Abilene Cotton Oil Co. v. Anderson

• Decision Date: 13 January 1906
• Citation: 91 S.W. 607
• Parties: ABILENE COTTON OIL CO. et al. v. ANDERSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

91 S.W. 607

ABILENE COTTON OIL CO. et al. v. ANDERSON.^*

Court of Civil Appeals of Texas.

January 13, 1906.

Rehearing Denied February 17, 1906.

Appeal from District Court, Taylor County; J. H. Calhoun, Judge.

Action by C. Anderson against the Abilene

Cotton Oil Company and others. From a judgment for plaintiff, defendants appeal. Reversed in part.

Legett & Kirby and Hardwicke & Hardwicke, for appellants. D. G. Hill & J. M. Wagstaff, for appellee.

SPEER, J.

C. Anderson, an employè of the Abilene Cotton Oil Company, sued that company and the Continental Oil & Cotton Company to recover damages for personal injuries sustained through the negligence of W. Guitar, assistant general manager of the Abilene Cotton Oil Company. The two companies pleaded the general denial, assumption of the risk, that W. B. Guitar, through whose negligence plaintiff was injured, was a fellow servant with him, and contributory negligence. There was a verdict and judgment in plaintiff's favor against both companies and in favor of the Continental Oil & Cotton Company over against the Abilene Cotton Oil Company. Both defendants have appealed, and ask for revision of errors committed by the trial court.

The following charge, which is attacked by appellants, indicates the most important question of law presented for determination: "If you believe from the evidence that W. B. Guitar was assistant general manager of the Abilene Cotton Oil Company at the time the plaintiff was injured, if he was injured, and that as such assistant general manager the said W. B. Guitar had general authority in and about the Abilene Cotton Oil Company's mill, and was authorized to direct how the work should be done about the said mill, and that said W. B. Guitar, while acting as the assistant general manager of said company, opened the feeding appliances of the cakemill and increased the feed of said mill, and that by reason of said opening of said feeding appliance and increasing the feed of the cakemill, the machinery of said mill was overloaded; and if you further believe that the acts of said W. B. Guitar, if any, in opening the feed appliances of the cakemill, if he did, and increasing the feed of said mill, if he did, under the circumstances of the case were acts of negligence on the part of said W. B. Guitar, and that by reason of the same the said machinery was overloaded and the crosshead of the engine propelling said machinery was broken, causing the said engine to be wrecked and the steam to escape, whereby the plaintiff was knocked down, burned, and scalded on various parts of his body as alleged in his pleading in this case; and if you further find that the action of the said W. B. Guitar in opening and increasing the feed of said cakemill, if he did do it, was at the time unknown to the plaintiff, and was the proximate cause of the plaintiff's injuries, if any, you will find for the plaintiff and assess his damages as hereinafter directed." Upon this assignment is predicated the proposition that the fact that one servant is superior in grade to another does not render the common master responsible for the negligence of the superior servant, unless the latter has been entrusted with the power to employ and discharge such inferior servant. But we cannot assent that this proposition is of general application. In support of a reversal upon this point we are cited to the cases of Young v. Hahn, 96 Tex. 99, 70 S. W. 950, Campbell, Receiver, v. Cook, 86 Tex. 630, 26 S. W. 486, 40 Am. St. Rep. 878, and Dallas v. Railway Co., 61 Tex. 196. But while these cases and a great many others in this state, as to that, do hold that mere difference in the grade of employment, or the fact that one servant is the foreman or boss of another, does not take them out of the general rule of the common law upon the subject, unless such foreman or boss has been entrusted with the power to employ and discharge, none of them is authority for the proposition that a general manager of a corporation is not its vice principal, whether he actually exercises the power to employ and discharge or not. The rule that a master is not liable to his servant for injuries inflicted upon him by the negligence of a fellow servant is based upon the conception that the servant in entering the service of the master takes upon himself the risk of injuries thus received through the negligence of his colaborers. But if the person at default, or through whose negligence an injury is received, be the master himself or his agent or representative, then the rule has no application and liability attaches. The real...