M'Mahon v. Davidson

• Decision Date: 01 January 1866
• Parties: THOMAS McMAHON v. WILLIAM F. DAVIDSON, Impleaded, etc.
• Court: Minnesota Supreme Court

12 Minn. 232

THOMAS McMAHON

v. WILLIAM F. DAVIDSON, Impleaded, etc.

Supreme Court of Minnesota.

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Appeal by defendant Davidson from an order denying defendant's motion at the trial for judgment on the pleadings, and from a judgment of the district court, Ramsey county.

The action was for injuries caused by the bursting of the boiler of the steam-boat John Rumsey, a steam-boat navigating the Mississippi river. The plaintiff had judgment below. Several other causes, in which different plaintiffs had judgment below against the same defendants for the same cause and appealed to this court, were submitted with this. All the plaintiffs were employes on the John Rumsey or the steam-boat Albany, with which she was racing at the time, and which, as alleged, belonged also to these defendants.

On the appeal from the judgment the appellant made these points:

1. The court erred in proceeding to the trial of the cause after the appeal from the order. It was without jurisdiction to try the case, and all its proceedings were irregular and void. Starbuck v. Dunklee, 10 Minn. 168, (Gil. 136;) Gen. St. 1866, c. 86, § 8, subd. 3, and section 10, p. 577.

2. The court erred in admitting parol testimony as to the ownership of the steam-boat. It was not the best evidence. The acts of congress carefully and minutely provide for record evidence of the ownership, transfer, and mortgages of vessels from their first construction, and during their entire existence and use. Brightly, Dig. pp. 139 et seq., 823 et seq., 848 et seq. 3. The court erred in receiving Rumsey's deposition, when objected to, because his answer to the cross-interrogatory does not fully respond thereto.

4. The court erred in refusing to give the second instruction asked by the defendant. No interest in the earnings of the boat, nor even in the ownership thereof, which gave him no control or direction over the employes and servants of the boat, would render him liable for the torts of such servants or employes.

The relation of master and servant, principal and agent, must exist to render one person liable for the torts committed by another, and this relation does not exist except where the party required to answer for the wrong-doing of another has the immediate and full control of the latter in the premises, and can continue him or discharge him from the service at pleasure. Blake v. Ferris, 5 N. Y. 48; Stevens v. Armstrong, 6 N. Y. 435; City of Buffalo v. Halloway, Id. 493; Pack v. Mayor, 8 N. Y. 222; Kelly v. Mayor, 11 N. Y. 432; Blackwell v. Wiswall, 24 Barb. 355; Norton v. Wiswall, 26 Barb. 618; Benedict v. Martin, 36 Barb. 288; Schular v. Hud. Riv. R. Co. 38 Barb. 653; Felton v. Deall, 22 Vt. 170; Sprague v. Smith, 29 Vt. 421; Holbrook v. Utica & Sch. R. Co. 12 N. Y. 236; Dalyell v. Tyrer, 1 Ellis, B. & E. 899; U. S. Dig. 393; Clark v. Fry, 8 Ohio, (N. S.) 358; Cincinnati v. Stone, 5 Ohio, (N. S.) 38; Steele v. S. E. R. R. 32 Eng. L. & E. 366; Clark v. Vt. & C. R. Co. 28 Vt. 103; Pawlet v. R. & W. R. Co. Id. 297.

5. A master is not liable to one of his agents or servants for injuries sustained by the latter through the negligence of another agent or fellow-servant, while engaged in the same general business or service.

And the same rule of liability applies where the employments of the servants are distinct; and also where the grades of service are different, as where an inferior servant sustains an injury through the negligence of a superior servant, to whose control and direction he was at the time subject. Coon v. S. & N. R. Co. 5 N. Y. 492; Sherman v. R. & S. R. Co. 17 N. Y. 153; Russell v. Hud. Riv. R. Co. 17 N. Y. 134; Boldt v. N. Y. C. R. Co. 18 N. Y. 432; Wright v. N. Y. C. R. Co. 25 N. Y. 562.

6. The verdict was not justified by the evidence, and was contrary to law.

The respondent made these points:

1. The cross-interrogatory to Rumsey was sufficiently answered. A general question requires only a general answer.

2. The title to a vessel may be proved by parol. While a bill of sale is the proper instrument of title to a ship, yet "a sale and delivery of a ship without any bill of sale, writing, or instrument will be good at law as between the parties." 3 Kent, Comm. 131, (173.)

The evidence requisite to prove such a sale is the same as that required on the sale of any other personal property. Badger v. Bank of Cumberland, 26 Me. 428; Wendover v. Hogeboom, 7 Johns. 308; Thorn v. Hicks, 7 Cow. 697; 3 Kent, 146; 3 Man. 42.

3. The court below did not err in refusing to charge as requested by defendant. In order to charge him it was not necessary to prove he had such an interest in the boat as to give him the right to discharge employes thereon or control them. McLean v. Burbank, post.

Engineers and officers in charge of steam-boats are not in a legal sense fellow-servants of deck hands and laborers employed upon the same boat, nor can they be said to be engaged in the same general employment, so as to protect the owner and principal from liability for wrongful acts done by the engineer, not voluntarily assented to by the inferior servant. Little Mi. R. R. v. Reany, 20 Ohio St. 415. In order to protect defendant he must have employed competent fellow-servants.

The captain who directed the engineer to shut off the water, as is alleged in the complaint and proved, was the agent of defendant. His act, therefore, is the act of defendant and not that of a mere fellow-servant. 2 Kent, 613; Lee, 46; 3 Ohio St. 206; 1 Duer, 571.

If one is employed as general manager, he is to be regarded as the agent of the master, and not as a co-servant, and his acts are deemed the acts of the master or principal. 1 Parsons, Cont. 528; Walker v. Bolling, 22 Ala. 294; 2 Kent, 613; Little Mi. R. Co. v. Reany, 20 Ohio, 415; 3 Ohio St. 201; Dixon v. Rankin, 1 Am. Ry. Cas. 569; 7 Ind. 436.

The complaint alleges the injury to have resulted from the employment of an unlicensed engineer, and it is proved to be true, and this renders defendant liable. Keegan v. Western R. Co. 4 Seld. 175; Smith v. N. Y. & Harl. R. Co. 6 Duer, 225; Fitzpatrick v. Salem R. Co. 7 Ind. 436.

Allis & Williams, for appellant.

Smith & Gilman, for respondents.

WILSON, C. J.

On the third day of November, A. D. 1864, the plaintiff was employed as a "deck hand" on the steamboat John Rumsey, which was used in transporting passengers and freight on the Mississippi river between La Crosse and St. Paul, and, by the bursting of the boiler of the boat, he suffered personal injuries, to recover damages for which this action was brought. At the term for which the cause was noticed for trial the defendant moved the court for an order dismissing the action, and for judgment in his favor on the pleadings, which was denied, and, defendant having excepted to the ruling, attempted to appeal therefrom by making the affidavit, filing the bond, and giving the notice required to perfect an appeal in cases made appealable by our statute.

The cause having been reached in its order on the calendar, was moved by the plaintiff, the defendant objecting to the trial on the ground that the case was by the appeal removed to this court, and therefore that the district court had no jurisdiction to proceed with the trial. The court overruled this objection, and the defendant excepted. On the trial the plaintiff objected to the reading of the deposition of Albert Jenks, Harvey T. Rumsey, and Charles M. Whitney, on the ground that the cross-interrogatory propounded to said witnesses was not properly or fully answered. This objection was overruled, and defendant excepted. The deposition having been read, the defendant moved the court to strike out "that portion of the deposition of Rumsey that related to the ownership of the steam-boat," on the ground that it was incompetent, not being the best evidence. This motion was also overruled, and the defendant excepted to the ruling. After the evidence was closed the counsel for the defendant asked the court to charge the jury as follows:

(1) That, should the jury find from the evidence that the injuries complained of were occasioned by the negligence of the persons having charge of the steamer John Rumsey, they must find that such persons were the agents or servants of defendant Davidson at the time, in order to charge him with damage occasioned by the act, or they must find a verdict for the defendant.

(Which request was given by the court to the jury.)

(2) That in order to charge the defendant, William F. Davidson, for the negligence of the persons having charge and running said steam-boat John Rumsey, it must be proved to the jury that said defendant Davidson had such an interest in said boat John Rumsey, or the earnings thereof and in the running of said boat, as would give him control of the employes or servants of the same, and such a control as would authorize him to discharge them for misconduct, or the jury must find a verdict for defendant.

(Which request was refused by the court, and duly excepted to by the defendant's counsel.)

(3) If the jury find from the evidence that the plaintiff, at the time of the injury complained of was received, was a servant or deck hand employed by the defendant, Davidson and assisted in the running of the steam-boat Albany, and that the conduct or management of the agents and servants of the defendant employed in the running of the steam-boat Albany contributed to the injury, the plaintiff cannot recover, even if those who had the management or control of the running of said steam-boat Albany were superior agents or employes, if the plaintiff was engaged in the same general business with said superior agents and servants, although the plaintiff was subject to the control of such superior agents or employes, and could not have guarded against his or their negligence or its consequences, unless it appears from the testimony that the defendant did not use ordinary care to select such agents or employes as...