204 Pa. 517 | Pa. | 1903
Opinion by
It does not seem to be disputed that the appellee was injured through the negligence of some one, but the appellant says he is not the person who was guilty of it. He insists that, under the undisputed facts in the case, the suit ought not to have been brought against him but against McDonald, Fogle & Company, a corporation chartered by the state of West Virginia, in whose actual employ the plaintiff was at the time of the accident. On November 22, 1897, a contract was awarded by the United States government to C. I. McDonald, the appellant, which included the building of a lock and dam on the Monongahela river at Morgantown, West Virginia. There was a clause in it prohibiting its assignment, but, on January 18, 1898, McDonald assigned it to the corporation named. The court below properly held that the plaintiff in this suit could not raise the question of his right to make the assignment, and that McDonald owned the larger portion of the stock of the corporation was not material.
Patton, the plaintiff below, testified that he saw by the papers that the contract had been awarded by the government to McDonald, and, in February following, called to see him; that in the latter part of June, 1898, he called upon McDonald at his office, in pursuance of a postal card received from him in reply to a note he had written him; and that after calling upon McDonald he “ hired with him ” as carpenter foreman in the construction of the lo k and dam on the Monongahela river. When Patton called to see McDonald in February, the contract had already been assigned to McDonald, Fogle & Company, and, when he contracted to serve as carpenter foreman, the work was being prosecuted by the corporation. Nowhere in his testimony does the plaintiff state that McDonald told him
All that can be gathered from the testimony of the appellee and other employees of McDonald, Fogle & Company called by him is, that they had been hired in the first instance by McDonald and directed by him to go to work, without a word or representation of any kind by him that he was the contractor and that they were to work for him. The assumption of the plaintiff is, that, because he saw in a newspaper an announcement that the contract had been awarded to McDonald and he had “ hired
Some of the employees of McDonald, Fogle & Company, called by the appellee, testified that they were employed by Mr. McDonald personally, and yet, on the cross-examination of some of them, it was clearly developed that they ought to have known their real employer was McDonald, Fogle & Company. G. M. Cryster, one of them, was confronted with the following order for his transportation, which he says he did not-read, when he was sent to Morgantown to go to work:
*521 “ An Order for Transportation.
“McDonald, Fogle & Company,
“ Incorporated,
“ Contractors.
“ Morgantown, W. Va. , Sept. 10,1898.
“Pittsburg & Morgantown Pack. Co :
“ Dear Sirs: Please carry tlie bearer, M. G. Cryster from Pittsburg to Morgantown at our rate of §1.00.
“ Yours respectfully,
“ McDonald, Fogle & Co.”
Christian Winterburg, another witness, was paid by a check of McDonald, Fogle & Company, drawn against its account in the Bank of the Monongahela Yalley, for §38.97. Still another, Robert Ross, was paid by the corporation by its check drawn on the same bank.
Turning to the evidence submitted by the defendant, we find the uncontradicted facts to be, that, by formal action of the board of directors of McDonald, Fogle & Company, the company had taken a transfer of the contract from McDonald several months before he saw Patton; that it at once commenced the work of constructing the lock and dam; that machinery and materials were shipped to it in its corporate name; that all bills for consignments to it were paid by the checks of the company, drawn against its account in the Bank of the Monongahela Valley; that, from time to time, it gave its employees, in its corporate name, orders on J. C. Pickenpaugh, which were accepted by them; that kegs of nails which were used by the appellee had been consigned to and marked “ McDonald, Fogle & Company;” that the company had an office on the ground, on which there was a sign “ McDonald, Fogle & Company,” giving the office hours; that its tools were all marked “ McD. F. & Co.,” and that its secretary paid the men, including the appellee. The learned trial judge charged the jury that McDonald “ could not escape responsibility by secretly, as between him and this man, having this company do the work instead of him, if he was the real employer and the other party worked without a knowledge that the company was doing the work;” and that, if McDonald, as an individual, hired the plaintiff, and, as an individual, put him to work, and the plain
There is no allegation or proof that C. I. McDonald was present when the accident occurred, or that he was personally superintending the work at the time. The averment, on the contrary, is that one Fogle, the superintendent for McDonald, was guilty of the negligence complained of: and this is the material allegation to be proved, if; under the rule, respondeat superior, McDonald, as the master, is to be liable for the negligence of Fogle, alleged to have been his servant. Proof cannot be found in the testimony supporting this material allegation of the plaintiff. Even if McDonald, as an individual, did hire Patton, and the latter’s contention on this point could be sustained, he did not hire him to be protected against the negligence of the employee of another; and yet such is the appellee’s case under the testimony before us. Fogle was not McDonald’s employee; he was, beyond dispute, the employee of McDonald, Fogle & Company. He could have but one superior to answer for his dereliction of duty. Thatsuperior was not McDonald; it was the corporation that had employed him, for which he was working at the time the accident occurred and to which alone Patton can say “ respondeat,” if he was negligent. “ A person, either natural or artificial, is not liable for the acts or negligence of another, unless the relation of master and servant or principal and agent exists between them:” Painter v. Mayor, etc., of Pittsburg, 46 Pa. 213. “ The immediate employer of the agent or servant, who causes the injury, is alone responsible for such injury; to him alone the rule of respondeat superior applies, and there cannot be two superiors severally responsible:” Wray v. Evans, 80
The learned judge, in his opinion refusing a new trial, cites Goodwin v. Smith, 66 S. W. Repr. 179; but there is nothing in it to sustain him. There, a partnership had employed a man to work for it, and he had been working for it sometime before May 15, 1900, the day he was injured. On that day, the members of the partnership merged the firm, with its assets and liabilities, into a corporation, to continue the business with the same relative positions of the partners. The corporation was not entitled, under its charter, to begin business until the very day the plaintiff was injured. There was no apparent change of ownership and nothing to show that the partnership had ceased to exist and that the corporation had succeeded to it at the time ,of the accident. That the case so relied upon by the learned trial judge has no application to the present one is clear from the following extract from the opinion of the court: “ According to the proof, the most that can be said in favor of the corporate proposition is that the partners had determined to merge the firm, with its assets and liabilities and the partners’ holdings, into a corporation, with the same relative positions among themselves. But it is not pretended that any knowledge or information of this change was actually given to appellee or to other employees. Under the proof the court would not be authorized to say as a matter of law that appellee was employed by a corporation of whose existence he had not learned. There was no contract of employment entered into on May 15, 1900. The old contract simply continued, and appellee went to work as usual. He had been engaged by the partnership, and had neither been discharged nor re-employed.” If in the case now before us, McDonald, as the actual contractor, while prosecuting the work, had employed Patton, and subsequently, without the knowledge of the latter, had assigned the contract to the corporation, the case relied upon might have some application. In Thorpe v. New York Central & Hudson River R. R. Co., 76 N. Y. 402, and Pennsylvania Co.
Further discussion could not make it plainer that the employment here was what we have already styled it—an ordinary, everyday transaction, in which a representative of a company, having an interest therein, hires and sends into its service men • seeking employment; and, no matter how the terms of the contract entered into may be enforced against the person doing the hiring, his liability does not extend to the negligence of the person or company for whom he employs the workmen. In the absence of deception or actual misrepresentation, liability for negligence can be enforced only against the person actually guilty of it. Binding instructions should have been given to the jury to render a verdict in favor of the defendant. The fourth assignment of error is sustained, the judgment is reversed and is now entered for the defendant.