Weeks v. Scharer

• Decision Date: 14 October 1901
• Docket Number: 1,536.
• Parties: WEEKS v. SCHARER.
• Court: U.S. Court of Appeals — Eighth Circuit

111 F. 330

WEEKS v. SCHARER.

No. 1,536.

United States Court of Appeals, Eighth Circuit.

October 14, 1901

William J. Miles, for plaintiff in error.

H. N Hawkins (T. M. Patterson and E. F. Richardson, on the brief) for defendant in error.

Charles F. Scharer and Albert Murcrey were fellow servants of H. T Weeks at work in his mine in Colorado, when Murcrey carelessly dropped a jack screw down the shaft, and it broke Scharer's leg. Scharer sued his employer, and alleged that the injury was caused by his failure to adopt reasonable rules for the operation of the mine, and by his failure to employ and retain competent workmen. The averments of the plaintiff were denied by the defendant. Upon the second issue, which is the only one that it is necessary to consider, in view of the conclusion which has been reached, the evidence was that the defendant, Weeks, was the owner of the mine; that one Jenkins was his superintendent, and had and exercised authority to hire and discharge his employes; that among these employes were two shift bosses, who supervised and directed the work of the men under the orders of the superintendent; that the superintendent was the head man, and was generally present at the mine, overseeing the work; that Scharer and Murcrey were members of and had worked in a shift together for about six weeks before the accident; that Murcrey had at one time turned on the air improperly, and had thereby caused a hose to cut one of the workmen on the head; that at another time he threw a block and tackle upon another workman; that he was careless in this way that, if he threw anything down, he was as likely to throw it on his partner as to throw it to one side; that his partner, one Medaris, who had worked by his side for about 10 weeks before the accident, told his shift boss on February 10 or February 12, 1899, that he could not make him hear; that he had turned the air on at an improper time, and had hurt him,-- and asked that me might be changed to another shift, so that he should not work with him. But no change was made, and Medaris worked on by the side of Murcrey until March 20, 1899, when the plaintiff, Scharer, was injured. There was no evidence that this shift boss had any authority to employ or to discharge men for the defendant. Upon this evidence the court charged the jury that notice to this shift boss of the incompetence of Murcrey was notice to the defendant, if the shift boss was charged with the duty of supervising the work of Murcrey, and this instruction is assigned as error. There were a verdict and a judgment for the plaintiff for $8,000 damages, which this writ of error challenges.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

SANBORN Circuit Judge, after stating the case as above, .

The evidence discloses no authority in the shift boss to hire or to discharge men for the defendant. His power was limited to supervising the work of the employes intrusted to his care, and to directing them when, where, and how to do their work. There was no evidence of any negligence in the selection or employment of the workman whose carelessness caused the injury. Was notice to the shift boss of the incompetence of this servant notice to his master? Counsel for the plaintiff contend that this question was properly answered in the affirmative by the court below, and cite in support of their position the following authorities: Railroad Co. v. McDaniels, 107 U.S. 454, 459, 2 S.Ct. 932, 27 L.Ed. 605; Railroad Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772; Railroad Co. v. Henthorne, 73 F. 634, 638, 19 C. C. A. 623, 627, 43 U.S.App. 113, 122; Lanning v. Railroad Co., 49 N.Y. 521, 534, 10 Am. Rep. 417; Railway Co. v. Collarn, 73 Ind. 261, 272, 38 Am. Rep. 134: Coppins v. Railroad Co., 122 N.Y. 557, 565, 25 N.E. 915, 19 Am. St. Rep. 523; Railroad Co. v. Nuckol's Adm'r, 91 Va. 193, 195, 208, 21 S.E. 342; 1 Shear. & R. Neg. § 192; Gilman v. Railroad Co., 13 Allen, 433, 90 Am. Dec. 210; Shanny v. Androscoggin Mills, 66 Me. 420; Holland v. Railroad Co., 91 Ala. 444, 451, 8 So. 524, 12 L. R. A. 232; Railway Co. v. Patton (Tex. Sup.) 9 S. W. 175; Railroad Co. v. Gilbert, 46 Mich. 176, 180, 9 N.W. 243; Whittaker v. Canal Co., 126 N.Y. 544, 550, 27 N.E. 1042. The decisions in these cases declare that the duty of the master, which he cannot so delegate as to relieve himself from liability to discharge it; that officers and agents of a master who are empowered to hire, discharge, or suspend employes are authorized to discharge this positive duty; that notice to them of the incompetence of a servant is notice to the master; and that the jury may infer from the notorious, long-continued, and habitual acts of recklessness that such officers or agents and the master knew, or by the exercise of ordinary care would have known, that the servant guilty of them was not competent. But there is nothing in any of these opinions to the effect that notice of the incompetence or of the habitual negligence of a servant to one charged with the duty of directing and supervising him and his work, but who is without authority to hire, discharge, or suspend such workman, is notice to the master, or to the effect that such a superior or supervising employe is discharging the positive duty of the master in this regard. In Railroad Co. v. McDaniels, 107 U.S. 454, 2 Sup.Ct. 932, 27 L.Ed. 605, no question of notice to those supervising the work of an employe was in any way involved, and all that is said upon this subject is obiter dictum. The only issue there was whether or not the chief train dispatcher, who employed the reckless servant, exercised reasonable care in the act of selecting and hiring him. In Railroad Co. v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, 37 L.Ed. 772, the charge against the company was not the employment of an incompetent servant, but the negligence of a superior servant in the discharge of his duty of operating an engine. On the other hand, the charge of the trial court in the case upon which counsel seem to place their chief reliance (Railroad Co. v. Henthorne, 73 F. 634, 639, 19 C.C.A. 623, 628, 43 U.S.App. 113, 123) was that 'it was necessary for the plaintiff to show that the incompetency of Harrison, the engineer, was known, or ought to have been known, to those officers of the company who were given authority to employ, discharge, or suspend him, in order to charge the company with the same knowledge'; and the only question in that case was whether or not the power to suspend for incompetence vested an agent of the company with authority to receive notice of his shortcomings for his master. The opinion and the argument in the Henthorne Case concede that notice of incompetence to one who has no authority to hire, discharge, or suspend employes is not notice to the master. In Coppins v. Railroad Co., 122 N.Y. 557, 565, 25 N.E. 915, 19 Am.St.Rep. 523, the verdict against the company was sustained on the express ground that there was evidence from which the jury might have lawfully inferred that the division superintendent, who had authority to hire and discharge servants, had actual knowledge of the habitual incompetence of the employe whose negligence caused the accident. In Railroad Co. v. Nuckol's Adm'r, 91 Va. 193, 21 S.E. 342, there was no question of negligence of the defendant in the employment of its servants, and the judgment below was reversed because the court had refused to charge that an engineer of a locomotive and a track repairer were fellow servants. In Laning v. Railroad Co., 49 N.Y. 521, 534, 10 Am.Rep. 417, the foreman, who was authorized to hire and discharge employes, was aware of the incompetence of the workman whose negligence caused the injury. Nor is there anything in the other authorities cited by counsel for the defendant in error but statements of general and conceded rules of law, nor anything in conflict with the position that no agent or employe is competent to receive notice of the shortcomings of a servant which will charge his principal or master with liability unless he is authorized to hire, to discharge, or to suspend the employe,-- unless he is delegated by the grant of that power to discharge this positive duty of the master,-- while this position is sustained by many respectable decisions. Railroad Co. v. Baugh, 149 U.S. 369, 387, 13 Sup.Ct. 914, 37 L.Ed. 772; Reiser v. Pennsylvania Co. (Pa. Sup.) 25 A. 175, 34 Am.St.Rep. 620; Smith v. Railroad Co. (Mo.) 52 S.W. 378, 383, 48 L.R.A. 368; Railroad Co. v. Eckols (Tex. Civ. App.) 26 S.W. 1117; Railway Co. v. Benford (Tex. Sup.) 15 S.W. 561, 563, 23 Am.St.Rep. 377.

The nature and the limits of the liability of the master for the incompetence of his servants is stated by Mr. Justice Brewer, in the latest decision of the supreme court upon that question which has been called to our attention, in these words:

'It may be asked, is not the duty of seeing that competent and fit persons are in charge of any particular work as positive as that of providing safe places and machinery? Undoubtedly it is, and requires the same vigilance in its discharge. But the latter duty is discharged when reasonable care has been taken in providing such safe place and machinery, and so the former is as fully discharged when reasonable precautions have been taken to place fit and competent persons in charge. ' Railroad Co. v. Baugh, 149 U.S. 387, 13 Sup.Ct. 921, 37 L.Ed. 781.

In Reiser v. Pennsylvania Co. (Pa.) 25 A. 175, 34 Am.St.Rep. 620, the chief train dispatcher of the railroad company was aware of the incompetence of one Crossman, a local operator working under his supervision and direction but he had no power to hire or to discharge employes for the company; and the claim was that notice to him was notice to the...