F.C. Austin Mfg. Co. v. Johnson

• Decision Date: 03 October 1898
• Docket Number: 1,021.
• Citation: 89 F. 677
• Parties: F. C. AUSTIN MFG. CO. v. JOHNSON.
• Court: U.S. Court of Appeals — Eighth Circuit

89 F. 677

F. C. AUSTIN MFG. CO. v. JOHNSON.

No. 1,021.

United States Court of Appeals, Eighth Circuit.

October 3, 1898

Mart B Koon (D. S. Alford and W. Littlefield, on brief), for plaintiff in error.

Louis C. Poehler (George J. Barker, on brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and SHIRAS, District Judge.

SHIRAS District Judge.

The plaintiff in error, the F. C. Austin Manufacturing Company is a corporation created under the laws of the state of Illinois, and is engaged in the manufacture of various kinds of machinery and in the construction and erection of steel bridges. In December, 1895, the company entered into an agreement with the commissioners of Douglas county, Kan., for the erection of a steel bridge over Toy creek, in the named county, of about 50 feet in length and weighing some 6,000 pounds, one Charles Killifer being in charge of the work on behalf of the company. In order to put the girders and floor beams in place, it was necessary to erect a scaffolding to give support to the beams while they were being placed in position and bolted together, and also to furnish a place whereon the workmen could stand, when engaged in putting together the framework of the superstructure. The evidence on behalf of the plaintiff in error tends to show that the defendant in error, who was a farmer living in the neighborhood, but who had been employed as a laborer to aid in the erection of the bridge in question, assisted in the preparation of the poles or posts that were used in the construction of the scaffolding and in the general work of building the same, the same being done under the direction of Mr. Killifer, but this is denied by the defendant in error who testified that he had nothing to do with the erection of the scaffolding, and was not present on the day of its erection, the main part of the work being done on Friday December 20th. The evidence further shows that on Saturday, a part of the iron framework of the bridge was placed upon the scaffolding, and thus remained during Sunday, and that, when the work of construction was resumed on Monday, it was found that the weight of the same had caused the scaffolding to sink somewhat, so that it became necessary to raise up the ends of the floor beams already placed in position, and, while this was being done, the scaffolding fell down, carrying with it the portions of the superstructure resting thereon, and a number of workmen who were standing on the scaffolding, including the defendant in error, who was badly injured. To recover for the damages thus caused him, Johnson brought the present action in the district court of Douglas county, Kan., the same being aided by a writ of attachment issued against the defendant as a nonresident corporation, and levied on property belonging to the company. The service on the summons issued in the case to the sheriff of Douglas county was returned as follows:

'Received this writ Jan. 22, 1896, and, as commanded therein, I summoned the said defendant, within named, as follows, to wit, by handing on Jan. 23rd, 1896, to C. M. Avery, the managing agent and chief clerk of said defendant, a true copy of this writ, with all the indorsements thereon; the president chairman of board of directors, or chief officer not being found in said county.

J. C. Moore, Sheriff.'

Thereupon the defendant company, appearing specially for that purpose, moved the court to set aside and vacate the service thus made, on the ground that the named C. M. Avery was not a managing agent in Kansas or elsewhere of the defendant company, nor was he one upon whom valid service could be made as a representative of the corporation. Upon a hearing this motion was overruled, and thereupon the defendant company removed the case into the United States circuit court, on the ground that it was a nonresident of Kansas, being an Illinois corporation; and in the federal court, after filing an answer to the merits, the defendant company moved the court for a rehearing upon the motion to set aside and vacate the service, which motion was overruled, and at the June term, 1897, the case was heard before the court and jury, and a verdict was rendered in favor of the plaintiff, Johnson, and, judgment being entered thereon, the case is now before this court upon a writ of error.

The first question presented for consideration in the brief of counsel for plaintiff in error arises upon the action of the state court in overruling the motion to vacate the service of the summons, it being urged that the state court erred in holding that C. M. Avery was a managing agent of the corporation in such sense that valid service of the summons could be made upon him, under the provisions of the statutes of Kansas, which enact that 'where the defendant is a foreign corporation having a managing agent in this state, the service may be upon such agent.'

As already stated, the sheriff's return recited that Avery was the managing agent of the defendant corporation, and the service on him was valid, provided he was in fact a managing agent of the company. The question of the relation existing between the corporation and C. M. Avery, at the time the service was made upon him, is clearly a question of fact, to be determined according to the evidence submitted thereon; and this court cannot review the finding of the court below on this question of fact, unless all the evidence introduced is before us by means of a bill of exceptions. It does not appear in the record that any bill of exceptions was taken for the purpose of presenting the evidence submitted on this issue of fact, and therefore the finding and ruling of the court below on this fact issue is not before us for review. There is to be found in the transcript the entry made in the journal of the ruling of the court upon the motion to vacate the service, but this journal entry cannot be treated as a bill of exceptions, nor does this entry make part of the record the evidence to which it refers, so as to bring it before this court for consideration. When motions are heard in the trial court, presenting issues of fact and submitted on evidence in any form, a review of the action of the trial court thereon cannot be had unless a proper bill of exceptions is duly taken and filed, for this is the only proper mode in which the evidence can be made a part of the record. State v. Hemrick, 62 Iowa, 414, 17 N.W. 594; Stewart v. Ranch Co., 128 U.S. 383, 9 Sup.Ct. 101; Evans v. Stettnisch, 149 U.S. 605, 13 Sup.Ct. 931; Dietz v. Lymer, 10 C.C.A. 71, 61 F. 692, and 19 U.S.App. 667.

Coming now to the error assigned upon the rulings of the court in the trial of the case before the jury, the larger part thereof can be considered under the exception taken to that part of the charge of the court wherein it was said:

'When the plaintiff entered the service of the defendant company as a laborer on this work, he assumed the usual and ordinary risk attending such labor, and if the injury is chargeable to such ordinary risk, assumed by the plaintiff himself, then he cannot recover. On the other hand, it was the duty of the defendant company and its general agent, Charles Killifer, in charge of the work, to have provided a scaffold for the laborers to work upon, constructed in a reasonably safe and proper manner, so that they would not be exposed to unnecessary risk, while at work. But if the company or its general agent, Killifer, failed to do so, and by reason of the faulty construction of the scaffolding, and without fault on the plaintiff's part, the scaffold fell, and the plaintiff received injuries, he is entitled to a verdict at your hands.'

It is excepted to this charge that Charles Killifer was in fact but a co-servant with Johnson, the defendant in error, for whose negligence the company would not be responsible. The evidence shows that the F. C. Austin Manufacturing Company was engaged in the manufacture and sale of several varieties of machinery, and, in addition thereto, was engaged in the construction and erection of steel bridges, and F. C. Austin testified that he was the president of the corporation; that:

'I am acquainted with Charles Killifer. He has been in our employ, off and on, for several years,-- perhaps five. He was a salesman, an expert, erected bridges, trusses. Much of the time he was in Michigan, although his territory was not limited as to that. We sent him around to various places. For instance, if we had a bridge in the South, we would send him down there. This bridge out in Kansas, we sent him out there. In Michigan he put up quite a number of bridges. I think he worked probably more in Michigan than anywhere else. I don't know that any different instructions were given with reference to the erection of the bridge, excepting we had this contract, and sent him there to erect and settle for it. He was supposed to be competent in those matters without any instructions from the office,-- any general instructions.'

The evidence shows, without contradiction, that the entire control of the work of erecting the bridge was intrusted to Killifer, and therefore the court might well speak of him as 'a general agent in charge of the work. ' The court held that it was the duty of the company to have a scaffold for the laborers to work on, constructed in a reasonably safe manner, and that it was the duty of Killifer, as the general agent of the company in charge of the work, to see to it that a safe scaffold was furnished for the use of the men employed in erecting the bridge. If the duty was imposed upon the company to use due care in furnishing a safe scaffold for the use of the men, then it is clear that the performance of this duty was intrusted to Killifer, because he was placed in charge of the...