Middleton v. P. Sanford Ross, Inc.

213 F. 6 | 5th Cir. | 1914

SPIELBY, Circuit Judge

(after stating the facts as above). This is an action under section 4424 of the Georgia Code, brought by Mrs. Annie Middleton, a citizen of Georgia, against P. Sanford Ross, Incorporated, a New Jersey corporation, for damages for negligently causing the death of Edwin Middleton, her husband. The court below sustained a general demurrer to the petition (202 Fed. 799), and that ruling is assigned as error.

The decisions cited by the trial court (Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. 433, 28 L. Ed. 440, and Kreigh v. Westinghouse, Church, Kerr & Co., 152 Fed. 120, 81 C. C. A. 338, 11 L. R. A. [N. S.] 684), are suits by a servant against his master for injuries caused by the alleged negligence of the master—cases which deal with rules applicable to the relation of master and servant. The instant case is not one that involves the relation of' master and servant; that is, the relation of master and servant did not exist between the defendant corporation and the plaintiff’s deceased husband. If it appears that Middleton, the decedent, was not on the premises as the servant of the defendant, and, in fact, was not the servant of the defendant—that the relation of master and servant did not exist between them—it becomes obvious that the authorities relied on to sustain the decision below are not controlling.

[1] It is alleged in the petition that the defendant corporation is engaged in the business of owning and operating dredges and other boats; that on March 22, 1912, it was engaged at a wharf in Savannah river in rebuilding one of its dredge boats that had been damaged by fire; that E. D. Van Winkle was the superintendent of the defendant in charge of the work, and “was its alter ego at the time and place herein referred to.” John Rourke & Sons, a firm of machinists, were employed by the defendant to install an engine on the dredge boat. Edwin Middleton, plaintiff’s deceased husband, was in the employment of John Rourke & Sons as their foreman, and was to have superintended the installation of the engine in the dredge after it was placed imposition, tie was not engaged in the work at the time of the accident, and none of the employes of John Rourke & Sons was then engaged in such work. The work out of which the accident occurred “was being done entirely by the defendant corporation, its servants and employés.” So it is affirmatively alleged that Middleton, who was killed, was not in the employment of the defendant, but that he was in the employment of John Rourke & Sons; that is, he was the servant of John Rourke & Sons, independent contractors employed to do a specific piece of work; and the servant of such independent contractors was not the servant of the defendant. 1 Labatt’s Master & Servant (2d Ed.) § 34; Otis Steel Co. v. Wingle, 152 Fed. 914, 82 C. C. A. 62. It also ap? pears that the time had not arrived for John Rourke & Sons to begin their work of the installation of the engine. The defendant was, by moving timbers and machinery, getting the dredge ready for the engine to be installed; and, when it was ready, John Rourke & Sons, acting by their servant and foreman, Middleton, were to begin their work of installation. The decedent was undoubtedly on the premises lawfully —he was there to begin the work of installation of the engine when the defendant was ready for him to begin. Clearly the plaintiff’s right of action cannot be defeated on the theory that her husband was the servant of the defendant, and that therefore those in charge of the dredge and engaged in the work, and guilty of the alleged negligence, were his fellow servants. Middleton, the decedent, was the servant of an independent contractor, and not the servant of the defendant, the employer of the independent contractor. And he was on the premises, if not by express, certainly by implied, invitation, for he was there to install the engine when the dredge was ready for that work to be done.

The acts of negligence charged are the acts of persons employed and acting for the defendant corporation. Middleton, the decedent, was not participating in the work of getting the dredge ready for the installation of the engine, nor were his employers, John Rourke & Sons. Middleton, the decedent', was a stranger to the work then being done. His death, it is charged, was Caused by the negligence of the defendant’s servants.

“One who employs a servant to do his work is answerable to strangers for the negligent acts or omissions of the servant committed in the course of the service.”

This rule, though modern, is now elementary. Standard Oil Co. v. Anderson, 212 U. S. 215, 220, 29 Sup. Ct. 252, 53 L. Ed. 480.

. [2, 3] If the averments are not sufficient to- show that Middleton, the decedent, was employed to be on the premises, they are certainly sufficient to show that he was there by invitation. Invitation of the owner or occupant is implied by law where the person goes on the premises for the benefit, real or supposed, of the owner or occupant, or in a matter of mutual interest, or in the usual course of business, or for the performance of some duty. Shearman & Redfield on Negligence (1913 Ed.) § 706; 1 Thompson on Negligence, §§ 968-972; West India & P. S. S. Co. v. Weibel, 113 Fed. 169, 51 C. C. A. 116. And the owner or person in possession of the premises owes it as a duty to those who come on the premises by invitation, express or implied, to exercise reasonable or ordinary care to keep and maintain his premises in safe condition. Indermaur v. Dames, 1 E. R., C. P. 274; Huey v. Atlanta, 8 Ga. App. 597, 70 S. E. 71; Butler v. Lewman, 115 Ga. 752, 758, 42 S. E. 98; The Montrose (D. C.) 179 Fed. 1000; Pioneer S. S. Co. v. McCann, 170 Fed. 873, 96 C. C. A. 49. And he owes such duty to independent contractors and their servants. 1 Thompson on Negligence, § 979.

We cannot, of course, foresee how the case may appear from the facts upon a trial on the merits, but we are of the opinion that the petition is not subject to a general demurrer.

Reversed.