which does not fall within a duty that the law imposes upon the master, or which he has taken upon himself, that it becomes important. In such cases the term is found an appropriate one, when it is sought to invoke the doctrine of respondeat superior. How far the courts have gone in holding that a master is liable for such acts, committed by a person in full charge of his business, we find it unnecessary to investigate in this case, and express no opinion upon the question. Having, then, determined the rule, it must be the guide in all cases, and if, in some instances, doubts shall have arisen, which in the minds of some have led to greater or less departures from it, the rule, and not such cases, must be the magnetic pole towards which future adjudication must point, and discrepancies, if any exist, must be ascribed to differences of opinion in regard to the application of the rule, which all recognize.

As to the matter of application, each case necessarily rests upon its own facts. Scaffold cases have not been numerous, and the application of the rule has not been uniform. Indeed, we could hardly expect it, in view of the limitations mentioned by the courts of some states. We may...