Imágenes de páginas
PDF
EPUB

negligence of a fellow-servant, it must be shown that the servant by whom the injury was caused was incompetent, and that the master was guilty of wilful negligence in employing him. Jordan v. Wells,* 3 Woods, 527.

$439. A corporation is bound by the acts of its agents and servants, and is liable for their negligence in the performance of the duties it imposes upon them. But if a corporation employs several agents as fellow-servants in the same common employment, and one of those servants is injured by the neglect or wrong of another, the corporation is not liable unless it be that the servant who is guilty of the wrong or the negligence was employed by the company with knowledge that he was incompetent or negligent, or was continued in service by the company after notice of the fact that he was incompetent or negligent. Ross v. Chicago, M. & St. P. R. Co.,* 2 McC., 235.

§ 440. The plaintiff was in the service of defendant, engaged in removing slag pots from the defendant's furnaces, to be emptied outside of the furnace building. Through the carelessness of another person, also employed by the defendant to assist in removing these pots, one of the pots was left in a place where it obstructed the passage-way, and the plaintiff moving backwards, drawing a slag-pot without the building, fell upon this, and the slag-pot which he was attempting to remove was overturned in such a way that it injured his person. Held, that in an action for damages plaintiff must aver that he himself exercised due care and caution at the time of the accident, and that he was not informed and had no knowledge of the character of the person who was employed with him or of his capacity and fitness for the work. Dunmead v. American Mining, etc., Co.,* 12 Fed. R., 847, 848.

§ 441.

who deemed fellow-servant.-It seems that the owners of a steam-vessel are liable to a fireman on board such vessel for injuries sustained by reason of the negligence of the master, the master and fireman not being considered fellow-servants of a common employer. The Clatsop Chief, 27 Int. Rev. Rec., 329; 7 Saw., 274.

§ 442. A car inspector is not a fellow-servant with a brakeman in such a sense as to relieve the railroad company from liability for damages resulting to the brakeman from defects in the coupling apparatus, which, through the negligence of the inspector, had been allowed to continue, even supposing that a railroad company cannot be held liable for injuries to an employee resulting from the negligence of a co-employee. King v. Ohio, etc., R. Co.,* 15 Cent. L. J., 367.

§ 443. If, by reason of the failure of a porter or deck-hand to hang up a light or close the hatch, the plaintiff, who was employed to remove cargo, was injured, it is but the negligence of a fellow servant in and about a common business, for which the employer is not liable. The employees must be deemed to have entered upon the service with the understanding that they take the chances of the neglect or carelessness of any or all others who are engaged in the common employment and occupation of loading, unloading or running the boat. Malone v. Transportation Co.,* 5 Biss., 315.

§ 444. If an employer use due care in the selection of competent servants he is not liable for injuries to one of his servants resulting from the negligence of a fellow-servant in the same line or department of employment. A servant engaged in operating an engine employed in lowering workmen and material into a shaft is a fellow-servant in the same line of employment with others working in the shaft, within the above rule. Buckley v. Gould & Curry Silver Mining Co., 15 Rep., 133; 8 Saw., 394.

$415. All agents and employees on a railroad engaged on the same general employment or business of keeping up, running or operating the road are fellow-servants. Master-mechanics, foremen of round-houses, and other persons engaged in the repair of machinery and rollingstock are fellow-servants with engineers, conductors and other persons engaged in running trains. Haugh v. Texas & Pacific R. Co.,* 3 Cent. L. J., 447.

$ 446. Fellow-servants, within the meaning of the law, are such as are employed in the same service and subject to the same general control. But if a railroad company sees fit to invest one of its servants with control or superior authority over another, with respect to any particular part of its business, the two are not, with respect to such business, fellow-servants within the meaning of the law. One is in such case subordinate to the other, and the superior stands in place of the corporation. Gravelle v. Minneapolis, etc., R. Co., 11 Fed. R., 569; 3 McC., 352.

§ 447. A laborer in a railway yard and the assistant yard master are not fellow-servants if the former is subordinate to, and under control of, the latter. Gravelle v. Minneapolis, etc., R. Co., 10 Fed. R., 711.

448. Where a seaman is injured through the negligence of the mate in rigging a triangle on which libelant was working, the owner is not liable where no negligence is sh own on his part. Halverson v. Nisen,* 3 Saw., 562.

$449. Fellow-servants are those who are engaged in the same general control of the party injured. Gravelle v. Minneapolis, etc., R. Co., 10 Fed. R., 711.

§ 450. A rule of a railway company requiring railway conductors to show their telegraphic orders to engineers makes the latter subordinate and inferior to the former, and hence they are not co-servants within the rule exempting employers from liability for the injury of one by the other. Ross v. Chicago, etc., R. Co., 8 Fed. R., 544.

$ 451. If an employer sees fit to place one of his employees under the control of another, the latter is a vice-principal or representative of the company, and the two are not co-servants, assuming the risk of each other's negligence. Ibid.

§ 452. A common laborer in a mine and miners therein are not co-servants where they are employed in different departments of work, have no authority over each other, nor any opportunity of observing or influencing each other's conduct, or of guarding themselves by their own care or prudence. Kieley v. Belcher S. M. Co., 1 Rep., 13. See $$ 369-73.

§ 453. A minor, sixteen years of age, was ordered by his superintendent to ascend twenty feet among some shafting and wheels, and there to adjust a belt. In doing this he was injured. Held, that, considering the age and inexperience of the minor, the dangerous character of the service, the injury was due to the negligent and wrongful command of the superintendent; that his negligence would not be considered that of a co-servant of the injured boy, but would be imputed to the master. Fort v. Union Pacific R. Co.,* 2 Dill., 259. See § 466.

§ 454. A boy employed in a railway shop was directed by the foreman thereof to ascend a ladder and hold a belt near a revolving shaft while the foreman below laced it. The boy's arm caught in the revolving wheel and was torn off. Held, if the work the boy was ordered to do was not within the contract of service, was not one of the duties which fell within the contract of employment, but was outside of it, then the foreman in ordering the service in question (if he was in the scope and course of his duties and power at the time) must, as to this act, be taken to represent the company, his employer (which he is presumed constructively to represent), and, if that act was wrongful and negligent, the company, his employer, would be liable for the damages caused by such negligent and wrongful act; and the principle that the master is not liable for the neglect of a co-servant in the same service has no application, for in such a case they are not in any proper sense "fellow-servants" in the same common service. Frost v. Union Pac. R. Co.,* 11 Am. L. Reg. (N. S.), 101.

§ 455. A miner engaged in digging and blasting ore is the co-servant of a miner engaged in wheeling it away in a barrow, and if the latter is injured by the negligence of the former in failing to give notice of a blast the employer is not liable. Kelley v. Belcher S. M. Co.,* Saw., 600.

§ 456. Where one servant is placed in the control of another the two are not co-servants. Ross v. Chicago, Milwaukee & St. Paul R. Co., 2 McC., 235.

§ 457. In respect to the showing and delivery of orders to the engineer of a train, the conductor is not his co-servant, but is the vice-principal or representative of the company. Ibid. § 458. A laborer was injured while employed as a stevedore in shifting coal between decks of a steamship. The injury was caused by falling into the lower hold through a hatchway negligently left open by other persons employed on board in discharging cargo. He brought suit against the vessel to recover damages for his injuries. Held, that discussion as to the correctness of an action against the vessel was unnecessary, as the action could not be maintained against the vessel unless it could be maintained against the owner. That the owners were not responsible for the accident, as the persons through whose negligence the hatchway was left open were fellow-servants engaged in the same general employment of the owners. Cuillard v. Steamship Victoria,* 4 Fed. R., 159. See Halverson v. Nisen, 3 Saw., 562; Malone v. Western Transportation Co.,* 5 Biss., 315.

§ 459. Notice of fellow-servant's incompetency - Effect of - When necessary to hold master liable.- Before a master can be rendered liable to a servant injured by a co-servant, it must not only be shown that the injury arose from the co-servant's negligence, but that he was an incompetent or unskilful servant, and that the master, knowing this, retained him in his employ. Haugh v. Texas, etc., R. Co.,* 3 Cent. L. J., 447; 3 N. Y. Weekly Dig., 174.

§ 460. To sustain an action against a master for damages sustained by reason of the negligence of a fellow-servant, the plaintiff must show that the injury was not caused by his own want of care and caution, and that he had no knowledge of the unfitness of his fellow-servant. Dunmead v. American Mining & Smelting Co.,* 14 Rep., 419.

461. The law presumes that railway companies employ for their service persons of reasonable competency and fitness for their duties; and this presumption exists until the company is notified of their incompetency and unfitness. The same rule substantially applies to the question of the sufficiency of the machinery employed. Gravelle v. Minneapolis, etc., R. Co., 10 Fed. R., 711.

462. If one employee of a railway company discovers that a co-employee of his is negligent or incompetent, it is his duty to give notice to the company; but it is not necessary, in

order to relieve himself of contributory negligence, that he should at once quit the service of the company. He may wait a reasonable time for the discharge of the incompetent servant. Ross v. Chicago, etc., R. Co.,* 8 Fed. R., 544; 2 McC., 235.

§ 463. If a corporation employs several agents as fellow-servants in the same common employment and one of those servants is injured by the neglect or wrong of another, the corporation is not liable unless it be that the servant who is guilty of the wrong or negligence was employed by the company with knowledge that he was incompetent or negligent, or was continued in service by the company after notice of the fact that he was incompetent or negligent. Ibid.

§ 464. After notice of the incompetence of a servant, a railway company retaining him in its service assumes the responsibility for his negligence, and cannot exonerate itself by showing that it investigated the charges against him and did not believe them. Ibid.

§ 465. An employee who fails to notify his employer of the incompetence or carelessness of a co-servant or of a defect in machinery or apparatus takes the risk of injury thereby. Ibid. § 466. servant injured outside of the scope of his employment.- A boy sixteen years of age was employed in the defendants' machine-shop as a workman under the superintendence and control of one C. His services consisted in receiving and putting away mouldings. After a few months' employment of this kind he was ordered by C. to ascend a ladder resting on a shaft, to a great height from the floor, among dangerous machinery revolving at the rate of one hundred and seventy-five revolutions per minute, to adjust a belt which had got out of place. While attempting to execute the order his arm was caught by the machinery and torn from his body. The jury found by special verdict that he had been engaged to serve under C. and obey his orders; that the duty assigned by the order of C. was not within the scope of his employment, but within that of C.; that the order was an unreasonable one, attended with hazard to life or limb. Held, that the defendants were liable for the injuries sustained; that, having intrusted to C. the care and management of the machinery, and in so doing made it his rightful duty to adjust it when displaced, and having placed the boy under him with directions to obey him, they must pay the penalty for the tortious act he committed in the course of the employment. Union Pacific R. Co. v. Fort, 17 Wall., 553; 6 Ch. Leg. N., 150. See § 453.

§ 467. A master is not liable to his servant or employee for the negligence of a fellow-servant, while engaged in the same common employment or service, unless he has been negligent in the selection of the servant at fault, or in retaining him in his employ after notice of his incompetence has been brought to him as employer. But this rule does not exempt the master from liability for injuries caused by a co-servant outside the scope of the injured servant's employment or duties. Frost v. Union Pac. R. Co.,* 11 Am. Law Reg. (N. S.), 101. § 468. Termination of employment.- The time when an employee stops working is a question determinable by the jury, not by the court, in a case where the employer's liability to him for an injury is in controversy. Packet Co. v. McCue,* 17 Wall., 508.

469. When accident deemed result of master's carelessness and when of fellow-servant's.— Where a company does not affix extra links to the tender of an engine, but leaves them scattered around the switching yard to be used as needed by employees, if there be any negligence in not affixing such links to the tender, it is the negligence of the company, not of its employees, who are co-servants of the person injured. Gravelle v. Minneapolis, etc., R. Co., 11 Fed. R., 569.

VI. LIBEL.

[ocr errors]

SUMMARY — Publication after commencement of suit, § 470.- Exemplary damages, § 471.— Corporation liable for acts of agent, § 472; liable for libel on one of its officers, § 473.— What amounts to a libel, §§ 474, 479, 482.- Malice presumed, § 475.- Justification, how pleaded, § 476.— Variance in proof, § 477.— Case or defense made out by the proof, when, § 478.— Mercantile agency; privileged communications, §§ 480, 481.— Publication injurious to business, § 492.- Privileged communications, §§ 483, 484, 489, 490.- Duty of jury, § 485.- Malice; proof; damages, § 486.— Right to discuss public questions, § 487.— Charges against a public officer, § 488.— Publication of court proceedings, etc., § 491.— Proof of other libelous publications, § 492.— Words may be defined in charge to jury, § 493.— Measure of damages, § 494.

§ 470. Publication after commencement of a suit for libel is not enough to sustain a verdict in that suit. Phila., Mil. & Balt. R. Co. v. Quigley, SS 495-499.

§ 471. Exemplary damages in suit for libel are not recoverable unless the libel was conceived for a mischievous or malicious purpose. Ibid.

§ 472. A corporation is liable for the acts of its agents, either ex contractu or ex delicto, acting within the scope of their employment. Ibid.

§ 473. A corporation is liable for a libel upon one of its officers published in an official report of an investigation of his conduct by the directors, although such report is a privileged communication inter sese. It is not so if it be published. Ibid.

§ 474. Case for libel on the wife contained in an article which appeared in defendant's newspaper, the purport of which was a charge of illicit intercourse between the husband and wife before marriage. Held, that any publication tending to degrade and injure another person, or to bring him into contempt, ridicule or hatred, or which accuses him of a crime punishable by law, or of any act odious and disgraceful in society, is a libel. Dexter v. Spear, $$ 500, 501.

$475. In an action for libel it was urged in defense that defendant was not the author of the article complained of and had no malice. Held, that, where a publication is libelous and is knowingly made, the law presumes it malicious, unless it is proved to have been published on an innocent and justifiable occasion. Ibid.

§ 476. The plaintiff brought action for a libel in republishing in a paper an article originally appearing in another paper. The plaintiff demurred to a plea of justification. Held, that the defendant, if he means to rely on the truth of that which he has published, either in bar of the action or in mitigation of damages, must plead it specially. Barrows v. Carpenter, $$ 502-504.

§ 477. Where the actionable quality of the publication depends wholly on its connection with collateral matters, a variance in a material point in the proof of those matters may be fatal to the party committing the mistake. Ibid.

§ 478. When the plaintiff has proved the substance of his declaration he has made out his case; and upon the same ground, and for the same reason, where the pleadings and proofs of the defendant have substantially answered the charge as laid in the declaration, the defense is complete. Ibid.

§ 479. It is not necessary that the publication should impute an actionable offense to the plaintiff in order to maintain an action. Any writing, picture or sign which derogates from the character of an individual by imputing to him either bad actions or vicious principles, or which tends to diminish his respectability and abridge his comforts by exposing him to disgrace and ridicule, is actionable without proof of special damages. Ibid.

§ 480. The plaintiffs were partners, engaged in mercantile business. The defendants were partners, engaged in conducting a mercantile agency. It is the business of defendants to collect, through the reports of local agents and from other sources, information as to the character, credit and pecuniary responsibility of merchants, traders and others engaged in commercial pursuits throughout the country, and to impart the information thus acquired to their subscribers verbally on application therefor and by means of a "daily notification sheet" printed and sent to their subscribers at the agency issuing such sheet. There were sheets containing a libel on the plaintiffs distributed to persons having no interest in being informed of the condition of the plaintiff's firm. Held, that the defendants cannot escape responsibility for such libel on the plea that it was a privileged communication to their subscribers. Erber v. Dun, §§ 505–510.

§ 481. Verbal statements of a mercantile agency, when made in relation to the plaintiff's business, credit and standing as merchants, to their subscribers, who had an interest in knowing the facts, and in answers made to inquiries made by them, having been made in good faith and upon information on which defendants relied, are privileged communications, and cannot be made the foundation of an action. Ibid.

§ 482. Every publication in writing or in print which charges upon or imputes to a merchant or business man insolvency or bankruptcy, or conduct which would prejudice him in his business or trade, or be injurious to his standing and credit as a merchant or business man, is a libel. Ibid.

$483. A communication which would otherwise be privileged is not so if made with malice in fact; that is, through hatred, ill-will, and a malicious desire to injure, and is repeated and persisted in after the author has knowledge of the fact that it is false or erroneous. Ibid. § 484. A communication is privileged when made in good faith in answer to one having an interest in the information sought; and it will be privileged if volunteered, when the party to whom the communication is made has an interest in it, and the party to whom it is made stands in such relation to him as to make it a reasonable duty, or at least proper, that he should give the information. Ibid.

§ 485. When the jury have in mind a correct definition of libel and a knowledge of all the evidence relating to the words as used by the defendants in their publication, it rests with them to say whether they constitute a libel on the plaintiffs in their business as merchants. Ibid.

§ 486. The law presumes that libelous publications are made with malice, but the malice which the law affixes to a libelous publication is a technical, legal malice, and it should be proven as any other fact. The amount of damages depends on the motives which actuated the defendants in making the publication and the circumstances under which it was made, all of which the jury are to consider in their finding of damages. Ibid.

§ 487. Action for libel contained in an article published in defendants' newspaper. It reflected upon the dealings of the plaintiff with a railroad he had been connected with, and which he had bankrupted, and prophesied a like result to another road if plaintiff succeeded in his endeavors to gain its control. Held: (1) That writers and speakers are privileged to discuss the acts of public men in such matters as are of public interest. (2) In such discussions they are not held to prove the exact truth of their statements and the soundness of their inferences, provided that they were not actuated by express malice. (3) Plaintiff's character as a constructer and manager of railroads was open to public discussion, considering the many interests which might be affected by his plans. (4) The distinction between the public and private affairs of a railroad is: When a railroad is to be built, or a company to be chartered, the question whether it shall be authorized is a public one; but when the company is organized and the stock issued, anything which merely affects the value of the stock is private. Crane v. Waters, SS 511, 512.

§ 488. A letter was sent by the defendant and others to the president of the United States, containing charges against the plaintiff, a collector of customs, and asking for his removal from office. The plaintiff was removed, and subsequently brought an action for libel against the authors of the communication. It was contended by the defendants that the communication was privileged and therefore not libelous. Held, that proof of express malice would render the communication libelous in its character, and actionable, and would subject the author thereof to all the consequences of libel; but that the rule of evidence in such cases is so far changed as to remove the usual presumption of malice, and to make it incumbent upon the party complaining to show express malice. White v. Nicholls, §§ 513-517.

[ocr errors]

$489. Where a publication declared on as a libel is prima facie privileged, the circumstances which render it illegal, and the malice which prompted it, need not be expressly averred; and in describing the act complained of the word maliciously" is not indispensable to characterize it, but words of equivalent power and import are sufficient. Ibid. § 490. Where the libelous publication declared upon is regarded as an instance of privileged publication, malice is an indispensable characteristic, which the plaintiff is bound to establish in relation to it, and this question is to be submitted to the jury upon the face of the libel or publication itself. Ibid.

§ 491. In an action for a libelous publication in the proceedings before a court, legislative body, or any other tribunal or authority, falsehood and the absence of probable cause will amount to proof of malice. Ibid.

§ 492. Where the knowledge or intent of a party charged with committing a grave offense is in issue, evidence of other acts of a similar nature, done at or about the same time, is competent evidence of his method of doing business. So held in an action for libel, where the contents of another libelous publication in the same paper, and of the same nature as the one declared upon, was admitted in evidence and read to the jury, in order to make out the fact of general recklessness in the conduct of the paper. Gibson v. Cincinnati Enquirer, S$ 518-520.

§ 493. Where a newspaper article charges a person with being a party to a "crim, con.” scandal, and with being caught "in flagrante delicto" with a married woman, in an action for libel it is proper and competent for the court in instructing the jury to define such words. Ibid.

́§ 494. The amount of damages in an action for libel is a subject for the exercise of the sound discretion of the jury, and a verdict in such an action will not be set aside unless for very substantial reasons. A verdict of $3,875, in an action against a newspaper of large circulation for charging the defendant with adultery, is excessive. Ibid.

[NOTES.- See §§ 521-555.]

PHILADELPHIA, WILMINGTON & BALTIMORE RAILROAD COMPANY v. QUIGLEY.

(21 Howard, 202-223. 1858.)

ERROR to U. S. Circuit Court, District of Maryland.

Opinion by MR. JUSTICE CAMPBELL.

STATEMENT OF FACTS.- The plaintiff (Quigley), a citizen of Delaware, complained of the defendants, "a body corporate in the state of Maryland, by a

[blocks in formation]
« AnteriorContinuar »