Dwyer v. American Express Co.

55 Wis. 453 | Wis. | 1882

Tayloe, J.

Upon the argument in this court the learned counsel for the appellant insists that the complaint shows that Colvin, who is designated in said complaint as “ the agent and manager of said company’s office in the city of Oshkosh,” is and was the vice-principal or “ alter ego ” of the defendant, and that consequently the defendant company is liable for any and all negligent acts done by him in his employment, by reason of which an injury results to one of its employees; that the agent of the defendant company must be held to be the embodiment or personality of the company, and his acts, done in the business of his company, must be deemed, for all purposes, the acts of the company itself. This was evidently the theory upon which the complaint was drawn. The complaint does not charge the negligence of the company as the cause of the injury, but does charge that the negligence of the agent caused it, claiming that because he was the agent and manager of the company his negligence was the negligence of the company as between itself and its employees,, as well as third persons.

The difficulty of this theory of the learned counsel is that the complaint does not contain any allegations which show what the duties and powers of this agent and manager were, or which tend to show that he was the vice-principal or alter ego of the company. The only acts shown to have been done by the agent in his employment are such as clearly show that he was acting as a co-employee of the plaintiff in performing the work of the defendant, and that, while so employed, his negligence caused the injury of which he complains. The plaintiff alleges that it was his duty, as employee of the defendant, to go to and from the railroad offices and defendant’s office with wagons, and receive, load and unload goods, wares and merchandise upon and from said -wagons; that he was engaged in that busiij^ss when he was injured; and that Colvin, the agent, was employed in driving the team. It seems to us very clear that if the business of the defendant was in part to transport goods to and from the railroad depots from its office in the city, and it was the duty of the plaintiff to load and unload such goods, and ride upon the defendant’s wagons to and from the city office to the railroad-depots in the performance of such duty, and at the same time it was the duty of the agent to drive the team in the performance of that work, then the agent and plaintiff were engaged in the performance of the same work for the defendant, and are co-employees within the most limited definition of that term. The complaint failing to set out any of the duties of the agent other than that he was engaged, at the time of the accident, in driving the team which drew the goods to and from the office to the depots, while the plaintiff was riding to and from and assisting in loading and unloading the same, an employment which clearly makes them co-employees, the court would not be justified in holding, as a question of law, that the agent, while doing that work, was not a co-employee with the plaintiff.

Designating Colvin as agent and manager does not convey any definite idea of the powers vested in such manager or agent. The court cannot presume from that designation that he had all the powers of the company and stood in its place for all purposes; and especially must this be so where the complaint itself shows that the only acts he did perform, and from which the injury resulted, were performed by him in the business of the defendant as a co-employee with the plaintiff.

If the complaint had alleged facts showing that Colvin was in fact the vice-principal of the defendant, and authorized and empowered to do all acts at the city of Oshkosh which the company was authorized to do, there would still remain the disputed question whether the company would be liable t^> the plaintiff for the negligence of such agent when in fact employed in the same work with the plaintiff. If the agent or manager had full power to act for the company at Oshkosh in all matters pertaining to its business there, and was also required to act as driver of the team in transporting goods, etc., to and from the office to the depots, the authorities are somewhat in conflict whether he would not be held as the plaintiff’s co-employee while so engaged, notwithstanding his ample authority in other respects, and whether, for his negligence in the capacity of driver, the company might not claim exemption from liability on the ground that the injury resulted from the negligence of a co-employee. Crispin v. Babbitt, 81 N. Y., 516; McCosker v. Railroad Co., 84 N. Y., 77; Berea Stone Co. v. Kraft, 31 Ohio St., 287; .Brickner v. Railroad Co., 2 Lans., 506-516; Wood on M. & S., §§ 438, 451, 453. Upon this question we give no opinion, as we are satisfied that the complaint does not state any facts showing that the agent, Colvin, stood in the relation of vice-principal of the defendant.

By the Court.— The order of the circuit court is affirmed, and the cause remanded for further proceedings according to law.