38 S.E. 911 | N.C. | 1901
From a careful review of the evidence, we find that it establishes a prima facie case, and his Honor (362) erred in sustaining the motion to dismiss, as in case of nonsuit, and in not submitting the issues to the jury. The evidence shows that defendant, in running his mill through *269 agents, had one general superintendent who hired and discharged hands, and also had spinning room superintendents, bosses or overseers, who controlled and directed the hands in the performance of their work, and also sometimes hired and, in case of disobedience, of which they were the judges, discharged the hands under them. Burrus was a spinning room superintendent or boss or overseer, and was in command of the department in which plaintiff, a ten-year-old boy, was a floor-sweeper. Burrus' reputation was bad among mill men; that is, he was mean to children and his help, and it was generally known — and had been so for years — at Albemarle, Concord, Salisbury, and elsewhere, where he had worked in mills. Notwithstanding this fact, which ought to have been known to defendant, he was employed in this mill and placed in control of others, including this boy of tender years. And herein lies the principle involved in this appeal.
In employing servants, the master is under obligation not to associate in competent ones with the skilled and competent to their hurt and injury. So much the more, then, is it the duty of the master not to employ unskilled and incompetent bosses or overseers, who are to act in his place and stead over subordinates who are under their care and control and subject to their orders.
It does not appear that Burrus was unskilled, but his incompetency for the supervision of children and other like help is apparent and emphasized by his bad character for being mean to children and other help. We have no reason for judging that such character was not actually known to defendant; it was generally known among mill men, from whom he might have informed himself if he had inquired, and it was his duty to have been reasonably diligent in obtaining the information before entrusting such care and responsibility to him.
In the enlargement of our business and industrial (363) enterprises, made necessary by the rules of economy, it is frequently impossible for the master to give a personal supervision and direction to the business. "It is now universally held in American Courts that a master always may and some times must have a servant who acts as his representative oralter ego towards other servants, and that for the negligence of such representative, while acting as such, the master is responsible to the other servants, precisely as if it were his own." Shear and Redf. Negligence (5 Ed.), section 226.
While he is responsible to fellow servants for a failure in duty in not using ordinary care in selecting competent servants, he is also under obligation to them to exercise due care *270 and caution in the selection of his representative or alter ego, who orders, commands and controls those committed to his charge.
In the case now being considered, there is no evidence of the unskillfulness of the boss, Burrus, but the evidence shows that he was unfit and incompetent to perform the duties of supervising children and the help under him by reason of his cruel nature and high temper, demonstrated by his treatment of the plaintiff on the day before as well as on that of the injury, which had become so well known as to establish for him a general reputation extending back for six or more years in the divers mills and towns in which he had worked. It is clear that the master would have been responsible for injuries inflicted upon the servants by him, had he (the master) known of such traits of character; and it is equally as clear that he could have obtained the information had he seen fit to inquire; or, having inquired, knowingly and voluntarily assumed the responsibility in employing him and placing him in that responsible position. It is true that the burden of proof is (364) upon the plaintiff to show negligence upon the part of the master, but in this case it is done and is not contradicted. Had the master committed the assault, his liability would not be questioned. Then why not be responsible for his representative whom he knew (or ought to have known) to have been of such nature and character that the like result would follow? Under the contractual relations existing between plaintiff and defendant, it was the duty of the plaintiff to render proper service and obey the commands and directions of his superiors in the service. It was likewise the duty of the defendant under these relations to appoint as his representative a fit and competent person — not one of a cruel and mean nature, who would use violent means in urging the performance of duty. We do not wish to be understood as holding that the master is generally an insurer of the good conduct of his representative, or an insurer against his violence resulting from his own malice or ill will, or sudden outburts [outbursts] of temper, although in charge of the master's business; but only when he puts in such representative as is by him known, or ought to have been known, to be violent and mean, and the injury is the natural result of such character. It was the duty of Burrus to keep the servants at work and superintend the same, but it was no part of his employment to inflict corporal punishment in behalf of the master.
In Daniel v. R. R.,
Had the plaintiff been injured by dangerous or defective machinery used by the defendant in running his mill, while in the performance of the workassigned him, we would consider the contention upon that subject. But it appears that the injury received was caused by the violent handling of plaintiff by defendant's alter ego in urging him to the proper performance of his work. The obligation to furnish reasonably secure machinery and appliances is limited to the use of those in its employ, and not to provide against accidents to those who might, by violence not anticipated, or negligence, or those uninvited, come in contact with it. The injury inflicted by the shoving of plaintiff by Burrus might have been even more serious, had he fallen upon the floor, by the breaking of a limb, or still more serious by the falling down a stairs, or out of a door, or upon some pointed implement lying in the wayside.
There is error.
Cited: S. c.,
(366)
