Swackhamer v. Johnson , 39 Or. 383 ( 1901 )

Mr. Justice Moore,

after stating the facts, delivered the opinion of the court.

It is argued by appellant’s counsel that the plaintiff consented to the cutting of the timber, and hence, invoking the maxim, Volenti non fit injuria, that the decree is erroneous. But the court found that no agreement had ever been entered into by the plaintiff with Johnson, or any other person, for a right of way for said proposed railroad, nor had any license been granted by him whereby said timber might be cut, and, as the preponderance of the testimony, in our judgment, supports such finding, it will not be disturbed. The timber having been cut by the Chinese laborers without any license therefor, the question to be considered is whether Lee Tung Yin was at that time their master, and therefore liable for the damage which they caused, for the principle of respondeat superior is founded upon the maxim, Qui facit per alium, facit per'se, and, unless such relation existed at the time the trespass was committed, the appellant is not liable therefor : Boswell v. Laird, 8 Cal. 469 (68 Am. Dec. 345); Blake v. Ferris, 5 N. Y. 48 (55 Am. Dec. 304). It’ was alleged in the original answer that the laborers who cut said timber were at that time in the employ of the Wing Chin Lung Company and Johnson, but that they were acting under the orders of the latter. In the amended answer it is averred that Lee Tung Yin had no knowledge of the employment in which the laborers, or any of them, were to be engaged, except that they were to be employed in railroad construction ; and that all the acts complained of were done by said laborers under the exclusive control and direction of Johnson, and without the knowledge, consent, control, or direction of Lee Tung Yin. The original answer was offered in evidence, and testimony introduced tending to show that by securing an assignment of the subsidy contract and of Johnson’s interest in the depot grounds, Lee Tung Yin undertook to build the first ten miles of railroad, and that the laborers who cut the timber were his servants. Yin, as a witness in his own behalf, testified that the original answer was prepared by his counsel, and that he subscribed his name thereto, and verified the pleading without observing the allegation that he was interested with Johnson in building the railroad. The testimony of C. E. Cochran, called by the plaintiff in rebuttal, would seem to imply that Yin was interested with Johnson in the enterprise ; but this witness had theretofore said that he did not understand that Yin was building the road, but that Johnson was constructing it, and that the former had taken an assignment of the subsidy contract and a conveyance of the depot rights in order to secure the payment of the money which it would be necessary to advance to the laborers.

We think the evidence clearly shows that Yin never agreed to build any part of the railroad, and that he took said assignment and conveyance as security to indemnify him for the expense which his firm was obliged to incur. “The characteristics of the position of a master,” say Roberts and Wallace, in their work on the Duty and Liability of Employers (3 ed.),62, “are the following: (1) The engaging of the servant; (2) the payment of wages ; (3) the power of dismissal; (4) the control of the servant’s actions.” In commenting upon the fourth distinguishing test of relationship, these authors say : “The power of controlling the servant’s actions is undoubtedly the most important element for consideration in determining whether the relationship of master and servant exists between any two persons, and it is the only one which, by itself, can be at all depended upon ; the chief value of the three tests above mentioned consisting in the assistance they afford in discovering the person who has this power, for the true principle of a master’s liability to the public for the acts of his servants is that the master has control over their actions in their capacity as such, and that it is his duty so to exercise his control that no injury is occasioned by his business infringing upon the rights of third persons”: Roberts and Wallace, Duty and Liab..of Emp. (3 ed.) 68. To the same effect, see Shear-man & Redfield, Neg. (3 ed.) § 73 ; Thompson, Neg. 909; Wood, Mast, and Serv. (2 ed.) § 317 ; Mound City P. & Color Co. v. Conlon, 92 Mo. 221 (4 S. W. 922). The Wing Chin Lung Company and Ting Cuey engaged the Chinese laborers, selected as their bookman or foreman one Young John, who communicated and interpreted Johnson’s orders to the laborers, kept their time, and was to pay them for their labor from money to be furnished by the Wing Chin Lung Company and Ung Cuey. These laborers were undoubtedly the servants of the parties agreeing to furnish them, but such relationship would not preclude them from becoming Johnson’s servants ; for, as was said by Mr. Justice Morton in Coughlan v. City of Cambridge, 166 Mass. 268 (44 N. E. 218): “ It is well settled that one who is the general servant of another may be lent or hired by his master to another for some special service, so as to become, as to that service, the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.”

It will be remembered that the laborers to be furnished by Wing Chin Lung Company were to work faithfully, and at such times and places upon the line of railway as they might be directed by Johnson’s orders. The eourt found that Lee Tung Yin had, supervision of said laborers, and employed and discharged them. The record fails to show who was authorized to discharge these laborers, but, as the Wing Chin Lung Company engaged them, it may reasonably be inferred that they might dispense with their services ; and it may also be inferred that Johnson could discharge such of them as did not correspond with the terms of the agreement in respect to their being able-bodied and willing to work as directed. The supervision of the laborers by Lee Tung Yin, as found by the court, is probably predicated upon the selection of a bookman or foreman by the Wing Chin Lung Company, and from the following clause contained in their contract with Johnson, to wit: “And it is further agreed by the said party-of the first part (Johnson) that payments for the work to be done and performed under this agreement shall be made on the fifteenth day of each month next succeeding the month in which such labor is performed, and that the said party of the first part will supply one of the parties of the second part, or an agent to be selected by the parties of the second part, free of cost of the parties of the second part, with transportation to and from Portland and Union and to the points where said laborers may be employed from time to time, so as to enable the said parties of the second part to oversee said laborers, supervise, and pay them off.” Young John, “the bookman or foreman” selected by the Wing Chin Lung Company, as a witness for the defendant, testified that he received orders from Johnson, communicated them to the Chinese laborers, who performed work as so directed, and that he kept their time, so as to know what sums to pay them for their labor.

We think it can not be said, from the service rendered by Young John, that Lee Tung Yin thereby “had supervision of the said laborers;” for, while the person so selected is denominated a “foreman,” it is evident that he was employed as a “bookman” to keep a record of the labor performed by the Chinese, and that he was powerless to direct the time, place, or manner of service to be performed by them. Nor do we think it is reasonably inferable from the clause of the contract so quoted that Lee Tung Yin “had supervision of the said laborers ;” for, Johnson having stipulated that on the fifteenth of each month he would supply one of the parties agreeing to furnish the laborers, or their agent, free transportation from Portland and Union to the place where said laborers might be employed, from time to time, so as to enable such person to oversee the laborers, supervise, and pay them off, it is evident that no authority was reserved to dii-ect the laborers where to work, or to prescribe the time or manner of their service. It is also manifest, we think, that Young John was not the person contemplated by the parties as the representative of the Wing Chin- Lung Company “to oversee said laborers for the transportation of the former was stipulated for in another clause of the contract, to the effect that Johnson would pay one half of the fare of the first quota of laborers, including the “bookman,” from Portland to Union. This deduction seems to be established by the fact that it was stipulated by the parties that the “book-man” would remain with the laborers during the time they worked for Johnson, while the agent who was to represent the Wing Chin Lung Company was expected to visit Union, or the place where the laborers were working, on the fifteenth of each month only; and hence we conclude that Lee Tung Yin did not have the supervision of the said laborers, but that, as far as he was able, he had surrendered the control thereof to Johnson, whose orders, as interpreted by Young John, they were bound to and did obey.

The decision we have reached in respect to the control of the laborers narrows the inquiry to whether Lee Tung Yin, who was in no manner interested in the construction of the railroad, and had no knowledge of the trespass prior to its commission, and never thereafter'ratified it, is liable therefor because the servants engaged by his firm, and to which they looked for their compensation, did the cutting complained of in executing the orders of the person to whom they were hired. Notwithstanding there is a decided contrariety of judicial utterance upon the subject, it may be said, by way of illustration, though not involved herein, that it has been held that a master who hires his servants to another, to whom he has surrendered the entire control, is nevertheless liable for their negligence, upon the assumption that, having the selection of the servants chosen, it is reasonable that he who made the choice of a disqualified or careless person should be responsible for any injury that may result from the negligence or want of skill of the person so employed : Hobbit v. London & N. W. Ry. Co. 4 Exch. *254; Stewart v. California Imp. Co. 131 Cal. 125 (63 Pac. 177). If it be admitted that the rule just adverted to is applicable in this state, it could have no bearing upon the case at bar ; for the injury of which the plaintiff complains did not result from any want of care on the part of Lee Tung Yin, or of the firm of which he was a member, in the selection of the laborers hired to Johnson. In Ames v. Jordan, 71 Me. 540 (36 Am. Rep. 352), the plaintiff hired to the defendant a pair of horses and furnished a driver therefor, who was to use the team in hauling logs, and while so employed the horses were drowned. In an action to recover the damages thus sustained, it was held that, if the loss was occasioned by the negligence of the driver, no recovery could be had, but that if it resulted from the defendant’s want of care in providing a safe landing place, he was liable therefor. Mr. Chief Justice Appleton, speaking for the court in deciding the case, says : “It is true, the horses and driver were under the control and management of the defendant, and he was responsible for whatever was done in pursuance of his orders. He was to see that the landing place provided for logs was a safe one, and, if not so, he was responsible therefor. The driver in obeying his orders, is his servant, for whose acts he is liable so far as within the scope of his employment; but the results of his incompetency the plaintiff must bear, for he should have furnished a suitable servant.” Johnson, having directed the laborers to cut the timber, is liable for the injury which resulted from the execution of his order, and, as Lee Tung Yin had no knowledge of the. trespass prior to its commission, did not ratify it thereafter, was not interested in the construction of the railroad, and had no voice in directing the laborers how, when, or where to work, he can not be responsible for the injury which he was powerless to prevent, and hence the decree is reversed, and-the suit dismissed. Reversed.