Morelli v. Twohy Bros. Co.

• Decision Date: 23 January 1918
• Docket Number: 3860.
• Citation: Morelli v. Twohy Bros. Co., 54 Mont. 366, 170 P. 757 (Mont. 1918)
• Parties: MORELLI v. TWOHY BROS. CO. et al.
• Court: Montana Supreme Court

170 P. 757

54 Mont. 366

MORELLI v. TWOHY BROS. CO. et al.

No. 3860.

Supreme Court of Montana

January 23, 1918

Appeal from District Court, Fergus County; Roy E. Ayers, Judge.

Action by Peter Morelli against the Twohy Bros. Company and another. From order denying a new trial, plaintiff appeals. Reversed and remanded.

E. K Cheadle and Rudolph Von Tobel, both of Lewistown, for appellant.

Chas J. Marshall, of Lewistown, for respondents.

HOLLOWAY J.

About July 9, 1913, Peter Morelli, a workman employed by Twohy Bros. Company (a corporation) in driving a tunnel on the line of the Chicago, Milwaukee & St. Paul Railway, was injured while in the discharge of his duties. He brought this action to recover damages, but at the conclusion of his testimony the court granted a motion for nonsuit, withdrew the case from the jury, and rendered judgment dismissing his complaint. From an order denying him a new trial, plaintiff appealed.

On motion for nonsuit every fact is deemed to be proved which the evidence tends to establish, and if, viewed in the light most favorable to plaintiff, the evidence makes out a prima facie case, it follows that the trial court erred in granting the nonsuit. Moran v. Ebey, 39 Mont. 517, 104 P 522. A case should never be withdrawn from the jury unless it follows as a matter of law that recovery cannot be had upon any view of the evidence, including the legitimate inferences to be drawn from it. Roach v. Rutter, 40 Mont. 167 105 P. 555.

The plaintiff is a foreigner whose broken English is most difficult to understand. His testimony covers more than 50 pages of the transcript and requires a critical analysis to determine its effect. From the unequivocal statements of the witness and from the inferences fairly deducible from his testimony in its entirety, we find these facts: Plaintiff and three other workmen, in sets of twos, first ran a drift on each side of the tunnel for a distance of 25 feet or more. They then drilled a set of holes in each drift about 4 feet back from the face or breast of the tunnel, and charged them ready for blasting. They were then dismissed from the tunnel by the foreman, who fired the holes. When the smoke and gas escaped, the foreman went into the tunnel, examined and tested the untimbered walls and also the breast, and picked down any loose rock which might fall and cause injury. When he had satisfied himself that the working place was reasonably safe, he ordered the plaintiff and other workmen to bring in the timbers which he assisted in putting in place. This order was followed on the day of the accident. After the foreman had assumed to pick down the loose rock he assured plaintiff and his coworkers that everything was all right, and ordered them to bring in the timbers, emphasizing the fact that he was in a hurry to get the set in place before the next shift came on duty. While putting this set of timbers in place, a rock from the breast of the tunnel fell upon the plaintiff, causing the injuries of which he complains. There was another officer over the foreman, but he never came in contact with the workmen and, so far as disclosed by this record, he was not in or about the tunnel at any time while the plaintiff was on duty. The foreman directed all the work of the men on his shift, ordered them when and where to work and what to do. He excluded them from the tunnel from the time the holes were loaded until he was ready to have the timbers set in place. The men under him, including plaintiff, were compelled to obey his orders under penalty of being discharged by him. The men received orders from no one else. He was apparently in exclusive control of the work while his shift was on duty, and it was upon his orders and under his directions that the work progressed. With reference to the particular tasks before his shift, the will of the foreman was supreme.

If we assume that while engaged in manual labor in setting the timbers in place, the foreman was a fellow servant of the plaintiff in that particular work, it does not follow that he maintained that character with respect to the rest of the employment. One may occupy a dual position, as a common laborer with reference to certain work, and as the alter ego of the master in the performance of other acts and things. Woods on Master & Servant, pp. 860, 863; 4 Thompson's Commentaries on the Law of Negligence, § 4918. During the time the drifts were being run, the holes drilled and loaded, the foreman was apparently not a laborer, but the directing head. He was called "foreman," "boss," "shift boss," and "timber boss" indifferently. For convenience only we refer to him as foreman. But if he had been called "governor," "general manager," or "lackey," it would not have altered the situation or changed the character of his duties.

"What's in a name? That which we call a rose "By any other name would smell as sweet."

His status as fellow servant or vice principal does not depend upon his lowly or high-sounding title, but upon the character of his service. Gregory v. C., M., etc., Ry. Co., 42 Mont. 551, 113 P. 1123. It is unfortunate that courts and text-writers should confuse the law by assuming to state as an abstract proposition that a foreman or shift boss is a fellow servant of the men working under him. He may be a fellow servant while he is performing acts of the common employment, as distinguished from acts which it is the duty of the master to perform; but no matter how menial his services, whenever he is required to perform a primary duty of the master, he becomes the master's alter ego for the performance of such service. In the absence of anything to indicate the contrary, it will be presumed that the duties which the foreman performed were the duties which his employment imposed upon him. The principal duty performed by him with which we are now concerned was directed to making reasonably safe the working place for the men engaged in setting the timbers. If this was a primary duty of the master, the person to whom its performance was delegated was pro hac vice the alter ego of the master for whose negligence the master was liable. If the duty was present, it was either performed by the foreman or it was not performed at all.

There is not any controversy over the rule affecting the master's duty to exercise reasonable care to furnish his servant a reasonably safe place in which to work; but it is contended that the rule has no application where the working place is changing constantly by the labor of the servant himself; in other words, there is no safe-place rule applicable under these circumstances, and support for this contention is found in broad, general expressions to that effect in numerous decisions, including some of our own. Indeed, the trial court with propriety might have justified its ruling by reference to the former decisions of this court if the language employed in them be accepted literally. Typical of those cases is Shaw v. New Year Min. Co., 31 Mont. 138, 77 P. 515, wherein it is said that the safe-place rule should have no application to a case wherein it appears that the working place is changing continually by the labor of the men working upon it. Clearly this language has a broader significance than the...