Haley v. Western Transit Co.

LyoN, J. The complaint charges negligence in the particulars therein specified directly upon the defendant company. There is no legal presumption that the acts or omissions upon which the charge is predicated were the acts or omissions of an employee of defendant, but rather of an agent thereof, by whom alone it can perform its duties and functions. Hence the complaint (being otherwise sufficient) states a cause of action, and a general demurrer thereto would not be sustained. It was so held on general demurrer to a complaint similarly framed in Hulehan v. G. B., W. & St. P. R. Co. 58 Wis. 319. That counsel for the defendant regarded the complaint in the present case sufficient is evidenced by the fact that they did not demur, but interposed an answer thereto on the merits. If, there [347] fore, the judgment of the circuit court dismissing the complaint is sustained, it must be sustained on the sole ground that the facts stated by counsel for plaintiff in his opening address to the jury showed that the plaintiff is not entitled to recover in the action. The practice of granting a nonsuit, much less of dismissing the complaint, on the opening statement of the case by counsel for the plaintiff, does not prevail, and never has prevailed, in this state. Fisher v. Fisher, 5 Wis. 472; Smith v. Commonwealth Ins. Co. 49 Wis. 322. But judgment dismissing the complaint in this case was given on such opening statement alone. True, counsel for plaintiff, in his argument before this court, expressed a willingness that such statement (which is preserved in a bill of exceptions) should be considered in connection with the complaint and treated as a part of it. Nothing of this appears in the record. We are not willing to depart in this case from an old and salutary rule of practice, even though counsel consent that we may do so. We have, however, looked into such statements sufficiently to become satisfied that the facts stated by counsel are insufficient to support the judgment. The grounds of this opinion will be briefly stated. The material portion of such statement, affecting the question of defendant’s liability, is to the effect that the mate who employed the plaintiff was in command of the steamboat, and the plaintiff worked under his direction; that the hatchway was closed when the plaintiff worked near it in the earlier part of the night; that he left his coat there, and when working in another place felt the need of it and went for it in the darkness, and fell into the hatch way without knowing or seeing or being able to see that it was open; and that after plaintiff left the vicinity of the hatchway in the early part of the night, the mate ordered it opened, and neglected to notify the plaintiff of the fact, or place lights so that he could see it was open. [348] It is understood that the learned circuit judge was of the opinion that the foregoing statements of counsel showed that the mate was a co-employee with the plaintiff in the same general business or employment, and that the negligence which caused the injuries of which plaintiff complains was the negligence of the mate. Conceding, for the purposes of the case, that this is a correct view of the facts stated by counsel (a proposition which we do not reach, and hence do not decide), it still falls short of relieving the defendant of liability. To effect that result it should further appear that the mate was a competent person for the position he occupied, and that the company furnished him with all necessary appliances to light the hatchway. These are defensive facts, and the burden of proving them is upon the defendant. There is no presumption of the existence of either of them, in the absence of affirmative proof. Neither of them is pleaded, admitted, or proved. Hence, on the hypothesis that the negligence complained of was the negligence of the mate, and that he and the plaintiff were co-employees, as the case stands on the statement of counsel the plaintiff would still be entitled to recover. The case may be close to the line between cases where the negligence charged should be imputed to the principal, and those in which the negligence is imputed solely to a co-employee. That is to say, it may be a close question whether the mate was the agent of the defendant, for whose negligence the defendant is responsible, or whether he was a mere employee, for whose negligence, if he was a competent person, the principal is not responsible. On which side the line this case belongs we do not determine on this appeal for the reason above suggested, that the question is not reached. By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.