Bauer v. Richter

Baereen, X The chief ground upon which it is sought to overturn this judgment is,that the evidence fails to show that the relation of master and servant existed between the Richters and the men who built the derrick, or who were directing the unloading of the machinery, or with the deceased himself. The complaint alleges that 'deceased was in the employ of the defendants as a common laborer. The proof shows that he was in the general employment of the beet sugar company, and had been ever since the spring before the accident, and, unless the circumstances hereinafter referred to make him the servant of the defendants, no recovery can be sustained. Defendants’ negligence is predicated upon the ground of the negligent construction of the derrick used for the re — 417 — moval of the vacuum pans from the cars. The proof is that this derrick was erected by and under the immediate direction of Mr. Hoos, the foreman of the carpenter gang putting up the factory building, from materials belonging to the beet sugar company, and that Mr. Korn, the superintendent of that company, gave directions as to the manner of its construction. There can be no question of a doubt but that, in the general conduct of the work there done, Korn, Hoos, Barndt, and all of the men under them were in the employ of the beet sugar company, and were not employees or servants of the Richters. There can be no question of the further fact that, under some arrangement between the parties, the employees of the beet sugar company entered upon the undertaking of unloading the machinery sent by the Richters. The latter were under contract to set up the machinery in the building, and, to avoid the necessity of sending a crew of men with each car, it was the practice of Korn to direct some one of the crews under his control to take the machinery from the cars.. The time of the men while engaged in this undertaking was charged to the Richters, and paid by them direct to the company. There was no one in the Richters’ employ there to guide or direct the work. Not one of the men so employed could have sustained any claim against the Richters for their wages, nor could any one of them have been discharged from their employment by any act of theirs. The men who built the platform and the derrick, as well as the men who were unloading th.e cars, were all on the pay rolls of the beet sugar company, and subject to the control and dominion of that company. ' The mere fact that they were engaged in doing work which the Rich-ters were under contract to do did not, of itself, create the relation of master and servant between them. All of these men continued subject to the control and dominion of their original master. They sustained no relation to the defend — 418 — ants under any contract of hire, express or implied. Neither did the defendants, nor any one representing them, assume to suggest or direct the means that should be employed or the manner in which the work should be done. The beet sugar-company entered upon the work, adopting its own appliances, and controlling and directing its own servants. Thus, upon a survey of the testimony, we find all of the usual tests-which establish the relation of master and servant wanting.. The doctrine of respondeat superior has no application in such cases, unless it can be determined that the relation of master and servant exists. Where there is no power of selection or direction, there can be no superior. When one is employed to do the work with his own means and by his own servants, he has the power of selection and direction,, and he, and not the jjerson for whom the work is done, is. the superior. Du Pratt v. Lick, 38 Cal. 691. In considering this same question, our own court has said: “ The test is, Had the defendant the right to control the conduct of the-person doing the work, as respects the mode and manner of doing it, in the particular complained of?” Kuehn v. Milwaukee, 92 Wis. 263. Nearly all of the cases agree that the-power of selection and the right to control are the most powerful elements in determining the question of whether the relation of master and servant exists, and, unless that relation does exist, no recovery, in cases of this kind, can be had. The jury in this case have found that Radke was, at the time of the accident, doing the work of the defendants as-their servant. We are satisfied that there is no credible testimony in the case to sustain this finding. In addition to-the facts already stated, there are others that stand out so-bold and prominent as to utterly overwhelm and crush down the conclusions testified to by the witness Korn; for it is-upon some random statements to be found in his testimony — 419 — that this verdict seems to have been based. At one place in the testimony he says that he hired the deceased to assist in unloading this machinery. Standing by itself, this statement would tend to support the jury’s conclusion. Rut the same witness admits that Radke was hired by the foreman to work for the beet sugar company several months before the accident; that he was carried on the pay roll for that company as an employee during that time; and there is not a suggestion of any new hiring or change of relation. Other testimony conclusively shows that the deceased entered into the employ of the company in the spring of 1896, and continued in service until the time of the accident, in January, 1897. Again, he said he had authority to hire men for the Richters. Not a witness was produced, or a word of testimony given, tending to show that he assumed to act under that authority. All that he attempted to do was to direct the men under his control to unload the machinery when it came, and to have the foreman keep the time of the men so employed, and have it charged to the defendants. Under these circumstances, the conclusion is irresistible that these workmen were servants of the beet sugar company, and not of the defendants. On the question of the defective condition of the appliances used, there was testimony sufficient to warrant the submission of that fact to the jury; but we need not further consider. that branch of the case, so long as the beet sugar company has not been brought in to defend. In the charge of the court, and with reference to almost every question submitted in the special verdict, the judge made use of expressions as follows: “ The plaintiff contends that you should answer this question, Yes.” “ The plaintiff says that you should answer this question, No; the defendant says that you should answer it, Yes.” This language is vigorously criticised as a violation of the rule established by this court that the trial judge should not inform the jury of — 420 — the effect of the answers to the questions in the special verdict. Ryan v. Rockford Ins. Co. 77 Wis. 611; Coats v. Stanton, 90 Wis. 130; Conway v. Mitchell, 97 Wis. 290. The argument is that, the judge having laid so much stress upon the contentions of the parties, the jury are, in effect, informed how they should answer each question, in order to support a judgment one way or the other. There is some force to this criticism when we consider that the purpose of a special verdict is to secure the determination of cold questions of fact, unbiased and uninfluenced by the ultimate result. At the same time, we are not prepared to say that this practice is reversible error. It has always been the practice of trial courts to state to the jury the contentions of the respective parties. Certainly, every juror, with sufficient intelligence to entitle him to sit in a case, gets an idea of the general result of his verdict. The thing to be guarded against is that the court shall not, by any authoritative statement from the bench, inform the jury of the ultimate result of their deliberations. We do not commend the practice referred to as one to be followed. It comes so close to the dividing line that it were better to be abandoned. The better practice is to state the facts to be found, and that the burden of proof rests upon the party asserting it, as the case may be, without laying emphasis upon the contentions of the parties. This will be more likely to secure unbiased results, and tend to the better administration of justice. The jury were charged that they were not limited to the simple value of the “ support and protection ” of the widow, but might consider the increase that the earnings of the husband would have made to his property, and the reasonable expectation the widow had of ultimately receiving a share. This statement of the law has received the sanction of this court in the following cases: Castello v. Landwehr, 28 Wis. 522; Lawson v. G., St. P., M. & O. R. Co. 64 Wis. 447; — 421 — Kaspari v. Marsh, 74 Wis. 562; Rudiger v. C., St. P., M. & O. R. Co. 101 Wis. 292. By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial. On the question which of two or more persons is the master of another who is conceded to he the servant of one of them, see note to Hardy v. Shedden Co. (47 U. S. App. 362), in 37 L. R. A. 83. — Rep.