« EelmineJätka »
stockholders are the mere cestui que trust. Gray v. the officer, in his return, certified that he had Portland Bank, 3 Mass. 365; Eidman v. Bouman, 4 Am. taken a bond “from the within named A., B., and Corp. Cas. 350.
C.," and the property was receipted by “A., B., and The right of alienation or assignment of the prop C., plaintiffs.” It was held that the action was not by erty is in the corporation alone, and this right is not the corporation, as it should have been, and judgment affected by making the stockholders individually liable was rendered for the defendant. It is said in Van for the corporate debts. Ang. & A. Corp., $ 191; Pupe Allen v. Assesso's, 3 Wall. 584, “the corporation is the v. Brandon, 2 Stew. (Ala.) 401; Whitwell v. IVarner, 20 legal owner of all the property of the bank, both real Vt. 414. The property of the corporation is the mere and personal.” instrument whereby the stock is made to produce the In W’ilde v. Jenkins, supra, where a copartnership profits, which are the dividends to be declared from bought all the property and effects, together with the time to time by corporate authority for the benefit of franchises of a corporation, and elected themselves the stockholders, while the property itself, which pro trustees of the corporation, it was held that the corpoduces them, continues to belong to the corporation. ration was not dissolved, and that the legal title to the Bradley v. IIoldsworth, 3 Mees. & W. 12:2; Waltham real and personal property was still in the corporation Bank v. Waltham, 10 Metc. 334; Tippets v. Walker, 4 for their benefit. Mass. 595. The corporation holds its property only for In dickles v. Bank, 11 Paige, 118, it was held that the purposes for which it was permitted to acquire it, although a corporation was deemed to have surrenand even the corporation cannot divert it from such dered its charter for non-user, it was not dissolved, use, and a shareholder has no right to it, or the profits and would not until its dissolution was judicially dearising therefrom, until a lawful division is made by clared, and that until then its property could be taken the directors or other proper officers of the corpora and sold by its judgment creditors. tion, or by judicial determination. Ang. & A. Corp., In Bennell v. American art. Union, 5 Sandf. 614, it $S 160, 190, 557; Ilyatt v. Allen, 4 Am. Corp. Cas. 624. A was held that “as a general rule, the whole title, conveyance of all the capital stock to a purchaser gives legal and equitable (to its property), is vested in the to such purchaser only an equitable interest in the corporation itself," and that the individual members property to carry on business under the act of incor have no other or greater interest in it than is expressly poration and in the corporate name, and the corpora given to them by the charter, and the prayer of comtion is still the legal owner of the same. Milile v. Jen- plainant, as a shareholder in the art-union, for an inkins, 4 Paige, 481. A legal distribution of the property junction against a certain disposition of its property after a dissolution of the corporation and settlement was denied, because it had no interest in it. See also of its affairs is the inception of any title of a stock Goodwin v. llardy, 57 Me. 143. holder to it, although he be the sole stockholder. Ang. It is true that none of the above cases are precisely & A. Corp., $ 779a.
parallel with the present case in facts, but they are These general principles sufficiently establish the sufficiently analogous to be authority upon the prindoctrine that the ()wner of all the capital ciple that the plaintiff, as the sole stockholder of the stock of a corporation does not therefore own corporation, is not the legal owner of the property. its property, any of it, and does not He may have an equitable interest in it, but in this himself become the corporation, as a natural person, action he must show a legal title to the property in to own its property, and do its business in his own himself in order to recover, and he has shown that name. While the corporation exists he is a mere stock such title is in another person. Timp v. Dockham, 32 holder of it, and nothing else. The consequences of a Wis. 146; Sensenbrenner v. Matheus, 18 id. 250; S. C., violation of these principles would be that the stock- | 33 Am. Rep. 809. In analogy to the above principle it holders would be the private and joint owners of the was held in Jurphy v. Ilunuhan, 50 Wis. 485, that the corporate property, and they could assume the powers sole heirs of an estate did not have such a legal title to of the corporation, and supersedo its functions in its i promissory note given to their father as would enuse and disposition for their own benefit without per title them to sue the maker upon it, because the title sonal liability, and thus destroy the corporation, ter to it was in the administrator, and they could obtain minate its business, and defraud its creditors. The the title only by administration and distribution acstockholders would be the owners of the property, and cording to law. The heirs in that case certainly had at the same time, it would belong to the corporation. as much equitable interest in that note as this plaintOne stockholder owning the whole capital stock could iff has in the property in controversy. The want of of course do what several stockholders could lawfully title to the property being fatal to the plaintiff's redo. It is said in ('ity of Utica v. Churchill, 33 N. Y. covery in the action between the present parties, other 161, “the interest of a stockholder is of a collateral na alleged errors will not be considered. ture, and is not the interest of an owner; "and in The judgment of the Circuit ('ourt is rorersed, and Hyatt v. Allen, supru, that a shareholder in a corpo) the cause remanded for a new trial. ration has no legal title to its property or profits until a division is made.”
In Railroad Co. v. Railroud Co., 23 Minn. 359, it is LASTER AND SERIAIT-RAILROID CONDUCheld that the corporation is still the absolute owner,
TOR LID ENGIVEER VOT' “ FELLOW and vested with the legal title of the property, and the
SERIAVIS.” real party in interest, although another party has become the owner of the sole beneficial interest in its
SUPREME COURT OF THE UNITED STATES, rights, property, and immunities.
OCTOBER TERM, 1881. In Balduin v. Canfield, 26 Minn. 43, it was held that the sole owner of the stock did not own tho land of CHICAGO, MILWAUKEE ST. PAUL RAILWAY Co. v. the corporation so as to convey the same.
Ross. In Bartlett v. Brickett, 14 Allen, 62, an action of replevin was brought by A., B., and ('., as the “trustees
A railway company is liable to a locomotive engineer injured of the Ministerial Fund in the North Parish in Ilaver
by the negligence of a conductor in the conduct of a
train. hill,” which was the corporate name. In portions of the writ the plaintiffs were referred to as “the said
Nerror to the Circuit ('ourt of the United States for trustees” and “the said plaintiffs.” In the bond, “A., the District of Minnesota. The opinion states the B., and C., trustees as aforesaid," becamo bound, and
FIELD, J. The plaintiff in tbe court below is a citi the collision happened; that he then separated his zen of Minnesota, and by occupation an engineer on a train in the middle, took six cars to Minnehaba starailway train. The defendant in the court below, the tion, went back with the engine for the other six cars, plaintiff in error here, is a railway corporation created and was coming with them through the cut when the under the laws of Wisconsin. This action is brought collision occurred; that the gravel train had run in the to recover damages for injuries which the plaintiff | night about a week, and that when he could reach sustained whilst engineer of a freight train by a col- Minneapolis before the starting time of plaintiff's lision with a gravel train on the 6th of November, train he ran without orders, otherwise upon orders, 1880. Both trains belonged to the company, and for and had met or passed plaintiff's train at the same some years he had been employed as such engineer on place about every night during the week. its roads. On that day he was in charge of the engine It is evident from this brief statement that the conof a regular freight train which left Minneapolis at a ductor on each train was guilty of gross negligence. quarter past one in the morning, its regular schedule The conductor of the freight train was not only retime, and had the right of the road over the gravel quired by the general duty devolving on him, as one trains, except when otherwise ordered. At the time controlling its movements, to give to its engineer such of the collision, one McClintock was the conductor of orders as would enable him to avoid collision with the train, and had the entire charge of running it. It other cars, but as we have seen, he was expressly diwas bis duty under the regulations of the company to rected by the regulations of the company, when runshow to the engineer all orders which he received with ning by telegraph or special orders, to communicate respect to the movements of the train. The regula- them to him. Had these regulations been complied tions in this respect were as follows: “ ('onductors with, the collision would have been avoided. The must in all cases, when running by telegraph and spec conductor of the gravel train allowed it to be so orerial orders, show the same to the engineer of their train loaded that its engine was incapable of moring it at before leaving stations where the orders are received. one portion of the road before reaching the cut; and The engineer must read and understand the order be when in consequence he was obliged to leave half of foro learing the station. The conductor will have his cars on the track while he took the others to Mincharge and control of the train, and of all persons em nehaha, he omitted to send forward information of the played on it, and is responsible for its movements delay or to put out signals of danger. Having for the while on the road, except when his directions conflict week previous passed the freight train at nearly the with these regulations, or involve any risk or hazard, same place on the road, he must have known that by in which case the engineer will also be held responsi the delay there was danger of collision. Ordinary ble."
prudence thereforo would have dictated the sending When the freight train left Minneapolis on the morn forward of information of his position or the putting ing of November 6, 1880, there was coming toward out of danger-signals. llad he done either of these that city from Fort Snelling, by order of the company, things the collision would not have occurred. orer the same road, a gravel train, termed in the com The collision having been caused by the gross negliplaint a wild train, that is a train not running on gence of the conductors, the question arises whether schedule time any regular trips. The conductor, Mc the company is responsible to the plaintiff for the inClintock, was informed by telegram from the train juries which that collision infiicted upon him. despatcher of the coming of this gravel train, and or The general liability of a railroad company for indered to hold the freight train at South Minneapolis juries caused by the negligence of its servants to pasantil the gravel train arrived. South Minneapolis is sengers and others not in its service is conceded. It between Minneapolis and the place where the colli covers all injuries to which they do not contribute. sion occurred. The gravel train had been engaged for But where injuries befall a servant in its employ, a a week before in hauling in the night grarel to Min different principle applies. Having been engaged for neapolis from a pit near Mendota, for the construc the performance of specified services, he takes upon tion by the company of a new and separate line of himself the ordinary risks incident thereto. As a conrailroad between St. Paul and Minneapolis, and the sequence, if he suffers by exposure to them, be cannot freight train had during this time been stopped by recover compensation from his employer. The obthe conductor, on orders of the train despatcher, upon vious reason for this exemption is that he has, or in side tracks between Minneapolis and St. Paul Junc- | law is supposed to bave them in contemplation when tion, for the passage of the grarel train. But on the he engages in the service, and that his compensation night of November 6, 1880, he neglected to deliver to is arranged accordingly. Ho cannot, in reason, comto the plaintiff the order he had received, and after plain if he suffers from a risk which he has voluntarily the train started he went into the caboose and there assumed, and for the assumption of which he is paid. fell asleep. The freight train of course did not stop There is also another reason often assigned for this at the station designated, but continuing at a speed of exemption, that of a supposed public policy. It is alsfifteen miles an hour, entered a deep and narrow cut sumed that the exemption operates as a stimulant to 300 feet in length, through which the road passed at a diligence and caution on the part of the servant for considerable curre, and an a down grade, when the his own safety as well as that of his master. Much plaintiff saw on the bank a reflection of the light from potency is ascribed to this assumed fact by reference the engine of the gravel train, which was approacbing to those cases where diligence and caution on the part from the opposite direction at a speed of five or six of servants constitute the chief protection against acmiles an hour, and was then within about one hundred cidents. But it may be doubted whether the exempfeet. He at once whistled for brakes and reversed his tion has the effect thus claimed for it. We have never engine, but a collision almost immediately followed, known parties more willing to subject themselves to destroying the engines, damaging the cars of the two dangers of life or limb, because if losing the one or trains, causing the death of one person, and inflicting suffering in the other, damages could be recovered by upon the plaintiff serere and permanent injuries, for their representatires or themselves for the loss or inwhich he brings this action.
jury. The dread of personal injury has always prored On the trial the conductor of the gravel train testi sufficient to bring into exercise the vigilance and acfied that at the time of the collision he was under tivity of the serrant. orders to run to South Minneapolis regardless of the But however this may be, it is indispensable to the plaintiff's traiu; that baving twelve cars loaded with employer's exemption from liability to his servant for grarel, his traiu stalled before reachiug the cut where the consequences of risks thus incurred, that he should
himself be free from negligence. He must furnish the exert some influence over the conduct of the other, servant the means and appliances which the service and thus to some extent provide for his own security, requires for its efficient and safe performance, unless yet that it could not apply where two or more are emotherwise stipulated; and if he fail in that respect, ployed in different departments of duty at a distance and an injury result, he is as liable to the servant as he from each other, and where one can in no degree conwould be to a stranger. In other words, whilst claim trol or influence the conduct of another, it answered ing such exemption he must not himself be guilty of that the objection was founded upon a supposed discontributory negligence.
tinction, on which it would be extremely difficult to When the service to be rendered requires for its per establish a practical rule. “When tbe object to be formance the employment of several persons, as in accomplished,” it said, “is one and the same, when the movement of railway trains, there is necessarily the employers are the same, and the several persons incident to the service of each the risk that the others employed derive their authority and their compensamay fail in the vigilance and caution essential to his tion from the same source, it would be extremely difsafety. And it has been held in numerous cases, both ficult to distinguish what constitutes one department in this country and in England, that there is implied and what a distinct department of duty. It would in his contract of service in such cases tha he takes vary with the circumstances of every case.” And it upon himself the risks arising from the negligence of added, “that the argument rests upon an assumed his fellow servants, while in the same employment, principle of responsibility which does not exist. The provided always the master is not negligent in their master, in the case supposed, is not exempt from liaselection or retention, or in furnishing adequate ma bility because the servant has better means of providterials and means for the work; and that if injuries ing for his safety, when he is employed in inmediate theu befall him from such negligence, the master is comection with those from whose negligence he might not liable. The doctrine was first announced in this suffer, but because the implied contract of the master country by the Supreme Court of South Carolina in does not extend to indemnify the servant against the 1841, in Murray v. Railroad Co., 1 McMullan, 385, and negligence of any one but himself; and he is not liable was affirmed by the Supreme Court of Massachusetts iu tort, as for the negligence of his servant, because the following year in Farwell v. Boston and Worcester the person suffering does not stand toward him in the R. Co., 4 Met. 49. In the South Carolina case a fire relation of a stranger, but is one whose rights are man, whilst in the employ of the company, was in regulated by contract, express or implied.” 4 Met. jured by the negligence of an engineer also in its em 49, 60. ploy, and it was held that the company was not liable, The opinion in this case, which was delivered by the court observing that the engineer no more repre ('hief Justice Shaw, has exerted great influence in sented the company than the fireman; that each in his controlling rhe course of decisions in this country. In separate department represented his principal; that several States it has been followed, and the Euglish the regular inovement of the train of cars to its desti courts hare cited it with marked commendation. nation was the result of the ordinary performance by The doctrine of the master's exemption from liabi)each of his several duties; and that it seemed to be on ity was first distinctly announced in England in 1850 the part of the several agents a joint undertaking by the Court of Exchequer in Ilutchinson v. The l'ork, where each one stipulated for the performance of his New Castle and Berwick R. Co., 5 Esch. 313; Priestly several part; that they were not liable to the company v. Fowler, 3 Mees. & Wels. 1, which was decided in for the conduct of each other, nor was the company 1837, and is often cited as the first case declaring the liable to one for the conduct of another, and that as a doctrine, did not directly involve the question as to general rule, when there was no fault in the owner, ho the liability of a master to a servant for the negligence was only liable to his serrants for wages.
of a fellow servant. In that case al van of the defendIn the Massachusetts case, an engineer employed by ant in which the plaintiff was carried was out of rea railroad company to run a train on its road was in pair and overloaded, and consequently broke down and jured by the negligence of a switch-tender also in its caused the injury complained of; but it did not apemploy, and it was held that the company was not pear what produced the defect in the van or by whom liable. The court placed the exemption of the com it was overloaded. The court in giving its decision pany, not on the ground of the South Carolina decis. against the plaintiff observed that if the master was ion, that there was a joint undertaking by the fellow liable, the principle of that liability would “
carry us servants, but on tho ground that the contract of the to an alarning extent;” and in illustration of this engineer implied that he would take upon himself the statement said that if the owner of a carriage was rerisks attending its performance, that those included sponsible for its sufficiency to his servant, he was the injuries which might befall him froin the negli under the principle responsible for the negligence of gence of fellow servants in the same employment, and his coach-maker or harness-maker or coachman, and that the switch-tender stood in that relation to him. mentioned other instances of such possible responsiAnd the court added, that the exemption of the mas bility to a servant for the negligence of his fellows,conter was supported by considerations of policy. “When cluding that the inconvenience of such consequences several persons,” it said, “are employed in the con afforded a sufficient argument against the applicaduct of one common enterprise or undertaking, and tion of the principle to that case. The case therefore the safety of ench depends on the care and skill with can only be considered as indirectly asserting the doc. which each other shall perform his appropriate duty, trine. At any rate, the Ilutchinson case is the first each is an observer of tho conduct of the others, can one where the doctrine was applied to railway service. give notice of any misconduct, incapacity or neglect There it appeared that a servant of the company, who of duty, and leave the service, if the common em in the discharge of his duty was riding on one of its ployer will not take such precautions and employ such trains, was injured by a collision with another traiu agents as the safety of the whole party may require. of the same company, from which his death ensued; By these means the safety of each will be much more and it was held that his representatives could not reeffectually secured than could be dono by a resort to cover as he was a fellow servant with those who caused the common employer for indemnity in case of loss by the injury; and the court said that whether the death the negligence of each other.” And to the argument, resulted from the mismanagement of the one train or which was strongly pressed, that though the rule the other, or of both, did not affect the principle. The might apply where two or more servants are employed rule was applied at the same time by that court to exiu the same department of duty, where each one can empt a master builder from liability for the death of a
bricklayer in his employ caused by the defective construction of a scaffolding by his other workmen, by reason of which it broke and the bricklayer ać work upon it was thrown to the ground and killed. Wigmore v. Jay, 5 Exch. 354.
The dootrine assumes that the servant causing the ivjury is in the same employment with the servant injured, that is, that both are engaged in a common employment. The question in all cases therefore is, what is essential to render the service in which different persons are engaged a common employment? And this question has caused much conflict of opinion between different courts, and often inuch vacillation of opinion in the same court.
In Bartonshill Coal Co. v. Reid, and the same company v. McGuire, reported in 3 Macqueen, 266 and 300 II. L. Cases, decided in 1858, the parties injured were miners employed to work in a coal pit, and the party, whose negligence caused the injury, was employed to attend to the engine by which tbey were let down into the mine and brought out, and the coal was raised which they had dug; and it was held tbat they were engaged in a common work, that of getting coal from the pit. “The miners, said the court in the latter case, "could not perform their part unless they were lowered to their work, nor could the end of their commou labor be attained unless the coal which they got was raised to the pit's mouth, and of course at the close of their day's labor the workmen must be lifted out of the mive. Every person who engaged in such an employment must bave been perfectly aware that all this was incident to it, and that the service was necessarily accompanied with the danger that the per. son intrusted with the machinery might be occasionally negligent and fail in his duty.” Lord Chancellor Chelmsford, who gave the principal opinion in the latter case, referred to previous cases in which the master's exemption from liability bad been sustained, and said: “In the consideration of these cases it did not become necessary to define with any great precision what was meant by the words 'common service' or *common employment,' and perhaps it might be difficolt beforehaud to suggest any exact definition of them. It is necessary however in each particular case to ascertain whether the servants are fellow laborers in the same work, because although a servant may be taken to have engaged to encounter all riske which are incident to the service which he undertakes, yet he cannot be expected to anticipate those which may happen to him on occasions foreign to his employment, Where servants therefore are engaged in different departments of duty, an injury committed by one servant upon another, by carelessness or negligence in the course of his peculiar work, is not within the examination, and the master's liability attaches in that case in the sanie manner as if the injured servants stood in no such relation to him.” The lord chancellor also commented upon some decisions of the Scotch courts, and among others that of DcNaughton v. Caledoniun R. Co., 19 Ct. of Sess. Cas. 271, and said that it might be “sustained without conflicting with the English authorities on the ground that the workmen in that case were engaged in totally different departments of work; the deceased being a joiner or carpeuter, who at the time of the accident was engaged in repairing a railway carriage, and the persons by whose negligence his death was occasioned, were the same engine driver and the persons who arranged the switches." And in the same case Lord Brougham, after mentioning the observations of a judge of the Scottish courts, that au absolute and inflexible rule releasiug the master from responsibility in every case where one servant is injured by the fault of another was utterly uuknown to the law of Scotlaud, said that
it was also utterly unknown to the law of England, and added: “To bring the case within the exemption there must be this most material qualification, that the two servants must be men in the same common employment, and engaged in the same common work under that common employment.”
Later decisions in the English courts extend the master's exemption from liability to cases where the servant injured is working under the direction of a foreman or superintendent, the grade of service of tbe latter not being deenied to change the relation of the two as fellow servants. Thus in Wilson v. Merry, decided by the Ilouse of Lords in 1868 on appeal from the Court of Session of Scotland, the sub-manager of a coal pit, whose negligence in erecting a scaffold which obstructed the circulation of air underneath, and led to an accumulation of fire-damp that exploded and injured a workman in the mine, was held to be a fellow servant with the injured party. And the court Jaid down the rule that the master was not liable to his servant unless there was negligence on the master's part in that which he had contracted with the servant to do, and that the master, if not personally superintending the work, was only bound to select proper and competent persous to do so, and furnish them with adequate materials and resources for the work; that when he had done this he had doue all that he was required to do, and if the persons thus selected were guilty of negligence, it was not his negligence, and he was not responsible for the cousequences. L. R., 1 11. L. Scotch App. 3:26. In this case, as in many others in the English courts, the foreman, manager or superintendent of the work, by whose negligence the injury was committed, was himself also a workman with the other laborers, although exercising a direction over the work. The reasoning of that case has been applied so as to include, as contended here, employees of a corporation in departments separated from each other; and it must be admitted that the term common employment,': under late decisions in England, and the decisions in this country following the Massachusetts case, is of very comprehensive import. It is difficult to limit it so as to say that any persous employed by a railway company, whose labors may facilitate tho running of its trains, are not fellow servants however widely separated may be their labors. See holder v. Fitchburyh R. Co., 129 Mass. 208.
But notwithstanding the number and weight of such decisions, there are in this country many adjudications of courts of great learning, restricting the exemption to cases where the fellow servants are engaged in the same department, and act under the same immediate direction; and holding that within the reason and principle of the doctrine, only such serrants can be considered as engaged in the same common employment. It is not however essential to the decision of the present controversy to lay down a rule which will determine, in all cases, what is to be deemed sucb an employment, even if it were possible to do so.
There is, in our judgment, a clear distinction to be made in their relation to their common principal, between servants of a corporation, exercising no supervision over others engaged with them in the same employment, and agents of the corporation, clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence. A conductor, baring the entire control and management of a railway train, occupies a very different position from the brakemen, the porters, and other subordinates employed. He is in fact and should be treated as the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. This view of his relation to the
corporation seems to us a reasonable and just one, and thority to employ and discharge laborers and employit will insure more care in the selection of such agents, ees, provide materials and machinery for the service and thus give greater security to the servants engaged of the corporation, and generally direct and control under him in an employment requiring the utmost under general powers and instructions from the direcvigilance on their part, and prompt and unhesitating tors, may well be regarded as the representatives of obedience to his orders. The rule which applies to the corporation, charged with the performance of its such agents of one railway corporation must apply to duties, exercising the discretion ordinarily exercised all, and many corporations operate every day several by principals, and within the limits of the delegated trains over hundreds of miles at great distances apart, authority, the acting principal. These acts are in such each being under the control and direction of a con case the acts of the corporation, for which and for ductor specially appointed for its management. We whose neglect the corporation, within adjudged cases, know from the manner in which railways are operated, must respond, as well to the other servants of the that subject to the general rules and orders of the di company as to strangers. They are treated as the genrectors of the companies, the conductor has entire con eral agents of the corporation in the several departtrol and manarement of the train to which he is as ments committed to their care." 64 N. Y. 5, 12. See signed. Ile directs when it shall start, at what speed also Corcor'in v. Holbrook, 59 id. 517. it shall run, at what stations it shall stop, and for In Little Miami R. Co. v. Stevens, the Supreme what length of time, and every thing essential to its Court of Ohio held that where a railroad company successful movements, and all persons employed on it placed the engineer in its employ under the control of are subject to his orders. In no proper sense of the a conductor of its train, who directed when the cars terms is ho a fellow servant with the fireman, the were to start, and when to stop, it was liable for an inbrakemen, the porters and the engineer. The latter jury received by him caused by the negligeuce of the are fellow servants in the running of the train under conductor. 20 Ohio, 415. There a collision between his direction, who, as to them and the train, stands in two trains occurred in consequence of the omission of the place of and represents the corporation. As ob the conductor to inform the engineer of a change of served by Mr. Wharton in his valuable Treatise on the places in the passing of trains ordered by the comLaws of Negligence: “It has sometimes been said that
pany. Exemption from liability was claimed on the a corporation is obliged to act always by servants, and ground that the engineer and conductor were fellow that it is unjust to impute to il personal negligence in servants, and that the engineer had in consequence cases where it is impossible for it to be negligent per taken, by his contract of service, the risk of the negsonally. But if this be truo it would relieve corpora ligence of the conductor; and also that public policy tions from all liability to servants. The true view is, forbade a recovery in such cases. But the court rethat as corporations can act only through superintendejected both positions. To the latter it very pertinently ing officers, the negligence of those officers with re observed that it was only when the servant had himspect to other servants are the negligences
the cor self been careful that any right of action could accrue poration." $ 2:32 11. The author in a note refers to to him, and that it was not likely that any would be Brickner v. Ver York (ent. R. Co., decided in the careless of their lives and persons or property merely Supreme ('ourt of New York, and afterward affirmed because they might have a right of action to recover in the ('ourt of Appeals; and to Julone v. llathuwdy, for injuries received. "If men are influenced,” said decided in the latter court, in which opinions are ex the court, “by such remote considerations to be carepressed in conformity with his views. These opinions less of what they are likely to be most careful about, are not, it is true, authoritative, for they do not cover it has never come under our observation. We think the precise points in judgment, but were rather ex the policy is clearly on the other side. It is a matter pressed to distinguish the questions thus arising from of universal observation that in any extensive business those then before the court. They indicate however a where many persons are employed, the care and prudisposition to engraft a limitation upon the general dence of the employer is the surest guaranty against doctrine as to the master's exemption from liability mismanagement of any kind." In Ruiluty Co. v. to his servants for the negligence of their fellows, when Keary, 3 Ohio St. 201, the same court affirmed the doca corporation is the principal, and acts through super Trine thus announced, and decided that when a brakeintending agents. Thus in the first case the court said: man in the employ of a railroad company, on a train "A corporation cannot act personally. It requires under the control of a conductor having exclusive comsome person to superintend structures, to purchase and mand, was injured by the carelessness of the conduccontrol the running of cars, to employ and discharge tor, the company was responsible, holding that the men, and provide all needful appliances. This can conductor in such case was the sole and immediate only be done by agents. When the directors them representative of the company upon which rested the selves personally act its such agents they are the rep obligation to manage the train with skill and care. In resentatives of the corporation. They are then the the course of an elaborate opinion the court said that executive head or master. Their acts are the acts of from the very nature of the contract of service between the corporation. The outies above described are the the company and the employees, the company was unduties of the corporation. When these directors ap der obligation to them to superintend and control with point some person other than themselves to superin skill and care the dangerous force employed, upon tend and perform all these executive duties for them, which their safety so essentially depended. “For this then such appointee, equally with themselves, repre purpose,” said the court, “tho conductor is employed, sents the corporation as master in all these respects. and in this he directly represents the compauy. They And though in the performance of these executive contract for and engage his care and skill. They comduties he may be, and is, a corporation, he is not in mission him to exercise that dominion over the operathose respects a co-servant, a colaborer, a co-em tions of the train which essentially pertains to the preployee, in the common acceptation of those terms, any rogatives of the owner, and in its exercise he stands in more than is a director who exercises the same au the place of the owner, and is in the discharge of a thority." 2 Lans. 516. Affirmed in 49 N. Y. 672. duty which the owner,as a man and a party to the con
And in Mulone v. Iluthunay, in the Court of Ap tract of service, owes to those placed under him, and peals, Judge Allen says: “ Corporations necessarily whose lives may depend on his fidelity. His will alone acting by and through agents, those having the super controls everything, and it is the will of the owner intendence of various departments, with delegated au that his intelligence alone should be trusted for this