Atlanta Cotton Factory Company vs. Speer, by next friend

Jackson, Chief Justice.

The controlling question made in this case is, whether a minor girl, just fifteen, can recover from a manufacturing company damages for a fall through an unprotected hole made for an elevator during its construction, when she was left Sunday morning at three o’clock in an unlocked room within five feet of the elevator, by orders of the boss over the room where she and other girls worked, it being the custom of the company to keep the girls at work Sunday morning to that hour, and to allow them to remain in the factory until daylight to go home.

The charge of the court below and the refusals to charge make this question when analyzed and applied to the facts of the case. It becomes, therefore, wholly unnecessary to consider in detail all the segments into which the charge is cut, from beginning to end, in the hope seemingly to find some rotten wood somewhere in the block, or to consider each of the various requests to charge spread out apparently like a net to catch something.

As a whole, the charge and refusals to charge, or modifications of the requests asked, give the law of the case correctly to the jury, and the facts sustain the verdict they have rendered, in the opinion, of a majority of the court.

A corporation acts only through agents, and unless responsible for their acts is wholly irresponsible. The agent who represents the corporation as master over other employés for the time is in the shoes ,of the corporation, and whether they fit him, and he wears them with propriety or not, is their concern, for the reason that the corporation employs him, and puts others under him as a skilled and prudent manager. It is negligent if it fail to employ such a one, because those others under him must be subject to his orders and obey his directions, or the great purpose and end of- their creation, to-wit, organized and systematic labor and its fruits, are at at end. If, from the negligence of this quasi master, this locum tenens, unmixed with negligence of his own, another servant or employé of the corporation is hurt, it must logically follow that the corporation is responsible, or it can be held responsible for no carelessness at all. From the president and general superintendent down to the smallest child who labors day or night, all the servants of this creature of the law, this impersonal entity, are co-employés, differing only in the character of their work and the amount paid-them for it. If no co-employé can recover for the negligence of another, it must follow that no servant of a corporation can recover from it, ho matter what it does, for it does nothing except by an employé. It would be thus to except corporations from the rule that a master is responsible to his employé for torts and careless and reckless disregard of life and limb. It would be to endow the artificial person with powers which no natural person can possess, arid to grant that artificial creature immunities which no one of its creators can enjoy himself. It is not sound sense or good policy. It cannot be good law.

But when these minor servants of the grand head, the corporation, are children, who can have no access to the great managers, who can receive no instructions from them, but who look alone and must look alone to him under whom they particularly work, and from whose lips alone the orders and behests of the corporation ever reach their ears, it seems to us simply monstrous to hold that for the wrongs and negligence of these lords of theirs they cannot recover, because their lesser lords violated orders which superior magnates had given to them.

It makes no difference, therefore, in this case, whether Cobb, the man under whom they worked that night, violated his superior’s orders or not. The children looked to him. Him they must obey or lose their places. Nor does it vary the question that, after working hours were over, another servant of the corporation, a watchman, had charge generally of the factory, and that he and Cobb had some altercation about the latter’s putting the girls in that room. They were put in there by the person to whom they were accountable. Besides, the watchman- yielded to Cobb and permitted them to be taken to the cloth room, and when the matter thus terminated between the superiors, is it right to lay blame upon the children ? The reason and sense of the matter, it strikes us, is to lay the blame of their going to the room to Cobb, their special overseer, with the final acquiescence of the watchman, rather than to the children. It is law, too, as we understand it. The whole reason on which the liability of the master for injury to his servant for carelessness of a co-employe who rules for the time rests, is that the master was negligent in employing an incompetent agent. The negligence must be traced to the master and put on him; and it is put on him when he is careless in selecting subordinates who are entrusted with the care of others. If the rule of the company was to keep the children in the basement, and Cobb did not obey it, he was unfit for his trust when the watchman reminded him of that rule; if the watchman was clothed with power to rule Cobb, and did not do it, but surrendered his authority, and yielded to Cobb in violating the rule, he was incompetent. So that in either event, the negligence finds itssource at last in the want of careful selection in the appointing power of the corporation, its president or superintendent, which is-always that negligence which binds the master in case. an employé is hurt by another employe who is his superior over any branch of business.

Nor does it matter, we think, that the children played in the room at hide and seek, and the. plaintiff stepped out of the door to hide behind it, and fell in the hole. It was a natural supposition that they would while away the remaining hour or two before day. It was gross negligencein those who put them in the room not to warn them of the pit-fall just out of the door. It was equal negligence to leave such a hole with nothing around it to protect unwary feet from an awful fall. • The court left that question of negligence, under all the facts and circumstances, to the jury, having regard in respect to contributory negligence on the part of the plaintiff to her age, her entire ignorance of her danger, the short time (only two weeks) in which she had been connected with the factory, and we cannot say that in so leaving it there was error, as negligence is always a question for the jury; nor can we say that the finding of the jury is not supported by sufficient proof to uphold it.

Whilst wise policy will beckon to this state all capital which may seek investment in manufacturing industries of all sorts, and should encourage its co-operative force in granting liberal corporate powers, privileges and immunities, yet the sound limbs and lives of the children of the state must not be left unprotected. If, in greediness for gain, the sanctity of the Sabbath be violated by keeping them at labor until three o’clock Sunday morning, an hour too late and dark for young girls to go immediately to their homes, according to the judgment and custom of this company itself; and if, in consequence of the impracticability of their then leaving for home, they be permitted to remain until the broad light of the Lord’s day shine on their way, the corporation must see to it that the agents, whom it employs to protect and guard them, be careful to make them safe while within its curtilage, else it were better that the girls risk the rough and dark streets without, than the deeper and ruder holes within the walls of the factory.

Judgment affirmed.

. Cited for plaintiff in error: Shear, and Redf. on Neg., 92, 63, note; Wharton on Neg., 203; Code, §2972; 17 Ga., 358; 9 Allen., 396; 33 N. Y., 642; 1 Thomp. on Neg., 246, 308; 3 Woods, 391; 44 Ga., 251; McDonald vs. Eagle & Phenix Co., 68 Ga., 839; 3 Bing., 303.

For defendant: Wood on Mas. and Svt., 544, 172, 500, 509, 718, 721, 456, 640, 687; 49 N. Y., 255 ; 46 Ib., 672; 2 Lansing 506; 26 Vt., 178; 102 Mass., 572; 10 Allen, 368; 99 Mass., 216; 17 Wal., 659; 21 Minn., 207; 22 Kansas, 686; Cooley on Torts, 553; 3 Foster and T., 622; 64 Ga., 304; 15 Wall., 401 ; Cooley on Torts, 549, 605; 102 Mass., 672; 21 Am. R., 385; 100 M. S. R., 213 ; 1 Ga., 195; 30 Ib., 146.

Speer, Justice, concurred, but furnished no written opinion.

Crawford, Justice,

dissenting.

Hester Speer, the plaintiff in this suit, aged fifteen years, was an employé in the spinning room of the Atlanta Cotton Factory. The mill ran night and day. The plaintiff was a night hand. On Sunday morning, April the 4th, 1880, at 3 o’clock, the mill shut down, and the hands were discharged until Monday. Some of these, and among them the plaintiff, lived too far from the mill to return home at so early an hour, and by direction of the superintendent they were- always allowed at such times to occupy the basement of .the building until daylight. To this room they went. The night overseer, or second “ boss,” of the spinning room, passing the basement, saw them lying down on the benches and some of them asleep ; he told them to go up into the cloth room where it was warmer and more comfortable. The watch, man, into whose care and custody the mill had passed when the work stopped, objected, but the overseer said that he would take the. responsibility, and carried them up. He spread pallets for them, and told them that they might go to sleep, or they might play there till daylight, so that they did not get on the white cloth. The room was large and lit up with gas. They began to play hide and seek. Some hid behind the cloth, others in different places about the room, but the plaintiff went outside into the hall, where there was no light, and in search of a more satisfactory place, fell through an opening into which the company was preparing to place an elevator.

For the damages sustained by this fall she brought suit against the company, and recovered a verdict for three thousand dollars.

A new trial was moved and refused, and error is assigned thereon.

Whilst there are many grounds taken in the motion, I notice such only as, in my opinion, control and dispose of the case.

The judge among other things charged the jury: “ If you believe from the evidence that the defendant had in the factory a place of danger, an elevator hole through which anybody might have fallen, and that it was not sufficiently protected, or not protected at all, at the time this injury occurred, then the defendant would be liable to any one who was lawfully in that house, and who should fall through, unless the evidence shows you that such falling could have been prevented by ordinary care and caution.”

This charge, to my mind, is erroneous, because it distinctly lays down the law to be that any one who was in the basement or the cloth room rightfully might go at will through the entire factory, either in light or darkness, whether dangerous or safe, and if hurt could recover dam ages therefor, provided he or she exercised care and caution in passing through such other portions thereof.

The corporation, whilst completing its machinery or conveniences, might allow visitors or operatives in some, and yet not in all parts of their building. To be invited into the office, basement or cloth room by one authorized to do so makes it lawful to be in those rooms and in the house ; yet, it cannot be that such invitation gives the right to every part of it, and into places where no one is invited and none expected. If, therefore, one should go from a place of perfect safety, where he has been invited, to a place of danger, where he is not invited, and a casualty befall him, he certainly should not be allowed to recover his damages by showing that ordinary care and caution on his part in such place would not have prevented his injuries. I hold that, being at a place where he had neither business nor an invitation, and where his presence was not anticipated, and, therefore, his protection not provided for, his risk was his own and not that of the corporation. It would make, to my mind, as clear a case of damnum absque injuria as is to be found in the books. And such is the case.

The next charge objected to which I notice is as follows: “In reference to this particular case, if you believe from the evidence that this plaintiff was one of the employes of that factory, and that Mr. Cobb (the overseer of the spining room) was present, was in command over her, and commanded her, and he was a subordinate officer of the highest officer in charge of the factory, and that it was the custom of the factory to allow the minor employés to remain all Saturday night until morning, and that Mr. Cobb took these children, for their better protection, up-into another part of the factory, and left them there until daylight, and that while they were so left, this plaintiff fell through the elevator hole, and that she could not by ordinary care and caution have prevented it, then the defend ant would be liable for whatever damages she sustained, provided you believe that having this elavator hole there was an act of negligence on the part of defendant.”

I do not think that this charge was authorized by the evidence, for, as I read it, these hands had been dismissed from the spinning room — had gone into the basement, the place assigned to them at night — that the authority of Cobb had ceased with their departure from his room — that his right to command or give direction in any way had been superseded by that of Mattox, the night watchman, who protested against it, and lastly that he gave no command whatever.

Conceding, however, that he had given a command, as indicated by the charge, it would not have been binding on the company, nor were the employés under the slightest obligation to have obeyed it. His right to command ceased with the closing down of the mill and the retiring of his hands from their work-room.

Nor does the evidence show that he was a subordinate officer of the highest officer in charge of the .factory at the time the injury occurred. The right which he exercised was wholly unauthorized, either for himself or the plaintiff. The highest officer had given orders that such employés as remained over after work hours might be permitted to occupy the basement, a room provided with tables and benches, and where coffee was served at midnight to the operatives, and to this the plaintiff had gone by authority; from it she was invited without the authority, without the knowledge, and without the expectation of the highest officer who represented the corporators of the factory, and against the wishes and objections of the officer, who was in immediate charge and represented the corporation.

It was the individual act of an unauthorized person, and for whose conduct in the premises at the time of the casualty the company cannot, in my opinion, under the law, be held responsible,

This factory cannot be held responsible for this injury unless it be guilty of such negligence towards the plaintiff as to fix the blame on itself therefor. Taking the undisputed testimony, then, we find that the spinning room was safe, and so was the basement, as against this opening-for the elevator; that the duties of the plaintiff and ffhe overseer of the spinning roo.m had ended, and that ::they had been discharged until the following Monday; That the night watchman had entered upon -his duties • and had the control of the factory; that the over•seer of the spinning room, against the orders of the superintendent, over the protest of the officer in charge,- and on his own declared responsibility, undertook to provide for the plaintiff more comfortable quarters by removing her from thebasement, a place of perfect safety, to the cloth room; that this was done, beds spread for her and her companions in this room, which was well lit up, and they instructed to remain there-until the morning; but upon his leaving, the plaintiff, being in a place of safety, saw fit to leave it and seek another outside the room and in the dark, where she encountered danger and her injuries followed.

Thus, it seems to me, that when the superintendent of the factory had provided the plaintiff with a perfectly safe place, and directed that she occupy it, if then an unauthorized person carry her, against orders, to another place, and she is injured .thereby, it is in nowise the fault of the factory.1 But ‘even if this be not so, and it is held that the plaintiff’s-removal to the cloth room was authorized or justifiable, still, if she, after being told to remain there until morning, of her own accord saw fit to leave that room, where there was light, warmth, comfort and safety, and go out, against orders, where there was neither light nor safety,-but where there was danger, and suffered thereby, the blame was her own, and she should not be allowed to go intoot-her people’s pockets and take pay .for injuries occurring from her own imprudence.

That the place may have been a place of danger to others who had occasion to be there, either on duty or invitation authoritatively given, cannot be invoked to jus- tify damages to one who was there on neither. There were doubtless many places of danger in the factory, and about the premises, to one passing around in the darkness of the night, but to which no one was authorized or expected to go; yet, if a recovery can be had for this injury under the facts of this case, one might be had for any injury sustained by the plaintiff, if on the premises and outside of the basement room. The most that can be claimed for the plaintiff is, that she was a mere volunteer or licensee, and such cannot recover for injuries from defective premises, although the same may be the result of negligence on the part of the owner. Wood’s Master and Servant, section 342.

If the unauthorized act of a second “boss” of a spinning room in a factory, when off duty, and in disobedience of orders, shall render liable to damages the property of the stockholders for injuries occurring by reason of such act, then it is exceedingly hazardous to invest in such property. But when it is made further to, appear that the injuries are but the result of other and further disobedience of orders by the party claiming the damages, and still they are given, capital must, and will, find other uses .and employments where it will not be so easily reached and subjected to division.

“ A master is not responsible .for any act or omission of his servants which is not connected with the business in which they servé him, and does not happen in the course of their employment. If the act is done while the servant is’ at liberty from his service, and pursuing his own ends, there can be no question of the master’s freedom from all responsibility, even though the injury could not have been committed without the facilities afforded to the servant by his relation to his master.” Shear. & Red. on Negligence, sec. 63.

“ It is the duty of the master to keep his premises, necessarily used in the prosecution of his business, in a reasonably safe condition, and if he fails to do so, he is liable to the servant for all injuries resulting to him from such defects, * * * unless such defect arises or is not repaired in consequence of the negligence of a co-servant.” “ Where machinery is defective, materials insufficient, or premises dangerous, through the neglect or wrongful act of a fellow-servant, the master is not responsible, unless fault is attributable to him in the employment or retention of such servant.” Wood’s Law of Master and Servant, sections 334, 390, and authorities citedi

Applying these principles of law to the facts of this case, we find that the act of Cobb, who was only a second boss in the spinning room, was not only without authority, and against positive orders, but at a time while he was at liberty from the master’s service and pursuing .his own ends. That his relation to the master afforded him the opportunity to violate his orders, and indirectly enabled the plaintiff by her own further disobedience of orders to injure herself, cannot fix responsibility on the master.

Even admitting that there was negligence in not fencing the elevator hole; that the premises were dangerous, and that the plaintiff was rightfully there, the proof shows that the defect arose from the neglect of the carpenter, the mere wrongful act of a fellow-servant, and for which the master is not responsible, unless he was at fault in his employment or retention, and of this there is no pretence to be found in the record.

If either of these servants, the boss of the spinning room or the carpenter, by whose acts of negligence the injury was occasioned, had been the “alter ego’’ of the master, to whom he had left everything, then their negligence would have been his, and he could have been held liable, but not otherwise.

Numerous authorities might be cited in support of this principle of law, but the case of Malone vs. Hathaway, decided in the N. Y. Ct. of Appeals, and reported in the Alb. Law Journal, vol. 13, p. 114, is so thoroughly in point that none other need be referred to.

Taking all the facts of this case to be as claimed by the plaintiff under the proof submitted, there is, in my judgment, no liability on the defendant to respond to the plaintiff for her damages. The only shadow of liability arises upon the failure to protect the elevator hole, which was in a place where the plaintiff had no business, and no right to be, and no excuse for being. Conceding even that there was negligence in leaving it open, it was negligence not applicable to, or available for, the plaintiff in a suit for her damages. If there were negligence at all, it was that of the carpenter, who removed the protection on Saturday evening and failed to replace it. It is nowhere insisted in this record that he was the “ alter ego ” of the factory, its superintendent or stockholders.

According, therefore, to my view of the facts and the law of this case, I think that the verdict should be set aside and a new trial granted.