author: McGrath, 0. J.

text:
    The Voigt Brewery Company, Limited, v. Joseph W. Donovan, Circuit Judge of Wayne County.

      Attorney and client — Lien—Discontinuance of suit — Fraud.
    1. The lien of an attorney does not attach until the rendition of judgment, and he cannot, prior to that time, prevent his client from settling and discontinuing the suit.

    2. The question of alleged fraud on the part of the defendant in securing a settlement and discontinuance of a suit cannot be tried upon affidavits.

      Mandamus.

    Argued November 21, 1894.
    Granted December 18, 1894.
    Eelator applied for mandamus to compel respondent to vacate an order setting aside a stipulation for discontinuance. The facts are stated in the opinion.

      Keena & LigMner, for relator.

      Oscar M. Springer, for respondent.

       See Kirby v. La Dow, 102 Mich. 345.

   McGrath, 0. J.

In February, 1894, John Toben, by Mary Raymond, his general guardian and next friend, commenced a suit in the circuit court for the county of Wayne against relator to recover for negligent injury. After the cause was at issue, said Mary Raymond settled with relator, receiving $250, and giving a receipt in full. After the proposition of settlement was made, said Mary Raymond filed her petition as general guardian in the probate court, asking for authority to settle the matter in consideration of the payment aforesaid, and an order approving such settlement was made by the probate court. A stipulation signed by Mary Raymond and relator's attorneys, discontinuing the suit, was afterwards filed in said cause. Afterwards plaintiff's attorney in - said suit moved to set aside the stipulation discontinuing said suit for reasons following:

“ 1. Because Mary Raymond, the next friend of said John Toben, the plaintiff in the. above-entitled cause, was induced-to sign the stipulation to discontinue said cause by false and fraudulent representations.

“ 2. Because said Mary Raymond, the next friend of said John Toben, was unlawfully coerced into signing said stipulation.

“3. The discontinuance of said suit is a gross fraud upon the rights of said John Toben."

The motion was heard on affidavits, and an order made setting aside the stipulation. The court filed a memorandum opinion, in which it is stated that it is conceded that the stipulation was filed without the knowledge or consent of the plaintiff's attorney. The court did not undertake to pass upon the question of fraud, but says:

“If the settlement with the guardian is a fraud upon the rights of the ward, it cannot be sustained if the defendant is a party to the fraud."

As to the point that the stipulation was filed without the knowledge or consent of the plaintiff’s attorney, an attorney cannot prevent his client from making a settlement. An attorney’s lien does not attach until judgment. Parker v. Blighton, 32 Mich. 266; Wright v. Hake, 38 Id. 525, 531. Nor could the question of fraud in the settlement be tried upon affidavits. Lyon v. Circuit Judge, 66 Mich. 676; Parker v. Circuit Judge, 24 Id. 408; Brown v. Thompson, 29 Id. 75; Grece v. Helm, 91 Id. 450, 457.

A mandamus will issue as prayed.

The other Justices concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    George Beck et al. v. The Board of Election Commissioners of the County of Wayne.

      Elections — Nominating conventions — Tie vote — Lot—Proxy.
    1. After several ineffectual attempts’ to elect a temporary chairman of a nominating convention, a like number of votes being cast for each of the opposing candidates, the vote of one of the delegates was challenged on the ground that the vote in the caucus at which he claimed to have been elected was a tie, and that thereupon the matter was determined between the contesting candidates as follows: A bystander drew from his pocket a handful of coins, and the candidates made their choice of odd or even, and a counting of the coins resulted in favor of the sitting delegate. The chair thereupon appointed a committee on credentials, who reported that the sitting delegate was not entitled to his seat in the convention. And it is held that the appointment of such committee was proper, and that their determination is fully sustained by authority.
    2. Objection was made to counting the vote of one of the delegates who claimed the right to vote upon a proxy, which objection was overruled by tire chairman of the convention, in which ruling he was subsequently sustained by the committee on credentials. In mandamus proceedings instituted to compel the board of election commissioners to rescind its action in placing the name of the candidate nominated at said convention upon the official ballot, the application set forth, among other things, that the delegate whose proxy said sitting delegate claimed to hold was absent from this State at the time of the holding of the caucus at which he was elected, and that said proxy was irregular and void. And it is held that said allegation is wholly insufficient upon which to base a finding that the committee on credentials erred in determining that the holder of said proxy was entitled to a seat in the convention.

      Certiorari to Wayne. (Lillibridge; J.)
    Submitted October 23, 1894.
    Writ denied October 24, 1894,
    and opinion filed December 18, 1894.
    Relators applied to the circuit court for mandamus to compel respondent to rescind its action in placing the name of a certain candidate on the official ballot, and to place the name of another thereon.
    Relators apply for certiorari to review an order denying the writ.
    The facts are stated in the opinion.

      T. T. Leete, Jr., for relators.
   Per Curiam.

Application is made for a writ of certiorari to review the determination of the circuit court for the county of Wayne upon an application made to that court to compel respondent to rescind its action in placing the name of Joseph R. McLaughlin upon the official ballot as the nominee of the Republican party in the Third senatorial district for State Senator, and to place the name of Robert Y. Ogg upon said ballot instead thereof.

The district is composed of the Fourth, Sixth, Eighth, and Tenth wards of the city of Detroit. Each of said wards was entitled to three delegates. The convention was called to order by Robert Barrie, chairman of the senatorial committee'of that district. Several ineffectual attempts were made to elect a temporary chairman of the convention, the result of each ballot being six votes for Charles F. Beck, and an equal number for George Beck. Pending these ballotings, objection was made to counting the vote of one of the delegates who claimed the right to vote upon a proxy. The chairman ruled that the gentleman holding the proxy was in the convention; that he had examined the proxy; that the same was regular on its face; and that the holder was entitled to a vote until such time as the convention determined otherwise. After other ballots had been had, a delegate objected to the vote of one Murphy, on the ground that the vote at the caucus in the ward which Murphy claimed to represent was a tie, and thereupon the matter was determined between the contestants by lot as follows: A bystander drew from his pocket a handful of coins, and the candidates made their choice of odd or even, and a counting of the coins resulted in a victory for Murphy., There is no dispute as to the 'fact of the selection of Murphy in the manner described. The question was discussed at length, and finally the chair announced that, as the convention was at a deadlock, he should appoint a committee on credentials, which was done. On motion a recess was then taken for 15 minutes. At this juncture six of the delegates, including Murphy, left the hall, organized a separate convention, and nominated Robert Y. Ogg. After recess the first-named convention reassembled, and the committee on credentials reported eleven delegates as entitled to seats, and that Murphy was not entitled to sit. The roll was then called, and six of the delegates so reported responded. A temporary chairman and secretary were then elected, who were afterwards made permanent officers, and J. R. McLaughlin was nominated.

It clearly appears that Robert Barrie was the chairman of the Republican senatorial committee of the Third senatorial district, and that the convention presided over by that gentleman was the regularly called convention. An attempt was made to elect a temporary chairman, and a number of ballots were had, resulting in a tie vote. • Pending the balloting, questions were raised as to whether two •of those present and voting were entitled to vote. Under these circumstances, the determination of the dispute became important, and it was entirely proper to refer its solution to a committee appointed for the purpose. We must assume that the reference was made in good faith.

The petition sets forth that—

“Delegate Dayton Parker was absent from the State of Michigan, and in Montana, at the time said caucus at which he was elected was held, and that the said proxy held by Philip T. Van Zile was irregular and void.”

This allegation is wholly insufficient upon which to base .a finding that the committee on credentials erred in determining that Philip T. Yan Zile was entitled to a seat in the convention.

The determination that Robert Murphy was not entitled to a seat is fully sustained by authority. In the case of .a tie vote there is no election, and, in the absence of .statutory authority, neither election officers nor candidates have the power to determine the result by lot. Paine, Elect. § 576; Hammock v. Barnes, 4 Bush, 390; State v. Adams, 2 Stew. (Ala.) 231.

It follows, therefore, that the convention at which J. R. McLaughlin was nominated was regularly called, and that ■after the retirement of the supporters of Mr. Ogg a majority of the delegates elect remained, constituting a valid convention.

The writ must therefore be denied.


author: Hooker, J. Montgomery, J.

text:
    Joseph Beesley v. F. W. Wheeler & Company.

      Master and servant — Negligence—Fellow-servants—Defective scaffold.

    1. Plaintiff was employed by the defendant corporation, a builder of steel vessels, to go over the work, and supply omitted rivets, after the riveters of the plates of the vessel had completed their work. Artisans of various kinds were employed to do their respective shares of the work. The building of stagings, the erection of derricks, and the raising of materials were parts of the necessary work, incident to and simultaneous with, and in fact a part of, the building of the vessel. All was under the charge of one superintendent, who directed the different gangs through their respective foremen. Plaintiff, while working upon a scaffold, was injured by the breaking of a weak cross-piece, selected and used by the carpenters who . built the scaffold. In a suit to recover damages for the injury, there was nothing to indicate a contract on the part of the defendant to provide a safe scaffold to work upon, or an assumption by it of that duty. And it is held that plaintiff and the carpenters who built the scaffold were fellow-servants in such a sense as to prevent the application of the rule that it is the duty of the master to provide a reasonably safe place for the servant to work.
    2. This holding does no violen.ee to the rule of safe place. The case is different from those where the master furnishes a permanent place in which to work, as in a ship or factory. A master’s duty in such a case is to make and keep the place reasonably safe; but that rule would apply as to those working in, but not necessarily as to those constructing, the factory.
    8. The following propositions are summarized from the opinion of Mr. Justice Hooker:
    a — The doctrine which relieves the master from liability for injuries caused by the negligence of fellow-servants is of wide application. It originated in cases where servants were engaged in a common enterprise, wherein, by reason of the negligence of one, another was injured. It modified the doctrine that the principal is liable for the negligent acts of his agent, upon the theory that the servant assumed the ordinary dangers incident to the employment, and that “ an obligation on the part of the master to take more care of the servant than he may reasonably be expected to take of himself will not be implied.”
    b — The rule laid down in Fanoell v. Railroad Corporation, ■4 Metc. 49, 58, — that where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall.perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and leave the service if the common' employer will not take such precautions, and employ such agents, as the safety of the whole party may require; that by these means the safety of each will be much more effectually secured than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other; that, regarding it in this light, it is the ordinary case of one sustaining an injury in the course of his own employment, in which be must bear the loss himself, or seek his remedy, if he have any, against the actual wrong-doer, — is of such general application that the citation- of authorities to support it is unnecessary, although much difficulty has been found in discovering, a true test of its application, and the decisions are consequently somewhat inharmonious.
    c — The rule that the master is bound to provide his servant with reasonably safe machinery, and a proper and reasonably •safe place in which to work, has sometimes been invoked or ■overlooked when perhaps it should not have been, and the two rules, running parallel and in close proximity, have led to improper applications of both.
    d — There are some courts which have held that, in order to constitute servants of the same master fellow-servants, it is mot enough that they are engaged in doing parts of some work not requiring co-operation, nor bringing the servants together or into such personal relations that they can exercise •an influence, one upon the other, promotive of proper precaution in respect to their mutual safety. This doctrine finds its favorite fields where large enterprises result in systematic divisions of labor. But it is not the prevailing doctrine, as will be seen from an investigation of cases from most of the .states, including Michigan; and it can be maintained only by overthrowing the rule that the implied contract of the master ■ends with indemnity against his own negligence, and does not extend to that of co-employés engaged in the same enterprise.
    e — Another attack upon the rule is made by the superior servant, as contradistinguished from the alter ego, or vice-principal, limitation. The courts of Illinois, Tennessee, Yirginia, Kentucky, and Georgia have adopted the superior servant rule. Similar cases can be found in Ohio, North Carolina, West Virginia, Kansas, Nebraska, Missouri, and in the federal courts. On the contrary, New York, Maine, Pennsylvania, Massachusetts, Maryland, Indiana, Michigan, Minnesota, California, and Texas have repudiated the doctrine.
    f — The cases upholding the limitations of the rule in these-particulars (d and e) are frequently cited in accident cases, and in hard or doubtful ones may sometimes lead to departures, from the true rule, by reason of which greater or less obscurity inevitably follows, and no end of trouble from the consequences, where they are irreconcilable with the other rule.
    g — It must not be assumed that there is no limitation to the-doctrine of immunity on the part of the master. The law clearly imposes duties upon him from the discharge of which he cannot shelter himself by the interposition of an agent or servant, or the fellow-servant rule. He may assume liability for accidents suffered by his servant in the course of his employment, either expressly or by implication, where it is plain that it was the intention of both parties that he should do so, or where he is personally present, directing the negligent act. Again, where the rule that he must provide a reasonably safe place and machinery applies, the responsibility is his. In all of these cases he is held liable, because the negligence is his.

    h — As said by a text writer (McKinney, Fellow-Servants, § 28) “ the true test whether an employé occupies the position of a fellow-servant to another employé, or is the representative of the master, is to be found, not from the grade or rank of the offending or injured servant, but it is to be determined by the character of the act being performed by the offending servant, by which another employé is injured; or, in other words, whether the person whose status is in question is-charged with the performance of a duty which properly belongs to the master.” It would seem that this must be the-governing principle, unless the limitations hereinbefore discussed are adopted, which, as stated, is not the case in this-State.
    i — This discussion of the superior servant question must not be considered as necessarily involving that of alter ego. If the liability of the master is in all cases to depend upon the rule above mentioned, it matters little whether the offender is called “ alter ego” -or “servant.” It is only when the act is one which does not fall within a duty that the law imposes upon the master, or which he has taken upon himself, that it becomes important. In such cases the term is found an appropriate one, where ' it is sought to invoke the doctrine of re

      spon&eat superior. How far the courts have gone in holding that a master is liable for such acts, committed by a person in full charge of his business, it is unnecessary to investigate in this case, and no opinion is expressed upon the question.
    j — Having, then, determined the rule, it must be the guide in all cases, and if, in some instances, doubts shall have arisen, which in the minds of some have led to greater or less departures from it, the rule, and not such cases, must be the magnetic pole towards which future adjudications must point, and discrepancies, if any exist, must be ascribed to differences of opinion in regard to the application of the rule, which all recognize.
    Error to Bay. (Cobb, J.)
    Argued February 2, 1894.
    Decided December 22, 1894.
    Negligence case. Defendant brings error.
    Reversed,, and no new trial ordered.
    The facts are stated in the opinion.

      Moore & Moore and McBonell & Hall, for appellant.

      Shepard & Lyon, for plaintiff.
   Hooker, J.

The defendant is engaged in building-steel vessels, in the construction of which scaffolds are necessary at various stages of the work. It employs about 800 men, of various trades, including fitters, bolters, chippers, drillers, riveters, searchers, and carpenters. These men are continuously employed, and all are subject to the control of the superintendent. The labor is divided among the artisans, and to the carpenters is apportioned the building of scaffolds, though they are sometimes assisted by others. The plaintiff, a searcher, — i. e., one who goes over the work, and supplies omitted rivets, after the riveters of the plates of the vessel are through, — was injured by the breaking of a weak putlog, selected and used by the carpenters who built the scaffold; and his right to recover hinges upon the question of whether or not he and the carpenters were fellow-servants in such a ®ense as to prevent the application of the rale that it was the duty of the master to provide a reasonably safe place for the plaintiff to work.

The doctrine which relieves the master from liability for injuries caused by the negligence of fellow-servants is of wide application. It originated in cases where servants were engaged in a common enterprise, wherein, by reason of the negligence of one, another was hurt. It modified the doctrine that the principal is liable for the negligent acts of his agent, upon the theory that the servant assumed the ordinary dangers incident to the employment, and that “ an obligation on the part of the master to take more care of the servant than he may reasonably be expected to take of himself will not be implied.”

Chief Justice Shaw, in the case of Farwell v. Railroad Corporation, 4 Metc. 49, 58, after discussing the liability of common carriers to their patrons, says:

“They are held to the strictest responsibility for care, vigilance, and skill on the part of themselves and all persons employed by them, and they are paid accordingly. The rule is founded on the expediency of throwing the risk .upon those who can lest guard against it.”

He continues:

í(We are of opinion that these considerations apply strongly to the case in question. Where several persons are employed in the conduct o£ one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, •or neglect of duty, and leave the service if the common ■employer will not take such precautions, and employ such agents, as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than could be done by a resort to the common employer for indemnity in case of loss by the negligence of each other. Begarding it in this light, it is the ordinaly case of one sustaining an injury in the course of his own employment, in which he must bear the loss himself, or seek his remedy, if he have any, against the actual wrong-doer.”

This rule is of such general application that the citation of authorities to support it is unnecessary. Much difficulty has been found in discovering a true test of its application, and the decisions are consequently somewhat inharmonious. The rule that the master is bound to provide his servant with reasonably safe machinery, and a proper and reasonably safe place to work, has sometimes been invoked or overlooked when perhaps it should not have been, and the two rules, running parallel in close proximity, have led to improper applications of both.

There are some courts which have held that, in order to constitute servants of the same master fellow-servants, it is not enough that they were engaged in doing parts of some work not requiring co-operation, nor bringing the servants together or into such personal relations that they could have exercised an influence, one upon the other, promotive of proper precaution in respect to their mutual safety. This doctrine finds its favorite fields where large enterprises result in systematic division of labor. Several of the states recognize it, and adjudicated cases from Illinois, Tennessee, Virginia, Kentucky, and Georgia should perhaps be read in the light of this limitation of the .general rule. But it is not the prevailing doctrine, as will be seen from an investigation of cases from most of the states, including our own; and it can be maintained only by overthrowing the rule that the implied contract of the master ends with indemnity against his own negligence, and does not extend to that of co-employés engaged in the same •enterprise. For a discussion of the subject, see Farwell v. Railroad Corporation, 4 Metc. 49; Brodeur v. Valley Falls Co., 16 R. I. 448. See, also, Hoar v. Merritt, 62 Mich. 386; Quincy Mining Co. v. Kitts, 42 Id. 34; Dewey v. Parke, Davis & Co., 76 Id. 631; Baron v. Navigation Co., 91 Id. 585.

Another attack upon the rule is made by the superior servant, as contradistinguished from the alter ego, or vice-principal, limitation. As might be expected from their adherence to the “division of labor doctrine," hereinbefore mentioned, the courts of Illinois, Tennessee, Virginia, Kentucky, and Georgia have adopted the “superior servant" rule. Similar cases can also be found in Ohio, North Carolina, West Virginia, Kansas, Nebraska, Missouri, and in the federal courts. On the contrary, New York, Maine, Pennsylvania, Massachusetts, Maryland, Indiana, Michigan, Minnesota, California, and Texas have repudiated the-doctrine. The English courts also refuse to adopt it-These decisions hold that this doctrine ignores the true-criterion of fellow-service.

The cases upholding the limitations of the rule in thes& particulars are frequently cited in accident cases, and in hard or doubtful ones may sometimes lead to departures from the true rule. Greater or less obscurity inevitably follows, and no end of trouble from the consequences, where they are irreconcilable with the other rule.

It must not be assumed that there is no limitation to-the doctrine of immunity on the part of the master. The law clearly imposes duties upon the master from the discharge of which he cannot' shelter himself by the interposition of an agent or servant, or the “fellow-servant"' rule. He may assume liability for accidents suffered by his servant in the course of his employment, either expressly or by implication, where it is plain that it was the-intention of both parties that he should, or where he is. personally present, directing the negligent act. Again, where the rule that he must provide a reasonably safe-place and machinery applies, the responsibility is his. In all of these cases he is held liable, because the negligence is Ms. As said by a text writer:

“ The true test, it is believed, whether an employé occupies the position of a fellow-servant to another employé, or is the representative of the master, is to be found, not from the grade or rank of the offending or injured servant, but it is to be determined by the character of the act being performed by the offending servant, by which another employé is injured; or, in other words, whether the person whose status is in question is charged with the performance of a duty which properly belongs to the master." McKin. Fel. Serv. § 23; Flike v. Railroad Co., 53 N. Y. 549; Crispin v. Babbitt, 81 Id. 516; Ford v. Railroad Co., 110 Mass. 240; Anderson v. Bennett, 16 Or. 515.

It would seem that this must be the governing principle, unless- the limitations hereinbefore discussed are adopted, which, as stated, is not the .case in this State.

This discussion of the “superior servant" question must not be considered as necessarily involving that of “ alter ego.” If the liability of the master is in all cases to depend upon the rule above mentioned, it matters little whether the offender is called “alter ego” or “servant." It is only when the act is one which does not fall within a duty that the law imposes upon the master, or which he has taTcen upon himself, that it becomes important. In such cases the term is found an appropriate one, when it is sought to invoke the doctrine of respondeat superior. How far the courts have gone in holding that a master is liable for such acts, committed by a person in full charge of his business, we find it unnecessary to investigate in this case, and express no opinion upon the question.

Having, then, determined the rule, it must be the guide in all eases, and if, in some instances, doubts shall have arisen, which in the minds of some have led to greater or less departures from it, the rule, and not such cases, must be the magnetic pole.towards which future adjudication must point, and discrepancies, if any exist, must be ascribed to differences of opinion in regard to the application of the rule, which all recognize.

As to the matter of application, each case necessarily rests upon its own facts. Scaffold cases have not been numerous, and the application of the rule has not been uniform. Indeed, we could hardly expect it, in view of the limitations mentioned by the courts of some states. We may properly eliminate all scaffold cases arising in the states mentioned as adhering to the “division of labor” rule.

The case of Scott v. Craig, 34 Sc. Jur. 401, went off on the proposition that, as the master personally superintended the work, the negligence was his own.

In New York, the cases of Manning v. Hogan, 78 N. Y. 615, and Green v. Banta, 48 Super. Ct. 156, may seem to support plaintiff’s contention. In the former, decided in 1879, the plaintiff’s intestate was killed by the falling of a scaffold erected for the purpose of doing the plaster work on a public building in Central Park. One Mahoney was the contractor with the city, and, before the work was begun, he executed an assignment to the defendant, Hogan, of all moneys due or to grow due by virtue of the contract, and Hogan was obliged to carry out the contract to protect himself. The deceased was at work on the .scaffold at the time of the accident. It was proved that he had applied for work, and his name was on the pay roll for that half day. There was also evidence that it was a particular branch of mechanical occupation to put up such scaffolds; that the ■ persons employed to build were not of that occupation; and that it was built of insufficient material, both in quality and quantity. Held, “that the question of negligence in building the scaffold was for the jury; that it was not sufficient that there was enough of suitable material provided to build the scaffold. It needed that there should be skill and judgment in the use thereof.” This was a memorandum case, which was not reported in full, and we have not the benefit of the discussion of these questions by the court, if there was any; but enough appears to indicate that no violence is done to the general rule. The case appears to have turned upon the failure of the master to employ competent fellow-servants, which is one of his duties, to the extent of using reasonable care in the selection. See a criticism of this case in Peschel v. Railway Co., 62 Wis. 361. Again, it is possible that the scaffold was erected by Mahoney, under his contract, before Hogan took charge of the work, in which case the scaffold builders and the deceased, who was shown to have worked but one half day, were not servants of the same master, and therefore were not fellow-servants," within the rule.

The case of Green v. Banta, supra, is from an inferior court, and cannot be said to settle the rule fdr New York. The plaintiff was a hod carrier, engaged with others in dumping brick upon a scaffold. Defendant, Banta, was a contractor, and the case says that it toas his duty to furnish a properly built scaffold. In the performance of this duty he employed a foreman. The court said:

“ Therefore, any negligence of the foreman would be the negligence of the defendant, and not the negligence of a fellow-workman; and the same proposition would be true as to any workman, not called a foreman, who was directed by the master to build the scaffold.”

The court adds:

' “If, after the scaffold be built, the foreinan use the scaffold with the workman afterwards injured, and the injury ensues from the negligence of the foreman, they hold the relation of fellow-workmen/ so called, and the master is not responsible.”

The decision is based upon Crispin v. Babbitt, supra, which holds that the liability of the master does not depend on the grade or rank of the negligent employé, but upon the character of the act; and that, if the act is one pertaining to the duty which the master owes to his servants, he is responsible, but, if the act is one pertaining only to the duty of an operative, such operative, whatever his rank or title, is a fellow-servant, and the master is not liable. For the latter part of the proposition of the court, the case of Slater v. Jewett, 85 N. Y. 61, is cited. Whatever we may think of its application, this case of Green v. Banta recognizes the rule, and at most, bears upon the question whether an employer owed a duty, under the facts in that case, to furnish a safe scaffold. It asserts such duty, but it leaves us to conjecture whether such duty arose by express contract, by necessary implication from the peculiar facts, or upon the broad ground that a scaffold builder and a plasterer are under no circumstances fellow-servants.

The case of Hogan v. Field, 44 Hun, 72, was where a bridge riveter was injured by the fall of a scaffold. It was not the business of Hogan to build the staging, but, under the direction of the person in charge of the work, he, with others, undertook it. It was held that the negligence of such persons was that of fellow-servants, and he was not permitted to recover..

These cases do not, therefore, weaken, but strengthen, the rule mentioned as the criterion, and it does not clearly appear that such rule has been misapplied.

We will next consider the rule in Massachusetts, selecting only scaffold cases. In Mulchey v. Society, 125 Mass. 487, a verdict for the plaintiff was sustained because the society expressly contracted to build and remove stagings for decorators.

In Arkerson v. Dennison, 117 Mass. 407, the plaintiff, who was at work repairing a building, went upon a staging by defendant’s direction.. The staging was insecure by reason of its construction of unsuitable materials, or by neglect to securely fasten it. The staging was built before plaintiff’s employment, by men who were afterwards his fellow-workmen, and the defendant directed what lumber should be used. The staging was not built under the direct personal supervision of defendant, but there was evidence that he' superintended the work generally. It was held a proper question for the jury, the case apparently turning upon the proposition that,—

“When the preparation of the appliances is neither intrusted to nor assumed by them [the employés], the master may be held guilty of negligence if defective appliances are furnished, even though the workmen themselves are employed in the preparation of them. In such case, negligence appearing, it is a question of fact for the jury whether that negligence was in respect of what was done or undertaken by the fellow-workmen, or was the negligence of the master.”

There may be differences of opinion as to whether this case overstepped the rule or not, but that it was not so intended is inferable from the cases of Zeigler v. Day, 123 Mass. 152; Colton v. Richards, 123 Id. 484; and Killea v. Faxon, 125 Id. 485, — two of which were scaffold cases. The last-mentioned case states the difficulty in these cases as follows:

“On the one hand is the familiar rule that one who enters the service of another takes upon himself the risks incident to the employment, including the risk of the negligence of fellow-servants employed in the same service. On the other hand is the equally well-settled rule that, if a master undertakes to furnish structures or instruments with which the servant is to work, the master is bound to use due care in providing them, and he is responsible if, through his negligence, or the negligence of other servants employed to furnish them, they are unsuitable.”

The court add:

“We are of opinion that this case falls within the .first rule. There was no evidence which would justify the jury in finding that either of the defendants undertook to-furnish a staging for the plaintiff, or to assume the risk of its safety. It was like the ordinary case where a man, in building or repairing a house, employs various servants in different departments of labor. Neither of the defendants retained any charge or direction of the work of putting up the staging, but intrusted it to Higgins. He and the plaintiff were fellow-servants, employed in the same service, and each took the risk of the negligence of the other.”

It should be remarked that Higgins was a carpenter employed by the defendant to superintend the whole job. Plaintiff was a coppersmith hired by defendant to put up gutters upon the roof.

In Minnesota is a late case, viz., Sims v. Steel-Barge Co., 56 Minn. 68, which is supposed to be nearly upon all fours with the present case; but it differs in this particular: that the building of scaffolds was intrusted to one Guinane and his crew, employed to build stagings, and to do nothing else. This may or may not have been considered an important reason for reaching the result in that case. To us it does not seem to be so, unless by way of an implication of an undertaking to furnish stagings for employés, and at best we think it is bordering upon the division of labor rule, which we understand that Minnesota does not in terms indorse. For other cases sustaining the claim that the master is not liable in staging cases, see Peschel v. Railway Co., 62 Wis. 338; Benn v. Null, 65 Iowa, 407.

It remains to look at the case from the standpoint of Michigan authorities. The doctrine of “fellow-servant” has been so frequently discussed that it will not be necessary to elaborate some branches of the question. The cases show that the rule of Priestley v. Fowler, 3 Mees & W. 1, exists, and that there has been no express recognition of the limitations as to “division of labor” or “superior servant.” Michigan, as already stated, adheres to the rule that the master’s liability depends upon the nature of the duty and the character of the contract; and, if this Court has ever departed from the rule, it is only in its application, and about that minds may differ. The attack upon the general rule has usually been made, in this State, in the guise of a claim that the master'was required to furnish a safe place or safe machinery. In Van Dusen v. Letellier, 78 Mich. 492, an employé was injured by the collapse of a dock, the supports to which became rotten, and gave way. Plaintiff was a laborer piling lumber. The owners lived in another county, and had a superintendent, who looked after the business in a general way, and who hired competent men to inspect the dock before the lumber was piled. The Court held that—

The duty of inspection, when required by the circumstances of the case, cannot be delegated by the master in such manner as to avoid responsibility.”

The doctrine that it was the duty of the master to provide a safe place was applied, and upon this the case was decided.

In Dewey v. Railway Co., 97 Mich. 330, the question of a safe place was again discussed, and the Court refused to apply the doctrine to a case where an inspector permitted a car improperly loaded with lumber to be made a part of a train, whereby plaintiff was injured; holding that the inspector and plaintiff were servants of the same master, engaged in the same service, viz., running its train. The case contains a valuable discussion of these principles.

In the cases of Miller v. Railway Co., 90 Mich. 230, and La Pierre v. Railway Co., 99 Id. 212, unsuccessful attempts were made to assert the doctrine of a safe place ” where the fault was clearly that of a fellow-servant. In none of these Michigan cases cited was a scaffold involved.

In Hoar v. Merritt, 62 Mich. 386, the injury was occasioned by the fall of a scaffold. A dwelling was erected by the defendant, who hired a superintendent by the month, who had general charge under defendant's direction, hiring all the men but the painters, who were hired by the defendant personally. The scaffold was erected, by direction of the superintendent, for the building of the cornice. After this was done, the painters used the scaffold, and plaintiff was hurt. Defendant furnished suitable material and competent workmen to build the scaffold, and the Court held that they were fellow-servants, and that the risk was incident to plaintiff's employment, which he assumed when he entered the master’s service.

The cases of Brown v. Gilchrist, 80 Mich. 56; Harrison v. Railroad Co., 79 Id. 409; and Hunn v. Railroad Co., 78 Id. 513, — are cases where the negligence was that of a superior, for which, under the facts in those cases, the master was held liable. Some may think them innovations upon the doctrine that the grade of the servant is immaterial; but before reaching such conclusion we should examine the nature of the duty in the performance of which the injury occurred. At all events they seem to have raised different questions from that involved in this case. Here the defendant was engaged in the enterprise of building a ship. Artisans of various kinds were employed to do their resioective shares of the work. The building of stagings, the erection of derricks, and the raising of materials were parts of the necessary work, incident to and simultaneous with, and in fact a part of, the building of the ship. Stagings were for temporary use, and indispensable. All was under the charge of one superintendent, who directed the different gangs through their respective foremen. There is nothing to indicate a contract to provide a safe scaffold to work upon, or an assumption of that duty by the master, and the case seems to be clearly within the rule of Killea v. Faxon, which it closely resembles, and of Hoar v. Merritt. The duty was one which was left to those engaged in the construction of the ship.

It is believed that this does no violence to the rule of safe place. The case is different from those where the master furnishes a permanent place to work, as in a ship or factory. A master’s duty in such a case is to make and keep the place reasonably safe; but that rule would apply as to those working in, but not necessarily as to those oonstructing, the factory. Such employés would not be fellow-servants with each other, for the enterprises would not be the same. The service of one would be the erection of the completed factory; that of the other its use for the purpose for which it was designed. But here the scaffold builder and the riveter are engaged in the common service of building a ship. The work of both goes along together, and it seems to us that the case is clearly within the rule of Priestley v. Fowler, and kindred cases.

The court should have directed a verdict for the defendant.

Judgment reversed, and no new trial ordered.

Long and Grant, JJ., concurred with Hooker, J.

Montgomery, J.

The rule that it is the duty of the master to furnish a safe place for the servant to work is so universal and so thoroughly settled that no citation of ■authorities is necessary to sustain it. It is also settled in this State that this duty is one which cannot be delegated by the master so that the employé engaged to .do the work of making the premises safe is to be treated as a fellow-servant of those who are employed and engaged in the general work for which the premises are intended. Van Dusen v. Letellier, 78 Mich. 492; Brown v. Gilchrist, 80 Id. 56; Roux v. Lumber Co., 94 Id. 607; Morton v. Railroad Co., 81 Id. 423. On the other hand, I think it is equally clear that where the danger or injury results from the operation, and the negligence is that of one who is engaged in the common employment, it cannot in any proper sense be said to be attributable to a fault in providing a safe place to work, or safe machinery or appliances. See Dewey v. Railway Co., 97 Mich. 329, 345.

The question remains whether the construction of the scaffold, the defect in which caused the injury in this case, was a part of the work in which the plaintiff was, in common with others, engaged, or was in the line of the performance of the duty of the master to supply a safe place to work. I think this question is ruled by Hoar v. Merritt, 62 Mich. 386.

In Butler v. Townsend, 126 N. Y. at page 110, Finch, J., in treating of this question in a case analogous to the present one, said:

“ It was a mistake to assume, as the duty violated, that of providing a safe place for the work of the servants. The staging was not, in the sense of the rule, the place in which the work was to be done, but an appliance or instrumentality by means of or through the aid of which the calkers were to do their work. The distinction is sometimes very important, for a place, in its broad sense, is never safe in which an accident happens, and an accident always happens in some place, and so the master might almost become an insurer. Properly enough, an existing mine, or a railroad track crossing a cattle guard, or the rooms in a factory, have been deemed ‘places’ for work which the master was bound to make safe by the exercise of reasonable care; but a platform upon which the servant was directed to stand we have treated, not as a place, but as an instrument or appliance of his work.”

See, also, as supporting the doctrine of Hoar v. Merritt, Killea v. Faxon, 125 Mass. 485, and Peschel v. Railway Co., 62 Wis. 338.

I concur in the conclusion reached by Mr. Justice Hooker.

McGrath, 0. J., concurred with Montgomery, J.


author: Grant, J. Montgomery, J.

text:
    Carl Schroeder v. The Flint & Pere Marquette Railroad Company and The Chicago & Grand Trunk Railway Company.

      Railroad companies — Negligence—Fellow-servants.
    One of a gang of men at work for a railroad company under the charge of a foreman, unloading and leveling dirt hauled upon its premises by another railroad company, was injured by the backing of the engine against the loaded cars, from which it had been detached. The foreman kept the time of the men, counted the number of cars, directed the men where and how to work, saw that they did their work properly, directed the place where the train should stop for unloading, notified the men when to cease leveling and commence unloading, and then assisted in doing the work. He was under the immediate and direct control of the division road master, from whom he received instructions to keep the time and number of cars, and directions in relation to the work. In a suit against the company by the injured employé to recover for the injury sustained, the sole act of negligence alleged as ground for recovery was that the foreman failed to give notice to the men under his charge that the train was about to move. And it is held that the foreman and the plaintiff were fellow-servants.
    Error to St. Olair. (Vance, J.)
    Argued April 27, 1894.
    Decided December 22, 1894.
    Negligence case. Defendant Flint & Pere Marquette Railroad Company brings error.
    Reversed, and no new trial ordered.
    The facts are stated in the opinions.

      Hanchett, Static é¡ Hanchett, for appellant.

      Northup & O’Donnell and James A. Muir, for plaintiff.
   Grant, J.

The liability of the defendant the Flint & Pere Marquette Railroad Company, under the instructions of the court, depends upon the position occupied by Mehalski, the boss or foreman of the gang of 10 men who-were occupied in unloading and leveling the dirt hauled upon its premises by the defendant the Chicago & Grand Trunk Railway Company. The sole negligence alleged as ground for recovery against the Flint & Pere Marquette road is that Mehalski failed to give notice to his co-employés that the train was about to move. Before discussing this question, I desire to state that, in my judgment, this accident could not possibly have happened, without-the negligence of the plaintiff himself, if the trainmen of the Chicago & Grand Trunk road had performed their duty. It was established beyond controversy, by the testimony of witnesses and by the rules of the company, that, it was the duty of the trainmen to give warning of the moving of the train, and to see that both the “track and the train were clear,” and that it was the duty of the rear brakeman to be in his place on the rear car when the train moved. The case against the Grand Trunk Company was withdrawn by the plaintiff before it was submitted to-the jury, and he was permitted to recover on the ground of the negligence of the Flint & Pere Marquette Company.

If Mehalski was not the defendant’s alter ego, then it is not liable. He occupied the usual position of boss or foreman of a gang of men. His duties were no other, or different, or greater than those of the foreman of the ordinary section gang upon a railroad. In all such cases some one of the men employed must be invested with authority to direct the work. He kept the time, counted the number of cars, directed the men where and how to work, saw that they did their work properly, directed the placo where the train should stop for unloading, notified the-men when to cease leveling and go to unloading, andí then assisted in doing the work. He was under the-immediate and direct control of Mr. Cole, a higher official' of the defendant, who was often present, sometimes daily* superintending and directing the work. I do not think, there was any legitimate evidence tending to show that he was invested with authority to hire and discharge men. He certainly had not done it before the accident, and was •not given express authority until long afterwards. But whether he did or did not have such authority I consider of little consequence. The power to hire and discharge is not conclusive, and is in many cases of little moment. Too much prominence has often been given to this authority. One may possess it and still not be the alter ego, or he may not possess it and still be the alter ego.

The doctrine of non-liability for the negligence of a fellow-servant is so firmly established, and has been so> frequently affirmed, in this State, that I deem it unnecessary to cite the authorities. The difficulty has always been in determining whether the servant whose negligence-caused the injury was, under the facts of each case, the-alter ego or a fellow-servant. The perplexity and difficulty of the question have been recognized in the decisions of this Court, and it is quite possible that there may be some difficulty in harmonizing them all; but the rule recognized in nearly if not all of them is thus stated by McKinney* on Fellow-Servants (section 23):

The true test, it is believed, whether an employs | occupies the position of a fellow-servant to another em~! ployé, or is the representative of the master, is to be* found, not from the grade or rank of the offending or injured servant, but it is to be determined by the character-of the act being performed by the offending servant, byi which another employé is injured; or, in other words* whether the person whose status is in question is charged with the performance of a duty which properly belongs to ■the master.”

This principle is so exhaustively and carefully discussed by my Brother Hooker in Beesley v. F. W. Wheeler & Co., ante, 196, that further discussion here is unnecessary. 'The authorities are there cited and commented on. I concur in his reasoning and the conclusions reached.

One of the principal cases relied upon by the plaintiff is Harrison v. Railroad Co., 79 Mich. 409. In that case my Brother Lons, speaking for the Court, expressly recognized this rule in the following language:

“It is not to be determined solely from the grade or rank of the offending or injured servant, but it is to be determined by the character of the act being performed by the offending servant. If it is an act that the law imposes the duty upon the part of the master to perform, then the offending employé is not a fellow-servant, but a superior or agent, for whose acts the master is held liable.

- “'Again, if the master has delegated to a servant or ■employé the care and management of the entire business, •or a distinct department of it, the situation being such that the superior servant is charged with the jDerformance ■of duties towards the inferior servant which the law imposes upon the master, then such superior servant stands in the place of the master, and the rule of respondeat superior applies.”

To hold Mehalski the alter ego would result, in my judgment, in the virtual abrogation of the rule. It would establish the doctrine that where a farmer employs a competent ditcher to construct a drain upon his farm, or a foreman to harvest his crops, or a carpenter to build him .a barn or other building, he is responsible for their negligent acts, notwithstanding that he has employed competent men and furnished proper tools, material, and machinery; and that every foreman in a manufacturing plant, and every boss of a railroad gang, is a vice-principal. It would result in overruling the following cases: Quincy Mining Co. v. Kitts, 42 Mich. 34; Hoar v. Merritt, 62 Id. 386; Peterson v. Railway Co., 67 Id. 102; Adams v. Iron Cliffs Co., 78 Id. 271; and the many other cases in which this rule has been recognized and affirmed.

Plaintiff relies upon the following authorities to support his right of recovery: Harrison v. Railroad Co., supra; Ryan v. Bagaley, 50 Mich. 179; Erickson v. Railway Co., 83 Id. 281, 93 Id. 414; Shumway v. Manufacturing Co., 98 Id. 411; Hunn v. Railroad Co., 78 Id. 513.

In Harrison v. Railroad Co., which, as already shown, approves the rule as above stated, a division superintendent, who had the entire charge and control of a division of the road 150 miles in length, was held to be the alter ego.

In Ryan v. Bagaley, the defendant, the owner of the mine, lived in another state, and the entire management, control, and conduct of the mine in its operation was delegated to the mining captain. That case was tried before the writer of this opinion as the circuit judge, and the charge to the jury upon this point was as follows:

“It appears from the testimony that he had the entire charge and control of the underground work, and all the work generally, of the mine, and that he employed and' discharged men. Now, I charge you that Captain White-sides, if he had this power delegated to him to manage and control the mine, negligence on his part would be the negligence of the owners or managers of the mine. So, if he directed the hoisting of this .pipe, and the act alone of hoisting it was negligence, then the owners of the mine would be liable. If he did not direct how it should be done, but simply instructed Mr. Tyler to hoist the pipe, and Tyler, in his trying it, did. it negligently and carelessly, that would not be the act of the defendants or Mr. Whitesides."

In Shumway v. Manufacturing Co. it was conceded by the defendant that the relations of the agent to the defendant were such that he might in law, for some purposes, be regarded as the representative of the master, but it was insisted that in the particular act of starting the machine he was acting as a fellow-servant. The officer of the defendant had the entire charge of the factory, as well as the employment and discharge of men. This was evidently a case of the delegation of the entire control to-the agent, who was held to be a vice-principal.

In Erickson v. Railway Co., stress was laid upon the fact that the foreman, Moleski, who had full charge of th'e gravel train, and complete control over employés working under him, with full power to hire all laborers and to discharge them, and to whom alone complaint, could be made, placed the plaintiff in a position of danger to which he was not accustomed, and for which he was not-hired. Both the opinions in that case were also written-by Mr. Justice Long, and the superior servant was held to be the alter ego under peculiar facts which showed an extensive authority conferred by the principal upon its. servant. I assented to that opinion without any thought, of abrogating or infringing upon the above rulo so firmly established by a long line of decisions in thia and other courts, and so well grounded in reason.

In Hunn v. Railroad Co. the train dispatcher had absolute control over the running and operating of trains fromBives Junction to Mackinaw. This casa also recognizes the general rule above stated, and the difficulty inherent in determining whether th6 facts of any case-bring it within the rule.

Whatever criticisms may be made upon the soundness of these decisions, it cannot be said that the Court intended to abrogate the rule of non-liability for the negligence of a fellow-servant in every .case of superior authority, nor that they apply to or govern the facts of the case at bar. This rule is well settled, and in every case the question must be, do the facts shown by the plaintiff bring his case. ■within the rule? See Peschel v. Railway Co., 62 Wis. 349.

I am of the opinion, therefore, that the judgment should be reversed, and no new trial ordered. Ordered accordingly.

Long and Hooker, JJ., concurred with Grant, J.

Montgomery, J.

The plaintiff sues to recover for negligent injury. The defendant railroad company employed the Chicago & Grand Trunk Eailway Company to deliver, upon its yard at Port Huron, dirt taken from the tunnel which the Chicago & Grand Truñk road was excavating for, which dirt was to be used by defendant in leveling its own yard. The defendant had nothing to do with the train except to indicate to the conductor of the train where to place the cars for unloading. The plaintiff was engaged with a gang of men in the work of unloading the cars as they were placed in the yard. The gang of men was under the immediate charge of one Mehalski as foreman. Mehalski’s authority consisted of directing the manner of unloading, and he also had authority, when given direction by his superior, Mr. Cole, to hire and discharge men. The testimony shows that Mr. Cole was the division road master of the defendant road, and he had general charge and direction of the work of filling the yard. He gave instructions to Mehalski to keep the time and number of cars, and he gave directions in relation to the work. Mehalski, before increasing his force of men, consulted and obtained the consent of Mr. Cole. With this consent, he had authority to keep up the number of the force by hiring men to -take the place of those who left. While he did not exercise the power of discharging men at any time prior to the injury to plaintiff, he testifies that he supposed that he had the power to discharge men if they were not doing the work satisfactorily.. He testifies that he was under Mr. Cole’s direction and charge; that Mr. Cole was there on the spot, sometimes twice a day, and sometimes only twice a week.

“ If he [Cole] saw the work was being done as he wanted, he would say, ‘All right.’ If it was something that did not satisfy him, he gaye me instructions.”

The injury was caused, as is claimed by the plaintiff, in the following manner: In the conduct of the business, when the men were leveling dirt in the yard, the signal for them to leave the work, -and go at once to the cars and commence the work of unloading, was a call from Mehalski in the wordsj “ Come on, boys.” When the train was placed, the engine would he uncoupled and moved away. This custom was known to all the men. They came to unload whenever Mehalski called them, and not before. When he saw the train coming, he went on, and placed it where he wanted it to be unloaded, and ,then called the men. On the day in question, after the train which caused plaintiff’s injury came into the yard, Mehalski, following the usual custom, called to the men by hallooing, “ Come on, boys,” and waved his hands. The men had previously been assigned in pairs to the cars on the train. Each knew his own car. The plaintiff was at work on the car furthest from the engine, — the fifth car. The men had been working to the south of the train. The engine was on the north end of the train, and plaintiff’s car would therefore be the first one reached by the laborers. Each of the men carried a pail of water, in which he dipped his shovel when the wet clay, which was very sticky, adhered to it. The train came. The conductor, under the order of Mehalski, placed it. In coming to the train from the south, plaintiff, who was assigned to the last car, went to the west side, that he might fill his pail with water from the pond. He got his water, and put it upon the car. At the time Mehalski hallooed and motioned to the men, the cars had stopped. Plaintiff saw the engine uncoupled and standing at a distance. When he got to the car, it stood about 30 feet away. It was there when he went for the water. It was standing in the same place when he started to climb up. It appears that Mehalski had been notified that .the train was blocking the yard engine of the Flint & Pere Marquette Eailroad on another track, and was requested to have the mud train moved. Mehalski was then at the south end of the train, and, in answer to the request to move the train, he went up to the engine. As Mehalski went to the north end of the train to instruct the conductor to pull it ahead, the men were coming up to unload the train. The engine backed down and against the train, and the plaintiff received the injuries complained of. No warning was given by Mehalski. The plaintiff recovered, and the defendant brings the case to this Court.

1. The most important question arises upon the instruction of the court upon the subject of whether the plaintiff and Mehalski were fellow-servants. Upon that question the circuit judge instructed the jury as follows:

“If you find from all the evidence in the case that Jacob Mehalski had full power to hire and discharge men that were engaged in unloading this car, and that he had full control over these men in directing and managing their work in and about the entire business for which they were employed, — that is, in receiving the train into the yard and placing the train, the unloading of the dirt and the leveling of it down, and the general direction of the work, — then I instruct you, as a matter of law, that Jacob Mehalski was not a fellow-servant of the plaintiff.”

It has been found difficult to lay down general rules for determining whether one who has some direction of a branch of business of the principal is to be deemed his representative or a fellow-servant, and much ^confusion has arisen from a misapplication of well-understood rules; and it may be said, also, that the confusion has most often arisen in determining the question with reference to the rank of the offending servant. In general, we think the true test is whether the person alleged to be a representative of the master is engaged in the performance of an act which it is the duty of the master to perform for the protection of his employés, — such a duty as that of providing a safe place to work, and safe machinery and appliances; exercising due care in the selection of servants engaged in the same employment; giving proper direction as to use of dangerous machinery by inexperienced employés; and the establishment of proper rules and regulations for the conduct of the business. Where there has been neglect of any of these duties, whether the neglect is the personal neglect of the master or that of one intrusted by him with the performance of the duty, such neglect is attributable to the master; and this is generally true, without reference to the rank of the offending servant.

In Fox v. Iron Co., 89 Mich. 387, the rule as stated by Chief Justice Church in Flike v. Railroad Co., 53 N. Y. 549, is cited with approval. The rule as cited is as follows:

The true rule, I apprehend, is to hold the corporation liable for negligence or want of proper care, in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or title of the agent intrusted with their performance. As to such acts, the agent occupies the place of the corporation, and the latter * * * is liable for the manner in which they are performed.

See, also, Crispin v. Babbitt, 81 N. Y. 516; Van Dusen v. Letellier, 78 Mich. 492; Morton v. Railroad Co., 81 Id. 423; Roux v. Lumber Co., 85 Id. 519; Irvine v. Railroad Co., 89 Id. 416; Dewey v. Railway Co., 97 Id. 329.

In some jurisdictions, this is the limit of the liability of the master in all cases; and it is held that an employé •or servant may occupy a dual position, — that he may represent the master and stand in his place as to certain acts, and in other acts be simply a fellow-servant. See McKin. Fel. Serv. § 42. And, within certain limits, this rule has been applied in this State. See Hunn v. Railroad Co., 78 Mich. 513; Fox v. Iron Co., 89 Id. 387. But it has also been held by this Court that where the master places the entire charge of the business in the hands of an agent, exercising no authority therein, he may be liable for the negligence of such agent to a subordinate employé. This rule is recognized in Harrison v. Railroad Co., 79 Mich. 409; Ryan v. Bagaley, 50 Id. 179; Erickson v. Railway Co., 83 Id. 281; and Shumway v. Manufacturing Co., 98 Id. 411. See, also, Bailey, Mast. Liab. 270; Cooley, Torts, 562; Sell v. Lumber Co., 70 Mich. 479; Erickson v. Railway Co., 93 Id. 414; Lyttle v. Railway Co., 84 Id. 289.

It remains to be considered, then, whether the negli.gence of Mehalski in the present case was the neglect of a duty which the master owed to the servant, and could not delegate to a fellow-servant; and, if this be answered in the negative, whether, within the rule established in this ' State, the entire management of the business, or a particular branch thereof, had been delegated to Mehalski in such sense as to make him the alter ego or vice-principal of the defendant. 'We think it very clear that the act which Mehalski was performing was not one which the master owed the duty of performing in such sense that he could not delegate it to a fellow-servant of the plaintiff. The act which he performed or neglected — that of giving notice of the intention to move the engine — was such a •one as might be, and generally is, intrusted to subordinates, and related to the mere operation of the business in its details. There was no defect in machinery. There -was no negligence in the employment of servants. The injury •did not result from the failure to properly instruct an inexperienced servant, nor did the injury result from a want of general rules for the management and conduct of the business. It was plainly, therefore, the neglect of a fellow-servant, unless it can be said that Mehalski was the vice-principal or alter ego of the defendant. If the superior servant has complete control of the business of the master, or a disconnected branch thereof, the master is liable for the negligence of the superior servant, — in that case called the “vice-principal;” and this, without regard to whether the negligence is a failure to perform a duty which, upon other grounds, the law casts upon the master. This liability is apparently based upon the ground that the risk of personal negligence of one standing in such relation to the master that he can be called the master’s other self is not undertaken by the servant. See cases above cited. Mere superiority in grade does not constitute a foreman the vice-principal, unless his authority is exclusive in. his department. Did Mehalski occupy that relation to the defendant’s business?

In the case of Harrison v. Railroad Co., Light, an assistant road-master, was held to be the vice-principal, on the ground that the entire charge of a distinct branch of the business was, for the time being, in his hands as agent, the master exercising no discretion and no oversight. It was said:

“ He in fact controlled that entire division absolutely, so far as employing and discharging the men was concerned. * * * Doyle [his superior] was not present at the time of the injury, and the fair inference is that whatever power Doyle would have had, if present, Light had like power, and represented the defendant company as fully as Doyle would have done. He did no manual labor himself, but had the full oversight, care, and management of it.”

In Hunn v. Railroad Co., it was said:

The master may not choose to give his personal attention to his business, and may desire to put another in his place, to manage and control it for him as fully as he might do if personally present. Such person is his alter ego, and the master is as responsible for his acts of omission and commission, while engaged in the business intrusted to him, as if he did such acts himself. * * * Whenever the business conducted by the person selected by the master is such that the person selected is invested with full control (subject to no one’s supervision except the master’s) over the action of the employes engaged in carry-! ing on a particular branch of the master’s business, and, acting upon his own discretion, according to general instructions laid down for his guidance, it is his province tú direct, and the duty of the employés to obey, then he stands in the place of the master, and is not a fellow-servant with those whom he controls.”

See, also, Lyttle v. Railway Co., 84 Mich. 295.

In the present case, while Mehalski was acting under the general instructions of Cole, the jury have found that he (Mehalski) had full control of the men employed, and directed and managed their work in and about the entire business in which they were engaged, with full power to hire and discharge men engaged in the work. If the facts were so, the plaintiff and Mehalski were not fellow-servants. ' The fact that Mehalski was subject to general directions by another cannot be held conclusive. For the time being, every power and all authority which the master could exercise were vested in Mehalski, including the power of enforcing his authority by a discharge of the men employed. We think, within the rule established in this State, the instructions of the circuit judge, if supported by the evidence, must be upheld.

But it is said that there was no evidence that Mehalski had the power to discharge men. On cross-examination Mehalski testified:

“It was my duty to see that the men did their work properly. .If they did not, I would discharge them.”

On redirect he testified:

“Mr. Oole had given me authority to discharge men. He said, if men were no good, to discharge them. That was about two months after we commenced work there.”

As this date was later than the date of the injury to plaintiff, it is contended that there was no authority at the time of the injury. But the witness further testified on redirect:

“I had talked with him many times before that about discharging men, and was acting under his direction about that.”

On recross-examination he testified:

“If any left, I had authority to hire men in their " places, but would not have authority to take any greater number than ten without getting authority from Mr. Oole. He told me, if they would, not work, to let them go. I considered I had a right to discharge a man if he was not doing good work.”

We are satisfied that it was properly left to the jury to say whether, at the time of the injury to the plaintiff, Mehalski had authority to hire and discharge men.

2. There was testimony from which the jury would be justified in inferring that the plaintiff attempted to get upon the car after it was in-motion. While the testimony upon this point was meager, yet it was such that the jury might have been justified in acting upon it. One Reynolds, a witness for defendant, testified:

“Van Patten gave the signal to back up and couple on, and pull the train ahead. There was no jerking of the train. Just as they started, I saw plaintiff step between the cars. He put his pick and shovel and pail onto the car, and then put his hands, one on each car, and tried to step on the brake beam. There would not be much slack in the train that a person would notice, because they started so slow. I watched the man, and the next I saw of him his foot was run over. I did not see him when he fell.”

In view of this testimony, defendant asked an instruction as follows:

“In order to recover, the plaintiff was required by law to exercise care to avoid getting upon the cars, or to attempt to get upon the cars, while they were being moved, or while they were likely to be moved, so as to endanger his safety in getting upon them; and if, by his own want of care, he contributed to receiving the injury of which he complains, he cannot recover against the defendant.”

¥e think this instruction should have been given. It was peculiarly proper in this case, for the reason that the injury is alleged to have occurred through a failure to notify the plaintiff of the fact that the train was about to move. If, then, the plaintiff’s attempt to get aboard the car was made after the train was in motion, it cannot be said that the neglect of the duty to notify him that the' train was about to move was the proximate cause of the injury. Nor are we able to say that the charge of the circuit judge, given on his own motion, cured the error. It is true, the court laid down correctly the general rule that the plaintiff must, show that he in no way contributed to the injury complained of; but the instructions did not touch the precise point covered by the request to charge, and the defendant was entitled to an instruction upon this specific point. Wildey v Crane, 69 Mich. 17; Miller v. Miller, 97 Id. 151; Babbitt v. Bumpus, 73 Id. 331.

3. The circuit judge further charged the jury that if they should find that Mehalski, after he had given the order to the men to come on and get upon the cars, and while the plaintiff was about to climb upon the cars, ordered the engine coupled onto the train to move it, and did not warn the plaintiff, or notify him in some way, that the train was about to be moved, and the engine was backed down and coupled onto the train and moved in obedience to the orders of Mehalski, and in the moving of the train the plaintiff was thrown down and run over, and received the injuries complained of, and if the jury should find that the proximate cause of the injury was the failure of Mehalski to notify the plaintiff that the train was about to be moved, then the plaintiff would be entitled to recover. This instruction implies that the failure of Mehalski to notify plaintiff of the intended movement of the train was negligence as matter of law. While it was clearly a fact from which the jury might have inferred negligence, yet we think it should have been left to the jury to determine whether, in view of the custom of giving notice by Mehalski, and the custom of ringing a bell and blowing a whistle by those in charge of the train, the failure of Mehalski to give notice on the occasion in question was or was not negligence.

There are no other questions presented which would be likely to arise upon another trial.

The judgment should be reversed, with costs, and a new trial ordered.

McGrath, O. J., concurred with Montgomery, J.


author: Lono, J. Grant, J.

text:
    Alvah L. Sawyer v. The Menominee Loan & Building Association.

      Building and loan associations — Fraudulent representations — Bylaws — Payment of loan.

    1. It is immaterial (in a civil suit) whether a false representation is made innocently or fraudulently, if, by its means, the party to whom it is made is injured; citing Holcomb v. Noble, 69 Mich. 396; Totten v. Burhans, 91 Id. 499.
    2. In order to secure a loan of a mutual building and loan association, organized under Act No. 50, Laws of 1887 (3 How. Stat. §§ 3981a — 3981g), the applicant was obliged to subscribe for stock in and become a member of the association. He took the loan in good faith, and in full reliance upon the representation of the secretary of the association that it would and did construe its by-laws as the secretary then construed them, which construction, if adherred to by the association, would have enabled the applicant to pay the loan at the end of any quarter upon a basis stated by the secretary. After making 17 quarterly payments, the applicant decided to settle and pay up the loan and cancel his stock pursuant to the representation made by the secretary, and was then for the first time informed that the by-laws did not give such right, whereupon he tendered the amount which he claimed was sufficient to discharge his indebtedness to the association under the by-laws as represented to him by the secretary, and, upon the refusal of the association to accept said tender, filed a bill to compel it to do so, and to cancel the bond and mortgage given to secure the loan. And it is held that the complainant is entitled to have the contract construed in the light of the by-laws as they were represented to him, or that at least the defendant should receive its money, less the payments made, with interest at 7 per cent, from the time the loan was made.
    Appeal from Menominee. (Stone, J.)
    Argued June 27, 1894.
    Decided December 22, 1894.
    Bill to compel the cancellation of a mortgage and the .accompanying bond upon payment of a certain amount. Complainant appeals.
    Decree reversed, and one entered in this Court in accordance with the opinion.
    The facts .are stated in the opinion.

      Sawyer, Waite & Waite, for complainant.

      W. -HI Phillips, for defendant.
   Lono, J.

In September, 1888, complainant applied to the defendant association for a loan, and in order to procure it was obliged to subscribe for stock in the association. The taking of the stock and procuring the loan were all one transaction. James H. Walton was secretary of the association, and acted in the transaction in behalf of the defendant. Complainant claims that, before he subscribed for the stock, Walton, in setting forth the advantages to-be gained by a borrower, among other things, represented that such borrower could pay a loan at any time, at the end of any quarter, and could settle on the basis of the loan’s being canceled in eight years, and at one-eighth thereof each year, taking the actual money loaned as a basis, and, so far as settlement was concerned, disregard the premium bid for the loan. The secretary explained that the association could do this because of the advantages it had in compounding interest monthly, and receiving interest on premiums and installments on premiums, and that the right to settle on this basis was plainly guaranteed by the by-laws.

Complainant claims that, relying upon these representations, he did not examine the by-laws, but agreed to take a loan of $4,500, and subscribed for 45 shares of the capital stock of the association, having bid for such stock 22£ per cent premium. After subscribing for such stock and securing the loan, complainant claims that, relying upon the representations made by the secretary, he continued for 17 quarters to pay the installments on the stock and interest, when he decided to settle and pay up the loan and cancel the stock pursuant to the representations made by the secretary, and was then for the first time informed that there was no such by-law, whereupon he tendered the sum of $1,700, and demanded the cancellation of the stock, bond, and mortgage given to secure the loan, which was refused. This bill was filed for the purpose of having the bond and mortgage canceled upon the payment of the $1,700, which complainant claims is sufficient to discharge his indebtedness to the company under the by-laws as represented to him by the secretary.

The testimony was taken in open court, and at its close the court filed a written opinion, which sets out substantially that the complainants object in joining the assocú ation was to secure the loan; that the certificate in the form used by the association was issued to him for the' 45 shares, and on the same day of its issue was duly assigned to the defendant to secure in part the loan; that in the written application signed by complainant he agreed “to comply with the charter and by-laws of your association;” that he secured the loan, or the preference for an advance on 45 shares of the stock, at a premium of 22£ per cent; that he filled out, _ signed, and executed the form of bond and mortgage in use by the defendant, which bond recited that he had become a stockholder of the association, and had subscribed to its charter and by-laws; that the mortgage contained the following condition:

“That if the parties of the first part shall and do well and truly pay or cause to be paid to the said party of the second part, at its office in Menominee, the full sum of $4,500, payable in installments of $22.50, on the first Tuesday of each and every month beginning on the first Tuesday of September, 1888, together with interest on the principal sum at the rate of 8 per cent, per annum, payable in monthly installments of $30 each, at the same place and time respectively, until the said shares of stock shall have attained the full value of $100 each, and shall pay all fines on said stock, or shall sooner pay said indebtedness under the provisions of the by-laws of said second party, according to a certain bond bearing even date herewith, executed by said Alvah L. Sawyer to the said party of the second part, then these presents and said bond shall cease and shall be null and void.”

The opinion recited that the amount actually received by complainant on the loan was $3,487.50; that he made payments for 17 quarters, or 51 monthly installments of $52.50 each, denominated by said association as $22.50 installment and $30 interest; that up to December, 1892, when he sought to withdraw from the association, he had paid $2,677.50. The court stated the claims of complain■aut made in his bill:

1. That he was induced to join the association and make ¡said loan by reason of certain false and fraudulent representations of its secretary and business manager; that it was contemplated from the first that he would want to ¡settle at the end of about four years, and that the secretary represented to him that for the purpose of settlement after the first year a borrower could disregard the premium bid, and could for each year his loan continued deduct one-eighth from the amount of money actually received, and could cancel the loan by paying the balance thereof, disregarding the premium, and on the same basis and at the same rate at the end of any quarter year, so that at the end of four years the loan would be half paid up; that the secretary figured over the loan desired on the basis above specified, and showed that for the first four years the average cost of the use of the money would not exceed about 8 per cent.; and that the secretary said that at the end of four years complainant could cancel the mortgage by paying one-half the amount of money actually received, and that the right was plainly guaranteed to borrowers in the by-laws of the association.

2. That the by-laws are capable of the construction given them by the secretary, and complainant asks for ■such a construction.

The court below says that upon a review of the testimony he found that the representations were made substantially as claimed by complainant, but that he did not think any fraud was practiced by defendant or its agent, but that there was an honest belief on the part of the secretary that at the end of the four years one-half of the loan would, by the working of the scheme, be paid off; that both parties were bound to take notice of the law of this State under which the defendant association was formed, which constituted the charter of the defendant; that, in his opinion, the secretary believed in the truth of what he asserted, but that both he and the complainant were bound to know that the company could not be operated on such basis without a violation of the charter, and that if the complainant did not read the charter and by-laws it was his fault. The court further said:

“It will not do for a man, in the absence of fraud, to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. A contractor must stand by the words of his contract, _ and, if he will not read what he signs, he alone is responsible for his omission.”

A decree was entered in the court below dismissing complainant's bill, and from which he appeals.

It is evident from all the testimony that complainant took the loan in good faith, and in full reliance upon the •assurances given by the secretary that the defendant company would and did construe the by-laws as the secretary then construed them, and he made his contract in reliance upon such interpretation. If that interpretation had been •adhered to by the company, he could have settled at any time. We think he is now entitled to have the contract construed in the light of the by-laws as they were represented to be, or that at least the defendant should receive its money, with interest at 7 per cent, from the time the loan was made. Whether such misrepresentations were intended or were mere matter of mistake, the complainant has been misled to his injury; and the law is well settled in this State that it is immaterial whether a false representation is made innocently or fraudulently, if, by its means, the party is injured. Holcomb v. Noble, 69 Mich. 396; Totten v. Burhans, 91 Id. 499.

We do not think that the rule laid down by the court below, that the complainant had the opportunity to find ■out what the by-laws were, and therefore could not complain if he did not protect himself, can be sustained. The parties were not standing on an equal footing. The secretary represented the company, and the complainant might well rely upon the interpretation of the by-laws which the secretary gave. Complainant did not see the by-laws. They were not exhibited to him. The secretary claimed to know what interpretation the company put upon them, and the complainant chose to rely upon such representation. The rule laid down by Lord Chelmsford in Railway Co. v. Kisch, L. R. 2 H. L. 99, 120, it seems to us, is specially applicable to the present case. It was there said:

“When once it is established that there has been any fraudulent misrepresentation or willful concealment by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by proper inquiry. He has a right to retort upon his objector, ‘You, at least, who have stated what is untrue, or have concealed the truth, for the purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty/”

In Mead v. Bunn, 32 N. Y. 275, the rule was also laid down that the omission of one of the parties to an agreement to make inquiries as to the truth of facts stated by the other cannot be imputed to him as negligence.

In Bank v. Hunt, 76 Mo. 439, it was held that a person buying stock of a bank from the bank is entitled to rely upon assurances of an officer of the bank as to its financial condition, and, if already a stockholder, he is not bound to avail himself of his right of examining the books of the bank; and in Hough v. Richardson, 3 Story, 659, it is said:

“ Where, in a treaty for the sale of property, the vendor makes material misrepresentations, by which the purchaser, having no knowledge, or means of knowledge, in relation thereto, is actually deceived to his injury, a court of equity will rescind the contract in pursuance thereof, although it do not contain the misrepresentation; and it matters not, in such a case, whether the misrepresentations be the result of mistake or fraud.” ■

The misrepresentation was made in the present case by the secretary of the defendant, and the company has had the benefit of the loan to the injury of the complainant. Equity requires that the mistake be corrected, and the complainant relieved of any claim which defendant may have under the interpretation of the by-laws it now claims.

The decree of the court below dismissing complainant’s bill will be overruled, and a decree entered in this Court authorizing him to pay the mortgage at present on the basis of the by-laws as represented, unless the defendant shall elect within 30 days to take its moneys at the rate of 7 per cent, per annum from the time the loan was made, deducting payments made, as the complainant offers to do in his bill; but no interest will be computed from the date of the tender, as the tender was sufficient to meet the amount unpaid on the mortgage at that date. Complainant will recover costs of both courts.

McGrath, C. J., and Montgomery, J., concurred with Long, J.

Grant, J.

(dissenting). The rights of the complainant, Sawyer, must be determined from the standpoint of his relations to the defendant and its members. He voluntarily applied and became a member of the association. He was presumed to know the law, and, whatever may be the rule where an officer of the company misstates the effect of the by-laws, the charter of the defendant is binding upon him. Misrepresentations as to the effect or construction of the statute will not avail him. So, also, if Walton represented that there were by-laws which in point of fact were in conflict with the charter, this could not avail, for such by-laws would be void. The circuit judge found as a fact that the scheme as claimed by the complainant is not warranted by the charter, and that the defendant could not carry on business under such a scheme.

Section 10 of the act in regard to building and loan associations provides:

“A borrower may repay a loan at any time, and, in the event of the repayment thereof before the expiration of the eighth year after * * * the date of issue of the series of stock in such association on which the loan may have been made, there shall be refunded to such borrower one-eighth of the premium paid for every year of the said eight years then unexpired.”

Section 6 provides that—

“ Any stockholder wishing to withdraw from the said corporation shall have the power to do so by giving 30 days' notice in writing at a stated meeting of his or her intention to withdraw, when he or she shall be entitled to receive the amount paid in by him or her, and such interest thereon or such proportion of the profits thereon as the by-laws may determine.”

The circuit judge, in his written opinion, said:

“Both parties were bound to know these provisions. All members must participate equally in the profits. This is the fundamental law of the organization as indicated by the statute. The plan contended for by the-complainant, by which an arbitrary amount of the loan was to be considered as paid every year, would be subversive of the scheme, and hence illegal. Even if such were the agreement, a court of equity would not adopt the agreement, nor enforce it, when the agreed rule would produce a result contrary to the evident design of the Legislature in creating building associations. The plan which it is claimed was presented by the secretary in its operation would have worked an injustice to other members, and would have been inequitable and unfair.”

The conclusion of the circuit judge is, in my judgment, fully justified. The profits of the company depend upon the amount of business done, the premiums bid for loans, and the expenses necessarily incurred. These companies cannot, under the law, guarantee a certain amount at a specified time. Under the complainant’s theory, he obtained his loan for over four years at about,6 per cent, per annum. I am unable to see how this is possible under the scheme authorized by the law. It would be impossible for these associations to exist by simply loaning money at 6 per cent., or by authorizing members to withdraw upon the basis of the representations now claimed. This association had just been formed when the complainant became a member. As Mr. Walton testified, they were all “green at the business.” If complainant may rely upon the statements of Walton, which in fact were only his construction of the by-laws, all the other members may do likewise, if Mr. Walton so informed them. The result would be the ruin of the association.

The complainant was a lawyer of experience and ability, living in the same place with Walton. The organization of the association had just been completed. Walton acted honestly. The by-laws were at complainant’s disposal to examine if he chose, but he preferred to rely upon the construction placed upon them by a layman. He continued a member of the association for over four years, receiving its benefits, and acting in accordance with its charter and by-laws. The injustice to other members of the defendant in now permitting him to withdraw, not in accordance with the charter and by-laws as they are, but as Mr. Walton, nearly five years before, explained them to him, is manifest. I think his discovery that the bylaws were not as represented came too late. Ogilvie v. Insurance Co., 22 How. 391.

One author says:

“While by-laws are not always binding upon strangers, a person who becomes a member of an association or company after the adoption of a by-law is not considered a stranger, and by joining the organization he is deemed to accord his assent thereto, and to be thereafter bound by the obligations which it may impose upon the members.” Beach, Priv. Corp. § 321.

Another author, after stating the essentials of valid bylaws, says:

“Where these features are found, and the by-law has been properly passed, every member’s consent is conclusively presumed, and his submission required.” End. Bldg. Ass’ns, § 271; Bac. Ben. Soc. § 81, and note.

In Upton v. Tribilcock, 91 U. S. 45, 50, the defense was. that a subscription to the stock of a company was obtained by the fraudulent representation of the agent that the stock was in part non-assessable. It was there said:

“That the defendant did not read the charter and bylaws, if such were the fact, was his own fault. * * * That a stockholder may relieve himself from his liability by proof that he was misinformed as to the effect of his contract when he made it would be a disastrous doctrine. That a defendant who could not, by contract, lawfully relieve himself from liability as a stockholder, can accomplish that result by proof that it was fraudulently represented to him that he could so relieve himself, would be strange indeed.”

I do not wish to be understood as saying that there are not cases in which a stockholder will be entitled to relief against a corporation for false and fraudulent representations in selling the stock to him. Such was the case of Railway Co. v. Kisch, L. R. 2 H. L. 99. In that case a prospectus was issued by the directors of the company, containing false and fraudulent representations in regard to its capital, upon the faith of which the defendant agreed to purchase some of its stock. But no such state of facts exists ■ in the present case. The whole difficulty arises upon the honest, but mistaken, construction of the bylaws placed upon them hy the secretary of the company to one who applied for membership almost at the inception of the organization. It is not a rule of universal application that a party is entitled to rely upon the representations of another. When the complainant applied for membership he was bound to take notice of the charter and by-laws of the defendant. Came v. Brigham, 39 Me. 38; Cummings v. Webster, 43 Id. 192. When one has the means of knowledge at his disposal ■ when becoming a member of associations like that of the defendant, and chooses to rely upon the statement of an officer of the company as to the effect of the by-laws, he does so at his peril, and should not, years after, be heard to say that the officer misrepresented them.

I think the decree should be affirmed.

Hooker, J., concurred with Grant, J.

       3 How. Stat. § 3981a et seq.