Atlantic Coast Line Railroad v. Tredway's Administratrix

Sims, J., after making the foregoing statement, delivered the opinion of the court. As indicated above, the assignments of error raise only two questions for our determination, which will be considered in their order as stated below: 1. Was the plaintiff’s intestate an “employee” of the defendant, or in its employment, within the meaning of the Federal employers’ liability act approved April 22, 1908, at the time of receiving his injuries? The Federal act in question does not itself define the meaning of the word “employee” or the word “employed” also used in the act. — 744 — That portion of such act, which is pertinent to the question under consideration, is as follows: * * * “every common carrier by railroad * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * * or in case of the death of such employee, to his * * * personal representative.” The learning and exhaustive search of able counsel on both sides of this case have not resulted in citing us to any decision or discussion by any text-writer of the meaning of these terms as employed in such act. The precise question before us seems, therefore, to be a novel one both In our Federal and State courts. The word “employed,” and more especially the word “employee,” considered apart from their context in the Federal act, are ambiguous in their meaning. They may be limited in meaning by the idea that an express contract of hiring by the carrier of and the payment of wages by the latter to the employee, are essential to bring him within the provisions of the act. Or they may have a broader meaning and include as employees all who are engaged in the discharge of duties of servants of the carrier, whose service is knowingly accepted by the latter. On a collateral question it has been held that, the failure of the Congress to define the meaning of the words referred to above manifests a purpose in the legislation in question that these words should be interpreted and understood in their ordinary sense and according to their usage in the law of master and servant. Louisville etc., Co. v. Walker (1915), 162 Ky. 209, 172 S. W. 517. That is to say, the relationship of employer and employee is the same as that of master and servant. In the law of master and servant the principles of the common law determining when this relationship exists, are well settled. At common law, upon the question of whether — 745 — the relationship of master and servant exists, there are four elements which are considered: (1) selection and engagement of the servant; (2) payment of wages; (3) power of dismissal; and (4) the power of control of the servant’s action. Roberts & Wallace, Employers’ Liability (4th ed.), p. 78. But, as the last cited author says, the first, second and third of these elements are not essential to the relationship (Idem, p. 79-82). The “power of control” is the most significant element bearing on the question, in the opinion of this author, gathered by him from the authorities. (Idem, p. 85, 88, 87. See also note 37 L. R. A., pp. 38-43). As said in the case of Standard Oil Co. v. Anderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252, “In many of the cases the power of substitution or discharge, the payment of wage's, and the circumstances bearing upon the relation, are dwelt upon. They, however, are not the ultimate facts, but only those more or less useful in determining whose is the work and where is the power of control.”. Many of the authorities emphasize the importance of locating in what person resides the power of control, as a test for ascertaining whether one occupies the relationship of master to another. See English and American authorities collated in note to 37 L. R. A. pp. 38-39; Tompkins v. Pacific Mut. Life Ins. Co., 53 W. Va. 479-492, 44 S. E. 439; Singer Mfg. Co. v. Rahn, 132 U. S. 518-523, 33 L. Ed. 440, 10 Sup. Ct. 175. Some of these authorities are to the effect that control of the manner in which the details of the work are to be done is the test; but this is not a dependable test. Standard Oil Co. v. Anderson, supra. The control over the work of the servant may be divided. The master may, for reasons of his own, delegate the immediate direction and control of his servant to another and still reserve the ultimate power of control. (Standard Oil Co. v. Anderson, supra.) Whether the ultimate power of control is express, — 746 — or is in one form or in another, is manifestly immaterial. But, after all, such questions concern only the fact of control. Is this the ultimate fact to be sought in our inquiry? Manifestly not, where the duties of the servant are nonassignable. If the master could escape liability for the torts of his servants, or for negligent injuries to. them, by surrendering his power of control over them, in a qualified way (as was done by the agreement in evidence in the instant case), or by entirely surrendering such control, he might do so. Yet, plainly, in the casé of non-assignable duties, the inquiry would still remain, in every case of tort or injury aforesaid, did the relationship of master and servant in fact exist? If so, the duties imposed by law upon the master as the result of that relationship would remain, independent of the fact in whom the immediate or ultimate power of control of the servant might reside. The defendant had the power of control in question originally. It need not have parted with it. If by the agreement in evidence it did part with it, partly or wholly, it could, not thereby divest itself of the legal responsibility it was under to exercise such control. It is indeed illogical and unsound in principle to make the possession of' the power of control of a servant the test in the ascertainment of who is the master of such servant, in cases where the duties of the latter are non-assignable. In truth it follows rather from the relationship of master and servant— from the mutual duties and obligations which the law imposes as the result of such relationship — that the master has the right of control of the servant, than does the relationship follow from the existence of the power of control. The latter may, indeed, and does in fact almost invariably accompany the former; but it accomplishes it as an effect and not as a cause. Again, it may not invariably accompany the relationship, as we have seen. This consideration alone, con — 747 — demns it as a test of the existence of the relationship in ■question. Therefore, while we have not found it elsewhere so expressed in terms, the authorities on the subject have developed and led us to the necessary conclusion, where the duties of the master are non-assignable, that control is not the ultimate fact for which we are in search. The ultimate facts are, was the person in question engaged in the discharge of the duties of a servant of another, and was that service accepted by that other — was such service rendered and accepted ? If so, the law implies the contract of master and servant between the latter and the former — of employer and employee — and the existence of that relationship between them. We are aware that many authorities give no weight to the rendition of the service and predicate the conclusion that one is or is not the master upon the four elements above referred to being present or absent in the conduct of the latter. The effect which a knowing acceptance of the service must have, in principle, is often overlooked. Further: Were the service not accepted as that of a servant, and, by express agreement or otherwise, the master were to attempt to escape responsibility by relinquishing control of the servant — where the duty is non-assignable — the master cannot escape the duty resting upon him by relinquishment of control of the servant, or by otherwise making it impossible for himself to perform the duty. (Lucas v. Mason, L. R. 10 Ex. 251-3; Hardaker v. Idle District Counil [1896], 1 Q. B. at p. 340, per Lindley L. J.; Dalton v. Angus, 6 App. Cas. at p. 829.) And the duty is non-assignable when it pertains to the operation of a completed railway of a common carrier. (See authorities collated in note to 66 L. R. A. pp. 140-2; Boucher v. New York etc. R. Co., 196 Mass. 355, 82 N. E. 15, 13 L. R. A. [N. S.] 1177 and authorities cited in note.) — 748 — So in the instant case, the duties of the plaintiff’s intestate, (among others). were to operate signals connected with the passage of the trains of defendant and to keep a certain light, which served exclusively the operation of certain of defendant’s trains. They were in their very nature duties necessarily to be performed by some one for the defendant, to enable the latter to discharge its public service duties as a common carrier — its public employment under its franchise. Central &c. Co. v. Pullman Co., 139 U. S. 24, 35 L. Ed. 55, 11 Sup. Ct. 478, and authorities next above cited. They were therefore duties of the defendant and not of the Southern Railway Company, or of any other person or corporation. Their discharge was the discharge of duties of a servant to the defendant. That service by the plaintiff’s intestate was knowingly accepted by the defendant. Hence, upon the established principles of the common law, the plaintiff’s intestate was a servant — an employee — of the defendant. If it were thought that ultimate power of control — and, indeed, the selection and engagement of the plaintiff’s intestate, the power of dismissal and the payment of his wages, were essential to his relationship to the defendant being that of an employee — all of these elements will be found, on consideration, present and possessed by the'defendant in the instant case. With respect to the ultimate power of control — that was possessed by the defendant through the Southern Railway Company. If the latter had supplied an inefficient servant for the discharge of the duties of the plaintiff’s intestate and had refused to discharge him, it would have been a breach of contract for which the law would have afforded ample remedy to enable the defendant, to accomplish the discharge of such a servant and the engagement of a competent servant in his stead. Indeed counsel for defendant, in the trial of the case in the court below, very properly and — 749 — correctly stated, in effect, that in case there should be a breach of its duty by the Southern Railway Company to the ¡defendant in the matter of supplying the former with efficient servants in and about the signal tower, the defendant “would find a way” to control the matter. No absolute right of control of the employees contemplated thereby was vested in the Southern Railway Company by the agreement in evidence, or by the Virginia statute on the subject. Quoad the service to be rendered by the employees for the defendant, the agreement imposed the undertaking of the immediate control upon the Southern Railway Company for the benefit of the defendant. The former was merely the D agent of the latter in performing such undertaking, both under said agreement and under the Virginia statute. There was nothing in the Virginia statute’which forbade or prevented the defendant from exercising such control directly —as indeed the defendant is now doing, the agreement in evidence having been abrogated since the case at bar arose. There is nothing in section 1294-b, clause 3 (Pollard’s Code of Va. 1904), referred to in reply brief for the defendant inconsistent with the foregoing conclusions. From this it is manifest that while said agreement was in force the Southern Railway Company was merely the agent of the defendant under such agreement to exercise the immediate control of the plaintiff’s intestate, with the ultimate power of control remaining vested in the defendant. Qui faeit per alium, facit per se. With respect to the selection and engagement of the plaintiff’s intestate and the power of dismissal, what is said in the next preceding paragraphs above holds true. As was said by that eminent judge, Chief Justice Shaw, in the case of Sproul v. Hemmingway, 14 Pick. (Mass.) 1, 25 Am. Dec. 350, one of the grounds on which persons are held to be employees of owners of “a vessel or coach” is, /‘in respect to their being engaged in the business or em — 750 — ployment of the owners, conducting and carrying on such business for the profit or pleasure of the owners, by reason of which the acts done in the prosecution of such business shall be taken civiliter to be done by the employers themselves, and this whether the persons whose negligence is the cause of damage have been retained and employed by the principal himself, or by the' procuration of others, employed by him for the purpose.” (Italics supplied.) And in Quarmañ v. Barnett, 6 M. & W. 409, in the opinion of Baron Parke, confirming the opinions of Lord Tenterdon and Littledale, 3., it is said: “Upon the principle qui facit per alium, facit per se, the master is responsible for the acts of the servant, and that person is undoubtedly liable who stood in the relation of master to the wrong-doer — he who has selected him as his servant, from the knowledge or belief in his skill and care— and who could remove him for misconduct, and whose orders he was bound to receive and obey; and whether such servant has been appointed by the master directly or intermediately, through the intervention of an agent authorized by him to appoint servants for him, can make no difference.” (Italics supplied.) See also Thomp. Neg., sec. 39. With respect to the payment of wages, they were in effect paid by defendant through its predecessor in title, when the latter furnished the consideration of permitting the crossing, for which the agreement in evidence, and the Virginia statute in such case made and provided, bound the Southern Railway to pay such wages. Hence we have present as the instant case all four of the elements above referred to which are considered upon the question of whether the relationship of master and servant exists. It is agréed by all of the authorities that “where all of these elements co-exist in one person alone, that person is without doubt the master of the person engaged.” (Roberts & Wallace, Employers’ Liability [4th ed.] p. 78.) — 751 — The following additional references to the authorities will further develop the distinction above taken. A servant may be transferred from his service for one master — who may have made the express contract of employment of the servant and may pay the latter his wages, and be his general master — to the service of another person other than his general master; in which case— “(1) The special master is alone liable to third persons for injuries caused by such acts as the special servant may commit in the course of his employment; (2) the special servant must look to the special master for his indemnity, if he is injured, while the stipulated work is in progress, by dangerous conditions resulting from the special master’s failure to fulfil one of those duties which the law imposes upon masters for the benefit and protection of their servants.” 1 Labatt on Master and Servant (2nd ed.), sec. 52, p. 170. See for same principle Rourke v. White Moss Colliery Co., 2 C. P. D. 205. In Missouri Pac. R. Co. v. Jones, 75 Tex. 151, 12 S. W. 972, the following is said in the opinion of the court: “Upon this branch of the case the facts were that appellee (plaintiff) was at the time of and several months prior to the injury at work for appellant in its yards at Fort Worth, Texas. He was employed by Phalling, the yard master, and received his pay from the Texas Pacific Railway Company. Appellee’s duties were to stay in the yard and make up trains. The track on which the injury occurred was kept in repair by appellant. The appellant had control of the yárd. It had the track on which appellee was injured dug out between the ties about a day before appellee was hurt; holes were opened out above where he was injured, and there were no ties to put in them. The road master was informed of the danger, but the track was left in that condition. “The facts show that the appellee was the general ser — 752 — vant of the Texas Pacific and the special servant of the appellant. He performed special services for the latter while the general servant of the former, and while so performing this special service he was the servant of appellee at the time. “There was no proof of an express contract showing the relation of master and servant between appellant and appellee, but the evidence of the service performed by Jones for the Missouri Pacific and the connection between the two companies authorized the inference that this relation did exist. “In the case of Railway Co. v. Dorsey, cited in Gulf v. Dorsey, 66 Texas 148, 152, 18 S. W. 444, the plaintiff was employed to serve the several companies in their respective yards. It was held that he was the servant of the one in which yard he was when at work. In the opinion in that • case it is said: “ ‘The proof, we think, shows that by virtue of some arrangement, the precise nature of Which could not be ascertained, between the Texas Pacific and the Missouri Pacific Companies, it was the duty of the appellee, who received his pay from the former company, to switch and couple and uncouple the cars in the yard of the appellant and on its tracks, over which the appellant had exclusive control, and whose duty it was to keep said track in repair; and that at the time of performing these services for the Missouri Pacific he was injured by reason of its negligence. While engaged in this service for appellant, with its knowledge and under its agreement that the appellee should perform such service, he was the servant of the appellant. The inference was authorized that appellant paid the Texas Pacific for his services, which would be tantamount to a payment to him. The payment we believe to be immaterial under the facts of this case. He had for a long time prior to the injury worked for the appellant, and his labor was accepted — 753 — up to the time of the injury. Those facts made appellee the servant of appellant in the transaction in which the damage was sustained by reason of the service performed.’ ” (Italics supplied.) In Central v. Texas, 32 Fed. 448, it is held that one who assisted a yard master in making up a train was a servant of the receivers operating the road, whether or not the road master directed him to assist in the capacity of a servant or he volunteered to do so — he was held to have rendered a service to the receivers with the acquiescence of their agent — i. e. his services were rendered to them and knowingly accepted by the receivers through their agent, and he was entitled to the protection to be accorded a servant from injury due to the receivers’ negligence. (Italics supplied.) See, to same effect, Thyssen v. Davenport Co., 134 Iowa, 749, 112 N. W. 177, 13 L. R. A. (N. S.) 572 and note. In Floody v. Railroad Co., 102 Minn. 81, 112 N. W. 875, 1081, 13 L. R. A. (N. S.) 1196, it was held that a railroad company is liable to its servants for the negligence of the employees of a union depot company, whose duty it is to operate the switches and direct the movement of the trains out of the depot yards. “For the occasion the servants of the depot company become the servants of the railroad company.” The court in its opinion said: “It was immaterial to plaintiff that the switchmen were paid by the Union Depot Company, and were under its comtrol in operating the switches, if for the occasion, the Omaha Company” (the defendant) “chose to avail itself of the services of that company and its employees for the purpose of taking its train out of the depot.” Citing Wabash &c. R. Co. v. Peyton, 106 Ill. 534, 46 Am. Rep. 705, which is to the same effect. (Italics supplied.) — 754 — In McElroy v. Nashua etc. R. Corp., 4 Cush. (Mass.) 400, 50 Am. Dec. 794, there was a connection by the defendant railroad, with another railroad, under statute. The injury was occasioned by the negligent operation of a switch on defendant’s railroad, making such connection, by a servant of the other railroad. The switch itself was also provided; by the latter. The defendant was held liable for the negligence of the servant whose duty it was to operate the switches — i. e., the latter was held to be pro haec vico the servant of the defendant. Chief Justice Shaw in delivering the opinion of the court said: “The switch in question in the careless or negligent management of which the damage occurred, was part of the defendant’s road * * *; and although provided for and attended by a servant of the Concord; Railroad Corporation, and <at their expense, yet it was still a part of the Nashua and Lowell railroad'” (the defendant) “and it was within the scope of their duty” (the defendant’s) “to see that the switch was rightly constructed, attended and' managed” * * * (Italics supplied.) But counsel for the defendant contend that in the instant case the duties of the plaintiff’s intestate were assignable duties and that the Southern Railway Company was an independent contractor with respect to such duties, and, hence, the plaintiff’s intestate was its employee, and not the employee of defendant. Upon this inquiry, if the duties in question were assignable, the ascertainment of the possessor of the control over the work and the servant, would be decisive as to who was the employer of the servant. As was said by Willis, J., in Murray v. Currie, 2 C. P. D. 369, with regard to cases where the duty is assignable: “In ascertaining who is liable for the act of a wrong-doer, you must look to the wrong-doer himself, or to the first person in the ascending line who is the employer and has the control over — 755 — the work. You cannot go further and make the employer of that person liable. It is upon this principle that the cases rest of Bibb v. N. & W. Ry. Co., 87 Va. 711-740, 14 S. E. 163; Emmerson v. Fay, 94 Va. 60, 26 S. E. 386; N. & W. Ry. Co. v. Stevens, 97 Va. 631, 34 S. E. 525; Railroad Co. v. Hanning, 15 Wall. (U. S.). 649-658; Casement v. Brown, 148 U. S. 615-622, 37 L. Ed. 582, 13 Sup. Ct. 672; and Chicago, &c. Ry. Co. v. Bond, 240 U. S. 449, 60 L. Ed. p. 735, 36 Sup. Ct. 403, cited and relied on for defendant. They are inapplicable to the instant case for the reason that the duties of the servant in question were of such a character, as above noted, that they could not be assigned by the defendant to an independent contractor so as to release itself from the position of responsibility for their proper discharge. That is to say, the defendant could not abdicate its position of - master with regard to the plaintiff’s intestate in the instant case, by delegating or assigning its duty of control of such servant to any independent contractor. It is not a case in which the doctrine of independent contractor is applicable. (See authorities collated in note to 66 L. R. A. pp. 119, 136-7, 140-2; Boucher v. New York, &c. R. Co., supra, 13 L. R. A. (N. S.) 1177 and authorities collated in note thereto. We conclude therefore that the plaintiff’s intestate was an employee of the defendant within the meaning of the said Federal employers’ liability act at the time of receiving his injuries. With respect to the only qüestion remaining for our consideration, namely: 2. Were the injuries and death of the plaintiff’s intestate due, wholly or in part, to the negligence of the defendant? We do not deem it necessary on this question to enter into any detailed discussion of the evidence or reference to the authorities. The result of the evidence when considered — 756 — as if on demurrer thereto by the defendant, as we must consider it, is stated above. The authorities on this subject are too wéll understood to need citation. We can come to no other conclusion from the evidence and the authorities than that the inquiry under consideration must be resolved by us in the affirmative. For the foregoing reasons we find no error in the judgment complained of and it will be affirmed. Affirmed.