Lamb v. Littman.

Cook, J. Erom a careful review of the evidence, we find that it establishes a prima facie case, and his Llonor erred *362 in sustaining the motion to dismiss, as in case of nonsuit, and in not submitting tbe issues to the jury. The evidence shows that defendant, in running his mill through agents, had one general superintendent who hired and discharged hands, and also had spinning-room superintendents, bosses or overseers, who controlled and directed the hands in the performance of their work, and also sometimes hired and, in case of disobedience, of which they were the judges, discharged the hands under them. Burrus was a spinning-room superintendent or boss or overseer, and was in command of the department in which plaintiff, a ten-year-old boy, was a floor-sweeper. Burrus’ reputation was bad among mill men; that is, he was mean to children and his help, and it was generally known — and had been so for years — at Albemarle, Concord, Salisbury, and elsewhere, where he had worked in mills. Notwithstanding this fact, which ought to have been known to defendant he was employed in this mill and placed in control of others, including this boy of tender years. And herein lies the principle involved in this appeal. In employing servants, the master is under obligation not to associate incompetent ones with the skilled and competent to their hurt and injury. So much the more, then, is it the duty of the master not to employ unskilled and incompetent bosses or overseers, who are to act in his place and stead over subordinates who are under their care and control and subject to their orders. It does not appear that Burrus was unskilled, but his incompetency for the supervision of children and other like help is apparent and emphasized by his bad character for being mean to children and other help. We have no reason for judging that such character was not actually known to defendant; it was generally known among mill men, from whom he might have informed himself if he had inquired, and it was his duty to have been reasonably diligent in ob- *363 taming tbe information before entrusting such care and responsibility to Mm. In the enlargement of our business and industrial enterprises, made necessary by the rules of economy, it is frequently impossible for the master to give a personal supervision and direction to the business. “It is now universally held in American Courts that a master always may and sometimes must have a servant who acts as his representative or alter ego towards other servants, and that for the negligence of such representative, while acting as such, the master is responsible to the other servants, precisely as if it were his own.” Shear, and Eedf. on the Law of Negligence (5th Ed.), section 226. ' While he is responsible to fellow-servants for a failure in duty in not using ordinary care in Selecting competent ser- \ ants, he is also under obligation to them to exercise due care and caution in the selection of his representative or alter ego, who orders, commands and controls those committed to his charge. In the case now being considered, there is no evidence of the unskillfulness of the boss, Burrus, but the evidence shows that he was unfit and incompetent to perform the duties of supervising children and the help under him by reason of his cruel nature and high temper, demonstrated by his treatment of the plaintiff on the day before as well as on that of the injury, which had become so well known as to establish for him a general reputation extending back for six or more years in the divers mills and towns in which he had worked. It is clear that the master would have been responsible for injuries inflicted upon the servants by him, had he (the master) known of such traits of character; and it is equally as clear.that he could have obtained the information had he seen fit to inquire; or, having inquired, knowingly and voluntarily assumed the responsibility in employing him and placing *364 him in that responsible position. It is true that the burden of proof is upon the plaintiff to show negligence upon the part of the master, but in this case it is done and is not contradicted. Had the master committed the assault, his liability would not be questioned. Then why not be responsible for his representative whom he knew (or ought to have known) to have been of such nature and character that the like result would follow? Under tire contractural relations existing between plaintiff and defendant, it was the duty of the plaintiff to render proper service and obey the commands and directions of his superiors in the service. It was likewise the duty of the defendant under these relations to appoint as his representative a fit and competent person — not one of a cruel and mean nature, who would use violent means in urging the performance of duty. We do not wish to be understood as holding that the master is generally an insurer of the good conduct of his representative, or an insurer against his violence resulting from his own malice or ill-will, or sudden outbursts of temper, although in charge of the master’s business; but only when he puts in such representative as is by him known, or ought to have been known, to be violent and mean, and the injury is the natural result of such character. It was the duty of Burras to keep the servants at work and superintend the same, but it was no part of his employment to inflict corporal punishment in behalf of the master. In Daniel v. Railroad, 117 N. C., 592, in which Wood on Master and Servant, 592, is cited with approval, the master was a 'common carrier who had the actual care and custody of plaintiff’s intestate, and was an insurer of his safety against its own servants as well as co-passengers and intruders. In the case at bar, defendant’s relation with plaintiff was in no sense similar. Plaintiff was a servant and performing service, and it was his duty to look out for *365 and protect bimself, to.obey and conform to tbe rules and requirements within the scope of his employment — quite different from that of a passenger who was paying for the protection and service being rendered to him. Had the plaintiff been injured by dangerous or defective machinery used by the defendant in funning his mill, while m the performance of the work assigned him, we would consider the contention upon that subject. Birt it appears that the injury received was caused by the violent handling of plaintiff by defendant’s alter ego in urging him to the proper performance of Ms work. The obligation to furnish reasonably secure machinery and appliances is limited to the use of those in its employ, and not to provide against accidents to those who might, by violence not anticipated, or negligence, or those uninvited, come in contact with it. The injury inflicted by the shoving of plaintiff by Burrus might have been even more serio-us, had he fallen upon the floor, by the breaking of a limb, or still more serious by the falling down a stairs, or out of a door, or upon some pointed implement lying in the wayside. There is error.