United States Board And Paper Company v. Landers
| Decision Date | 14 December 1910 |
| Docket Number | 6,944 |
| Citation | 93 N.E. 232,47 Ind.App. 315 |
| Parties | UNITED STATES BOARD AND PAPER COMPANY v. LANDERS |
| Court | Indiana Appellate Court |
Rehearing denied March 16, 1911.
From Rush Circuit Court; Elmer J. Binford, Special Judge.
Action by Bartholomew Landers against the United States Board and Paper Company. From a judgment for plaintiff, defendant appeals.
Reversed.
John W Kern, Watson, Titsworth & Green and Henley, Matson & Gates, for appellant.
Douglas Morris, Henry N. Spaan, Joseph B. Kealing and Martin M. Hugg, for appellee.
Appellee recovered judgment in the trial court for $ 1,200 for damages caused by personal injuries alleged to have been caused by the negligence of appellant. The disposition of the appeal depends (1) upon whether the relation of master and servant existed between the parties, or whether appellee was a common servant with appellant's employes, and (2) whether the facts are sufficient to sustain the finding of negligence by appellant.
Appellee was in the employ of an Indianapolis firm which made and repaired boilers, and which contracted with appellant to repair certain boilers at its plant at Carthage, Indiana. Appellee and another workman were sent to the plant to do the work, reported to the chief engineer, and were told to go to work on the boilers and do anything necessary to fix them. At the time appellee was injured he was doing this work.
The test by which appellant's first point must be judged is stated by the text-writers substantially as follows: Nearly all the definitions of fellow servants given in the books make it essential to the relation that they shall be servants of the same master. The general rule is that the servants of different masters are not deemed fellow servants within the meaning of the rule in question, although they are working together in the same common employment or in what has been called con-association. Mere cooperation or community of labor and ultimate purpose, is not enough to make them fellow servants, but they must all be under the control and direction of a common master. 4 Thompson, Negligence (2d ed.) § 4917; Wood, Master and Serv. § 317.
Appellee was not under the control of appellant, and it had no authority to discharge him. He was in the employ of the Indianapolis firm, and it alone could discharge him. Murray v. Dwight (1900), 161 N.Y. 301, 305, 55 N.E. 901, 48 L. R. A. 673; Wabash, etc., R. Co. v. Farver (1887), 111 Ind. 195, 60 Am. St. 696, 12 N.E. 296; New Albany, etc., Rolling Mill v. Cooper (1892), 131 Ind. 363, 30 N.E. 294; Zimmerman v. Baur (1895), 11 Ind.App. 607, 619, 39 N.E. 299.
These legal propositions, applied to the facts exhibited, require this point to be held against appellant.
The second point is not so easily disposed of. There were four boilers at appellant's plant. There was a mud pipe in the rear, and a pipe from the boiler to it, in which there was a valve which, when shut, prevented steam from passing from one boiler to the other. When this valve was open there was nothing to prevent steam from passing into and between all the boilers. Appellee went into boiler No. 1 on Sunday morning, with a helper, for the purpose of making the repairs. A fireman in charge of boilers No. 3 and No. 4 undertook to blow them out. This required such a pressure that if the valves on No. 1 and No. 2 were open it would drive steam into them. The valve on No. 1 was open, and appellee was scalded.
The judgment was originally affirmed on the theory that it was appellant's duty, knowing that appellee was working in boiler No. 1, not to turn on steam without knowing that the valve between it...
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