Anderson v. Foley Bros.
| Decision Date | 11 February 1910 |
| Parties | ANDERSON v. FOLEY BROS. et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Ramsey County; George L. Bunn, Judge.
Action by Christian Anderson against Foley Bros. and others. Judgment for plaintiff, and defendants appeal. Affirmed.
The trial court did not err in permitting respondent to amend the complaint during the trial by inserting the correct name of the appellant company copartnership.
The relations of parties was such, as established by them, that the rule of respondeat superior applied.
The evidence sustains the conclusion of the jury that appellant was guilty of negligence in maintaining a defective footboard on an engine, which was the cause of respondent's injuries.
It does not conclusively appear from the evidence that respondent was guilty of contributory negligence.
The court substantially instructed by jury in the general charge in accordance with certain written requests presented by appellant, and which had been marked ‘given.’ Harris Richardson and Harold C. Kerr, for appellants.
Hall & Kolliner and Olaf L. Bruce, for respondent.
Respondent was a common laborer, working for Foley Bros. & Larson Company, a copartnership engaged in railroad construction work, and brought this action to recover damages for the loss of his leg, occurring through injuries received while riding on one of the engines.
1. In the original complaint and summons the partnership was designated as ‘Foley Bros., a corporation, and one Larson, whose first name is to plaintiff unknown, doing business as Foley Bros. & Larson Company.’ After the trial had proceeded several days, it transpired that the true name of the copartnership was Foley Bros., Larson & Co., and respondent moved to amend his complaint accordingly. This was objected to by appellant, upon the ground that the answer of Foley Bros. denied that any such organization as Foley Bros., Larson & Co. existed, and appellant requested a continuance of the case for the purpose of answering and setting up the facts with respect to the parties constituting the partnership of Foley Bros., Larson & Co. The trial court permitted the amendment, and denied appellant's request for a continuance and motion to amend, upon the ground that the amendment was not material, being merely descriptive, and that in any event it was too late to raise the objection that there were other parties who had not been made defendants. We agree with the trial court. The facts were all within the knowledge of appellant, and, if there was a defect of parties not appearing upon the face of the complaint, the true situation should have been set forth in the answer in the first place.
2. Foley Bros., Larson & Co., a corporation, entered into a contract with the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, agreeing to perform certain railroad construction, and thereafter entered into a subcontract with one Richard Evans, according to the terms of which Evans agreed to construct a certain portion of the railroad in accordance with the terms and specifications of the original contract. The work was commenced in 1906 and continued into 1907, and respondent claims that at the time of his injuries, which occurred in August, 1907, Evans had ceased, to all intents and purposes, to be an independent subcontractor, if, indeed, he ever had been one, and that Foley Bros., Larson & Co. had assumed control and were prosecuting the work to its completion. One of the chief contested questions at the trial was whether respondent was employed by Foley Bros., Larson & Co., or by Evans. The contract with the railroad company provided that Foley Bros., Larson & Co. should retain the supervision of the construction work as it progressed, and, should the work be sublet, the subcontractor should be regarded as the foreman of the contractor, and there was a decided conflict in the evidence as to which party was conducting operations at the time of the accident. The trial court was of opinion that upon the face of the contracts Evans should be considered an independent subcontractor, and submitted to the jury the question whether the company had assumed control. The law on this subject is well settled. The contracts themselves do not necessarily govern the question, and the relation of respondeat superior may depend entirely upon the conduct of the parties. Rait v. New England F. & C. Co., 66 Minn. 76, 68 N. W. 729;Roe v. Winston, 86 Minn. 77, 90 N. W. 122;Klages v. Gillette-Herzog Mfg. Co., 86 Minn. 458, 90 N. W. 1116. There was evidence which tended to show that appellant had assumed control of the work, not alone for the purpose of supervision, but was engaged in actual performance of the subcontract. There was evidence...
To continue reading
Request your trial