Asch v. Washburn Lignite Coal Company, a Corp.

• Decision Date: 20 January 1922
• Citation: 186 N.W. 757,48 N.D. 734
• Court: North Dakota Supreme Court

186 N.W. 757

48 N.D. 734

FRED W. ASCH, Respondent, v. THE WASHBURN LIGNITE COAL COMPANY, a corporation, and WALKER D. HINES, Director General of Railroads, and as such Director of Minneapolis, St. Paul and Sault Ste. Marie Railway Company, a corporation, Appellants

Supreme Court of North Dakota

January 20, 1922

Appeal from the district court of Morton county, Berry J. Both defendants appeal from a judgment and from an order denying their motions for judgment notwithstanding the verdict or for a new trial.

Affirmed.

Lee Combs, G. F. Dullam, John E. Palmer, for appellants.

"Officers who have no personal knowledge of the transaction, having been appointed long after the transaction in issue, cannot be examined." Blasius v. Ins. Co., 175 N.Y.S. 709.

"A mere soliciting agent or salesman is not managing agent or officer under the terms of the statute." Blasius v. Ins Co. Supra; 10 Cyc. 1342, first col. note; Hancock v. Ins Co., 107 Mass. 113; Gunn v. N. Y. & N. H. Co., 50 N.E. 1031; McComb v. Chicago, St. Louis & New Orleans R R. Co. et al, 7 F. 426.

The officer examined must have been an agent or officer of the corporation at the time of the occurance of the facts which are the subject of the examination or he cannot be lawfully examined under such statute. Johnson v. St. Paul & W Coal Co. (Wis.) 105 N.W. 1048; Hughes v. Chicago, St. Paul & Omaha Ry. Co. (Wis.) 99 N.W. 897.

"An engineer is not the agent of the company to discourse on its account as to what may or may not happen or what is best for another employee to do in case of peril in the employment." Ohio & R. Co. v. Stein, 133 Ind. 243, 31 N.E. 180; Jones on Evidence, Vol. 2 p. 806, § 358 and cases cited; Reynolds v. Continental Ins. Co., 36 Mich. 131; Gardner v. Detroit St. Ry. Co. (Mich.) 58 N.W. 49; Taylor v. N. Y. Central & Hudson Ry. 63 A.D. 586, 71 N.Y.S. 884; Louisville & N. R. Co. v. Stewart, 56 F. 808.

"If the amendment objected to would not be a bar to a recovery under the original complaint, it ought not be allowed. It is only where the same evidence would settle both claims that the amendment is permissible." J. I. Case Threshing Machine Co. v. Eichinger, 15 S D. 530, 91 N.W. 82; Mares v. Worington, 8 N.D. 329, 79 N.W. 441.

"The very fullest freedom of speech within the duty of his profession should be accorded to counsel; but it is license, not freedom of speech, to travel out of the record, basing his argument on facts not appearing and appealing to prejudice irrelevant to the case and outside of the proof." Thompson on Trials, § 963 and cases cited; Lindsey v. Pettigrew (S.D.) 52 N.W. 873; Bendetson v. Moody (Mich.) 59 N.W. 252.

"A person who is in the general employment of one person may be temporarily in the service of another with respect to a particular transaction or piece of work, so that the relation of master and servant arises between them, even though the general employer may have an interest in the special work.

In such case the duty of using care to see that a safe place to work is furnished, or proper warning given, devolved upon the special employer." Westeover v. Hoover, 129 N.W. 285; Coughlan v. City of Cambridge, 44 N.E. 218; Miller v. Minnesota & N.W. Ry. Co. et al. 29 N.W. 188; Hitte, Adm'r. v. Republican Val. R. Co. (Neb.) 28 N.W. 284.

"He is the master, who has the choice, control and direction of the servants. The master remains liable for the negligence of his servants, unless he abandons their control to the hirer." Pioneer Fireproof Cons. Co. v. Hansen, 176 Ill. 108, 52 N.E. 19; Coughlan v. City of Cambridge, 166 Mass. 268, 44 N.E. 218; Consolidated Fireworks Co. v. Kochl (Ill.) 60 N.E. 87; McInerny v. Delaware & Hudson Canal Co., 82 Hun. 615, 151 N.Y. 412; See 26 Cyc. 1522.

The giving of general instructions as to the law of the case where a special verdict is to be returned, is improper. Boyce v. Schroeder, (Ind.) 51 N.E. 376; Stayner v. Joyce, 120 Ind. 99, 22 N.E. 89; Mauch v. Hartford, 112 Wis. 40, 87 N.W. 816.

"In returning a general verdict, the jury apply the law to the facts and pronounce generally upon all of the issues. In a special verdict they 'find the facts only,' and the trial judge determines their legal effect." Morrison v. Lee, 13 N.D. 591; Ward v. Chicago, M. & St Paul Ry. Co. (Wis.) 78 N.W. 443.

"It is reversible error for the court to give general instructions on any subject involved in a special verdict, well calculated to inform the jury how to answer in order to enable one of the parties to recover." Byington v. City of Merrill, (Wis.) 88 N.W. 26.

Sullivan, Hanley & Sullivan, for respondents.

"A master is liable for damages caused by the negligence of his servant within the scope and in the course of his employment, although he neither directs nor is aware of it." Standard Oil Company v. Barkinson, 152 F. 681--82 C. C. A. 29; See cases cited 2nd Dec. Master and Servant vol. 15, 25 Key Number 304-34 Cent. Digest Master and Servant 1226-1229.

"The concurrent negligence of a third person is not a defense. 26 Cyc. 1531 Andrews v. Boedecker 126 Ill. 605, 18 N.E. 651, 9 Am. St. Rep. 649, (affirming 27 Ill.App. 30); Lane v. Atlantic Works 107 Mass. 104.

"Where the negligence of a servant is an effective cause of injury, the intervention, between the negligence of the servant and the injury, of the negligence of another person which immediately causes the injury does not relieve the master from his liability for the negligence of his servant." Engelhart v. Tarrant, (1897) I. O. B. 240-66 L. J. O. B. 122-75 L. T. Rep. N.S. 617-45 Weekly Rep. 197.

"16 Concurrent negligence of two responsible persons. The general doctrine is that it is no defense, in actions for injuries resulting from negligence, that the negligence of third persons, or an inevitable accident, or an inanimate thing, contributed to cause the injury to the plaintiff, if the negligence of the defendant was an efficient cause, without which the injury would not have occurred. In other words, where a defendant is guilty of negligence, which causes an injury, and the plaintiff is free from negligence contributing thereto, the fact that the negligence of a third person also contributed does not relieve the defendant from liability for his negligence." 22 R. C. L. pp. 128-129; See also Concurrent Causes--Negligence Dec. Digest P 61.

"It is no defense to an action for a negligent injury that the negligence of a third person, or an inevitable accident, or an inanimate thing, contributed to the injury, if the prior negligence of the defendant was the efficient cause of the injury." The Joseph B. Thomas (D. C.) 8 F. 578; See Chairman v. Lake Erie & W. R. Co 105 F. 449; See Concurrent Causes Negligence--Cent. Digest P 74.

It must be shown that the servant assented expressly or impliedly to such transfer. Delaware Etc. R. Co. v. Hardy, 59 N.J.L. 35, 34, 34 A. 986; 37 L.R.A. p. 47 in notes; Morgan v. Smith (1893) 156 Mass. 570; Missouri K. & T. R. Co. v. Ferch (Tex.) 36 S.W. 487.

The employees cannot contract away the rights of the plaintiff. That contract may be good as between themselves but not as against plaintiff. Sager v. Northern P. Ry. Co., 166 F. 527.

Railway Company had the right to hire and discharge. 37 L.R.A. Note 40.

Railway Company owned engine. 37 L.R.A. Note pp. 44-45.

Railway Company had power of control and did control him. 37 L.R.A. 38 and 39.

"Various tests have been proposed for determining the relation of master and servant so as to render the master liable to indemnify the servant for personal injuries, but it is impossible to lay down any definite and satisfactory rule to all cases, and the question must be determined as it arises upon the facts and circumstances of the case. It is a question for the jury under proper instructions of the court." 26 Cyc. 1083-1084 and note.

"It is not necessary that there should be a breach of a joint duty in any concerted action on the part of the defendants, but it is sufficient if their several acts of negligence concur and unite in producing the injury complained of." 33 Cyc. 726; Chicago etc. Railway Company v. Marshall, 38 Ind.App. 217, 75 N.E. 973; Mathews v. Delaware etc. Railway Company, 56 N.J.L. 34, 27 A. 919, 22 L.R.A. 261.

"The general rule is that where the negligence of two or more persons concurs in producing a single, indivisible injury, such persons are jointly and severally liable, and this though there was no common design or concert of action."

And there is this joint liability although one of defendants owed to the plaintiff a higher degree of care than the other. Edwards v. Great Northern Railway Company 171 N.W. 873, 42 N.D. 154; 33 Cyc. 726; Chicago etc. Railway Company v. Durant, 65 Kan. 380, 69 P. 356; 26 Cyc. 1094; 34 Cent. Digest "Master and Servant," P 165; 33 Cyc. 726-727; 29 Cyc. 487-488; 105 F. 449.

CHRISTIANSON, J. GRACE, C. J., and BRONSON, and BIRDZELL, JJ., concur, ROBINSON, J., concurs in result.

OPINION

CHRISTIANSON, J.

This action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the two defendants. The case was submitted to the jury for a special verdict. The jury found, in effect, that plaintiff's injuries were occasioned by the negligence of the defendants, and that, by reason of said injuries, the plaintiff had been damaged in the sum of $ 8,000. Judgment was entered in favor of the plaintiff and against both of the defendants pursuant to the verdict. The defendants moved in the alternative for judgment notwithstanding the verdict or for a new trial. The motion was denied, and the defendants have appealed from the judgment and from the order denying such motion.

The facts as shown by the evidence, and as found by the jury in the...