I think that under the evidence in this case the foreman, McMahon, was not a mere fellow-servant of the plaintiff but thealter ego of the defendant and that for his negligence the defendant was liable. The furnishing of suitable rope and other appliances for the prosecution of the work was the master's duty. If the alter ego of the master refused to give the workmen a proper rope I cannot see that the case differs in principle from one where the master failed to provide rope at all. The case before us seems to be on all fours with that of Vincent v.Alden (177 N.Y. 455). In that case the defendant was a manufacturer and builder of iron bridges. The various members or parts of the bridge were rolled or manufactured at Rochester and sent to Clinton county where the bridge was to be erected and put in place under the directions of a foreman who had entire charge of that portion of the work. The plaintiff, who was employed on the erection of the bridge was injured by the breaking of a chain which the workmen were instructed by the foreman to use for raising a girder. The defendant had sent chains along with the bridge material to his foreman. The trial court was requested to charge that if the defendant supplied sufficient chains of proper size and adapted to the work and the superintendent, Merrill, did not use them, but selected another which might have been unfit, the defendant was not liable. The court declined to so charge in response to the request but charged that Merrill's act in selecting the chain was that of the defendant. To the charge and the refusal to charge the defendant excepted. A verdict having been recovered by the plaintiff the judgment entered thereon was affirmed by the Appellate Division and by this court. No opinion was rendered in either court, but the facts as I have stated appear from an examination of the record of the case on appeal. *Page 382
It is sought to distinguish that case from the one at bar by the fact that the tool car was left at Mooers Junction, some seven or eight miles away from the point at which the bridge was to be erected. It must be borne in mind, however, that the tools, with the bridge material, were sent to Merrill in Clinton county, and that the failure to bring the tool car to the site of the bridge, if negligence, was the negligence of Merrill. But, beyond this, Merrill testified that he did take with him from the tool car a number of chains for use in erecting the bridge. The jury might have credited this testimony, and the request to charge was based upon the condition that the jury should find that the defendant had furnished sufficient chains. Therefore, the fact that the tool car was at Mooers Junction does not affect my contention that the case necessarily decided that for the failure of the superintendent to give the workmen a proper chain the defendant was liable.
Nor do I think that the decisions of the Supreme Court of the United States are in conflict with the view I have expressed. It is very possible that the Supreme Court does not attach the same importance to the power to employ and discharge workmen that this court does. Still it fully recognizes the doctrine that for the misconduct of an alter ego or vice-principal the master is liable. In Alaska Mining Company v. Whelan (168 U.S. 86) it was held that the foreman, for whose negligence it was sought to hold the defendant liable, was not "the general manager of its business, or the superintendent of any department of that business." The case was decided on the authority of NorthernPacific Railroad v. Peterson (162 U.S. 346). In the opinion there rendered by Justice PECKHAM there is an elaborate discussion of the whole subject here involved. He there lays down the rule, "when the business of the master or employer is of such great and diversified extent that it naturally and necessarily separates itself into departments of service, the individuals placed by the master in charge of these separate branches and departments of service, and given entire and absolute control therein, may properly be considered, with respect to employes *Page 383 under them, vice-principals and representatives of the master as fully and as completely as if the entire business of the master were placed by him under one superintendent," and that for the negligence of such a vice-principal the master is responsible. In the present case it does not appear where the factory or works of the defendant were situated or where the beams and girders were rolled or built. It does appear, however, by the testimony of the foreman himself, sworn as a witness for the defendant, that the whole charge of erecting the structure was devolved upon him. Besides this it appears by the uncontradicted testimony of other witnesses that it was he who employed and discharged the workmen. I think that the construction of the building, or that part of it which the defendant contracted to erect, was as clearly a separate part of the general business of the defendant as was the manufacture or preparation of the material which was subsequently to be used in the construction. Therefore, even within the doctrine held by the Supreme Court of the United States the defendant was liable. The vital distinction between this case and those cited by my brother GRAY is that in those cases the negligence which was the foundation of the plaintiff's claim was that of a mere foreman. Here it was the negligence of one who for all purposes was the representative and vice-principal of the defendant. When the master furnishes sufficient appliances and an unsuitable one is used owing solely to the act of a mere foreman or other employee, then such selection is a detail of the work for which the master is not responsible. But when the use of the improper appliance is due to the refusal of the master or of hisalter ego to allow the workmen to take a proper appliance, though he may have such appliances on hand, the situation is exactly the same as if he had failed altogether to furnish proper appliances.
I vote to affirm the judgment appealed from.
O'BRIEN, HAIGHT and WERNER, JJ., concur with GRAY, J.; BARTLETT and VANN, JJ., concur with CULLEN, Ch. J.
Judgment reversed, etc. *Page 384