176 Ind. 542 | Ind. | 1911
This cause was transferred to the Supreme Court by the Appellate Court with its recommendations.
Appellant instituted an action for damages for personal injuries. Two paragraphs of complaint were filed, one of which was withdrawn, and a demurrer was sustained to the other, from which ruling plaintiff appeals.
The material allegations of the complaint on the subject of the negligence claimed are that on March 27, 1905, plain
Do these subdivisions undertake to create a liability from obedience to an order only, or also from the negligent act of one whose position is such that others are bound, from the fact of his position, to obey, or conform to his orders, irrespective of the thing about which he is acting, or the manner in which, or the circumstances under which it is done, from which injury arises? That is, Does liability arise from the fact of direct conformity to an order only, or does the negligent act of the one occupying a position which commands obedience create liability where the act is done during the time of conforming to the order?
It has also teen held that a special order may arise within the scope of the general employment, and that a general order is one under which the servant works at his discretion, without compulsion of an order. The order here to go upon the hand-ear was less broad than the general scope of the employment, under the allegations of the complaint, and the injury arose in conforming to it. McElwaine-Richards Co. v. Wall, supra; Southern Ind. R. Co. v. Harrell, supra; Indianapolis St. R. Co. v. Kane, supra.
It has been intimated, if not decided, that an order need not be negligent in itself in order to authorize a recovery, if injury arises while complying with it, by an act of one authorized to give it. Muncie Pulp Co. v. Davis (1904), 162 Ind. 558, 561; Indianapolis Gas Co. v. Shumack (1899), 23 Ind. App. 87.
It is alleged that the foreman had exclusive control over the hand-ear, and was the only person who had authority to control its movements and operation. The case is not like that of Thacker v. Chicago, etc., R. Co., supra, as to the first, second and third paragraphs of complaint, which were held bad because the order given by the foreman to stop the car was not negligent in itself, but executed by another in a negligent manner, while the fourth paragraph of complaint was held good because it alleged the giving of the order by the foreman to stop the car suddenly. Here the allegation is that the foreman himself did the negligent act. The ease falls squarely within the rule declared in the case of Thacker v. Chicago, etc., R. Co., supra, as to the fourth paragraph of complaint, provided the section foreman was acting for the master in the movement of the car in the discharge of the master’s duty, or a duty imposed upon the superior. The force to be imputed to the statute does not arise merely from the relation of fellow servants, for the act recognizes them as such, but attaches to the act of one who, for the time being, is acting for the master by virtue of his authority over his fellow servants in discharging the duties of the master. The condition of superior rank is not alone sufficient, it must be such that the servant is at the time acting in the place of, or discharging the duty of, the master, or one to whose order others must conform. Cleveland, etc., R. Co. v. Foland (1910), 174 Ind. 411.
So that the question is narrowed to the proposition whether the act of the section foreman in suddenly stopping the hand-ear was done in the performance of an order to' which appellee was bound to conform or whether he was at the time acting for, or-discharging the duty of, the master. The
The statute declares the common law, and, under some conditions, does not increase the class of those who are at common law vice-principals, while in others it does increase the class whose acts give rise to liability. Fort Wayne Iron, etc., Co. v. Parsell (1907), 168 Ind. 223; Dill v. Marmon (1905), 164 Ind. 507, 69 L. R. A. 163; Thacker v. Chicago, etc., R. Co., supra; Island Coal Co. v. Swaggerty (1903), 159 Ind. 664.
The language of the Missouri statute is, “while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof,” and defines vice-principals and fellow servants. Mo. Annotated Stat. 1906 §2873.
The Montana act provides that the liability £br injury to a servant “acting under the orders of his superior, shall be the same * * * as if such servant or employe were a passenger. Montana Code §905.
The Ohio code declares who are superiors and who are fellow servants, and provides for liability in addition to the liability then existing, when arising from the negligence of the superior. 87 Ohio Laws p. 149, Bates, Annot. Stat. (2d ed.) §3365 - 22.
In the case of Chicago, etc., R. Co. v. Pontius (1895), 157 U. S. 209, 15 Sup. Ct. 585, 39 L. Ed. 675, the Supreme Court of the United States in construing a statute similar to that of Iowa, puts the decision upon the same ground as the case of McAunich v. Mississippi, etc., R. Co., supra.
A classification of railroads has been upheld on the same grounds in Minnesota. Lavallee v. St. Paul, etc., R. Co., supra, and Johnson v. St. Paul, etc., R. Co., supra.
A Mississippi statute was held invalid because of imposition of liabilities upon all corporations, irrespective of the nature of their business, which were not imposed on natural persons. Ballard v. Mississippi Cotton Oil Co., supra.
In Bedford Quarries Co. v. Bough, supra, the court was again forced, in order to sustain any part of the law, to apply the rule of distinction as to the character of the employment, and to hold that the act was invalid except as to corporations or persons operating railroads, because it imposed obligations upon them that were not imposed on private persons or copartnerships in the same business and under the same circumstances and conditions.
To escape the constitutional objection as herein pointed out, we think the general doctrine stated in the cases of Indianapolis Traction, etc., Co. v. Kinney, supra, and Cleveland, etc., R. Co. v. Foland, supra, must be adhered to, and that each specific case must be governed by the question whether the service in which the employe is at the time engaged is such as subjects him to danger and injury from the operating of trains, whether actually engaged as an op
This brings us to the consideration of the case of Louisville, etc., R. Co. v. Melton (1910), 218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921. In the case of Tullis v. Lake Erie, etc., R. Co., supra, the Supreme Court of the United States upheld the constitutionality of the employers’ liability act of this State, upon the ground that the construction put upon it by this court, as applying to the hazards connected with the operating of railways, was a reasonable classification, and held that it did not offend against the equal protection clause of the federal Constitution, and the construction of our own Constitution, and the acts arising under it, not presenting a federal question, are not the subject of review by that court. In the ease of Louisville, etc., R. Co. v. Melton, supra, the court uses language that though properly involved in the federal question, as to the equal protection and due process of law clauses of the 14th amendment, was not sufficiently guarded, in view of the rule in the case of Tullis v. Lake Erie, etc., R. Co., supra, and of the construction by this court of the act in its relation to our own Constitution. An examination of the case discloses that the sole question before the court was as to the constitutionality of the act as applied to the 14th amendment to the federal Constitution, and that this is so, appears not only from the opinion itself, but from views expressed in the case of Mobile, etc., R. Co. v. Turnipseed, supra. Incidentally, it will be noticed that while the question of the full faith and credit clause of the federal Constitution was sought to be invoked in that case, as binding upon the courts of Kentucky, by the construction placed upon our statute, the court expressly declines to consider the question, because it was in nowise presented to the Kentucky court of appeals, and it follows that it was not determined in that case, and the only question conferring jurisdiction upon the Supreme
If, as seems to be the case, the Supreme Court in the case of Louisville, etc., R. Co. v. Melton, supra, regards the construction by this court as too restricted, with respect to the character of employes, as restricted to those in the train service, we agree with it, but we do not so understand the rule. We understand and hold that it should be limited to those who incur the hazard of, and injury by and from, the operating of trains, but we cannot go farther without offending the prohibition of our own Constitution against special and class legislation. To adopt the broad construction apparently given in the case of Louisville, etc., R. Co. v. Melton (1907), 127 Ky. 276, 105 S. W. 366, 110 S. W. 233, 112 S. W. 618, and followed on appeal to the Supreme Court of the United States, could but lead to the entire overthrow of the act, but it seems to us that there is a line of possible harmony in the eases, on principle, though it could not harmonize our views with the rule adopted by the court of appeals of Kentucky in the case just cited, as applying to a bridge carpenter, whose' injury was nowise caused by or connected with the hazard of operating trains, or different from that in any other business of a like character. The distinction lies, not from including employes in