Hess v. Adamant Manufacturing Co.
| Decision Date | 21 October 1896 |
| Docket Number | Nos. 10,111 - (31).,s. 10,111 - (31). |
| Citation | 66 Minn. 79 |
| Parties | CHRISTIAN J. HESS v. ADAMANT MANUFACTURING COMPANY OF AMERICA.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Kitchel, Cohen & Shaw and John H. Nickell, for appellant.
Harrison & Noyes and R. E. Noyes, for respondent.
This action was brought under G. S. 1894, § 5164, by the plaintiff for injuries sustained by his minor son while in the employment of the defendant in its factory in Minneapolis.
The defendant was a foreign corporation, but was carrying on business in this state. The summons and complaint were served on one Root, as its general manager. The defendant appeared specially and for the purposes of the motion only and moved the court to set aside the service, on the ground that Root was not at the time of the service either an officer or agent of the company. After a hearing on affidavits, the motion was denied, to which ruling the defendant duly excepted. Thereupon the defendant answered, and, when the cause was at issue, went to trial on the merits. The trial resulted in a verdict for the plaintiff, and the defendant appealed from the judgment.
1. We do not find it necessary to decide the question (on which there is considerable conflict of authority) whether the defendant, by answering and going to trial on the merits after its motion was denied, waived the defect, if any, in the service. See 2 Enc. Pl. & Prac. tit. "Appearance." After an examination of the affidavits and counter affidavits upon which the motion was heard, we are of opinion that the evidence was such that the court was justified in deciding that the defendant had failed to establish the ground of its motion. It being admitted that the defendant had been carrying on business in this state and that Root was its general manager therein, at least up to a very short time before service was made on him, on November 3, 1894, the burden was on it to show that Root's agency had terminated.
The only original affidavit in support of the motion was that of Root, stating in general terms that on October 9, 1894, the defendant sold out all its business, and thereafter it had no office and did no business in this state, and that he (Root) resigned his offices of vice president and manager of the company on November 1, 1894, and thereafter did no business for the company, and was not an officer of the same. Counter affidavits were interposed, to the effect that, up to and subsequent to the date of service, the business continued the same as before, without any apparent change either as to management or employés or otherwise, and that as late as November 6 Root, as "manager," executed the checks of defendant to employés in payment of their wages. There were also some facts stated in these affidavits tending somewhat to indicate that the officers and agents of the defendant had in mind putting it in position to evade the service of process in this state. The rebuttal affidavit of Root is mainly confined to an explanation of why he drew checks in the name of the defendant after his agency had, as he alleged, ceased. The substance of this explanation is that the bank account was, for certain reasons of convenience, allowed to remain in the name of the defendant after it had ceased to have any interest in the funds.
In view of all the facts, we think it was incumbent on the defendant to state more specifically the acts and facts by which its business was transferred and Root's agency terminated. In arriving at this conclusion, we have not overlooked counsel's suggestions that no question of apparent, as distinguished from actual, agency, is involved; also, that, if plaintiff deemed Root's affidavits evasive or indefinite, he might have compelled him to submit to oral examination.
2. It is urged that G. S. 1894, § 5164, authorizing the father to maintain an action for the injury of his child, is unconstitutional, because it assumes to transfer a cause of action in favor of the child to the father for his own use. We have repeatedly held that the object and effect of the statute is to enable the father to prosecute the action in his own name for the benefit of the child, and that whatever is recovered belongs to the latter. Gardner v. Kellogg, 23 Minn. 463; Buechner v. Columbia Shoe Co., 60 Minn. 477, 62 N. W. 817; Lathrop v. Schutte, 61 Minn. 196, 63 N. W. 493.
It is further urged that even under this construction the statute does not provide "due process of law," because, the infant not being a party to the suit, and not bound by the judgment, the judgment would be no bar to another suit by the infant for the same cause of action. This conclusion is based on a false premise. The infant is barred by the judgment, and he is a party to the action through his father, as his representative, under the statute. In the case of minors or other wards of the state, who are subjects of guardianship, it is competent for the legislature to provide who shall represent them in bringing actions. There is no doubt that the legislature may provide for statutory guardians bringing such actions, and there is no reason why it may not designate the natural guardian as the person to do so. Whether the action shall be brought in the name of the guardian in behalf of the infant, or in the name of the infant by the guardian, is a mere question of practice, subject to the control of the legislature.
3. At the time of the injury complained of, the defendant was engaged in manufacturing adamant plaster, the practical part of the business being under the management and supervision of one O'Brien, as general foreman, whose duty it was to superintend and overlook the machinery and the progress of the work, to see that the machinery was kept in proper working order, to see that the machinery was run and that the men were kept at work, and to direct them what work to do. He also at times hired and discharged the men. In short, he was the general foreman in charge of the factory and the employes who worked there. He employed the plaintiff's son, and assigned to him the duty of attending to the sand elevator used to convey sand from the basement to the third floor. The construction and operation of this machinery are fully explained by the witness Stebbin, in connection with the drawing Exhibit A, found on page 44 of the paper book.
One of the duties assigned to the boy was, whenever the elevator clogged, to go down into the basement and clear it out, by removing the oversupply of sand from the boot. On the day in question he had gone down into the basement for that purpose, and, while he was engaged in removing the sand with his hand, O'Brien, on the story above, turned on the power, thereby setting the elevator in motion. The result was that the boy's arm was caught and crushed in the machinery, rendering amputation necessary.
Two acts of negligence on part of the defendant were charged in the complaint: (1) faulty and dangerous construction of the machinery, in that there was no way provided for cleaning out the boot except by inserting the arm; (2) the careless and negligent starting of the machinery by O'Brien, without first ascertaining whether any one was in the basement engaged in cleaning out the boot.
Aside from a denial of the allegations of negligence, the defense was that the boy was guilty of contributory negligence: first, in cleaning out the boot with his hand, instead of using a scoop for that purpose; and, second, in disobeying orders by going down to clean out the boot without first notifying the foreman, O'Brien. But it is conceded that, under the evidence, the question of contributory negligence was for the jury, and hence is not involved in this appeal.
Neither is it denied, as we understand it, that the question whether the act of O'Brien in starting the machinery was negligence was also for the jury, the only question as to that act being whether defendant was responsible for it; that is, whether it was the act of a vice principal or a fellow servant. The trial court left it to the jury to determine as a question of fact whether, in turning on the power, O'Brien was acting as a vice principal or as a fellow servant. This ruling is one of the principal errors assigned.
It is not disputed, as we understand counsel, that, as to matters pertaining to his superintendence as foreman, O'Brien represented the defendant; but the claim is that in the particular act of turning on the power he was merely doing the work of a fellow servant....
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