Formall v. Standard Oil Co.

• Decision Date: 10 July 1901
• Citation: 127 Mich. 496,86 N.W. 946
• Court: Michigan Supreme Court
• Parties: FORMALL v. STANDARD OIL CO.

86 N.W. 946

127 Mich. 496

FORMALL v. STANDARD OIL CO.

Supreme Court of Michigan

July 10, 1901

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Action by August Formall against the Standard Oil Company. Judgment for plaintiff, and defendant brings error. Reversed.

John D Conely, for appellant.

James H. Pound, for appellee.

GRANT J.

The defendant was the owner of two barns situated at the corner of Lovett avenue and Torrey street, in the city of Detroit one barn running east and west, and the other north and south. The east and west barn had 23 stalls, and the north and south barn had 14 stalls. There were two box stalls in the north and south barn, and one in the east and west barn. The defendant kept in the stalls a number of horses, which were used for hauling its tank wagons to different parts of the city. The plaintiff and his family lived across the street from the barns, and about 175 feet distant therefrom. Plaintiff's children often went across to the barn to play and assist in doing some sweeping and cleaning. Peter Wynne, who looked after the barn occasionally gave them a few pennies. Peter Wynne had no authority to hire or discharge persons for the defendant. His brother did all the hiring and discharging. Nor had he any authority to invite boys upon defendant's premises. On the 29th day of June, 1894, two boys, Charles Bass and Rudolph Formall, one of the sons of the plaintiff, had been in the barn about 8 o'clock in the morning. Wynne got in a buggy to drive down town, and ordered the boys out of the barn, and Joseph Lockley shut the door, and fastened it on the inside. The two boys, Bass and Formall, testified that Peter Wynne told them to return when the shavings came, and make the beds in the stalls, and that he promised them 25 cents for so doing. This Wynne denied. The shavings came some time after Wynne left, and the two boys, Charles Bass and Rudolph Formall, during Wynne's absence, went into the barn to make the beds for the horses. Paul Formall, a boy 7 1/2 years old, and exceptionally small for the age, a brother of Rudolph, and son of plaintiff, followed them into the barn. The testimony shows that Paul was too small to assist in doing much sweeping or cleaning, but Charles Bass and Rudolph Formall testify that a short time previous to the accident he had a broom in his hand, and was doing the best he could. There is no evidence that the boys ever went into the barn during the absence of Wynne before the day of the accident, or that they were ever invited or permitted by Peter Wynne to enter in his absence. The door of the west box stall of the north and south barn fell upon Paul, and killed him instantly. This action is brought to recover damages under the statute in cases when death is caused by the wrongful act, neglect, or default of another. Section 10,427, Miller's Comp. Laws 1897. There is no evidence in the case as to what caused the door to fall. A horse was in the stall at the time of the accident. The door was a large oak door, and weighed about 200 pounds. It had two hangers bolted upon the top, which ran upon an iron track. The door was 4 1/2 feet wide and 8 feet high. It was constructed in 1891, at the time the barn was built. The hangers were of a kind that it was customary to use in Detroit from the time the barn was built to the time of the accident. The wholesale hardware men of Detroit sold as many of this style of hangers as any other. The track, the hangers, and the method of regulating the track, and the hanging of the door, and the use of the hangers, were in common and ordinary use at the time. The plaintiff recovered.

The questions discussed in the brief of counsel for defendant may be reduced to two: First, whether there was any evidence that the door was improperly constructed, insecurely fastened, or out of repair; and, second, whether the testimony tended to show that the decedent was on the premises of defendant under an implied invitation. In our view of the case, it is only necessary to discuss one point, viz.: Was plaintiff's decedent invited into, or given personal permission to be in the barn by the alter ego of defendant? Peter Wynne was an employ�, a laborer, whose sole duty it was to clean out the stable, bed, feed, and water the horses. He was not clothed with any authority whatever to represent the defendant. He was simply a laborer, employed to take care of the stable. He had no authority to employ boys or any one else to do his work. There is no eivdence that the defendant or its alter ego knew that he was so doing. Peter Wynne's duties were limited exclusively to the manual labor he was employed to perform. His act in employing those boys to do his work, and in paying them, was not the act of the defendant. If injured in consequence of being upon the premises by Peter Wynne's authority, the defendant was not liable for injury to any of them. Flower v. Railroad Co., 69 Pa. 210; Driscoll v. Scanlon, 165 Mass. 348, 43 N.E. 100; Sherman v. Railroad Co., 72 Mo. 62, 37 Am. Rep. 423. Is every person who hires a man to take care of his stable responsible for damages to those whom such employ� permits or invites to be upon the premises, and that against his express instruction, as was the fact in this case? This case was evidently tried and submitted to the jury upon the theory that these boys and been not only permitted by Peter Wynne to be upon the premises, but had been employed by the defendant through him. In the charge of the court Peter Wynne's name is frequently used, while that of Thomas Wynne, the alter ego of the defendant, is not mentioned, and no reference whatever is made to any act or permission of his binding the defendant. This will more conclusively appear from the fact that the learned counsel for the defendant framed his brief entirely upon the question of the authority of Peter Wynne, while the plaintiff's attorney has devoted the main portion of his brief to an argument upon the same theory; citing and relying upon Powers v. Harlow, 53 Mich. 508, 19 N.W. 257, 51 Am. Rep. 154, a case which in no sense is the parallel of this. The only reference made in plaintiff's brief to the position of Thomas Wynne is in the following language: 'Defendant had for years been receiving the benefit of infantile labor, which was open, public, and notorious. This was with the knowledge at least of its principal foreman, Tom Wynne, and done by his brother.' Manifestly, it would be unjust, and I think unwarranted in practice, to now sustain this verdict and judgment, which were obtained, not upon the theory that Thomas Wynne employed or permitted these boys, including the deceased, upon the premises, but upon the sole theory that Peter Wynne could and did bind this defendant by his conduct. The above statement in plaintiff's brief is incorrect in that the defendant had not received any benefit of infantile labor, and it was not open,...