Lantry-Sharpe Contracting Co. v. McCracken

• Decision Date: 26 October 1910
• Citation: 134 S.W. 363
• Parties: LANTRY-SHARPE CONTRACTING CO. v. McCRACKEN.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

134 S.W. 363

LANTRY-SHARPE CONTRACTING CO. v. McCRACKEN.^†

Court of Civil Appeals of Texas.

October 26, 1910.

On Motion for Rehearing, January 4, 1911.

On Appellant's Motion for Rehearing, February 8, 1911.

Appeal from District Court, Bell County; John D. Robinson, Judge.

Action by W. E. McCracken against the Lantry-Sharpe Contracting Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Harry P. Lawther and A. M. Monteith, for appellant. J. B. McMahon, for appellee.

JENKINS, J.

This is a suit to recover damages for personal injuries incurred in the erection of a rock crushing machine, a drawing and description of which will be found in the report of this case on a former appeal. 117 S. W. 454. There will also be found in said report a statement of the nature and extent of appellee's injury. We adopt the statements so made as to these matters as our own statements herein. In the last trial of this case in the court below, appellee recovered judgment for $1,999.50.

1. Appellant assigns as error the giving of the sixth paragraph of the general charge, and the refusal to give special charge No. 4 requested by appellant. Said sixth paragraph is as follows: "You are further charged that an agent or employé who is vested by the master with the authority over other employés to superintend, control, or command other employés or servants, and with authority to direct other employés in the performance of their duties, and not otherwise co-operating with them in the performance of their duties, is a vice principal of such employer, and is not a fellow servant of such other employés, and such employer would be responsible for any damage resulting from the negligence of such vice principal. Now if you find from the evidence that John Bruce was the foreman and carpenter in charge of the construction of said rock crusher plant, and had authority from the defendant to direct the details of said work, and to direct and supervise the workmen engaged upon same, and was at the time of said injury actually directing other employés in the performance of their duties, and not merely co-operating with them in the performance of their duties, then the said John Bruce would not be in law a fellow servant of such other employés or of the plaintiff, and the defendant would be liable to the plaintiff for any injury sustained by him through the negligence of the said John Bruce, if any. You are charged that in this case W. C. Roettiger is a vice principal of the defendant, and the defendant would be liable to plaintiff for any injuries resulting to him from the negligence of said Roettiger, if any."

Said special charge No. 4 is as follows: "In this cause you are instructed that Bruce was a fellow servant with the plaintiff McCracken, and if you find from the evidence that the falling over of the upright timber was directly and proximately caused by an act of Bruce, you will find for the defendant."

Appellant's proposition under these two assignments is that Bruce was a fellow servant. If the evidence clearly shows that Bruce was a fellow servant, special charge No. 4 should have been given, and it was error to give the sixth paragraph of the charge above set out. But if the evidence shows that Bruce was a vice principal, or if the evidence is contradictory on this point, it would have been error to have given said special charge, or to have failed to charge the law as to vice principals. The facts relied upon to sustain the action of the court in this regard are as follows: One Roettiger was the general manager of appellant in erecting said rock crusher, and was around and about the same while the work was being done. He employed John Bruce, an expert carpenter, as foreman on said work, and instructed the workmen, and the appellee in particular, to do whatever Bruce told him to do. Bruce was actually directing the work and giving instructions at the time the injury occurred; and, if appellee's testimony be true, gave the order, which a jury might well have found was the proximate cause of appellee's injury. Bruce had no authority to employ and discharge the hands working under him. We hold the following to be the law upon this matter: (1) Where a party has not only the power to direct and control those under him, but also to hire and discharge them, he is a vice principal, and it is not necessary that his acts should be in relation to those things which the master has impliedly contracted to furnish. (2) He is a vice principal to whom the master has delegated a duty which he owes to his servants and has impliedly contracted to perform, though otherwise he may be but an employé and a fellow servant. It is the authority given in the particular matter and not the grade of service which determines the issue as to vice principal or fellow servant. (3) Though one be a vice principal as to the general management and control of the work, if his negligence be that of a colaborer, and not in the exercise of the authority delegated to him, he is, as to such negligence, a fellow servant and not a vice principal. (4) Where one is placed by the master under the control of another, and told to obey his instructions, the orders given by such other in relation to the work in hand, are the orders of the master, without reference to the rank or grade which he otherwise holds in such service. In such case the power to employ or discharge is not necessary.

The following authorities are deemed sufficient to sustain and illustrate the above propositions: Douglas v. Railway Co., 63 Tex. 567; Russ v. Railway Co., 112 Mo. 45, 20 S. W. 473, 18 L. R. A. 823; Young v. Hahn, 96 Tex. 101, 70 S. W. 950; Railway Co. v. Williams, 75 Tex. 7, 12 S. W. 835, 16 Am. St. Rep. 867; Railway Co. v. Peters, 87 Tex. 222, 27 S. W. 257; Nix v. Railway Co., 82 Tex. 476, 18 S. W. 571, 27 Am. St. Rep. 897; Railway Co. v. Smith, 76 Tex. 616, 13 S. W. 562, 18 Am. St. Rep. 78; Railway Co. v. Farmer, 73 Tex. 85, 11 S. W. 157; Manufacturing Co. v. Femelat, 35 Tex. Civ. App. 36, 79 S. W. 869; Oil Co. v. Anderson, 41 Tex. Civ. App. 342, 91 S. W. 608; Oil Co. v. McLain, 27 Tex. Civ. App. 334, 66 S. W. 228; Oil Co. v. Burns, 72 S. W. 629; McCracken v. Contracting Co., 45 Tex. Civ. App. 485, 101 S. W. 520; Hunt v. Lead Co., 104 Mo. App. 377, 79 S. W. 713; Bane v. Irwin, 172 Mo. 306, 72 S. W. 523. Such being the law the court did not err under the evidence in this case in refusing to peremptorily instruct the jury that Bruce was a fellow servant of appellee, nor in instructing the jury as to what facts would constitute the said Bruce a vice principal. It would have been error for the court to have instructed the jury, as a matter of law, that Bruce was a vice principal, simply from the fact that appellee had been placed under his control, with instructions to obey his orders; for, according to the contention of appellant, appellee was not injured in consequence of any order given by Bruce, but on account of the carelessness of said Bruce and appellee in taking hold of the brace and pulling it towards them (which, if true, would be the act of Bruce as a fellow servant) or in consequence of the negligence of other fellow servants in failing to pull the tag rope, as directed by said Bruce.

2. Appellant complains of the action of the court in submitting to the jury the alleged negligence of Roettiger, the admitted vice principal; the contention of appellant being that the evidence shows that said Roettiger was not present at the time of the injury. The evidence on this issue was conflicting, and it was proper to submit it to the jury. The court did not err in instructing the jury that if said Roettiger was present, and heard the orders given by Bruce, and permitted said orders to be obeyed, the acts of said Bruce in giving the orders would be the acts of Roettiger.

3. Appellant complains of the action of the court in refusing to peremptorily instruct the jury to find for appellant, and in instructing the jury to find for the appellee (other elements of damages being shown) if they found that Roettiger or Bruce, under the direction of Roettiger, placed appellee in a dangerous place, and that Roettiger or Bruce knew of the danger of working in said place, and that appellee was inexperienced in said work, and did not know of its danger, and that said Roettiger or Bruce knew that appellee was inexperienced and did not know of such danger, and each of them failed to warn said Bruce as to said danger. Appellant's contention is (1) that appellee had represented himself as an experienced "topman," and (2) that under the facts of this case it was not the duty of appellant to furnish the appellee with a safe place in which to work. As to whether or not appellee was an experienced "topman"—that is, accustomed to walk on high scaffolding—is material in this case, inasmuch as it reasonably appears that if he had been he might have gotten out of the way after the upright timber began to fall, as did Bruce, who was in equally as dangerous a position at the time. But we do not think that a peremptory instruction to find for appellant should have been given, for the reason that the evidence is conflicting as to the representations made by appellee at the time of his employment. Appellee denies making such representations, but says that he stated the experience which he had had in this regard, which was limited; and it is further made to appear that both Bruce and Roettiger saw appellee "cooning" around on the beams just before the accident, from which it might be inferred that he was inexperienced in such work. Besides, we think that appellee's right to recover does not depend solely upon the proposition that the place was not a safe one in which to work, as will more fully appear in a subsequent portion of this opinion.

As to the duty of the master to furnish a safe place in which the servant is to work, we understand the general rule to be that such is the duty a master owes to all of...