127 Ga. 609 | Ga. | 1907
(After stating the facts.) The petition alleged that N. S. West was the vice-principal of the defendant, and the defendant contends that the - evidence introduced failed to establish this allegation, and that, under the evidence, West was only a fellow-servant, and hence the defendant was not liable to the plaintiff for his negligence. The case absolutely turns on this question; for, as to the other allegations of the petition, the evidence of the plaintiff is sufficient to establish them as they are therein laid. The entire evidence on the subject of whether West was the vice-principal or a fellow-servant will be found quoted in the language of the witnesses in the statement of facts.
What is known as the fellow-servant rule is thus stated’ in the code: “Except in case of railroad companies, the master is not liable -to one servant for injuries arising from the negligence or misconduct of other servants about the same business.” C-ivil Code, §2610. The term “vice-principal,” as used in the law of fellow-servants, has been defined as including any servant who represents the master in the discharge of those personal or- absolute duties which every master owes to his servants. Employees charged with the duty of providing machinery and appliances, the place to work, the inspection and repair of premises and appliances, the selection and retention of servants, establishment of proper rules and regulations, and the instruction of servants, have all been -held to occupy the position of vice-principals to the master, so as to render him liable to any servant for a dereliction of duty on their part. The above enumeration is not intended to be exhaustive of all the absolute duties that the master may owe to his servants, but simply illustrative of what are such duties. There may be duties of this class other than those referred to. Whenever the law imposes upon the master a duty towards the servant which is absolute in its nature, the master can not escape responsibility for failure to discharge this duty by merely assigning it to a servant, no matter what his grade or class in the service. It is not the position of the servant in the service that fixes the liability of the master, but it is the duty which the servant is performing towards- other servants. 12 Am. & Eng. Enc. Law (2d ed.), 948 et seq.; 2 Labatffs Mas. & Ser. §508 et seq.; 6 Cur. Law, 555 et seq.; 8 Words & Phrases, 7313, “Vice-Principal.” For convenience those
There are numerous decisions, of courts of high standing that an employee- to whom the master has entrusted the entire management and supervision of a distinct and separate department of business is a vice-principal. In Brush Elec. Light Co. v. Wells, 110 Ga. 192, the present Chief Justice, in an able and elaborate opinion, demonstrated that this is not, and never has been, the rule in this State, the older cases which apparently Recognize this rule not being, for the different reasons pointed out by him, authoritative declarations on the subject. There are probably some cases from which it might be inferred that the rule laid down is that the mere exercise by an 'employee of the supervision of the work in which other servants are engaged is one of the absolute duties of the master; but this doctrine has not met with general favor. Mere supervision, and nothing more, by one of a number of servants, over the work in which they are engaged, will not necessarily raise the employee from the position of a fellow-servant to that of a vice-principal. Supervision of the work, when coupled with the discharge of other duties in connection therewith, may have this effect. Bloyd v. Ry. Co., 58 Ark. 66, 41 Am. St. Rep. 83. The question at last, in each case, is whether the person charged as vice-principal was performing towards the injured servant a duty which the master owed to that servant and which the servant had a right to expect would be discharged by the master, and which the master could not avoid or shirk by placing the responsibility upon another person. When the business-of the master is of such character that engagement therein by the servant involves danger to him, whether it be from the use of machinery or otherwise, unless the danger is.apparent, the master is bound to warn the servant of all dangers of which he may have knowledge, or could, by the exercise of ordinary diligence, discover. The master is also bound to instruct inexperienced servants, without reference to their age, in the operation of machinery and appliances with which they are not acquainted. He is likewise bound to make rules and regulations for the conduct of his business, so that the machinery and appliances therein may be so operated as to promote the safety of his servants. He may formulate and promulgate rules to be followed by his servants in the conduct of his
A servant is bound to obey the order of his master unless the command includes a violation of the law, or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it. Where the master himself gives the order and the servant obeys it, and is injured as-a consequence thereof, of course the master is liable. If the order is given by a 'representative of the master, who occupies towards him the position of vice-principal,- the same result follows. There are some -cases holding that where a servant obeys an order from another ■servant, it is not necessary that such servant shall occupy the position of a vice-principal in order to render the master liable; but the cases in which this rule is apparently laid down are subject to serious criticism. A mere servant can not become a vice-principal by an usurpation of authority which the master has not conferred upon him. 1 Labatt’s Mas. & Ser. §433 et seq.; Hilton Co. v. Ingram, 119 Ga. 652; Ingram v. Hilton Co., 125 Ga. 658; Chenall v. Palmer Bride Co., 125 Ga. 616. There does not seem to be any good reason why the servant may not occupy a dual relation to other servants of a common master. One person may dis
It is the duty of the master to lay down rules to be followed by the servant.s in the operation of dangerous machinery. Such a rule is in the nature of a command to the servant, which he must obey unless obedience involves an act of recklessness or disregard of one’s own safety. If the master, instead of promulgating a general rule and giving notice thereof to the servants, imposes this duty upon another servant in his employ, and such servant gives a command, it is the command of the master. The servant’s voice is the voice of the master, and must be heeded as much as if it came from the mouth of the master himself. Of course it is not the master’s duty to provide specific rules for every detail in the operation of his business; and one may be .in a position where his giving orders in reference to the master’s business would, on account of their character, not be orders emanating from the master. But whenever the order is of a grave nature relating to the operation of dangerous machinery, and is a general order to be followed under all circumstances, and not merely casual or in reference to a mere matter of trivial detail, amounting merely to an act of supervision only, the order must be construed as the order of th'fe master, and not the order of a mere fellow-servant. ,When a servant seeks to hold a master liable on account of his having obeyed an order given by another servant, it is incumbent on him to show, not only that the order was given and obeyed, but that the order was of such character as that the instruction in reference thereto must, from the nature of things, have emanated from the master, and that the servant who gave it was authorized by the master to give the order in the particular case, or that the scope of his em
In McDonald v. Mfg. Co., 68 Ga. 839, it is held that a workman engaged in the same job with two or three others, having the direction of it, is not a general superintendent of a corporation, so as to bind it as such, but stands on the footing of a mere fellow-servant. In that case the alleged superintendent was engaged in the work with the other servants. He was doing the work of a servant at the time that the husband of the plaintiff lost his life, and the death of the plaintiff’s husband did not result from obedience to any order or command given by the alleged superintendent. If he had left the field of a mere coservant and given a command in regard to the work which, from its nature, must have been the command of the master, and the death of the plaintiff’s husband had resulted as a consequence of obedience to such command, the case would have been different. He was at most merely exercising the right of supervision, which will not, alone, make him a vice-principal. The case of Atlanta Cotton Fac. v. Speer, 69 Ga. 137, rested really upon the principle that the master is bound to provide his servants with a safe place to work. While it is true that the plaintiff, a young girl of 15 years, was not injured while actually at work, she was injured upon the premises of the master in a room where she and her companions were placed preparatory to leaving the premises after the work of the night had been completed. They had worked until after midnight. It was unsafe for them to attempt to leave for their homes at that hour of the night, and idle servant in charge of them placed them in a room for the purpose of protecting them until daylight, when they could safely go upon the streets. The duty of providing the servants with a safe place to work properly includes the duty to provide them with a safe place to stay after their work is concluded, when the manner in which the master carries on the work is such that
In Augusta Factory v. Barnes, 72 Ga. 217, the suit was by a father for the loss of service of a minor child, resulting from the death of the child as a consequence of injuries received while the servant of defendant. While Mr. Justice Hall, in the opinion, states that the case might have been referable to the principle that the master owes a higher degree of duty to children of tender years in his employ than to adults, the decision is not placed on that proposition. The case is founded upon the proposition stated on page 228, that when the plaintiff used all ordinary care and diligence to avoid the injury occasioned by the negligence of the master’s other servants, with whom he was disconnected at the time, and where he was acting in obedience to the orders of another servant over him, whose orders he was bound to obey, a right of recovery existed. The doctrine that a- certain class of orders, given by one servant to another, are to be treated as the orders of the master, and not merely, the direction of another servant, is distinctly recognized in this case, even if it is not fully elaborated. Krogg’s case, 77 Ga. 202, is properly referable to the principle that one charged with a duty of providing a safe place for work is the vice-principal of the master. In McGovern’s case, 80 Ga. 227, the plaintiff was a workman in the picker room of the factory, with two others, one of whom had the direction of the work therein as foreman. He was injured by this foreman starting the machine without warning. This ease falls within the rule laid down "in McDonald’s case, for the reason that the injury was not the result of any command emanating from the foreman, of a character which would be treated as a command of the master, and that the foreman seems to have been vested only with the right of mere super
In Spencer v. Brooks, 97 Ga. 681, it'was laid down, as a general rule, that the conductor in charge of a regular passenger or freight train, and having, as such conductor, full control of its movements, is not, while in the performance of the usual and ordinary duties with reference thereto, a fellow-servant with the engineer, fireman, and brakeman working under his orders. Under such circumstances the conductor is the vice-principal of the railroad company or of receivers operating it under orders of a court. As the operation of trains of the character referred to is attended with more nr less danger, in the details necessary to the management and control of the same, the person upon whom devolves the general control and management of the train discharges, as to the other employees, duties which the law imposes upon the master, and he occupies, in relation to the other employees, the position of the master in the discharge of such duties. In Taylor v. Ga. Marble Co., 99 Ga. 512, the employee held to be a vice-principal not only had control of all the servants working with him, but was vested by the master with authority to employ the servants under him, and they were bound to obey his orders. In Blackman v. Thomson-Houston Elec. Co., 102 Ga. 64, the employee held to be a vice-principal was vested with authority to change the place of work of other employees, and also was charged with the duty of providing the appliance, the defect in which caused the injury to plaintiff. The case of Cates v. Itner, 104 Ga. 679, is similar to the McDonald ease and the McGovern case, the employee alleged to be the vice-principal at the time of the injury being engaged in the work with the plaintiff and other servants, and exercising the mere duty ■of supervision, and therefore standing only on the footing of a fellow-servant. In Stanley v. R. & D. Extension Co., 72 Ga. 202, while it appeared that the injury resulted from obedience to an order given by an alleged boss, it did not appear what relation this alleged boss sustained to the injured employee or his associates. Under such circumstances, the plaintiff failed to make out a case,
In Hamby v. Union Paper Mills Co., 110 Ga. 1, the plaintiff’s right to recover was defeated upon the ground that the proximate-cause of his injury was his own want of care. If there are any expressions in that case in conflict with the rule laid down in the Barnes case, the decision must yield to the older ruling. In' Ellington v. Beaver Dam Lumber Co., 93 Ga. 53, it is simply held that a track-hand, who is carried to and from his work upon the train of his master, is a fellow-servant of the engineer and fireman in charge of the train. This decision followed the ruling in. Prather v. R. & D. R. Co., 80 Ga. 427, and White v. Kennon, 83 Ga. 343. The same ruling is made upon a similar state of facts in Railey v. Garbutt, 112 Ga. 288. In Gunn v. Willingham, 111 Ga. 427, the person who it was claimed was a vice-principal in that case was properly held to b.e a fellow-servant only, for the reason that he was working with the other servants and was vested merely with the duty of supervision. In City Council of Augusta v. Owens, 111 Ga. 464, the employee held to be a vice-principal was-vested with authority to direct the movements of the laborers in his charge, he did not join with them in the work, and the injury to the laborer was the result of obedience to an order given by such person; an order of the character referred to being held an. act of negligence on the part of the master. The ease of Cedartown Cotton Co. v. Hanson, 118 Ga. 176, is similar to the McGovern ease. This is also true of Shepherd v. Sou. Pine Co., 118 Ga. 292. In Moseley v. Schofield’s Sons Co., 123 Ga. 197, it was held that while the words “superintendent, or foreman” do not necessarily import that the employee to whom such term was applied, was the alter ego of his employer, yet where it was also alleged that such superintendent or foreman had authority to employ laborers and was in charge of the work, this was sufficient allegation that such employee was the vice-principal of the master. In. Moore v. King Mfg. Co., 124 Ga. 576, the servant held to be the vice-principal was the .general manager, having charge of all the work, invested with authority to employ hands and lay out and
There is no decision of this court which we have been able to find which lays down, in terms, the rule that one is a vice-principal of the master only who is discharging one or more of the nonassignable duties of the master. While we have not cited, by any means, all of the cases relating to this subject, those cited are sufficient in number to show that there has been, with little variation, a steady inclination on the part of the court to adhere to this rule in its application to the particular facts then under consideration. See Hopkins, Pers. Inj. §275 et seq. We think we have shown that in the other cases cited, where this rule has been apparently departed from, the departure was only apparent, and, while there may be some language of the Justice rendering the opinion that would indicate a departure, that when the facts of the case are critically examined they may all be grouped into the class in which the master has only been held liable for the act of a servant in which* such servant was discharging, as to the other servants, a non-assignable duty of the master. What is known as the superior-servant rule has never been adopted in this State. While there are some decisions which would indicate a leaning towards that rule, as has been said, upon an examination of the facts, it will appear that that rule was not applicable, but the case was resolvable under the rule in reference to the non-assignable duties of the master. The superior-servant rule seems to have had its origin in Ohio. The rule, as promulgated by the Supreme Court of that State, was that where one servant is placed, by his master, in a position of subordination to another, and subjected to his
It has been said that the superior-servant rule was followed by this court in Atlanta Cot. Fac. v. Speer and Blackman v. Thomson-Houston Elec. Co., supra; but from what has been said above in reference to these decisions, we think they can be, under their facts, properly referred to the rule in regard to the non-assignable duties of the master. The only decisions that this court has ever made indicating the adoption of a rule in the nature of the superior-servant rule are those in cases where it is held that the conductor of a train is the vice-principal of the railway company; but these can be classed in the group of cases laying down the rule in reference to,the non-assignable duties, when it is kept in mind that the operation of a railway train is always attended with more or less danger to the employees thereon, and that the orders of the conductor in reference to these dangers and the work are-really the orders of the master. The rule which is most consistent with an accurate conception of the true law, and which seems to be supported by the vast preponderance of common-law authority, as well as by the rulings of the courts of high standing in this •country, is that a servant who is charged with the performance of one or more of the master’s personal duties is the representative of the master, and his negligent act is the negligent act of the master. That is, the test as to whether a servant is a vice-principal or a fellow-servant does not depend upon his title, or his grade, or the oharacter of the work that he is engaged in, but it depends upon the act which he is doing which results in the injury. If his act is that which the law requires of the master relatively to the servant, his act is the act of the master. 12 Am. & Eng. Enc. L. (2d ed.) 933. This court has never adopted the view that the mere duty of supervision is a non-assignable duty' of the master. In fact this view has been rejected in cases like the McDonald case
In the present case there was evidence that N. S. West was. superintendent over the hands of the Dublin Cotton Mills, and that he was the overseer. This alone was not sufficient to show that he was the vice-principal. The evidence showed further that he had charge of the work and the hands, and that the plaintiff was working under his orders. This alone, without evidence as to what occurred or what brought about the injury, would’ probably not be sufficient to show that West was the vice-principal. It would depend altogether upon the character of the order. In other words, before the servant would take rank as a vice-principal of the master, it must appear that he is vested with authority to -give those orders which the servant of a master is entitled to regard as coming from the master himself. Orders in reference to mere matters of trivial detail amounting merely to supervision in the operation
The duty of the plaintiff was to clean the- machine at stated times. This work could be done either with the machine running or with it stopped. There was a latent danger to be encountered when the work was done with the machine running. The plaintiff, according to the testimony, did not know of this latent danger. The evidence authorized a finding that the master either knew of it, or could have known of it-by the exercise of ordinary diligence. As the evidence shows that the superintendent ordered the plaintiff, in positive terms, to clean the machine while it was running, it was for a jury to determine whether he was in the performance of an act which was a part of the mode and manner of the master’s business, and whether the command of the superintendent was, under all the circumstances, the command of the master. Whether the danger in the performance of the act in the manner directed by the superintendent was not so obvious to the plaintiff that he was guilty of negligence in obeying the command was also a question for the jury. It must .be kept in mind that the order involved in this case was not a mere direction for one occasion only, but it was a rule laid down for observance by the servant to be followed at stated intervals, and was of such nature that the plaintiff, from all the circumstances, had the right to presume that in the superintendent’s order he heard the voice of the master. He not only heard the voice of the master, but he heard it speaking in reference to a matter which should be controlled by his voice. The evidence proved the allegations of the petition substantially as laid, and it was error to grant a nonsuit.
Judgment reversed.