Schroeder v. Flint & P.M.R. Co.

• Citation: 61 N.W. 663,103 Mich. 213
• Parties: SCHROEDER v. FLINT & P. M. R. CO. ET AL.
• Decision Date: 22 December 1894
• Court: Supreme Court of Michigan

61 N.W. 663

103 Mich. 213

SCHROEDER v. FLINT & P. M. R. CO. ET AL.

Supreme Court of Michigan

December 22, 1894

Error to circuit court, St. Clair county; Samuel W. Vance, Judge.

Action by Carl Schroeder against the Flint & Pere Marquette Railroad Company and the Chicago & Grand Trunk Railroad Company to recover damages for personal injuries sustained by plaintiff employed as a common laborer, while riding on defendants' train. From a judgment in favor of plaintiff and the latter defendant, the former defendant appeals. Reversed.

Hanchett, Stark & Hanchett, for appellants.

Northup & O'Donnell and James A. Muir, for appellee.

GRANT J.

The liability of the defendant the Flint & Pere Marquette Railroad Company, under the instructions of the court depends upon the position occupied by Mehalski, the boss or foreman of the gang of 10 men who were occupied in unloading and leveling the dirt hauled upon its premises by the defendant the Chicago & Grand Trunk Railroad Company. The sole allegation of negligence alleged as ground for recovery against the Flint & Pere Marquette road is that Mehalski failed to give notice to his coemploy�s that the train was about to move. Before discussing this question, I desire to state that in my judgment this accident could not possibly have happened without the negligence of the plaintiff himself, if the trainmen of the Chicago & Grand Trunk road had performed their duty. It was established beyond controversy, by the testimony of witnesses and by the rules of the company, that it was the duty of the trainmen to give warning of the moving of the train, and to see that both the "track and the train were clear," and that it was the duty of the rear brakeman to be in his place on the rear car when the train moved. The case against the Grand Trunk Company was withdrawn by the plaintiff before it was submitted to the jury, and he was permitted to recover on the ground of the negligence of the Flint & Pere Marquette Company. If Mehalski was not the defendant's alter ego then it is not liable. He occupied the usual position of boss or foreman of a gang of men. His duties were no other, or different, or greater than those of the foreman of the ordinary section gang upon a railroad. In all such cases some one of the men employed must be invested with authority to direct the work. He kept the time, counted the number of cars, directed the men where and how to work saw that they did their work properly, directed the place where the train should stop for unloading, notified the men when to cease leveling and go to unloading, and then assisted in doing the work. He was under the immediate and direct control of Mr. Cole, a higher official of the defendant, who was often present, sometimes daily, superintending and directing the work. I do not think there was any legitimate evidence tending to show that he was invested with authority to hire and discharge men. He certainly had not done it before the accident, and was not given express authority until long afterwards. But whether he did or not have such authority I consider of little consequence. The power to hire and discharge is not conclusive, and is in many cases of little moment. Too much prominence has often been given to this authority. One may possess it and still not be the alter ego, or he may not possess it and still be the alter ego. The doctrine of the nonliabiilty for the negligence of a fellow servant is so firmly established, and has been so frequently affirmed, in this state, that I deem it unnecessary to cite the authorities. The difficulty has always been in determining whether the servant whose negligence caused the injury was, under the facts of each case, the alter ego or a fellow servant. The perplexity and difficulty of the question have been recognized in the decisions of this court, and it is quite possible that there may be some difficulty in harmonizing them all; but the rule recognized in nearly if not all of them is thus stated by McKinney on Fellow Servants: "The true test, it is believed, whether an employ� occupies the position of a fellow servant to another employ�, or is the representative of the master, is to be found, not from the grade or rank of the offending or injured servant, but it is to be determined by the character of the act being performed by the offending servant, by which another employ� is injured; or, in other words, whether the person whose status is in question is charged with the performance of a duty which properly belongs to the master." This principle is so exhaustively and carefully discussed by my Brother Hooker in Beesley v. F. W. Wheeler & Co., 61 N.W. 658, that further discussion here is unnecessary. The authorities are there cited and commented on. I concur in his reasoning and the conclusions reached.

One of the principal cases relied upon by the plaintiff is Harrison v. Railroad Co., 79 Mich. 409, 44 N.W. 1034. In that case my Brother Long, speaking for the court, expressly recognized this rule in the following language: "It is not to be determined solely by the grade or rank of the offending or injured servant, but is to be determined by the character of the act being performed by the offending servant. If it is an act that the law imposes the duty upon the part of the master to perform, then the offending employe� is not a fellow servant, but a superior or agent, for whose acts the master is held liable. Again, if the master has delegated to a servant or employ� the care and management of the entire business, or a distinct department of it, the situation being that the superior servant is charged with the performance of duties towards the inferior servant which the law imposes upon the master, then such superior servant stands in the place of the master, and the rule of respondeat superior applies." To hold Mehalski the alter ego would result, in my judgment, in the virtual abrogation of the rule. It would establish the doctrine that where a farmer employs a competent ditcher to construct a drain upon his farm, or a foreman to harvest his crops, or a carpenter to build him a barn or other building, he is responsible for their negligent acts, notwithstanding that he has employed competent men and furnished proper tools, material, and machinery; and that every foreman in a manufacturing plant, and every boss of a railroad gang, is a vice principal. It would result in overruling the following cases: Mining Co. v. Kitts, 42 Mich. 34, 3 N.W. 240; Hoar v. Merritt, 62 Mich. 386, 29 N.W. 15; Peterson v. Railway Co., 67 Mich. 102, 34 N.W. 260; Adams v. Iron Cliffs Co., 78 Mich. 271, 44 N.W. 270; and the many other cases in which this rule has been recognized and affirmed.

Plaintiff relies upon the following authorities to support his right of recovery: Harrison v. Railroad Co., supra; Ryan v Bagaley, 50 Mich. 179, 15 N.W. 72; Erickson v. Railroad Co., 83 Mich. 281, 47 N.W. 237; Id., 93 Mich. 414, 53 N.W. 393; Shumway v. Manufacturing Co., 98 Mich. 411, 57 N.W. 251; Hunn v. Railroad Co., 78 Mich. 513, 44 N.W. 502. In Harrison v. Railroad Co., which, as already shown, approves the rule as above stated, a division superintendent, who had the entire charge and control of a division of the road 150 miles in length, was held to be the alter ego. In Ryan v. Bagaley, the defendant, the owner of the mine, lived in another state, and the entire management, control, and conduct of the mine in its operation was delegated to the mining captain. That case was tried before the writer of this opinion as the circuit judge, and the charge to the jury upon this point was as follows: "It appears from the testimony that he had the entire charge and control of the underground work, and all the work generally, of the mine, and that he employed and discharged men. Now, I charge you that Captain Whitesides, if he had this power delegated to him to manage and control the mine, negligence on his part would be the negligence of the owners or managers of the mine. So, if he directed the hoisting of this pipe, and the act alone of hoisting it was negligence, then the owners of the mine would be liable. If he did not direct how it should be done, but simply instructed Mr. Tyler to hoist the pipe, and Tyler, in his trying it, did it negligently and carelessly, that would not be the act of the defendants or Mr. Whitesides." In Shumway v. Manufacturing Co. it was conceded by the defendant that the relations of the agent to the defendant were such that he might in law, for some purposes, be regarded as the representative of the master, but it was insisted that in the particular act of starting the machine he was acting as a fellow servant. The officer of the defendant had the entire charge of the factory, as well as the employment and discharge of men. This was evidently a case of the delegation of the entire control to the agent, who was held to be a vice principal. In Erickson v. Railroad Co., stress was laid upon the fact that the foreman, Moleski, who had full charge of the gravel train, and complete control over employ�s working under him, with full power to hire all laborers and to discharge them, and to whom alone complaint could be made, placed the plaintiff in a position of danger, to which he was not accustomed, and for which he was not hired. Both the opinions in that case were also written by Mr. Justice Long, and the superior servant was held to be the alter ego under peculiar facts which showed an extensive authority conferred by the principal upon his servant. I assented to that opinion without any thought of abrogating or infringing upon the above rule so firmly established by a long line of decisions in this and other courts, and so well grounded in reason. In Hunn v. Railroad Co. the train...