Summary
In Beeson v. The Green Mountain Gold Mining Company, 57 Cal. 20, the defendant, a corporation engaged in quartz mining, appointed a superintendent to supervise and manage its mining operations, with authority to employ and discharge laborers at the mine.
Summary of this case from Northern Pacific R.R. Co. v. HerbertOpinion
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Department Two
Rehearing (Denied, Granted) 57 Cal. 20 at 37.
Appeal from a judgment for the plaintiff, and from an order denying a motion for a new trial, in the Second District Court, County of Plumas. Clough, J.
COUNSEL:
The evidence does not question the competency and care of defendant's superintendent in the conduct of the business, and proves that he was authorized to employ, and did employ, all other workmen about the mine; and also that the defendant furnished him with all suitable material for constructing needed appliances for carrying on the business. This is all that the law requires of the defendant in the premises. ( Civ. Code, § 1970; Yeomans v. Contra C. S. N. Co. 44 Cal. 81; Hogan v. Central P. R. R. Co. 49 id. 130; Gay v. Winter , 34 id. 153; Collier v. Steinhart , 51 id. 116; Chicago etc. R. Co. v. Harney , 28 Ind. 22; Same v. Swett , 45 Ill. 197; Wright v. N.Y. Central R. R. Co. 25 N.Y. 566; Shearman & Red. on Neg. §§ 86, 87.)
When the master does not undertake the duty of furnishing or adopting the appliances by which the work is to be performed, but this duty is intrusted to or assumed by the workmen themselves within the scope of their employment, he is exempt from responsibility, if suitable materials are furnished, and suitable workmen are employed by him, even if they negligently do that which they undertake. (Kelley v. Norcross , 121 Mass. 509; Zeigler v. Day , 123 id. 152; Colton v. Richards, id. 484; Smith v. Lowell M. Co. 124 id. 114; Morse v. Glendon Co. 125 id. 282; Killea v. Faxon, id. 485; McLean v. Blue P. G. M. Co. 51 Cal. 256.)
The deceased knew, or had the opportunity of knowing, much better than the defendant, the condition of the machinery and pipe, and of all the dangers to which he was exposed in working in the mine, and therefore assumed all the risks. (McGlynn v. Brodie , 31 Cal. 376; Malone v. Hawley , 46 id. 409; Story on Agency, § 453; Coombs v. New Bedford Co. 102 Mass. 585; Winship v. Enfield , 42 N.H. 197; Loonam v. Brockway, 28 How. 472; Mad River R. R. Co. v. Barber, 5 Ohio St. 541; Dewitt v. P. R. R. Co. 50 Mo. 302; Buzzell v. Laconia M. Co. 48 Me. 113; Mehan v. Binghampton R. Co. 73 N.Y. 585; Hayden v. Smithville M. Co. 29 Conn. 548; Senior v. Ward, 1 El. & E. 385.)
If the evidence tended to show any negligence, it was the negligence of the fellow-servant of Beeson, and not of the defendant. (Collier v. Steinhart , 51 Cal. 116; McLean v. Blue P. G. M. Co. id. 256; O'Connell v. Baltimore & O. R. R. Co. 20 Md. 212; Thayer v. St. Louis etc. R. R. Co. 22 Ind. 26; Warner v. Erie R. R. Co. 39 N.Y. 468; Wilson v. Madison , 18 id. 226; Sherman v. Rochester etc. R. R. Co. 17 id. 134, 153; Wright v. Same , 25 id. 564, 462; Weger v. Penn. R. R. Co. 55 Penn. 460; Ryan v. Cumberland V. R. R. Co. 23 id. 384; Coon v. Syracuse R. R. Co. 5 N.Y. 492; Gibson v. Erie R. R. Co. 63 id. 452; Burke v. Norwich etc. R. R. Co. 34 Conn. 474; Farwell v. Boston etc. R. R. Co. 4 Met. 49; Carle v. Bangor etc. R. R. Co. 43 Me. 269.)
Beeson was required to use extraordinary care to save himself from the threatened danger. (Gay v. Winter , 34 Cal. 163; Fitch v. Allen , 98 Mass. 572; Sprong v. Baltimore & Albany R. R. Co. 60 Barb. 30; Corbin v. American M. Co. 27 Conn. 274.)
The Court erred in permitting testimony as to the affectionate bearingof the deceased towards her during their married life. (Shearman & Red. on Neg. § 612; Sedgwick on Damages, 646, and cases there cited.)
The Court will observe that no such expression as fellowservant is to be found in the statute. If that or any kindred expression had been used, the natural inference would be, that the statute was merely intended as declaratory of the common law, and the question would then be open as to what the rule of the common law is. But the language of the statute seems to have been chosen with direct reference to the conflicting decisions on this question, and for the purpose of furnishing a rule certain in itself, and excluding the idea of equality of service as a test of the liability of the employer. The position taken by the Court deprives the statute of any force or effect, and makes it a mere idle enactment. For all practical purposes, it might as well be repealed.
Having thus stated our views of the statute, we desire to call attention to the following cases in which the same views are expressed: Collier v. Steinhart , 51 Cal. 116; McLean v. The Blue Point Gravel Mining Company, id. 255; McDonald v. Hazletine , 53 id. 35.
J. D. Goodwin, J. S. Chapman, and Cope & Boyd, for Appellant.
W. W. Kellog, and R. H. F. Variel, and John C. Hall, for Respondent.
The negligence of another person employed by the same employer in the same general business means such negligence as the culpable employee commits in the performance of the particular duties he undertook to discharge toward the master alone .
The duty which the master is bound to discharge toward his servants, such as furnishing and maintaining safe and proper machinery and appliances, etc., he must use ordinary care to discharge; and he cannot claim immunity from liability because he has authorized his agent or employee in the same general business to do it for him. And where the master is a corporation, as is the fact in the case at bar, the principle contended for receives further support. Where a corporation is the master, its general agent, within the scope of his authority, is to be considered in respect of those duties which it is incumbent upon the master to discharge toward its servants, and which the master has deputed the agent to perform for it, the representative pro hac vice of the corporation. He is the corporation personified--the alter ego of the corporation--andhis acts are the acts of the corporation, his negligence is the negligence of the corporation, and notice to him is notice to the corporation. (Corcoran v. Holbrook , 59 N.Y. 517; S. C. 17 Am. R. 369; also Laning v. N.Y. C. R. R. Co. 49 N.Y. 521; S. C. 10 Am. R. 417; and especially, Malone v. Hathaway , 64 N.Y. 5; S. C. 21 Am. R. 576-578.)
We do not believe that the former Supreme Court intended that the doctrines announced in McLean v. Blue Point Mining Company , 51 Cal. 255, should reach a case like the one at bar, or should defeat a recovery in one like the present. The appellant claims that that case covers this one. We think not. But if it did, we should say, in reply, that McLean v. Blue Point Mining Company is not law. Its loose general language, unwarranted by the facts, has led the appellant to conceive that it is not responsible for its own default in furnishing safe machinery, and in the discharge of those other primary and absolute duties which the law imposes upon the master. If that be true, then the sooner McLean v. Blue Point is overruled, the sooner we will return to those safe and substantial principles which protect equallythe master and the servant.
The latest work on negligence, in speaking of § 1970 of our Civil Code and the decisions under it, upon which the appellant relies, says:
" This statute, it will be perceived, is simply an affirmance of the rule of the common law. But it has received a construction which is contrary to the views of many American courts as to what the common law is. These courts, as we shall hereafter see, hold, that, where the master delegates to an agent the entire control of his business, including the power to employ and discharge servants, such agent is not a fellow-servant with those whom he employs, but is the representative of the master in such a sense that his negligence is the master's negligence." In construing this statute, the Supreme Court of California ignores this rule. (Thompson on Negligence, vol. ii, p. 997. See also Hough v. Railroad Company , 100 U.S. S.Ct. 213; Ryan v. Fowler , 24 N.Y. 410; Flike v. B. & A. R. R. Co. 53 id. 549; Laning v. N.Y. C. R. R. Co. 49 id. 521; Keegan v. W. R. R. Co. 4 Seld. 175; Plank v. R. R. Co. 1 N.Y. S.Ct. 319; Mullan v. P. & S. M. Co. 78 Pa. St. 25; Noyes v. Smith et al. 28 Vt. 59; C. & N.W. R. R. Co. v. Swett , 45 Ill. 197; Chamberlain v. M. & M. R. R. Co. 11 Wis. 238; Le Clair v. St. P. & P. R. R. Co. 20 Minn. 9; L. & N. R. R. Co. v. Collins, 2 Duval, 114; Mann v. Oriental Print Works, 11 R.I. 152; C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 201; Shanny v. Androscoggin Mills , 66 Me. 420; Colorado Cen. Ry. Co. v. Ogden, 3 Colo. 499; Cayzer v. Taylor, 10 Gray, 274; Booth v. B. & A. R. R. Co. 73 N.Y. 38.) The last two cases hold, that contributory negligence of a fellow-servant is no defense.
All the matters which the Court authorized the jury to consider are proper constituents of damage. (Tilley v. H. R. R. Co. 29 N.Y. 252; Holyoke v. G. T. R. Co. 48 N.H. 541; Railroad Company v. Mahony, 7 Bush, 235; Porter v. H. & St. J. R. R. Co. Reporter, vol. ix, p. 549; Goodman v. Penn. Ry. Co. 62 Pa. St. 329.) In the last case, the Court held, that " the plaintiff's loss was to be measured by a just estimate of the services and companionship of the wife." To the same effect is Railroad Company v. Barron, 5 Wall. 90; Taylor v. W. P. R. Co. 45 Cal. 323.
Special attention is asked totwo recent Virginia cases construing statutes similar to ours.
The first case is that of B. & O. R. R. Co. v. Wightman's Adm'r, 29 Gratt. 431. The Court uses this clear and salutory language:
" The statute is regarded by the courts as remedial in its character--as affording compensation unknown to the common law--and is to be liberally construed to promote the objects the Legislature had in view; and therefore it is, the courts look to the relationship and dependent condition of the parties, the capacity and ability of deceased, mental and physical, and, indeed, all the surrounding circumstances and situation of the family to enable the jury properly to estimate the loss sustained, and fix the measure of the damages. The evidence offered by the plaintiff in this connection, and upon which the instructions were based, was properly received, and the instructions properly stated the law for the guidance of the jury."
This decision fully justifies instruction 6 given in this case at the request of respondent. But the second Virginia case, Matthews v. Warner, 29 Gratt. 570, goes still further.
In this case, the defendant asked the Court to instruct the jury thatthey could not take into consideration " the mental suffering" occasioned by the death of the deceased to his mother. The instruction was refused. On appeal to the Court of Appeals, the Court gave a full interpretation to the statutes so clearly and satisfactorily as not only to defend the respondent's 6th instruction, but to show, that, under our statute, we were entitled to still more favorable instructions.
The Court said: " The statute of New York, and of all the other States modeled upon the English statute, are found to be in the following terms, or those of like import: 'The jury may give such damages as they may deem fair and just compensation (not exceeding a specified sum) with reference to the pecuniary injuries resulting from such death to the parent, next of kin,'" etc., etc. In our statute, instead of these words or words of like import being employed, it is declared that " the jury in any such action may award such damages as to it may seem fair and just ," etc. Certainly, in the Virginia statute there are no words of limitation, as in the English statute and those modeled thereon, confining the jury in the assessment of damages to merely pecuniary injury; but, by the very terms of the statute, the damages are such " as to the jury may seem fair and just." We are bound to presume that the Legislature which enacted this law was familiar with the English statute, and those of the other States of the Union, and of the English and American decisions under them. And it is a most significant fact, that, with the English and American statutes before them, and familiar with the decisions under them, the Legislature, after following the English statute and the New York statute up to the point where the measure of damages in the one case is declared to be " proportioned to the injury," and in the other " with reference to the pecuniary injuries resulting from such death," at that point discarded these terms, and in lieu thereof adopted the language, " such damages as to the jury may seem fair and just." We must conclude that it was done with a design, and that that design was, by all the recognized rules of construction, to declare that, in an action for the death of a party caused by the wrongful act, neglect, or default of any person or corporation, such damages may be recovered " as to the jury may seem fair and just."
JUDGES: Myrick, J. Sharpstein, J., and Thornton, J., concurred.
OPINION
MYRICK, Judge
In Bank on rehearing. A rehearing having been granted, the appeal was heard by the Court in Bank, and Mr. Justice Myrick delivered the opinion of the Court.
Myrick, J.:
This case was heard in Department Two of this Court, and the opinion of the Department was filed August 26th, 1880. Subsequently, upon petition by the appellant, a hearing of the case by the Court in Bank was granted, which hearing has been had. The relations existing between Beeson, the deceased, and the defendant and its superintendent, and the responsibility of the defendant, for the acts and omissions of its superintendent, were considered at length in the opinion of the Department, and being of opinion that the law concerning the same is therein correctly stated, we have nothing further to add upon that branch of the case, except to add Hough v. Railway Company , 100 U.S. S.Ct. 213, to the cases cited.
Another branch, not discussed by the Department, we will here consider; that is, as to the correctness of the following instruction given to the jury by the Court below, viz.:
" 6. The Court instructs you, that if your verdict shall be for the plaintiff, such damages may be given by you to plaintiff as under all the circumstances of the case may be just. And in determining the amount of such damages, you have the right to take into consideration the pecuniary loss, if any, suffered by this plaintiff in the death of said George Beeson, by being deprived of his support; also the relations proved as existing between plaintiff and deceased at the time of his death, and the injury, if any, sustained by her in the loss of his society."
The appellant contends, that the latter part of this instruction, commencing with the words, " also the relations," etc., is erroneous, for the reason that all damages to be recovered in actions of this character are to be measured by the pecuniary loss sustained by the plaintiff; and that the relations existing between the plaintiff and deceased, and the loss by her of the society of the deceased, cannot be a basis for estimating or affording pecuniary compensation.
The statute of this State ( § 377, Code Civ. Proc.) provides, that, in this class of actions, " such damages may be given as under all the circumstances of the case may be just." Under this clause, evidence was offered and received as follows:
Question to plaintiff, as a witness on her own behalf: " In regard to the character of your social relations, explain to the jury as nearly as you can what they were." The objection of the defendant was overruled. The answer was: " Our social relations were always pleasant. He never spoke an unkind word or done anything in any way to make me feel badly. He was always kind to me." The instruction above quoted had reference to this testimony.
It is true, that in one sense, the value of social relations and of society cannot be measured by any pecuniary standard; and possibly the Legislature, in enacting § 377, Code of Civil Procedure, may not have intended to give relief in that sense, especially as the words " pecuniary or exemplary," which were formerly in the section, were omitted in the amendment of 1873-74; but in another sense, it might be not only possible, but eminently fitting, that a loss from severing social relations, or from deprivation of society, might be measured or at least considered from a pecuniary standpoint. If the instruction be good from any point of view presented by the case, it should be sustained, unless the party alleging the error asked the Court to give such direction to the instruction as that it could not be aimed at the point of view in reference to which it may be good.
If a husband and wife were living apart, by mutual consent, neither rendering the other assistance or kindly offices, the jury might take into consideration the absence of social relations and the absence of society in estimating the loss sustained by either from the death of the other. So, if the husband and wife had lived together, in concord, each rendering kindly offices to the other, such facts might be taken into consideration; not, as the books say, for the purpose of affording solace in money, but for the purpose of estimating pecuniary losses. The loss of a kind husband may be a considerable pecuniary loss to a wife; she loses his advice and assistance in many matters of domestic economy. In Penn. R. R. Co. v. Goodman , 62 Pa. St. 339, the Court said, referring to the use of the word " companionship," that " companionship was evidently used to express the relation of the deceased in the character of the service she performed. The judge merely meant to say, that the loss should be measured by the value of her services as a wife or companion. The form of expression, perhaps, was not the best selection of words, yet it certainly meant no more than that the pecuniary loss was to be measured by the nature of the service characterized as it was by the relation in which the parties stood to each other. Certainly the service of a wife is pecuniarily more valuable than that of a mere hireling. The frugality, industry, usefulness, attention, and tender solicitude of a wife and the mother of children surely make her services greater than those of an ordinary servant, and therefore worth more. These elements are not to be excluded from the consideration of a jury in making a mere money estimate of value."
We think that the social and domestic relations of the parties, their kindly demeanor toward each other, the society, were parts of " all the circumstances of the case" for the jury to take into consideration in estimating what damages would be just, from a pecuniary point of view, especially as there is nothing in the case to show that the jury were instructed that they might give damages by way of solace. (Matthews v. Warner, 29 Gratt. 570; B. & O. R. R. Co. v. Noell , 32 id. 394.)
It is not necessary for us to consider the question, discussed by counsel, as to the doubt or ambiguity arising from the use of the words " heirs or personal representatives" in the section above referred to, or to determine, in advance, how any moneys recovered in an action brought by more than one heir should be divided. It is sufficient for this case to state, that the plaintiff, in her complaint, alleged that she was the wife and is the widow and the heir of said deceased, and that there are no living issue of the marriage; and that the defendant did not, either by demurrer or answer, present the point of non-joinder. We may remark, that the statutes of many of the States make provision for the adjustment and distribution among the heirs of the moneys recovered; but the statute of this State is silent upon the subject. When the matter shall be presented, it may be that much embarrassment will be felt in determining how much should go to a widow, how much to a minor, and how much to an adult child, if persons occupying those relations to the deceased should be plaintiffs, or should be entitled to recover. Until such a case shall arise, we have no occasion to consider the question.
Judgment and order affirmed.