;202
vol. 4.1. LUND'll. HERSEY LUMBER
CO.'
(Oircuit!Oourt, D. Minnesota. January 6, 1. MA.:!lT1llR AND SERVANToO-NEGLlGENOE OJ!' VIOE-PRINOIPAL.
a ,
TIW master ,is liable tor the negligence ot his foreman, ordered to remove a barge from the water without directions as to mean!!, in selecting unsafe ropes, by the , blleaking of wbich a laborer was injured. ,Tq.e foreman and superinte,ndent, though present and aS$isting in removing a 1Jargtl' from the water, are not fellow-servants of a laborer injured by the breaking j!. rope; in the selectilln of which the foreman was negligent. ;!, U
"
;
I
,:
AtLaw· liep,".IJ. Gje;rtsen
for " John W.Arctander, for complq.il1ant. ¢ J;.a.wrence, for defendfl,Ilt. l\J;l<l
,. J. This was a suit 11l'oqght to recover for personaUnjurieB. I 1l6ve; ;90Qsidered the motion for anew trial in the above-entitled case. regard to the exteqt of iplajntiff's injury,there iBvery, little about the facts. is a,f9reign corporation, on tn.e ,St. Croix, .in rafting andmarn1faGwring lumber, ,and Ms, a,D;liij at Stillwater, in Jdinn(3sota. , Itsoffl'cerlljand directors Qf the at/j.te, and, it has, a superintendenUn managing its by Cam;ppell., It hasforeIIlen, ];laYing charge and, its Several braf,lclles of business. Lynch was the foreemployed t11e Lake St. Crobl::, in rafting the logs aI1,d, called "Headworks." At .of the season ,in,t8.81" ,all the were discharged, except a few: w;bo;were retained .W ta,ke;cllarge of tlw property, and house it for the winteJl., Lynch was one, of the menl'etained,aJ;ld wal\ orq,ered by Campbell to haulthe barge ways; and .,no spe¢ia1.instruction Head..,prJ!s out of the water, on was giyel1 him as, to the manner ,of hauling it out, and what appliances The qefendant, inits saw-mill, had, <lhains and ropes, Lynch, when Qrdered by Campold and new, and blocks and and procured,Plocks,taQkle, Ibell, and and them to th.e: b,arge, and, the pll),tform above the waysfsp.: t.he barge could, bej :ba.A1ed up by, turning the capstan. was ready the' pl!l<inHff, who was working about the 40wn by, in turning the capstan. ,At ,thetlrsMrj,al the rope broke; an<,l, Lyncn., took one Brigham, an employe, procured another rope, which was fixed h,l ,the blocks. At:tQ.fl.t. tlwe Cilompbell, who when the a,ppliances were came down thew:q.ys, passed the /lnd ropes i blljI'ge. without :making any objections., and, when Lynch gave in up. Before ,the barge was halfas the bargel>lid pO"'ll,and way UH#i'UPREl ill iheta,ckJiQg the capstan began to reverse, the plaintiff was struck by one of the handles, and thrown overboard, and in falling struck his foot against some part of the capstan, or one of the handles, and was injured. The suit
LUND t1. HERSEY LUM'BER 00.
203
is brought to recover damages for the injuries sustained, as claimed, by the negligence of def13ndant in furnishing llJlunsafe,lllllsound, and insecure rope. Campbell was undoubtedly the "alter ego" of the corporation. His acts and omissions were those of the corporation. The rule is absolute that a master is bound to use all reasonable care and diligence in nishing to those in his employ, for their use in his work, sound and suitable instrumentalities nnd appliances. He cannot relieve himself of liabilityf!)r its omission by delegating its performance to another, or, having required work to be done, by omitting precautions and inquiries as to the manner of its performance. He is ordinarily chargeable with knowledge of the means to be employed in performing his work. When the selectionof these means is delegated to an employe, the latter stands in his place in discharging these duties, If this employe neglects his duty, it is chargeable to the master. If the master is ignorant of defects in the instrumentalities used by employes in perfOfminK his work, this is no defense to an action by the employe, when injured by them, when, by the exercise Qf proper care and inspection, the master could have discovered and remedied the defects, Of avoided the danger incident therefrom. It was claimed on the trial, and the testimony tended to show negligence on the part of Campbell and Lynch. who was given unlimited authority toprooure the appliances for hauling up the barge. Lynch was not an independent contractor. He was a servant of the defendant; and he did not furnish the rope and tackle for hauling the barge out of the water in the course of an, inqependent occupation, representinK the will of his employer only as to the result of his work. But when he procured the fopehe represented the defendant as to the means by which the barge was to ,be hauled out onto the ways, And this is the test to determine whether the ODe who renders the servioe is an independent: contractor, or a servant to whom is delegated the performance of a duty personal to histnaster, and for whose negligence, in such case, his master is responsible. The case was vel'y fairly and properly presented, to the jury, to determine, upon the evidence, the issues presented by the pleadings. The complaint charges that the negligence of the defendant con.. sisted in furnishing an unsafe, insecure, and defective rope; and there was testimony tending to show such carelessness. It is urged that Campbell and Lynch were the fellow-servants of Lund, and that the defendant is not liable to the plaintiff for an injury sustained by their negligence. It is true they both aided in operating the appliances furnished; but the injury was not occasioned by the carelessness of either· in operating the block and tackle. The negligence, ll.S claimed; consisted in performing a personal duty of the· master, which had been intrusted to themjandwhile in the performance of this duty they were not mere co-Iaborers and co-em ployes of the plaintiff;· who was injured. 1 cannot disturb the verdict of the jury, and declnl"e the damages excessive. The motion fora new trial is denied.
204
FEDERAL REPORTER,
vol. 41.
CLAFLIN:,eta1. ft. BEAVER
et a1.
(Cfn'cwU Court, S. D. OMo. January 4, 1890.)
Where, in replevin for goods fraudulently purchased, the marshal seizes goods to which· plaintiff is not entitled, and by order of court an issue is framed upon the question whether some of the goods seized were not purchased from the plaintiff, or if so purchased were duly paid for, judgmevt may be rendered for defendant for goods so wrongfully seized, though such goods were not described in the writ of replevin, nor in the petition therefor.
SEIZURE.
At Law. Aqtion by H. B. Claflin & 09-, against A. M. Beaver, Myrtie Beaver, George Me1vill, and B. H. Millikin. l(r(J,mer, Jc Kramer, for plaintiffs. , . W., O. IIen,derson and H. M. Maynard, for . iaan action in replevin for a lot oidry goods claimed to have,beer1 obtained by the defendant A. M. Beaver, by means of fraudulent purchases from the plaintiffs, in the fall and whiter of 1885. The defendants George Melvin a,nd B. H. Millikin are his assignees in insolvency, under a :generalassigllment made by him on the 10th of March, l886. covering his entire stock of dry goods and notions in his storeroom at Washington, Fayette county, Ohio. The defendant Myrtie Beaveliis the wife .0rA. M. an1 had a upon said stock of goods j1 111ade prIOr to the aSSIgnment. Upon the trIal the defendants offered to·prove that the marshal, acting under the direction of the plaintiffs' agent, who was present, when the writ of replevin was executed, topk posseasion ohnd delivered to the plaintiffs a lot of dry goods which were included in the assignment above referred to, and in the possession of the. assijl;nellll. but not. described in the petition or writ,nor included i.(l the aJleged,fl'audulent purchases. The trial ju"dge excluded this testimony, for-the feasOIl tb&t the petition was for the recovery of specific goods named, and there was no issue to which such testimony could be applied. .The verdict was {Qr the plaintiffs. A motion to set aside and for a new trial was heard, and the verdict vacated to the extent qnlyi' that is·to say: The parties were ordered to frame an issue upon sorhe part of the goods taken by the marshal upon the w*of replevin, and delivered to tbeplaintiffs, were not purchased from the p!tl,intiffs , or, if purchased.from them"were,pll.idfor prior to the beginning this suit, and if so, what was their value at the time when theY' were so by the marshal. . The court, after ;giving directions issue, further ordered verdicts "stand as issuesinfavor of the plaintiffs,1l;s to, 1.\11 the goods tbepetition, and taken on the writ, such as' shall from' be found upon ,the issues noW directed, to htLvenot the plaintiffs by either of the defendants, or, if so purchased, were paid for prior to the beginning of this suit." Claflin v. Beaver, 35 Fed. Rep.
of