Hilton & Dodge Lumber Co. v. Ingram

Lamar, J.

(after stating the foregoing facts.) There was evidence from which the jury could have found that Anderson was transferred from the work on the ground, for which he was competent, to work with a two-wheeled truck on the elevated platform, for which he was alleged to be incompetent. This assignment to a new department of work was by the concurrent action of Wiles, who was in charge of the hands in the yard, and Dudley, who was inspector of lumber on the elevated platform. All three were fellow-servants of the plaintiff, Ingram. The record presents the question as to the responsibility of the master for injuries inflicted by Anderson upon Ingram, Anderson being competent for the work for which he was selected, and alleged to be incompetent for the new task to which he had been assigned to fill a vacancy caused by temporary absence of the regular truckman. The master is bound to furnish safe material and safe applianceá with which, and competent servants by whom, his work is to be carried on. If, however, he complies with this requirement of the law, and a fellow-servant of the plaintiff, out of proper instrumentalities and agencies, makes an improper selection, the employer is not liable to. a coemployee injured as a Tesult thereof. If the *655 master supplies the proper material, and the plaintiff’s fellow-servant selects, from the mass of good lumber supplied, a piece which is too small, or puts it together so unskillfully as to construct an unsafe ladder, staging, or scaffold, in consequence of which the same falls, the resulting injury is referable to the negligence of the fellow-servant in making an unfit selection, or in improperly putting together the proper material furnished. By parity of reasoning, when the master performs the duty imposed by law of employing competent servants, and a fellow-servant of the plaintiff, without the master’s knowledge or authority, selects, from the competent servants thus employed, one who is unsuited for the special task, and transfers him from work he can do to work he can not do, the act of thus assigning him is not the negligence of the master, but that of a fellow-servant. It was therefore error to charge that whether the servant' alleged to be incompetent was assigned to the task by the general superintendent, or by the inspector, in either case they would be the company’s alter ego, and negligence by either would be attributable to it. A fellow-servant without the master’s knowledge can not, by an assumption of authority, convert himself into a vice-principal or alter ego.

Treating the assignment of Anderson to the new duty as the equivalent of an original employment for that purpose, the result is'not different. The duty of selection need not always be performed by the master himself. In the nature of things, in the case of corporations such selection must be by agents. If the one to whom this duty has been committed is negligent, it is treated as the negligence of the master. ' On the other hand, if the agent making the selection was diligent, it is to be treated as the diligence of the master. If the record is silent as to whether the agent making the selection was negligent or diligent, then it is the same as though the record were silent as to the master’s conduct in transferring Anderson from one task to another. There is no presumption in such a case against the master, nor does any presumption arise from the happening of the injury; but it must appear that the master, or the person authorized to make the selection, knew, or negligently failed to learn, of the incomptency of the person selected. McDonald v. Eagle & Phenix Co., 68 Ga. 842 . There is here neither evidence nor presumption that Dudley himself was incompetent, or that he knew, or was *negligent in fail *656 ing to know, that Anderson- was unsuited for the work of trucking on the elevated platform.

One" would suppose that there were many cases in which the question presented by the charge here had been discussed and decided ; but after diligent search we have found few bearing on the point. In Norfolk R. Co. v. Thomas (Va.), 44 Am. St. Rep. 909 , it was raised, but left open. In other cases, where a fireman had been permitted to do the work of an engineer, the company was held liable to the injured plaintiff, it appearing that the conductor who made the assignment was authorized so to do by the company, and knew of the incompetency of the fireman; or else that the defendant knew of the custom to permit firemen to perform such duties. Harper v. Indianapolis R. Co., 47 Mo. 567 , 4 Am. R. 353; O. & M. Ry. Co. v. Collarn, 73 Ind. 261 , 38 Am. Rep. 134 ; McElligott v. Randolph, 61 Conn. 157 , 29 Am. St. Rep. 181 ; Henry v. Brady, 9 Daly, 142 ; Fraser v. Schroeder, 163 Ill. 459 . Compare Blackman v. Thomson-Houston Co., 102 Ga. 69 . There are, however, a few eases directly in point, from which we quote. In Eelch v. Allen, 98 Mass. 572 , it was held that if, without authority from the master in whose warehouse they’are engaged in the same work, one of two servants directs the other to use in the work an elevator in a dangerous and improper manner, for which it was not intended, and the master had no reason to believe that it would be so used, and such other in complying with this direction is injured by a fall caused by a defect in the elevator, the master is not liable in damages for the injury. In Greenwald v. Marquette R. R., 49 Mich. 199 , an engineer allowed a fireman to operate the engine. Without warning he backed the train; and the court held that the plaintiff was not entitled to recover, as the injury was occasioned by the negligence of the fireman, who was a fellow-servant. See also Thompson v. Lake Shore R. Co., 84 Mich. 281 .

In Houston & Texas Central R. Co. v. Myers, 55 Tex. 110 , the engineer was competent, but was not on the engine, which was being operated by the fireman, who backed rapidly without giving the signal. The court said: “ Conceding that it was an act of negligence upon the part of the engineer to leave the engine in the hands of the fireman, to be operated by him, and that it was an act of negligence for the fireman to attempt to operate the *657 samé, still the testimony shows that the engineer selected by' the' company, and placed in charge of the engine,' was a good-and competent man for the business, and that this is the' isolated act of negligence shown by the record, upon his part. Neither is' there any complaint but that the fireman was a good and competent man for the business for which he had been selected, and to which he had been assigned by the company. If, as claimed by appellee, the injury was the direct result of negligence of the engineer and fireman, then he not only failed to show the use of [want of] reasonable care upon the part of the company in selecting and retaining such servants, but he affirmatively shows that the engineer is a good and competent man for the business. Upon clear and well-established principles of law, appellee could not recover for the injury on account of the neglect of his fellow-servants, under the facts arid circumstances of this case.”

In Core v. Ohio River Railroad Co., 38 W. Va. 468 , where a brakeman was injured by the alleged negligence of a fireman who had been permitted by the engineer to operate the locomotive, the court held that it was necessary for the plaintiff to show that the fireman was incompetent; that he was negligent; that the defendant knew he was unskilled; that the plaintiff did not know it; that the fireman was managing the engine, and “ that the defend^ ant permitted, either expressly or impliedly, the fireman to manage the engine.” Compare Wright v. N. Y. Central R. Co., 25 N. Y. 562 , which, however, has been criticized because there the inexperienced engineer was assigned to duty by the superintendent, whose negligence was that of the company.

There was evidence to warrant the contention on the part of the defendant that the injury was the result of an accident, and it was entitled to a charge adjusted to that theory, without a special request therefor.

The foregoing conclusions require the grant of a new trial, and it is unnecessary to consider in detail the other grounds.

Cited by the plaintiff iri error: On the failure to charge as to accident, 112 Ga. 765 , 639. On the charge as to alter ego, 102 Ga. 64 ; 82 Ga: 27; 67 Ga. 762 ; 111 Ga. 427 ; 110 Ga. 192 ; 108 Ga. 196 ; 77 Ga. 214 ; 83 Ga. 343 ; 81 Ga. 49 ; 93 Ga. 57 .

Cited by defendant in error: On failure to charge as to accident, 115 Ga. 602 . As to master’s duty to employ coiripetenfc *658 servant, 86 Ga. 418 ; 89 Ga. 149 ; 76 Ga. 823 ; 107 U. S. 457 ; 4 Am. Rep. 353 ; 108 Ga. 196 ; 88 Ga. 56 .

Judgment reversed.

All the Justices-concur, except Simmons, G. J, absent.