Camp v. Hall , 39 Fla. 535 ( 1897 )

Carter, J.:

After a thorough re-examination of this case, aided by the elaborate oral arguments and briefs of the parties appellant and appellee, we are all of opinion that the conclusions reached upon the former disposition •of the case were correct, and that the judgment of the ■court below should be affirmed.

I. It is contended by the first assignment of error that the court below erred in overruling the demurrer of the defendants to the plaintiff’s amended declaration. And it was very earnestly and confidently argued before us that the demurrer, particularly the second, third and fourth grounds thereof, was well taken, but we entertain a different view, and in discussing this assignment of error we will consider each point of law endorsed on the margin of the demurrer, in consecutive order.

A. It was unnecessary for the declaration to show that Williams had exclusive control and authority ■over plaintiff at the time of the alleged accident. It was entirely sufficient that Williams had at ■the time authority to command plaintiff to do the act resulting in the injury. The law does not confine the master’s liability to those cases only, where his servant is invested with exclusive authority to do a particular act, or to exercise a particular control, because the master may appoint as many agents as he pleases to execute or superintend a particular work, and the acts of each, within the scope of his authority, will be-binding upon the principal, unless the authority be a joint one only. Mechem on Agency, secs. 76, 77; Wood on Master and Servant, sec. 448. This ground of demurrer did not question the sufficiency of the allegations of the declaration showing that Williams had at the time authority to command plaintiff to do' the act which it was claimed resulted in his injury. It was, therefore, properly overruled.

B. The second ground of demurrer contended that it was shown by the allegations of the declaration that plaintiff’s injuries were received in consequence of the negligence of a fellow servant, and hot by reason of the negligence of the defendants. The rule is well settled in this State, as well as in the United States and England, that in the absence of statute a master is not liable to his servant for personal injuries received in the course of his employment, through the negligence of a fellow servant, when engaged In the same undertaking or common work. Parrish vs. Pensacola & Atlantic Railroad Co., 28 Fla. 251, 9 South. Rep. 696; South Florida Railroad Co. vs. Price, 32 Fla. 46, 13 South. Rep. 638; South Florida Railroad Co. vs. Weese, 32 Fla. 212, 13 South. Rep. 436; Duval, Receiver, vs. Hunt, 34 Fla. 85, 15 South. Rep. 876. From this general proposition there is no dissent; but when we undertake to analyze it, and attempt to define what, is meant by the terms “fellow servant,” and “same undertaking or common work,” we find the courts and text writers very inharmonious. There are, however,, certain duties required of a master to his servant,, which if left unperformed, or negligently performed f and personal injury results therefrom to such servant, without his fault, will entitle the latter to recover damages; and among such duties are those requiring the master to furnish reasonably safe machinery and other appliances, and a reasonably safe place to work; and instructions and warnings against special dangers attending hazardous duties, to all servants who, from youth, inexperience or imbecility, are ignorant of such special dangers. Bishop on Non-Contract Law, secs. 644, 648, 651; 1 Lawson’s Rights, Remedies and Practice, sec. 309; Beach on Contributory Negligence, secs. 346, 362; Thompson on Negligence, p. 972, sec. 3, p. 978, sec. 8; Shearman & Redfield on Negligence, secs. 194, 203, 219; McKinney on Fellow Servants, sec. 24; Wood on Master and Servant, secs. 329, 349, 350. And it is generally held, and we hold, that these, among other duties, are of a personal nature, and if the master delegates them to another servant, no matter what his title may be, nor what his grade or rank in the master’s service, the master will be responsible for their non-performance, or for their negligent performance, notwithstanding the master has exercised due oare in the selection of the agent to whom these duties •are intrusted. Bishop on Non-Contract Law, secs. 665, 667; Beach on Contributory Negligence, sec. 356; Shearman & Redfield on Negligence, sec. 204; McKinney on Fellow Servants, secs. 23, 24, 42; Wood’s Master and Servant, sec. 438; 3 Wood on Railroads, secs. 377, 380, 399 a. Baltimore & Ohio R. R. Co. vs. Henthorne, 19 C. C. A. 623, 73 Fed. Rep. 634, 43 U. S. App. 113. If these principles be applied to the present declaration it will be found that this ground of demurrer was not well taken, because even if Williams was a co-servant with the plaintiff, yet as he was intrusted by the master with certain personal duties due-from the master to plaintiff as his servant, the master is, nevertheless, liable for their non-performance, or-negligent performance. Plaintiff, a boy less than fourteen years of age, employed only for the special purpose of making and putting together fruit and vegetable crates at defendants’ saw mill, an employment-light, simple and capable of being performed by a child without risk of injury from the dangerous machinery employed in the mill,' was placed by defendants under-the direction, control and orders of Williams, the-foreman and agent of the defendants in their said saw mill. The relations of Williams to defendants and to-plaintiff being as thus stated, he was representing the defendants when he gave instructions to plaintiff to-discontinue the harmless employment of making vegetable and fruit boxes, for which he was employed,, and to engage in the dangerous employment of pushing lumber cars on a side-track, for which he was not employed, and it devolved upon him to perform that personal duty of the defendants which required them to furnish plaintiff a reasonably safe place to work- and the plaintiff being an inexperienced youth, “not capable of appreciating the risk to Ms person from the-dangerous work he was ordered to perform,” and not knowing or apprehending any danger as alleged, was also entitled to instructions, information and warnings of the special dangers of such work, before being instructed to perform it. The instructions of Williams-to engage in such work, and his failure to warn of the dangers attending it, were, under these circumstances, instructions and failures on the part of the defendants, though proceeding from a co-servant of the plaintiff^ Wood on Master and Servant, sec. 448.

C. The third and fourth grounds of the demurrer are properly considered together. There is no general specification that the declaration is ‘ ‘vague, indefinite and uncertain,” although much of appellants’ argument was based upon such a specification. The third ground of demurrer insisted only that the declaration was vague, indefinite and uncertain, in that it failed to allege the name of the railroad owning, controlling or operating the railroad or the cars mentioned in the declaration, and failed to allege that defendant controlled, owned or operated, or had authority to operate said railroad or cars, and the fourth ground insisted that the parties operating and controlling the railroad would be liable for plaintiffs injuries, and not the defendants. The allegations of the declaration show that the defendants were conducting a saw mill business at the town or station of Campville; that-Williams was the foreman and agent of defendants in their said saw mill, and as such had control over plaintiff who was subject to his orders; that when the particular order complained of was given, workmen regularly employed for the business were engaged in loading lumber cars with lumber from the mill, and moving them on the side-track of a railroad in proximity to the mill; and it was these cars which were then being loaded with lumber from the mill which'plaintiff was ordered by Williams, the foreman and agent, to assist in pushing. Now, it is clear that the question of defendants’ liability is not to be determined by the question of their ownership'or operation of these cars, but by the question, whether Williams, when he gave the order to plaintiff, was engaged in his master’s business and acting within the real or apparent scope of his authority; or, in other words, did Williams llave actual or implied authority from his masters to order the cars to be moved ou the side-track; and, if so, was he at the time he gave the order engaged in the line of his duty in his masters’ business. We think it is equally clear that the foreman and agent of the owner of a saw mill necessarily has authority to move, or direct the moving of, cars being loaded with lumber from the mill where they are located on a sidetrack in proximity' thereto, whenever he thinks it necessary, either for more convenient loading or for the convenience of the mill, and that, too, whether his principal or some third party owns, or operates, or ■controls the cars or the side-track upon which same are located. An allegation that defendants owned or operated the cars, would have furnished additional evidence of Williams’ implied authority to move them; while an allegation that some one else owned or operated the cars or side.-track, would not have furnished evidence sufficient to destroy Williams’ implied .authority to move them in the manner alleged. The rule of law is that a master is liable in tort for all acts ■of his agent performed in his master’s business, within the real or apparent scope of his employment; that is, within the express or implied powers given him. This rule is, so far as we have been able to find, universally acknowledged, and none of the cases cited by appellants decide differently, although in some of "them the rule is not stated so broadly. Mr. Mechem ((Agency, §735) states the rule as follows: “If, upon investigation, it be found that the agent was acting as such, within the apparent scope of his authority, and in the performance of his undertaking, the principal is liable for the agent’s negligent omission or commission, although the agent was not authorized to do the particular act complained of, or had received express instructions not to do it.” See, also, opinion by Judge Cooley, in Chicago & Northwestern Ry. Co. vs. Bayfield, 37 Mich. 205; Wood on Master and Servant, section 307; Bishop on Non-Contract Law, section 609. It being within the apparent scope of Williams’ authority to remove or direct the removal of these lumber cars in the manner alleged, the plaintiff — a child — is not to be blamed if he, acting upon that precept so universally instilled in children — obedience—undertook the task of assisting in moving them, assigned him by his superior. It did not devolve upon plaintiff, even if he had sufficient discretion to do so, to stop and inquire as to the express authority of Williams to move these cars; he was justified in acting upon Williams’ implied or apparent authority in this respect. The defendants by delegating to Williams the authority to control, order and direct a child employee can not complain if they are called upon to respond in damages for injuries caused by a negligent order or direction given by him within the apparent scope of his authority, in furtherance of his master’s business, and sought to be performed in good faith by the child. The plaintiff being under the direction, control and orders of Williams, the foreman and agent of defendants, and the allegations of the declaration being sufficient to show that Williams had apparent authority to direct the removal of these cars, even if he abused the authority given him over plaintiff, by directing him to engage in this hazardous work, yet as he did not exceed such authority, he was in what he did a representative of the defendants, and should have performed the personal duty of cautioning against danger devolving upon the defendants. Wood on Master and Servant, §439; Beach, on Contributory Negligence, §327; Thompson on Negligence, p. 975, §5; p. 976 §§ 6, 7; Shearman & Redfield on Negligence, §233; Norton vs. Volske, 158 Ill. 402, 41 N. E. Rep. 1085, S. C. 49 Am. St. Rep. 167.

D. The demurrer did not question the sufficiency of the declaration as a whole, or the sufficiency of its allegations as to Williams’ authority to direct the removal of the cars (unless, perhaps, inferentially by the third and fourth grounds), although appellants’ argument here is based almost exclusively on these-grounds, it being insisted that the declaration was. faulty in that it alleges evidentiary matters of the ultimate facts, instead of alleging the ultimate facts, themselves, i. e., that defendants did the act complained of either by themselves or by a duly authorized agent acting in the line of his duty. This latter contention is no doubt true, but as the evidentiary facts alleged are sufficient, if true, to establish conclusively the ultimate facts, the defect in this respect is one of form, and not one of substance. If the evidentiary facts alleged were insufficient in law to establish the ultimate facts, the defect would be one of substance, proper to> be reached by general demurrer, but if the objection be simply to this manner of pleading the ultimate facts, the defect is one of form, and could formerly be reached by special demurrer only. The statutes of Elizabeth and Anne distinguished between matters of substance and matters of form in pleading, and required a special demurrer in order to take advantage-of defects in the latter. Stephens on Pleading, sec. 107; 1 Chitty’s Pleadings, pp. 694-6; Gould’s Pleadings, pp. 433 et seq. Our Legislature, following the English Common Law Procedure Act, by sections 14 and 15, Chapter 1096, act of 1861 (sections 1050 and 1040 Rev. Stats.) enacted “that either party may object by demurrer to the pleading of the opposite party,, on the ground that such pleading does not set forth sufficient ground of action, defense or reply, as the-case may be, and when issue is joined on such demurrer the court shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto said court, without regarding any imperfection, omission, defect in or lack of form; that no pleading shall be deemed insufficient for any defect-which could heretofore only be objected to by special* demurrer.” The effect of this legislation was to abolish special demurrers, and to exclude all objections to-pleadings which could theretofore only be taken by special demurrer, i. e., defects in form, unless the pleadings should be amendable to the remedy by motion to strike out or amend, given by section 16 of the-same act (sec. 1043 Rev. Stats.), which provides “that' if any pleading be so framed as to prejudice, embarrass or delay the fair trial of the action, the opposite-party may apply to the court or a judge to strike out or amend such pleading, and the court or judge shall make such order respecting the same, and also respecting the costs, as such court or judge shall see fit. Wade vs. Doyle, 17 Fla. 522; Liddon vs. Hodnett, 22 Fla. 271; City of Orlando vs. Heard, 29 Fla. 581, 11 South. Rep. 182; Cuthbertson vs. Irving, 4 Hurl. & Nor. 741; Pinhorn vs. Souster, 8 Welsby, H. & G. 138; Brine vs. Great Western Ry. Co., 2 Best & Sm. 402; Grafflin vs. Jackson, 40 N. J. L. 440. If the matter pleaded be in itself insufficient without reference to the manner of pleading it, the defect is one of substance, but if the only fault is in the form of alleging the matter, the defect is formal. Grould’s Pleadings, p. 435; 7 Bacon’s Abr., title Pleas and Pleadings, (N). 5. In this case the matter pleaded was sufficient, and the defect, if any, was in the form or manner of alleging it. This defect was not available on demurrer, and as no motion to strike out or amend was made, we can not hold the declaration bad on that account. Hancock vs. Noyes, 9 Exch. 388.

II. It is insisted that the referee erred in admitting certain testimony, objected to; showing that the injury occurred while plaintiff was assisting in moving cars on a railroad side-track at defendants’ mill, on the. ground that there was no allegation in the declaration that defendants controlled, owned or operated said cars, or that the cars were being moved either by direction of defendants, or by their foreman acting within the scope of his authority. These objections were properly overruled because, as shown in the preceding paragraph of this opinion, the declaration was sufficient to admit this testimony as against these objections.

III. Another assignment of error is based upon the action of the referee overruling an objection to a question propounded to a witness, on the solé ground that the same was leading. The objection is not mentioned in appellants’ brief here, and must, therefore, be considered as abandoned. Other objections to the question are argued here, but we can not consider them because appellants are confined to the objections made in the court below. J. T. & K. W. Ry. Co. vs. P. L. T. & M. Co. 37 Fla. 1, 9 South. Rep. 661; Tuten vs. Gazen, 18 Fla. 751.

IY. The referee sustained objections, to the following question propounded by defendants to their witness Williams: “State whether or not the injury received by the plaintiff which necessitated the amputation of his leg was caused by his own negligence or carelessness ?’ ’ The referee did not err in this ruling. The question called for the mere opinion of the witness on a material issue of fact, presented by the pleadings and evidence, which issue it was the province of the referee to settle, subject to the principles of law controlling the issues. Watrous vs. Morrison, 33 Fla. 261, 14 South. Rep. 805; Thompson on Trials, sec. 377.

Y. It is further insisted that the referee erred in refusing to grant a new trial upon the ground that the finding and j udgment was contrary to the law and the weight of the evidence. There was evidence from which the referee could have found these facts, viz: that plaintiff, a boy batween thirteen and fourteen years of age, was hired by his father in the latter part of 1882 to the defendants to make vegetable and fruit crates in a shed “off to itself, but attached to” defendants saw mill; and for no other purpose, and the father never knew until his son was injured that he was ever required by defendants to do any work more hazardous than making crates; and in the month of April, 1883, plaintiff, with the other workmen at the mill, was under the full and exclusive control and supervision of one Williams, foreman of defendants’ mill, who was superintending and directing the work of pushing two lumber cars on the side-track to be loaded with lumber from the mill, for the defendants. Plaintiff and other young employes were near the crate shelter, pushing little tram cars, and Williams called out to these boys to assist in pushing the lumber cars on the side-track eight or ten steps away, which were too -heavy to be moved by the regular hands used therefor. The left side and rear end of the two cars •coupled together were so crowded with men and the right side so near lumber piled close to the side track that plaintiff could not secure a place to push, and •seeing a man between the cars, and thinking that a safer place, he went in there, and while pushing, his •foot slipped, and the rear car ran over his leg and ground it to pieces, and it was amputated that day, •and about ten days afterwards further amputation was necessary. Plaintiff was confined to bed about four months, and to the house about eight months, •though since that time he has never suffered from the wound. Plaintiff had never helped to push lumber •cars on the side track before, though for ten days before the accident the work of making crates had been discontinued and he had been put to cleaning up shavings around the planer. No warning of danger, in ..going between the cars, or in doing the work ordered, was given plaintiff. No instructions were ever given plaintiff as to the danger of such work, though it was proven that Williams, foreman, knew it was very dangerous to go between the cars, and had often warned men not to do so. These facts are sufficient to support the finding of the referee. It is true there was testimony contradicting these facts in almost every important particular, but it was the duty and province of the .referee, and not of this court, to determine the truth of the matter; and as the finding of the referee is entitled to the same weight as the verdict of a jury, and there is no such preponderance of evidence as will .justify the inference that the.finding was based upon influences other than a due consideration of the evidence, we are not justified in disturbing that, finding on the facts. Marshall vs. Bumby, 25 Fla. 619, 6 South. Rep. 480; Moulie vs. Hughes, 28 Fla. 617, 10 South. Rep. 94; State ex rel. Sanchez vs. Call, 36 Fla. 305, 18 South. Rep. 771; McClenny vs. Hubbard, 20 Fla. 541; Richardson vs. Russ, 14 Fla. 463; Holland vs. Holmes, 14 Fla. 390.

It is insisted, however, that plaintiff’s own negligence was the real cause of his injury. We are again •confronted with the finding of the referee against appellants on this point. It is perfectly clear that but for the order given plaintiff by Williams, the foreman, to assist in pushing the cars, plaintiff would never have'gone between the cars; neither would he have been injured. Plaintiff had never been warned of the danger which is clearly shown of going between moving cars; he had never had any experience in pushing lumber cars; he was a mere boy and presumptively wanting in discretion; there was no convenient place from which he could perform the duty assigned him • except between the cars; he had the example before him of a man, engaged m the business and familiar with its hazards, occupying the same position which he took, and this work being outside of his employment and much more hazardous than his regular employment, we can not say that as a matter of law he was guilty of any negligence in obeying the orders of his superior. When a person authorized by the master to control and direct another youthful and inexperienced servant, directs the latter to perform a dangerous service not in the line of .his employment, without warning or instructing him as to the danger of the particular service, the obedience of the latter servant will not be contributory negligence on his part, and he '■will be entitled to recover for any injury which may occur by reason of the failure to warn or instruct. The rule may be even broader than we have stated it, but this statement fully covers the present case, and is well fortified by authority. Wood on Master and Servant, sec. 448; Beach on Contributory Negligence, secs. 358-362; Shearman & Redfield on Negligence, sec. 219; Orman vs. Mannix, 17 Colo. 564, 17 L. R. A. 602, and note; Fort vs. Union Pacific R. R. Co. 2 Dill. 259, S. C. 17 Wall. 553; Combs vs. New Bedford Cordage Co., 102 Mass. 572, S. C. 3 Amer. Rep. 506; Dowling vs. Allen, 74 Mo. 13, S. C. 41 Amer. Rep. 299; McKinney on Fellow Servants, sec. 39; Wood on Railroads, sec. 380 a. Norton vs. Volzke, 158 Ill. 402, 41 N. E. Rep. 1085, S. C. 49 Am. St. Rep. 167.

VI. It is also contended that whatever rights of action arose from this injury accrued to plaintiff’s father, and not to the plaintiff; and that this right of action in the father was barred by the statute of limitations, though it is not pretended that if the plaintiff had any right of action, that it was barred. And it is insisted that as plaintiff was a minor, the father was entitled to his services, and having hired him to defendants, the father only was entitled to sue for damages for the injury. The character of the injury received by plaintiff was of a permanent nature, necessarily affecting him for life. At the time of the institution of this suit plaintiff had reached the age when his father was no longer entitled as a matter of law to the services of his son, and notwithstanding any rights his father may have had to recover damages for such injury, it is very clear that if the injury is permanent, and continues to disable plaintiff after his majority, and after all control of the father over him has legally ceased, and was caused by negligence, that he can also recover damages for the same. We are not now dealing with the» measure of damages to be recovered in such cases by parent and child, respectively, but whether any damages at all may be recovered by the child under these circumstances. Shearman & Redfield on Negligence, secs. 115, 763, 764; Pratt Coal and Iron Co. vs. Brawley, 83 Ala. 371, 3 South. Rep. 555, S. C. 3 Am. St. Rep. 751; Central R. R. Co. vs. Brinson, 64 Ga. 475; Wilton vs. Middlesex R. R. Co. 125 Mass. 130, 2 Thompson on Negligence, sec. 16, p. 1242; paragraph 3, page 1260.

It is proper to state that the cause of action in this case arose prior to any statutory enactments concerning fellow servants in this State.

Judgment affirmed.