Murray v. Cowherd

• Decision Date: 29 May 1912
• Citation: 147 S.W. 6,148 Ky. 591
• Parties: MURRAY et al. v. COWHERD. [d]
• Court: Kentucky Court of Appeals

147 S.W. 6

148 Ky. 591

MURRAY et al. v. COWHERD. ^[d]

Court of Appeals of Kentucky.

May 29, 1912

Appeal from Circuit Court, Taylor County.

Action by W. T. Cowherd against G. V. Murray and another. Judgment for plaintiff. Defendants appeal. Affirmed.

Helm Bruce, of Louisville, John A. Wolford, of Campbellsville, and Bruce & Bullitt, of Louisville, for appellants.

W. C McChord, of Springfield, and W. M. Jackson, of Campbellsville, for appellee.

WINN J.

The Campbellsville & Greensburg Telephone Company is a corporation with its poles and line extending along the turnpike between the two towns. G. V. Murray is its president and general manager. On April 1, 1911, W. T. Cowherd was knocked from his farm wagon, which he was driving along the road, by a telephone pole which fell over upon him. He was partially paralyzed by the accident and suffered no little both bodily and pecuniarily. He brought his action against the appellants for damage and upon a trial recovered a judgment of $2,875, from which this appeal is prosecuted.

The petition charges the negligence of the company in maintaining the decayed pole; that Murray had charge of, and direct supervision over, the construction and maintenance of these poles and wires; that it was his duty to keep and maintain them in good repair and safe condition; that the defendant's negligence permitted this particular pole to become out of repair and unsafe, and to remain so for an unreasonable length of time. There is then a specific charge that Murray inspected the pole which fell upon Cowherd, but that he was negligent and careless in his inspection and approved the pole as being safe when it was not so. The evidence discloses that Murray customarily discharged the duties of inspection and maintenance, and when an inspection disclosed the unsound condition of a pole he would cause it to be broken out and reset. He was the president and general manager of the company and doubtless had at command its supplies without the formality of application to any superior to furnish them. There was further evidence before the jury that he inspected that particular pole one week before it fell; that the decayed condition could have been seen had be gone to it and looked at the foot of it; that on the day when he did inspect it his presence there was occassioned by the fact that the pole next in line to it, and across the turnpike from it, had fallen, and he had gone there to reset that pole; that after resetting it he inspected the poles immediately on both sides of it in the line to see whether or not they had been affected by the falling and resetting of that pole.

No substantial complaint of the verdict and judgment is made by the telephone company. The reversal is urged in behalf of Murray. He takes the position that at the most his negligence was that of nonfeasance, the failure to inspect the pole properly; and that a servant is not liable for an injury resulting alone from his non-activity; that his duty was a duty which he owed alone to his employer, the telephone company; and that if he failed to perform this duty of inspection he is answerable alone to the company, his superior and employer.

The distinction sought to be drawn between a servant's acts of misfeasance and those of nonfeasance, resulting in an injury to another, with his consequent liability in the one case and his nonliability in the other, does not obtain in Kentucky, when the negligence, whether of misfeasance or nonfeasance, involves some breach of the servant's duty. It is not his position of service, but his relation as an individual wrongdoer to the party injured, which fixes his liability. Haynes' Adm'rs v. C., N. O. & T. P Railroad Co. et al., 145 Ky. 209, 140 S.W. 176. Certainly under the particular facts of the case at bar the distinction is immaterial; for, under the evidence supra, the pole was decayed and a menace to the travelers upon the highway. The defect could have been discovered by an inspection. It was the duty of Murray to inspect and maintain the line. He owed such travelers an affirmative duty in the exercise of reasonable care to inspect and maintain this pole in safety. For his negligent failure to discharge this duty, whether it be called misfeasance or nonfeasance, liability attaches to him in favor of one injured by it.

While, as remarked above, the doctrine is settled in this state that the servant is personally liable, whether his act be that of misfeasance or nonfeasance, when the injury flows from some breach of a duty owed by him, there are none the less certain points made in the able brief for the appellants which need to be answered, and certain authorities cited which need to be discussed and differentiated, in order that no misapprehension of our position may grow up.

The first case cited by appellants is that of C., N. O. & T. P. Ry. Co. v. Robertson, 115 Ky. 858, 74 S.W. 1061, 25 Ky. Law Rep. 265, a removal case. In this case Brown, the resident defendant, according to the allegation of the petition, was required by the railway company to see that mechanical appliances of a certain nature were supplied on the engines. Those supplied were not of that nature. It was not charged that the master had supplied Brown with different or better appliances. The engineer was injured by a defect in such an appliance. Upon the trial it was developed that Brown furnished to the engineer precisely the same appliances that were supplied to him by the railway company; and the case turned upon the question as to whether a servant can be made liable to an inferior servant because of the master's failure to provide safe and suitable machinery, although it was the superior servant's duty to look after the machinery. It was answered that such a liability would attach; but that where the injury resulted to some third person because the servant failed to act, the servant, upon general authority, was not personally liable. The court added, as to this general doctrine, that it was not prepared to say that it could be sustained in sound reason to its fullest extent, and that the facts in that case relieved the court from considering whether mere nonfeasance upon the part of Brown would have rendered him liable. When the court came at a later time to try the Haynes Case, it departed from the suggestion made in the Robertson Case, and held that where the injury resulted from a failure to discharge a duty, whether of misfeasance or nonfeasance, the servant himself would be liable. In the Robertson Case it is to be noted that Brown was an inferior servant of the company, and though charged with the duty of inspection, was supplied with no other or different or better appliances than those which caused the injury; while in the case at bar there is a pregnant difference, in that Murray himself testifies that whenever his inspection disclosed a bad pole, he would have it taken out and the pole reset. In other words, he had good appliances at command to supplant the defective ones which his inspection might discover.

The next case cited is that of Dudley v. I. C. Railroad Co., 127 Ky. 221, 96 S.W. 835, 29 Ky. Law Rep. 1029, 13 L. R. A. (N. S.) 1186, 128 Am. St. Rep. 335, another removal case. A brakeman on the railroad was struck by a waterspout leading from a supply tank out over the track to supply locomotives with water. He sued the company and joined with it as a defendant one Mitchell, charging that he was its superintendent or supervisor of pumps, tanks, and water appliances, and that he was directly in charge and control of the particular tank and spout which caused the injury. This court held that the petition stated a good cause of action against him, and that the trial court properly overruled the petition for removal at the beginning of the action. The...