Roe v. Railway Co.

ant is identified with the master. The master's duties are cast upon him, and for his default the master is liable, and, in these cases, the doctrine of "fellow-servants" so-called, has no application what

ever."

"It may be said of the Missouri cases that their value as authority in support of the proposition that a master is liable to one servant for the negligence of another who is invested with the power of supervision and control is much impaired by the fact that the reason given for the rule is that the superior servant stands in the place of the master because he is intrusted with one of the master's duties to his servants, i. e., that of supervision and control. In this assumption that it is one of the personal obligations of the master to exercise supervision and control over his servants engaged in a particular piece of work, the Missouri court, it is believed, stands almost alone. The saine theory was, indeed, advanced in the case of Bloyd v. Railway Co., 58 Ark. 66 [41 Am. St. Rep 85], but supervision of the servant's work is not usually considered one of the master's personal duties to his servants. *** In short, the reasons advanced by the courts of this state in support of a questionable doctrine are altogether insufficient."

They seem to be, however, substantially the same reasons as enter. tained by our Ohio Supreme Court, at least, in Cleveland, C. & C. Ry. Co. v. Keary, supra, and I think in some others.

I now pass to some statutory provisions qualifying the rule of master and servant and invite attention to the language in the text of 12 Enc. Law (2 ed.) 942, and to some notes on page 943. First, it is said on page 942:

"The employers' liability acts of England, and, in the United States, of Alabama and Massachusetts, contain provisions which enlarge the liability of a master for injuries to servants by extending it to cases in which the injury results from the negligence of fellow employes who are entrusted with 'superintendence.

The foot note on page 943 has the title, "Statutory provisions relating to servants exercising superitendence-England: 'The English employers' liability act of 1880 makes the master liable for a personal injury to a workman by reason of the negligence of any person in the service of the employer who has any superintendence intrusted to him. whilst in the exercise of such superintendence.'

That is to be distinguished from our Ohio statute in two respects; our Ohio statute does not have the qualification that negligence must occur in the exercise of superintendence or control, and it does have the qualification not in the English statute, that it applies only so far as protection is concerned to an employe in another branch or department. The English statute is not limited in this latter respect.

"And by Sec. 8 of this act the expression, 'person who has superin. tendence intrusted to him' means 'a person whose sole or principal duty

Huron Common Pleas.

is that of superintendence, and who is not ordinarily engaged in manual labor."

"On February 12, 1885, the legislature of the state of Alabama passed an act regulating employers' liability for injuries to their employes, which was substantially copied from the English act of 43 and 44 Victoria. This act was embodied with some modifications, intended, perhaps, to broaden its operation, in Secs. 2590 and 2591 of the code of 1886, and now constitutes Chap. 43 of the code of 1896. Code Ala., 1896, Secs. 1749, 1751. By Subsec. 2 of this act the master is made liable for a personal injury to a servant, 'when the injury is caused by reason of the negligence of any person in the service or employment of the master or employer who has any superintendence intrusted to him, whilst in the exercise of such superintendence."

"The employers' liability act of Massachusetts makes the employer liable, by reason of the negligence of any person in the service of the employer, intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence."

this:

Further along in the foot note and at the bottom of the page, I read

"It has been held that the superintendence contemplated by Subsec. 2 of the Alabama act (Code Ala. 1896, Sec. 1749, Subsec. 2), is not nec essarily superintendence over the injured person. Kansas City, etc., Ry. Co. v. Burton, 97 Ala. 240."

It is true that on page 945, the text writer says:

"The employers' liability acts of England and Alabama make the master liable for the negligence of a servant to whose orders or directions the injured servant must conform and who was injured by reason of such conformance.”

But as I have already noted in the case of Kansas City, M. & B. Ry. Co. v. Burton, 12 So. Rep. 88 [97 Ala. 240], the Alabama rule does not seem to be qualified to the extent stated in the text; in other words, it seems that the superintendence rendering the employer liable is not necessarily superintendence over the injured person.

On page 946 is laid down the rule as to vice-principals:

"An important and universally accepted restriction of the fellowservant rule is what is known as the 'vice-principal limitation,' which holds the master liable to one servant for the negligent performance by another of the personal duties which every master owes to his servants."

Without stopping to consider very elaborately the various classes of vice-principals as recognized in the different states, it may be said that the authorities are not all uniform, and that some agents of the company or employes, are considered vice-principals in one state who are no such in another. On page 948 of 12 Enc. Law (2 ed.), there is a definition of the term, as follows:

Roe v. Railway Co.

"A vice-principal then, as the term is used in the law of fellowservants, is a servant who represents the master in the discharge of those personal or absolute duties which every master owes to his servants."

Then the next paragraph attempts to distinguish between viceprincipals and superior servants:

"While the courts in some of the United States where the superiorservant limitation has been adopted employ the term vice-principal as meaning a superior servant, this is neither the correct nor the common use of the term. There is a marked and very clear distinction between a superior servant and a vice-principal. A superior servant is, generally speaking, one who exercises authority of direction and control over other servants, and may or may not be charged with the performance of any of the master's personal duties. On the other hand, the status of a servant as a vice-principal, in the proper sense of the term, is in no wise dependent upon his rank or the grade of his employment; it depends solely and wholly upon the character of his duties. If he is charged with and is in the performance of one of the master's personal duties, a servant is a vice-principal, regardless of whether he occupies a position superior or interior to that of other servants."

This nice distinction commends itself to my judgment, and if our Ohio court had not departed from it to some extent, as I think it has, in some of the cases, it might have some forcible bearing upon the consideration of this question. On page 970 of the text is this language:

"In at least one of the states it is considered that the exercise of a proper supervision of the work on which his servants are engaged is, in some instances, one of the master's personal duties. While this view is at direct variance with the consensus of judicial opinion, still wherever it obtains, it nccessarily follows that any servant who is intrusted with this duty of supervision stands in the place of the master as his vice-principal."

The court to which reference is especially made here is the court of Arkansas. Then on page 971, we have a discussion of what is called the "Different Department Limitation," a limitation which is inserted in our Ohio statute of 1890. The text says:

"In addition to the liability for the negligence of a servant charged with the performance of the master's positive duties to his servants, there has been laid upon the master, by some courts, a further liability for the negligence of a servant engaged in a department of the same general business which is separate and distinct from the department in which the injured servant is employed."

Notice this dintinction made by the courts, not by statute as yet, but the question arises as to whether our statute is anything more than an attempted enactment of what had already grown to be a principle in some of the other states by judicial holding.

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"This rule may be stated as follows: Where a servant is employed in a department of the general service which is separate and distinct from that of the servant or servants whose negligence caused the injury, the fellow-servant rule has no application and the master is liable.",

It is to be noted that the question of superiority of service is not brought into this rule. It is a limitation of the liability of the master in all cases where there has been negligence of the servant in one department and a servant in another department is injured: just as if, instead of its being one railroad company, there were two companies; just as if the employments were so independent that a person entering into the employment in one department would not be held to have assumed the hazard or carelessness in another department. The note says: "This has been called the doctrine of Illinois, Georgia, Kentucky and Tennessee." It has been recognized in all of these states as well as in others.

It will be noticed that the rule is even broader than the one in Ohio which is known as the "Ohio Statute." It is the rule which makes the company liable for the negligence of one of its employes in one branch of its service, which negligence causes injury to another employe in another department or branch, whether or not the one is in a higher grade than the other.

On page 972 of 12 Enc. Law (2 ed.), there is some discussion of the origin of this doctrine in which it is said:

"This doctrine was first judicially recognized in Indiana, in the year 1854; but it has since been repudiated in this state. It was adopted in Kentucky, however, in 1865, and was subsequntly taken up in other states."

The Encyclopedia gives the following:

"Reasons for the doctrine: The different department limitation, o the doctrine of consociation, seems to be founded entirely upon the fact that servants in different departments of a large industrial enterprise are unable to exercise any influence upon each other in the encourage. ment of caution, and, the supposed reason for the rule failing, the court, refuse to apply the fellow-servant rule."

I will not read further from the Encyclopedia of Law, although there is an extensive collation of authorities touching directly of indirectly the question we have here.

Our Supreme Court in 51 Ohio St., had under consideration two cases involving the construction of this act of 1890 which is here attacked. The question of the constitutionality of the act, while not directly raised, was necessarily involved in the cases. It cannot be conceived that if it had occurred to the Supreme Court that the act was unconstitutional, they would have wasted time upon its construction, and it is still more inconceivable that they would have affirmed judg. ments based upon the act-judgments which would be improper if the act were invalid.

Roe v. Railway Co.

Railway Co. v. Erick, 51 Ohio St. 146 [37 N. E. Rep. 128], and Railway Co. v. Margrat, 51 Ohio St. 130 [37 N. E. Rep. 11], are the cases in which the act was construed. It is not necessary to consider these cases further than to call attention to them in the way in which I have done. Our circuit court has likewise recognized the validity of the act without, however, passing upon the question of its constitutionality or unconstitutionality. The court considered the act in the case of Michigan Cent. Ry. Co. v. Waterworth, 11 Circ. Dec. 621 (21 R. 495), and also in the case of Lake Shore & M. S. Ry. Co. v. Pero, 12 Circ. Dec. 25 (22 R. 130); also in the case which went up from this court, of Hill v. Railway Co., 12 Circ. Dec. 241 (22 R. 291).

In Hill v. Railway Co., familiar to counsel, the judge (Judge Parker), speaking for the court, discusses very elaborately the construction of the act as bearing upon the legislative intent in the making of the distinction between different departments, and it will be found that Judge Parker has evidently made quite a critical and careful examination of the second edition of the Encyclopedia of Law to which I have referred. He quotes from it approvingly in various parts of the decision. These decisions are perhaps important only for the apparent reliance placed upon the validity of the act by the supreme and circuit courts and by the counsel engaged in the cases. Able attorneys argued various phases of the question as to the construction of the act and it does not seem to have occurred to them that the act was unconstitutional or in any other respect invalid.

In the United States circuit court of appeals of the sixth circuit, the act was construed by Judge Tatt. Baltimore & O. Ry. Co. v. Camp, 8 O. F. D. 391, 397 [65 Fed. Rep. 952; 13 C. C. A. 233; 31 U. S. App. 213], is the case in which Judge Taft seems to have taken it for granted that the law was valid, and he draws somewhat largely in his reasoning from the opinion of Judge Bradbury in Railway Co. v. Margrat, 51 Ohio St. 130 [37 N. E. Rep. 11].

Some stress is laid in one or more of these cases upon the language of the statute "in addition to the liability now existing by law;" in other words, the courts are treating, and I think, properly treating, the act of 1890 as an attempt upon the part of the legislature to extend the liability of employers which had theretofore been recognized and established. That was the expressed purpose of the act. The courts of Ohio had, in the first instance, established as the Ohio rule, the superior-serv. ant doctrine. It had placed the superior servants in a class by themselves, but that class was limited to superior servants having some control over the person injured and who brought suit. Now, they sought to enlarge the liability of the company, or, in other words, to enlarge the class of superior servants for whose negligence an injured employe might hold the employer liable. By the terms of the statute 18 13 Dec.