Swift & Company v. Bleise
| Decision Date | 06 February 1902 |
| Docket Number | 10,691 |
| Citation | 89 N.W. 310,63 Neb. 739 |
| Parties | SWIFT & COMPANY v. EDWARD BLEISE |
| Court | Nebraska Supreme Court |
ERROR from the district court for Douglas county. Tried below before BAKER, J. Reversed.
REVERSED AND REMANDED.
I. R Andrews, for plaintiff in error.
Ed P Smith and James B. Sheean, contra.
HASTINGS C. DAY and KIRKPATRICK, CC. concur.
Thirty-seven assignments of error are made in this case. Comparatively few of them, however, are urged by counsel, and only those will be considered. The first is that the petition does not state a cause of action, for the reason that it is nowhere alleged that the foreman, Fred Apel, had authority or control over the plaintiff, or that it was any part of his duty to operate the elevator in question. The defendant company says that such an allegation was necessary to disclose a right of action against it. The plaintiff's claim in this action is that he was ordered by the defendant, through its foreman, Mr. Apel, to place two trucks upon the elevator in defendant's packing house, and to go down into the lower part of said building to obtain material for sausages required on the sixth floor, for the purpose of smoking them; that the elevator man was absent, and the foreman instructed plaintiff to place himself and the trucks upon the elevator, and that it would be operated by the foreman himself; that he did so; that the foreman attempted to manage the elevator and lower it, but was ignorant of its manner of operation, and incompetent to perform such duties, and lowered the elevator so carelessly, negligently and recklessly, and with such want of skill that it fell to the bottom of the building with such violence that plaintiff was thrown against its floor and upon the trucks, and sustained injury in the breaking of the knee cap of his left leg, injuring the tendons and ligaments connected with it, and was otherwise bruised; that his injuries were caused by the ignorance, carelessness, negligence and lack of skill of the foreman, of which plaintiff was not previously advised. The answer admits that defendant is a corporation; admits that plaintiff was in its service prior to August 3, 1894, and, with other employees, accustomed to use the elevator and go up and down with trucks "as directed"; that Apel operated the elevator in which the plaintiff was descending; denies that plaintiff was injured as alleged; denies that the alleged "lameness and stiffness in his left knee, as well as his suffering in body and mind, is in anywise owing to or the result of any injury received by him in going down in said elevator, as set forth in said plaintiff's petition"; and denies generally.
Plaintiff's allegation was that defendant ordered these things to be done, and the admission is that the plaintiff was accustomed to use this elevator "as directed." Ordinarily, it is sufficient to enable one to introduce proof of acts done by means of an agent to allege that the principal did it. Bank of the Metropolis v. Guttschlick, 39 U.S. 19, 14 Peters 19, 10 L.Ed. 335; Hoosac Mining & Milling Co. v. Donat, 10 Colo. 529, 16 P. 157; Edison Electric Light Co. v. United States Electric Lighting Co. 35 F. 134; Burnham v. City of Milwaukee, 69 Wis. 379, 34 N.W. 389; Todd v. Minneapolis & St. L. R. Co. 37 Minn. 358, 35 N.W. 5. Of course, the defendant corporation could act only by an agent. It would seem that the allegations here are sufficient to indicate, at least after a verdict, that the several directions which plaintiff is alleged to have received came from defendant by authority, and that Apel had, with defendant's assent, control of the appliances which it is admitted that plaintiff was accustomed to use "as directed." Assuming, then, that Apel's authority is sufficiently indicated, the question is whether the injury, under the circumstances, is simply a result of the acts of a fellow servant--a risk which the plaintiff had assumed--or of negligence by a vice principal. Undoubtedly the simple fact that Apel was foreman would not cause an injury arising from his merely assisting in the work, entirely independent and apart from any exercise of authority by him, to be imputed to the employer. No decisions of this court, nor of any other, have been called to our attention which preclude the same person acting at different times in different capacities. He might be foreman at one time, and assistant workman at another, and that all on the same day and in the same place, so far as any decisions cited here are concerned. Counsel for the defendant is entirely correct in saying that the decisions of this court do not hold "that the master is liable for the personal act of the foreman, wholly disconnected with his duties of supervision. " Liability for the acts of a vice principal is, in this state, derived from the authority given him, and, of course, can not be separated from an exercise of that authority. The question here is, whether or not the action of Apel in ordering the plaintiff on the elevator with the trucks, and in himself undertaking the task of lowering him, were so far separate transactions that the latter is to be considered as wholly distinct from the duty of supervision. It would not seem so. If the doctrine of responsibility for the act of the vice principal is to be derived from his authority, it ought to be applied whenever the vice principal's negligence coincides with an exercise of that authority. The position of plaintiff is quite different from that in which he would have been if he had at his own instance, and without specific direction, entered upon the elevator with the trucks, and a fellow-workman, or even the foreman himself had simply volunteered to lower the elevator. He would have been taking the risk himself. Here he was ordered into the elevator with the trucks by the foreman, who is conceded to have had the authority, in fact, and the right to employ and discharge workmen. His refusal would undoubtedly have cost him his place. While carrying out this order he was injured, as the jury find, by the fault of this foreman. The trial court held that under such circumstances the negligence of the foreman is to be deemed the negligence of his employer. In this respect we are unable to distinguish this case from Crystal Ice Co. v. Sherlock, 37 Neb. 19, 55 N.W. 294; Sioux City & P. R. Co. v. Smith, 22 Neb. 775, 36 N.W. 285; and New Omaha Thomson-Houston Electric Light Co. v. Baldwin, 62 Neb. 180. The negligent act was not by any means wholly disconnected with his duties of supervision. It was the direct result of his exercise of those duties in giving orders to, and directing the movements of, plaintiff in connection with his own contemporaneous acts. To hold that the sole cause of the injury was the bad manipulation of the elevator, is to ignore a large part of the transaction, and the important part, so far as plaintiff's position is concerned. That manipulation was only a part of the foreman's authoritative arrangements.
There are various errors complained of in the giving and refusal of instructions, which must be noted. The first is a complaint that the trial court misstated defendant's answer. The statement in paragraph two of the instructions is "defendant denies that the plaintiff was injured in the manner and form as stated in his petition, and denies the alleged lameness of the defendant, and denies each and...
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