Galvin v. Pierce , 72 N.H. 79 ( 1903 )

The plaintiff was the defendant's servant, and his duty was "to dig around rocks that were to be taken out and to attach chains thereto, so that they could be hoisted by a steam crane." The crane was "operated" by an engineer, a fellow-servant with the plaintiff. The defendant was represented by one Rombeau, who had general direction of the men, "charge" of the operation .of the crane, and of everything connected with the work. The plaintiff complained to Rombeau that the chain furnished him was too large and awkward, that he could not get it around the stone very well, and asked Rombeau to get him a smaller and handier one. Rombeau attempted to find such a chain, but was unable to do so, and told the plaintiff he must get along with the one he had. The plaintiff then adjusted the chain; but the chain being a little slack, the stone began to swing when it was hoisted by the crane, and Rombeau gave instruction to the engineer to lower the stone in order to stop the swinging. The plaintiff then told Rombeau that the chain was not right on the stone, that it was not safe, and asked Rombeau to wait until he fixed it. The plaintiff took hold of the chain, but Rombeau immediately remarked to the engineer, "Go ahead the chain is all right." The engineer raised the stone; and in doing this, the chain caught the plaintiff's hand and injured it. Upon these facts, I think the plaintiff was entitled to go to the jury, and that the nonsuit was improperly ordered. The plaintiff was making the best of an unsuitable chain which he had complained of to Rombeau, and which Rombeau, after seeking for another, had told him he must get along with. Proceeding accordingly, and discovering that he had not got the chain right on the stone, — that it was not safe, — the plaintiff did what it was his duty to do, warned Rombeau of the danger, asked him to wait until he fixed the chain, and proceeded to fix it. Regardless of the plaintiff's notice that the chain was not safely adjusted, and regardless of the fact that the plaintiff was proceeding to fix it and had taken hold of the chain for that purpose, Rombeau, speaking with the master's authority, ordered the engineer to go ahead, and the plaintiff was injured in consequence.

I will take no time in considering the question of the defendant's liability growing out of the character of the chain furnished, because it does not satisfactorily appear, as the record shows, that any defect in the chain contributed to the injury.

As to the defendant's liability as affected by the negligence of Rombeau, it has been suggested that the record discloses no evidence that Rombeau knew or ought to have known that his order to hoist the crane would be attended with danger to the plaintiff. But it appears that he had just been told by the plaintiff that the chain was not safely adjusted, and asked to wait until the plaintiff could fix it. It being the plaintiff's duty to make proper adjustment of the chain, he had a right to assume, after notifying Rombeau that it was not safe and asking him to wait until he fixed it, that Rombeau would wait. And Rombeau, in the exercise of ordinary care, might have anticipated after such notice and warning that the plaintiff would proceed to fix the chain according to his duty, and that he would be imperiled if the chain was hoisted in disregard of his warning and request. That there was evidence for the jury of due care on the part of the plaintiff and of negligence on the part of Rombeau, in this connection, seems too clear for discussion.

As the case presents itself to my mind, the only question worthy of serious consideration is whether, assuming due care on the part of the plaintiff and negligence causing the injury on the part of Rombeau, the defendant is liable. The majority are of the opinion that the defendant is not liable, and upon the theory that the negligence of Rombeau was the negligence of a fellow-servant. From this conclusion I am constrained to dissent.

The plaintiff's injury resulted immediately and solely from Rombeau's order to the engineer to hoist the stone, in defiance of the plaintiff's warning that it was not then safe to do so, and while the plaintiff, as Rombeau knew or ought to have known, was endeavoring to make it safe. The order, under the circumstances, was obviously improper and negligent. As the plaintiff was injured in consequence, I see no reason in law, morals, or philosophy why the defendant master should not be held responsible. I do not contend, because the master had committed the superintendence of the men and works to Rombeau, that he became responsible for Rombeau's negligent performance of acts of common labor or fellow-service; but to say that an order, by one authorized by the master to give it, to others required by the master to obey, is an act of fellow-service, is to say what is manifestly not so, in disregard of elementary principles of agency and the dictates of reason and justice. This court turned away from such proposition in Griffin v. Company, 67 N.H. 287, 289, and it cannot be reconciled with views expressed in Jaques v. Company, 66 N.H. 482, Lintott v. Company, 69 N.H. 628, 632, and Lapelle v. Company, 71 N.H. 346, 349. If it finds any countenance in McLaine v. Company, 71 N.H. 294, I have only to say that the doctrine in that case did not have my approval, and I cannot assent to its application to the new and different situation presented here. In McLaine v. Company, the injury was caused by negligent omission on the part of the foreman to warn in accordance with his duty, assurance, and custom, and as required in order to make the working-place safe. In the present case the injury was caused by a negligent order, given by the defendant's representative in charge, in defiance of the plaintiff's warning that the situation was not safe and that the order should be deferred. In McLaine v. Company, I was unable to see how the duty of the master to warn, when established, as it admittedly was in that case, could be discharged by delegation, any more than any other duty incumbent upon the master (Jaques v. Company,66 N.H. 482; Olney v. Railroad, 71 N.H. 427, 430); any more, for instance, than the duty to warn in Simone v. Kirk, 173 N.Y. 7, Wheeler v. Company,135 Mass. 294, and Bjbjian v. Company, 164 Mass. 214, 220, or the duty to instruct in Lapelle v. Company, 71 N.H. 346, 349, and Tedford v. Company,134 Cal. 76, — 54 L.R.A. 85, and note, 96, 97, 98. So in the present case I am unable to see why an authorized order, given by one servant of the master to another, directing the latter to work in a particular place, is the act of the master (Lapelle v. Company, 71 N.H. 346, 349; Lintott v. Company, 69 N.H. 628, 632), any more than an authorized order by the same servant directing the progress of the work in that place.

It may be a question, under some circumstances, whether an alleged order was an order, or simply an act of fellow-service. But when the circumstances show that the alleged order was an act of authority, and that obedience thereto was a duty, then the order, whatever the grade of the giver or the nature of the order, must, if the reason and consistency of the law are to be preserved, be regarded as the order of the master.

Rombeau was the defendant's representative in command. The men and works were all subject to his direction. He did not operate, but had charge of the operation of the crane. The order in question was not a signal given by Rombeau in the ordinary course of the work and involving no exercise of authority. The circumstances were special. The plaintiff had told him that the chain was not safe, and had asked him to wait until he fixed it. Under these circumstances, Rombeau's order to the engineer to go ahead can be regarded in no other reasonable light than as an act of authority. It ignored the plaintiff's warning and left the engineer no alternative but disobedience. But for its official character, it might have spent itself in impotency. As it was, it set in operation the forces which caused the plaintiff's injury. If not an order, in the sense of being an exercise of authority, it would be difficult to conceive when an order would be of that character. To say that it was a mere act of fellow-service, would, under the circumstances, be a manifest misnomer. However other situations might be viewed, the proper classification of the present case would seem clear. It is the case of a negligent order, by one speaking with the authority of the master; nothing more, nothing less. That the master is liable under such circumstances, is a proposition sound in principle and abundantly supported by authority.

In Crispin v. Babbitt, 81 N.Y. 516, 530, the leading case to the proposition, now so generally accepted, that the nature of the act, not the rank of the actor, is the test of the master's liability, it appears from the dissenting opinion to have been generally assumed that an order by one authorized by the master to direct would be the master's act. And it was recently declared, upon a careful review of the authorities, that, "under any consistent application of the New York rule, . . . the master is represented, as by a vice-principal, by any one to whom he deputes the power of giving orders which must be obeyed without or before appeal; and he is responsible for those orders as much as if they were his own." Shearm. Red. Neg. (5th ed.), s. 233.

In Dayharsh v. Railroad, 103 Mo. 570, cited by this court in Jaques v. Company, 66 N.H. 482, 485, to the proposition that "those doing the work of a servant are fellow-servants, whatever their grade of service, and a servant of whatever rank, charged with the performance of the master's duty toward his servants, is, as to the discharge of that duty, a vice-principal, for whose acts and neglects the master is responsible," it was said: "It was undoubtedly within the scope of Mr. Stephens' authority as . . . `boss,' to direct where the engine and tender that struck plaintiff should be placed, and how and when they should be moved over the tracks. In giving directions to that end and seeing to their execution, we think he was performing the master's part, and as such was the representative of the latter and not a mere fellow-servant of the plaintiff." See, also, Foster v. Railway, 115 Mo. 165, 179, 180.

In Chicago etc. R.R. v. May, 108 Ill. 288, — 15 Am. Eng. R. R. Cas. 320, 323, 324, the true principle is well enunciated as follows: "The mere fact, that one of a number of servants who are in the habit of working together in the same line of employment, for a common master, has power to control and direct the actions of the others with respect to such employment, will not of itself render the master liable for the negligence of the governing servant, resulting in an injury to one of the others, without regard to other circumstances. On the other hand, the mere fact that the servant exercising such authority sometimes, or generally, labors with the others as a common hand, will not of itself exonerate the master from liability for the former's negligence in the exercise of his authority over the others. Every case, in this respect, must depend on its own circumstances. If the negligence complained of consists of some set done or omitted by one having such authority, which relates to his duties as a co-laborer with those under his control, and which might just as readily have happened with one of them having no such authority, the common master will not be liable. For instance, if the section boss of a railway company, while working with his squad of men on the company's road, should negligently strike or otherwise injure one of them, causing his death, the company would not be liable; but when the negligent act complained of arises out of or is the direct result of the exercise of the authority conferred upon him by the master over his co-laborers, the master will be liable. In such case he is not the fellow-servant of those under his charge, with respect to the exercise of such power; for no one but himself, in the case supposed, is clothed with authority to command the others. When a railway company confers authority upon one of its employees to take charge and control of a gang of men in carrying on some particular branch of its business, such employee, in governing and directing the movements of the men under his charge with respect to that branch of its business, is the direct representative of the company itself; and all commands given by him within the scope of his authority are, in law, the commands of the company. . . . In exercising this power he does not stand upon the same plane with those under his control. His position is one of superiority. When he gives an order within the scope of his authority, if not manifestly unreasonable, those under his charge are bound to obey, at the peril of losing their situations; and such commands are, in contemplation of law, the commands of the company, and hence it is held responsible for the consequences."

This rule was recently applied in the same jurisdiction, in Illinois etc. R. R. v. Atwell, 198 Ill. 200, where the court said: "It is insisted that the negligence charged is the negligence of a fellow-servant, and therefore plaintiff could not recover. While the foreman and Atwell may have been in many respects fellow-servants, they were not in that relation as to the exercise of authority by one over the other. The injury resulted from the improper exercise of the foreman's power to command, and in respect to the exercise of such power they were not fellow servants."

In Taylor v. Railroad, 121 Ind. 124, — 16 Am. St. Rep. 372, 374, 376, it is said: "It is not easy to conceive how it can be justly asserted that one who commands an act to be done and who possesses the authority to command, . . . by virtue of the power delegated to him by the master, is no more than a fellow-servant. . . . The duty of the master-mechanic, as it appears from the complaint, was to order what should be done; and this, it has been well decided, is intrinsically the master's act, and not that of a mere fellow-servant."

In Carlson v. Company, 63 Minn. 428, it was said: "The doctrine of `fellow-servant,' and particularly that phase of it presented by this case, to wit, when a superior employee bears to inferior employees under him the relation of vice-principal and when that of fellow-servant, is one of the most difficult questions in the law. The principle which this court has always announced as the test is, that it is not the mere rank or grade of the superior employee, but the nature of the duty or service which he was performing, which determines the question; that whenever a master delegates to another the performance of a duty which he owes absolutely to his servants, or which would fall within the line of his duty as master if personally present, then, in the performance of such acts, such other person would be, as to other servants, a vice-principal and not a fellow-servant. . . . For example, in hiring and discharging workmen the foreman in the present case would represent the master, and his negligence in the premises would be chargeable to the master. So also in the matter of selecting or inspecting implements and other instrumentalities for the performance of the work, assuming that this duty had been delegated to him. And where, as in this case, he had been given entire control of the work and all the workmen engaged in it, with . . . authority to give them orders how to do the work and where to work, I think that, on exactly the same principle, in giving these orders, which the workmen were bound to obey, he represented the master, and was performing a duty which would have devolved upon the master if personally present."

The subject was recently considered and the authorities reviewed, in an exhaustive note in 51 L.R.A. 513, 590, and the conclusion arrived at is thus stated on page 590: "There is an overwhelming weight of authority to sustain the doctrine that the liability to which the master is declared to be subject, wherever the negligent act is a direct result of the exercise of power conferred by the master, in the performance of a duty devolving by law upon him, is predictable in the case of orders issued in respect to the work, whatever may be the precise object to which those orders may have relation. It is, in fact, difficult to see what more indisputable example there can be of an `exercise of authority' than the giving of such orders; and for the purposes of the master's liability in this instance, it is obviously quite immaterial whether the delinquent employee be a mere `superior servant,' or a general departmental manager. According to the great majority of the cases, therefore, all that is necessary to fix liability upon the master is that the negligent order which caused the injury should be proved to be incident to the performance of the duties of his position." See, also, Shearm. Red. Neg. (5th ed.), s. 233; Galveston etc. R'y v. Puente (Tex.),70 S.W. Rep. 362.

Decisions of the supreme court of the United States have been cited in behalf of the defendant, but the latest judicial utterance from a federal source is quite in harmony with the principle for which I am contending. See Chicago etc. Co. v. Birney, 117 Fed. Rep. 72, where it is said by the court of appeals, 8th circuit: "It is . . . noteworthy that in the present instance the plaintiff was not injured by the negligent act of Bennett after he had descended to the plane of an ordinary laborer, and while he was assisting the plaintiff in doing the ordinary work of a laborer. He was injured in consequence of a negligent order given by Bennett, in the giving of which Bennett was obviously exercising the functions of the master." See, also, Northern etc. R. R. v. Egeland, 163 U.S. 93.

It will be observed that the authorities to which attention has been called do not proceed upon the superior servant idea, but upon the theory adopted in this jurisdiction: that the character of the act, and not the rank of the actor, is the test. They hold the master liable for the consequences of a negligent order given by his authorized representative, not because of the rank of the person from whom it emanates, but because of the intrinsic character of the act; because it is an order as distinguished from common labor — an act of authority as distinguished from fellow-service. The suggestion of the majority, that decisions proceeding upon the superior servant theory are without value and misleading, is, therefore, pointless as applied to the present discussion.

The fact, that in jurisdictions where judicial opinion has gone the extreme length of the opinion of the court in the present case, legislative action has been found necessary to restore the law to a basis in better accord with the principles of agency governing other relations and more in harmony with abstract justice 43 Vict. c. 42; Mass. Acts Resolves 1887, c. 270; Feltham v. England, L. R. 2 Q. B. 33; Moody v. Company,159 Mass. 70, 73; Roche v. Bleachery, 181 Mass. 480), does not weaken our conclusions. On the contrary, the revulsion, thus indicated, from the doctrine against which we are contending, is additional proof of its injustice. In matters where the courts are free to apply the law of reason, they should not await legislative action.