New v. Milligan
New v. Milligan
Opinion of the Court
Opinion by
The defendants were the owners of a number of grocery stores, and placed one Cliff, as the manager of their store No. 12 at Chester, at which place there was no resident member of the firm. Cliff had exclusive control of the store and its contents, with authority to make all necessary orders in regard to the business and employees at that place.
There was a water-closet in a dimly lighted part of the cellar for the use of the employees, who were expected to use •it for the reason that by so doing their time would not be wasted or misspent in going away from the premises during their working hours. Assuming that it had been properly constructed, it is well established by the evidence that the closet had been so carelessly maintained, without or in disregard of inspection, that it became fouled and dangerous to a degree that employees refused to use it. These facts were well known, through frequent complaints, to the manager, who recognized the necessity for making repairs, and he directed an employee to put into the closet some chloride of lime and caustic potash, as he stated — to help clean it out. This order was obeyed in so careless a manner that some of the caustic potash was scattered upon the movable lid or seat over the hopper. The skill of the employee intrusted with this repair, or his knowledge of the chemicals used was not shown, further than that he was a “ third man ” and was not a plumber.
On the second day of the plaintiff’s employment at this store, having occasion to use a water-closet, he inquired of the manager where he should go, and was told there was one in the cellar, but without, notice or caution of its defective condition. While properly using the closet for the purpose and in the manner for which it was intended, he was severely burned by the caustic potash on its seat or lid. The manager knew at the time when he directed the plaintiff to the cellar, that the unskilled workman had but a short time before used these chemicals
The plaintiff recovered a verdict and in this appeal it is contended, that under all the evidence the court should have directed a verdict for the defendants. There was positive evidence in the case that the caustic lye or potash was applied to the closet by the direct orders of the manager, and the defendants’ first point was rightfully refused. There was nothing in the case to warrant the trial judge in holding, as matter of law, that the plaintiff was guilty of contributory negligence to such a degree as would preclude his right to recover damages. Several witnesses testified for the defendants that the place where the closet was located was well lighted by natural and an electric light, yet after the accident, the manager was obliged to make an artificial light to see the caustic soda on the closet seat, showing that the danger to which the plaintiff was exposed was not apparent to ordinary observation. It was such a place as employees, without knowledge of its defects, had a reasonable right to expect to be in safe condition for their use at all times ; and if it should become out of repair, or unsafe, it then became the duty of the defendants to give notice of the defect so that special precautions might be taken. It may be conceded that had the instructions to the “ third man ” been properly and carefully carried out, no injury would have resulted.
There are some duties which the master owes to the servant from which he cannot relieve himself except by performance; while he may delegate these duties to an agent, such agent stands in the place of the principal, and the latter is responsible for the acts of the agent (Lewis v. Seifert, 116 Pa. 628); and the employer is equally chargeable whether the failure of duty is found in an original tool or machine, or in subsequent want of
The manager of this store' held a special relation to the defendants, in whose place he stood, as he says : “ I had exclusive control of the store.” Where the master or superior places the entire charge of his business, or a distinct branch of it, in the hands of an agent or subordinate, exercising no discretion or oversight of his own — and in this case there is no evidence to minimize the statement of the manager as to his authority— the master is held liable for the negligence of such agent or subordinate: Lewis v. Seifert, 116 Pa. 628; Brommer v. Railway Co., 205 Pa. 482; Lillie v. Foundry Co., 209 Pa. 161.
Cliff, the manager in this case, fairly fills the requisites of a vice principal, as stated in Ricks v. Flynn, 196 Pa. 263, having been placed in a position to represent his employer so as to have absolute control and entire charge of a separate branch of the defendants’ business, and, in the performance of his duties in such representative capacity, he was in the place of the employer and his acts were those of the principal. In the same case in applying the rule as laid down in Prevost v. Citizens’ Ice &c. Co., 185 Pa. 617, the court says: “ the grade or rank of the servant for whose conduct the employer is sought to be made liable, is not the test of the. employer’s responsibility. It is the character or nature of the act of the employee which causes the injury that determines the liability of the employer. If the act or thing done resulting in the injury to the employee was a duty imposed upon the employer, then the negligent performance of it by an employee of any grade will render the employer liable, but if such act was in the line of the ordinary workman’s duty as an employee, then the employer is not responsible, though the offending employee was a vice principal in charge of the work generally: Casey v. Paving Co.. 198 Pa. 348; O’Dowd v. Burnham, 19 Pa. Su
None of the assignments of error are sustained and the judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.