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Wesel v. W. F. Powers Co.

Supreme Court of New York, Appellate Division

November 28, 1911

ERNEST E. WESEL, Respondent,
v.
THE W. F. POWERS COMPANY, Appellant.

APPEAL by the defendant, the W. F. Powers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 3d day of June, 1911, upon the verdict of a jury for $800, and also from an order entered in said clerk's office on the 6th day of July, 1911, denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

Frederick W. Catlin, for the appellant.

Frank Comesky, for the respondent.

CARR, J.:

The defendant appeals from a judgment against it for the sum of $880.47, entered on the verdict of a jury. The parties

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are servant and master, and the action was brought to recover damages for personal injuries arising from the alleged negligence of the defendant.

At the trial the defendant offered no evidence, and the only question arising upon this appeal is purely one of law. The plaintiff was in the employment of the defendant in its printing plant in the city of New York. He was a pressman in charge of a large Whitlock press, which was operated by electrical power. While at work at the machine, on October 6, 1910, he was required to make some adjustments in the mechanism of the press, to overcome some temporary defect which appeared in the process of operation. To make these adjustments he was obliged to enter within parts of the machinery of the press. He was assisted by one Freund, a fellow-servant, as a helper in the operation of the press. While the plaintiff was so at work he ordered Freund to put on the electrical power to move forward a portion of the press. This was done several times, as required in making the adjustments. Finally, under directions from the plaintiff, Freund again put on the electrical power, but so unskillfully that the moving part of the machine was advanced too far, thus striking the plaintiff and injuring him quite severely. The immediate cause of this accident was the act of Freund, a fellow-servant.

The complaint set forth two separate causes of action, each of which was based upon the provisions of the Labor Law of 1909 (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14) as amended by chapter 352 of the Laws of 1910. The plaintiff asserts liability against the defendant on the ground that Freund was assigned to do the work of helping at the press by one Vogel, a superintendent of the defendant, and that Freund was incompetent for such work, and that Vogel knew or should have known of such unfitness. Freund's incompetency is claimed to have arisen from the fact that he had not had sufficient experience with a press of the particular character of the one involved in the accident. Vogel's act in assigning Freund to assist in the work is charged as negligence, and the defendant is sought to be held under section 200 of the Labor Law, subdivision 2, as amended in 1910. This provision of the statute imposes liability on the employer for an accident

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causing injury to an employee, when it arises 'By reason of the negligence of any person in the service of the employer intrusted with any superintendence, or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee.' The case at bar was submitted to the jury on the theory that the provision of the statute just quoted applied to the facts proved by the plaintiff. The defendant attacks the judgment on the claim that no cause of action was shown under this statute or at common law. This provision of the Labor Law is a development and enlargement of subdivision 2 of section 1 of chapter 600 of the Laws of 1902, commonly known as 'The Employers' Liability Act.' The former statute imposed liability upon the employer when the accident was caused 'By reason of the negligence of any person in the service of the employer entrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, or, in the absence of such superintendent, of any person acting as superintendent with the authority or consent of such employer.' In this respect at least the statute was not merely declaratory of a common-law rule, but was intended to create a liability under certain circumstances where no measure of liability existed at common law. The statute did not attempt to define the whole measure of an employer's duty to the employees, but simply supplemented by specific provisions thereof the rules of liability existing at common law. ( Gmaehle v. Rosenberg, 178 N.Y. 147.) Subdivision 2 of section 1 of the act of 1902 was the subject of continuous interpretation by the courts. It was held uniformly that the negligence of the superintendent, or person exercising superintendence, which imposed liability upon the employer, did not cover a case of personal negligence on the part of the superintendent in the performance of a 'mere detail' of the general work, which in itself was not an act of superintendence, or on the part of a person whose principal duty was that of a fellow-servant, and who but temporarily and incidentally performed an act in the nature of quasi superintendence.

When the act of 1902 was re-enacted in 1909 in the Consolidated Laws as a part of the Labor Law (Consol. Laws,

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chap. 31 [Laws of 1909, chap. 36], art. 14), no substantial change was made in the wording of subdivision 2 of section 1 of the original statute. In 1910, however, a substantial change was made in the wording of this subdivision. As it now stands liability arises 'by reason of the negligence of any person in the service of the employer intrusted with any superintendence, or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee.' The language so used is quite general, and the question whether it was intended to apply to an act of any of the persons whom it describes, which was not itself an act of superintendence, may be disposed of when it arises. The defendant claims, however, that the statute did not originally, and does not now, apply to a case where the negligence complained of on the part of the superintendent was such as would impose liability on the master at common law, irrespective of the statute. Where this ...


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