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which appellee's intestate was an employee. Ind. 321, 30 N. E. 303; New Pittsburgh Coal He was placed in charge of the quarry and & Coke Co. v. Peterson, 136 Ind. 398, 43 Am. the connected business, and, in conducting St. Rep. 327, 35 N. E. 7; Bedford Belt R. and controlling the quarry and the con Co. v. Brown, 142 Ind. 659, 42 N. E. 359; nected business, he was, in law and in fact, Robertson v. Chicago & E. R. Co. 146 Ind. occupying the position of a master, and not | 486, 45 N. E. 655; Kerner v. Baltimore & that of a mere fellow servant. If he repre. 0. S. W. R. Co. 149 Ind. 21, 48 N. E. 364; sented the master, his negligence, if he was Hodges v. Standard Wheel Co. 152 Ind. 680, guilty of negligence, was that of the em- 52 N. E. 391, 54 N. E. 383; Island Coal Co. ployer.”

v. Swaggerty, 159 Ind. 664, 62 N. E. 1103, Although it is not cited by counsel for ap- 65 N. E. 1026; Southern Indiana R. Co. v. pellant, we call attention, in passing, to the Martin, 160 Ind. 280, 66 N. E. 886; Southcase of Louisville, N. A. & C. R. Co. v. Heck, ern Indiana R. Co. v. Harrell, 161 Ind. 689, 151 Ind. 292, 50 N. E. 988. It was there 63 L. R. A. 460, 68 N. E. 262. In the case held that the railroad company was liable last cited it was pointed out that the masfor the negligence of a train despatcher in ter's duty relative to furnishing a safe place sending an improper order; it appearing to work does not require, in undertakings that he was authorized to send orders in the which may properly be intrusted to a forename of the division superintendent, and man and the men under him, that the master had done so in the instance in question. shall guard the men against those transient The ruling was based on the ground that the dangers which from time to time occur despatcher was authorized to act for one in the progress of the work. In Southern who was a vice principal, and on the fur- Indiana R. Co. v. Martin, 160 Ind. 280, 66 ther ground that the master's business was N. E. 886, it was said: “The train and of such a character that superintendence every appliance that the appellant had furupon its part was necessary in the opera- nished may be presumed to have been proption of its trains.

er, and it may be presumed that it had no The case of Island Coal Co. v. Swaggerty, notice that Mathieu was not a proper man 159 Ind. 664, 62 N. E. 1103, 65 N. E. 1026, to intrust with the duty of acting as foremay be said, in a general way, to belong to man in the performance of the particular that class of cases to which Taylor v. Evans- work. The whole matter was one of detail, ville & T. H. R. Co. 121 Ind. 124, 6 L. R. A. that the foreman and the men might prop584, 16 Am. St. Rep. 372, 22 N. E. 876; erly be permitted to attend to in their own Nall v. Louisville, N. A. & U. R. Co. 129 way." While it may be that a different rule Ind. 260, 28 N. E. 183, 611; Louisville, E. & applies where the master or—what amounts St. L. Consol. R. Co. v. Hanning, 131 Ind. to the same thing—his personal represent528, 31 Am. St. Rep. 443, 31 N. E. 187, and ative is present and is guilty of negligence ; Hoosier Stone Co. v. McCain, 133 Ind. 231, and, while we admit that a master's business 31 N. E. 956, belong. It was a case where may be so complicated and dangerous that a servant was injured who had gone into a the very carrying on of some department of dangerous place pursuant to the special com- it may require the master's superintendence, mand of the master's sole representative be in addition to his ordinary duties,-yet, as low ground, and where the latter had been applied to those classes of work which may guilty of negligence in failing to stop the properly be left to the direction of a foredescent of an elevator.

man, we cannot, in view of principles, and of Notwithstanding the view which this the constant iteration and reiteration in our court has sanctioned as to the liability of cases that superiority in rank or authority the master to a servant for the negligence of to direct does not per se make a servant a an employee who is over the whole service, vice principal, consent to the proposition or over a large department of it, yet it has that the master is liable for the negligence never given any recognition to what is of the foreman in directing the work, where termed the "superior servant doctrine.” On the master has otherwise performed his duty. the contrary, it has always maintained that In the course of an article written by the master was not liable for the act of a Judge Cooley in 2 Southern Law Rev. N. S. mere foreman in giving directions concern. 114, 124, it was stated: “It has been seen ing the work to a servant working under that the superior position of the negligent him, where the place and appliances fur- servant, as that of a foreman, conductor, nished by the master were proper. Indiana etc., is not regarded as affecting the case. Car Co. v. Parker, 100 Ind. 181, and cases But a foreman is not necessarily or usually, cited; Indianapolis & St. L. R. Co. v. John- perhaps, intrusted with any large share of son, 102 Ind. 352, 26 N. E. 200; Pittsburgh the master's discretionary authority. NeiC. & St. L. R. Co. v. Adams, 105 Ind. 151, 5 ther is the conductor of a train of cars, exN. E. 187; Justice v. Pennsylvania Co. 130 cept as to the particular duty of taking it

safely to its destination. His duty may be, , although paid by the same master, the two and probably is, less responsible than that servants were brought no farther in contact of the telegraph operator who directs his with each other than as if they had been movements and those of others in charge of employed by different principals.” trains on the line; and, if the conductor is An illustrative case upon the subject in to be regarded as principal for some pur- hand is Northern P. R. Co. v. Peterson, 162 poses, so should the operator be for others. U. S. 316, 40 L. ed. 994, 16 Sup. Ct. Rep. But this would suggest questions and dis- 843, where it was said: "This boss of a tinctions that could only be confusing, and small gang of ten or fifteen men, engaged in would preclude the possibility of any settled making repairs upon the road wherever they rule whatsoever. It would seem that the might be necessary, over a distance of three law could go no further than to hold the cor- sections, aiding and assisting the regular poration liable for the acts and neglects of gang of workmen upon each section as occathe officer exercising the powers and author- sion demanded, was not such a superintendity of general superintendent; but that ent of a separate department, nor was he in for these it ought to respond to its servants control of such a distinct branch of the as for its own acts or neglects. But this in work of the master, as would be necessary no way affects the general rule which re- to render the master liable to a coemployee quires of any employer, whether corporate for his neglect. He was in fact, as well as or not, to employ suitable servants, and to in law, a fellow workman. He went with the make use of safe tools, machinery, etc., or gang to the place of work in the morning, at least to take care that there is no negli- stayed with them during the day, superingence in procuring them.”

tended their work, giving directions in reThe opinion of the Supreme Court of the gard to it, and returned home with them in United States concerning the superior serv- the evening; acting as a part of the crew of ant doctrine, at least in recent years, is the hand car upon which they rode. The shown by the following quotation from the mere fact, if it be a fact, that he did not acopinion in Baltimore & 0. R. Co. v. Baugh, tually handle a shovel or a pick, is an unim149 U. S. 368, 389, 37 L. ed. 772, 782, 13 Sup. portant matter. When more than one man Ct. Rep. 914, 922: "It may be safely said is engaged in doing any particular work, it that this court has never recognized the becomes almost a necessity that one should proposition that the mere control of one be boss, and the other subordinate, but both servant over another in doing a particular are nevertheless fellow workmen.” piece of work destroys the relation of fellow In Howard v. Denver & R. G. R. Co. 26 servants, and puts an end to the master's Fed. 837, it was stated by Mr. Justice Brewliability [sic]. On the contrary, all the er: "To make one, as the controller of a cases proceed on the ground of some breach department, properly the representative of of positive duty resting upon the master, or the master, his duties should be principally upon the idea of superintendence or control those of direction and control. He should of a department. It has ever been affirmed have something more than the mere managethat the employee assumes the ordinary ment of machinery. He should have suborrisks incident to the service; and, as we have dinates over whose various actions he has seen, it is as obvious that there is risk from supervision and control, and not a mere asthe negligence of one in immediate control as sistant to him in his working of machinery. from one simply a coworker.” In Northern He should have control over an entire deP. R. Co. v. Hambly, 154 U. S. 349, 38 L. ed. partment of service, and not simply of a 1009, 14 Sup. Ct. Rep. 983, it was said: single machine in that service. He should “To hold the principal liable whenever there be so lifted up in the grade and extent of his are gradations of rank between the persons duties as to be fairly regarded as the alter receiving and the persons causing the injury, ego--the other self-of the master.” or whenever they are employed in different For a general discussion of the question departments of the same general service, as to who is a vice principal, see note to would result in frittering away the whole Stevens v. Chamberlin, 51 L. R. A. 513; doctrine of fellow service.

In a note to Alast v. Kern, 75 Am. St. Rep. 580. large majority of cases there is some distinc- See, further, on the question in hand, Lation either in respect to grade of service, or batt, Mast. & S. cc. 28, 29, 31, 32. in the nature of their employments. Courts, Where groups or gangs of men are emhowever, have been reluctant to recognize ployed in the performance of work, it is, in these distinctions unless the superiority of the nature of things, impossible to bend the person causing the injury was such as their energies to the accomplishment of the to put him rather in the category of princi- ultimate purpose without intelligent direcpal than of agent,-as, for example, the su- tion upon the part of one mind. To secure perintendent of a factory or railway,—and this end, and in many circumstances to prothe employments were so far different that, I tect the men themselves, they must work

consists in giving directions, is not on y est thGiving command as to the proper manner

. His it the degree

es sential, but, as his commands set in motion of performing the work is not ordinarily one the forces which may lead to the injury or of those absolute, personal functions which death of those under him, there is an espe- the master alone can exercise. Doughty v. cial reason why the employees should con- Penobscot Log Driving Co. 76 Me. 143; Hofsider the intelligence and prudence of the nagle v. New York C. & H. R. R. Co. 55 N. man in control. If there is any philosophy Y. 608. A vice principal is one who reprein the general rule, its purpose must be sents the master in the discharge of those elearest in the case of a coservice of this duties which the master owes to his servcharacter, since the workmen have ordinarily ants. Thacker v. Chicago, I. & L. R. Co. 159 a better opportunity than the master to de. Ind. 82, 85, 59 L. R. A. 792, 64 N. E. 605; termine how much of discretion the foreman Indiana Car Co. v. Parker, 100 Ind. 181; possesses. These considerations, and espe- New Pittsburgh Coal & Coke Co. v. Petercially the want of opportunity upon the part son, 136 Ind. 398, 43 Am. St. Rep. 327, 35 of the master to supervise every command, ! N. E. 7; Robertson v. Chicago & E. R. Co. should prompt the courts to exculpate him | 146 Ind. 486, 45 N. E. 655; Southern Indiwhere there has been no negligence in the ana R. Co. v. Martin, 160 Ind. 280, 66 N. E. performance of a master's duty, as in negli- 886; Southern Indiana R. Co. v. Harrell, 161 gently hiring or retaining an unfit foreman. Ind. 689, 63 L. R. A. 460, 68 N. E. 262. In Ross v. Walker, 139 Pa. 42, 23 Am. St. In this case appellant was engaged in the Rep. 160, 21 Atl. 157, 159, it was said: "No business of loading and moving cars, and in employer could bear the burden of legal re- general, or, as he termed it, “roustabout,” sponsibility for every blunder or neglect on work. His duties made him familiar with the part of each and all of his employees. the operation of moving cars by means of The fact that one employee is more skilful the car puller, and of pushing them by than another, or has had greater experience, hand, and he was familarly associated with and so is deferred to by others, does not the foreman whom he charges with neglichange his relation to his employer or to his gence. While it is true that appellant fellows. Nor does a difference in rank or claims that he had never before been called grade of service change the rule. When the on to perform a precisely similar task, yet character of the business requires it, the mas- it is clear that pushing the empty car to the ter is as much bound to provide his work south was comprehended within his general men with a reasonably competent foreman employment. The direction from the foreas to provide them with tools, but in either man to push the car before it lost the mocase his liability ceases when he has made mentum which it had acquired was not such a suitable selection.” As was observed by a change in his business as to authorize him Mr. Justice Holmes in Kalleck v. Deering, to proceed at the master's risk. Stuart v. 161 Mass. 469, 42 Am. St. Rep. 421, 37 N. New Albany Mfg. Co. 15 Ind. App. 184, 43 E. 450: "A command is a transitory act N. E. 961. If every new situation in matwhich the employer has no chance to super- ter of detail were to be held to constitute a vise. It is not like a permanent condition new service, the general rule would be fritof land or machinery, or the abiding incom-tered away, for an accident ordinarily grows petence of an employee. See Flynn v. Camp- out of a new combination of circumstances. bell, 160 Mass. 128, 35 N. E. 453. If the de. The case, so far as the matter of discretion fendants have been guilty of no personal is concerned, is one where the place was rennegligence, and the plaintiff does take the dered unsafe in the execution of the details risk of the negligence of some persons with of the service; and, since every place where whom his work will bring him into contact, unsafe, it cannot be said that that fact alone

an accident happens is at least momentarily the question whether the negligence of one

made it the duty of the master to be present of those persons is within or outside the in person or by representative to protect the risks assumed is not a matter of names or servant. Southern Indiana R. Co. v. Hardignities. That is too well settled to need rell, 161 Ind. 689, 63 L. R. A. 460, 68 N. E. the citation of cases. Moody v. Hamilton 262. Appellant, in our opinion, assumed Mfg. Co. 159 Mass. 70, 38 Am. St. Rep. 396, the risk that the foreman might give a neg34 N. E. 185. The question is what he must ligent command relative to the handling of be taken to have contemplated when he went cars upon the siding. But even if we were into the employment. The chances of negli- to concede that the command of Haines regence on the part of a superior employed in lated to a matter so essentially new that the common business are as obvious as in the appellant might fairly contend that he the case of one of a lower grade, and there is not debarred of a recovery under the rule, fore, when the duty is not personal to the Volenti non fit injuria, yet it does not folemployer, the same rule applies, whatever I low that, because he may not have assumed

the risk, he proceeded at the master's risk., not essentially dangerous may be carried on A case like this is to be broadly distin- by means of a foreman who directs the servguished from one where the command comes ants in their work, the proposition becomes from the master or his special representa- a practical matter to employers, and this astive, or where the condition is of such a per- surance should not be nullified by convertmanent character as to place or appliances ing the foreman into a vice principal whenthat the master is in default in failing to ever an accident happens. warn the servant. In such cases the latter We have before us a case of a foreman has a right to assume, at least ordinarily, who worked with his men; who was not, in that in following a special direction he will the sense of the law, at the head of a denot be carried into an extraordinary and un-partment, but was simply over two or three apprehended peril. But it is nevertheless a men; who was intrusted with no function rule of law that a servant cannot recover which belonged to the master, but was sucompensation of a master unless he can perintending and assisting in the loading, show that his injury was occasioned by the weighing, and handling of cars; and who negligence of the master or of his represent. had a man over him. We deem it clear that ative. Quincy Min. Co. v. Kitts, 42 Mich. the master was not liable for any negligence 34, 3 N. W. 240 ; Ross v. Walker, 139 Pa. 42, upon the part of his foreman, either in giv23 Am. St. Rep. 160, 21 Atl. 157, 159, 4 ing the order, or in failing to stop the car Thomp. Neg. § 3758. Of course, the master afterwards. may be thrown into default, notwithstand- It remains to consider another branch of ing all the care that he may have taken to the case. It appeared without dispute that perform his duties, as respects those obliga- the car puller principally consisted of two tions which are personal to himself; but, as drums; that, in pulling a car, the load was applied to an employment not essentially on the lower drum; and that the other drum dangerous, it does not admit of doubt that, was used to take up the slack. Appellant having taken due care to furnish and main- offered evidence tending to show that a tain a proper place, sufficient appliances, finger clutch was used to throw the appliand proper servants, he may intrust the car- ance out of gear; that it was very difficult rying out of the details of the work to those to operate the clutch when the load was servants. The very denial of the superior heavy, thereby occasioning serious delay in servant doctrine, which this court has stead stopping cars. One witness testified that he ily frowned on, involves the proposition that had been compelled to pound with a heavy the master is not always required to be pres- timber on shutting off the power, that he ent while the ordinary duties of the employ- had complained to the general manager ment are being carried on. In such a case about the clutch a year and a half before, it is not the master's voice which directs the that it had not been changed, and that the servant to perform the particular act, and appliance would have operated promptly if a the employee knows that, in the nature of friction clutch had been substituted. Anthings, there has been no opportunity upon other witness testified that he had on a the part of the master to examine and con- number of occasions given signals at the sider whether the act is dangerous, so there window to the man in charge of the appli: is no basis for the assumption that the serv- ance, that it would take from half a minant has undertaken the peril at the mas- ute to a minute to stop, and that in some ter's risk. As applied to the question in instances the car would pull over the chock. hand, we may well adopt the following lan. Appellant testified that he did not know that guage used by the supreme court of Massa- there was anything wrong with the machinchusetts in Flynn v. Campbell, 160 Mass. ery. Appellee offered evidence which tend128, 35 N. E. 453: “The actual danger of ed to show that the clutch was in order, and the moment was due to a transitory act. also that by raising a lever the slack could Under the circumstances, the rule as to in- be loosened on the upper drum, with the restructing inexperienced hands about the hid sult that the rope would no longer wind den dangers of their employment does not about the lower drum. He also offered eviapply.” It were idle to declare the rule of dence tending to show that Haines gave the law to be that a master who has fully dis- signal to stop as soon as he heard the outcharged every duty which belongs to him cry, and that the man in charge of the apmay intrust the details of the execution of a pliance threw it out of gear and raised his part of the business to a foreman, if we also slack lever, throwing off the power instantheld that whenever an accident happens ly. In rebuttal, appellant introduced evifrom a negligent order given by the fore- dence of a declaration of the man who was man the master is to be charged with a de- in charge of the power, made after the acfault because he did not protect the servant cident, to the effect that there was somefrom the transitory peril. If it be the law thing wrong with the machinery, and that that the ordinary work of an employment | he was not able to stop it. The evidence in

troduced by appellant on his case in chief, questions, but it is our duty to do this in while not wholly conclusive that the appli- considering whether the trial court invaded ance could only be stopped by the finger the province of the jury in giving a perempclutch, tended to show, when taken in con- tory instruction to find for appellee. We nection with the evidence offered as to the think that there was at least some evidence delays in stopping, that the appliance was tending to show a defective condition of the defective. In attempting to meet this, ap- machinery, and that it was error to take pellee altogether relied upon the testimony that theory of the case from the jury. Diezi of his own witnesses, all of whom were in v. G. H. Hammond Co. 156 Ind. 583, 60 N. his employ. In addition to this, it was per- E. 353. tinent for the jury to consider why the car Judgment reversed, with an instruction to did not stop for a minute or a minute and grant a new trial. a half after the outcry was heard by a man who was in the elevator. Of course, this is Petition for rehearing denied April 18, giving appellant the benefit of disputed | 1905.

IOWA SUPREME COURT.

V.

and

Melvina SMITH, Appt.,

Simcoke v. Grand Lodge, A. 0. U. W. 84

Iowa, 383, 15 L. R. A. 114, 51 N. W. 8; SUPREME TENT KNIGHTS OF MACCA- Snow v. Durgin, 70 N. H. 121, 47 Atl. 89. BEES OF THE WORLD

The legislature having enlarged the cate

gory of those capable of being selected as Daniel BANTZ, Intervener, Appellee.

beneficiaries so as to include all persons

whom the member may see fit to select as his (......Iowa......)

legatees, there is no substantial rule of pub

lic policy which would be violated by the 1. A niece of a former wife of a man is

adoption of a different mode of selection of not a relative of his child by a subse

beneficiaries. quent one, within the meaning of a statute permitting certificates of mutual benefit Martin v. Stubbings, 126 Ill. 387, 9 Am. societies to be taken in favor of relatives.

St. Rep. 620, 18 N. E. 657; Lamont v. Grand 2. Naming a person as beneficiary in a Lodge I. L. of H. 31 Fed. 177. mutual benefit certificate does not make

A designation as beneficiary is of preciseber a legatee, within the meaning of a statute permitting such certificates to be issued in ly the same effect as being named as legatee. favor of legatees.

Lamont v. Grand Lodge 1. L. of H. 31 Fed.

177. (March 11, 1905.)

If a member under the law can give or de

a bis the District Court for Black Hawk stranger, he can, in the first instance, take County in favor of intervener in an action out a policy payable to such stranger, and brought to recover the amount alleged to be naming such stranger as beneficiary. due on a mutual benefit certificate. Af Bloomington Mut. Ben. Asso. v. Blue, 120 firmed.

Ill. 121, 60 Am. Rep. 558, 11 N. E. 331; The facts are stated in the opinion. Mitchell v. Grand Lodge I. K. H. 70 Iowa,

Messrs. Mullan & Pickett, for appel. 360, 30 N. W. 865; White v. Brotherhood of lant:

American Yeomen, 124 Iowa, 293, 66 L. R. A. The word “relative," as used in Code, $ 164, 99 N. W. 1071. 1824, should be given a liberal construction, The defendant, by paying the money into and include any one of those popularly court, waived the right to question the desig. called relatives.

nation of the plaintiff as beneficiary, and Bennett v. Van Riper, 47 N. J. Eq. 563, 14 the intervener cannot be heard to do so. L. R. A. 342, 24 Am. St. Rep. 416, 22 Atl. Martin v. Stubbings, 126 Ill. 387, 9 Am. 1055; People's Bank v. Ætna Ins. Co. 20 C. St. Rep. 620, 18 N. E. 657 ; Titsworth v. TitsC. A. 630, 42 U. S. App. 81, 74 Fed. 507; worth, 40 Kan. 571, 20 Pac. 213; Brown v.

NOTE.—For å case in this series holding that Mansur, 64 N. H. 39, 5 Atl. 768; Johnson v. a stepsather is a relative, and may be made the Knights of Honor, 53 Kan. 255, 8 L. R. A. beneficiary in a benefit certificate, see Simcoke | 732, 13 S. W. 794; Supreme Conclave, Royal v. Grand Lodge, A. 0. C. W. 15 L. R. A. 114.

As to who are relatives or relations generally, Adelphia v. Cappella, 41 Fed. 1: Ledebuhr v. see note to Bennett v. Van Riper, 14 L. R. A.

Wisconsin Trust Co. 112 Wis. 657, 88 N, W.

607.

342.

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