PACKET COMPANY V. MCCUE, 84 U. S. 508 (1873)

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U.S. Supreme Court

Packet Company v. McCue, 84 U.S. 17 Wall. 508 508 (1873)

Packet Company v. McCue

84 U.S. (17 Wall.) 508


A man standing on a wharf was hired by the mate of a boat desiring to sail soon, and which was short of hands, to assist in lading some goods which were near the wharf, he not having been in the service of the boat generally though he had been occasionally employed in this sort of work. He assisted in lading the goods, an employment which continued about two hours and a half. He was then told to go to "the office," which was on the boat, and get paid. He did so, and then set off to go ashore. While crossing the gangplank, in going ashore, the boat hands pulled the plank recklessly in and from under his feet, and he was thrown against the dock, injured, and died from the injuries.

On it suit under a statute by his administratrix for the injuries done to him -- the declaration alleging that he had been paid and discharged and that after this, and when he was no longer in any way a servant of the owners of the boat, he was injured -- the defense was that he had remained in the service of the boat till he got completely ashore, and that the injuries having been done to him by his fellow servants, the owners of the boat (the common master of all the servants) were not liable. There was no dispute as to the facts, unless the question as to when the relationship of master and servant ceased was a fact. This question the court left to the jury. Held that there was in this no error.

Patrick McCue was a common laboring man, living in Prairie du Chien, Wisconsin, and employed in the railroad warehouse in that place. On the evening of the 11th of July, 1868, the steamer War Eagle, owned by the Northwestern Packet Company, arrived at the landing in Prairie du Chien for the purpose of taking freight from the warehouse. Being short of hands, the mate of the boat went to the warehouse and there employed McCue and four or five other persons to assist in carrying freight from the warehouse and putting it on board the boat. This employment continued about two hours and a half, at the end of which time McCue and the rest were told to go to "the office" upon the boat (the packet company having no office on shore for the purpose of making such payments) and receive their pay.

Page 84 U. S. 509

They proceeded there accordingly, were paid, and then started to go ashore. As McCue was going ashore, the men on board the boat pulled in the gangway plank while he was on it. He was thus thrown down against the dock and injured, and a few days afterwards died from the injury thus received.

Hereupon Mary McCue, his widow and administratrix, brought suit in the court below under a statute of Wisconsin to recover damages for the injuries which he had sustained.

The narr. alleged that McCue had never before been, either generally or at intervals, a servant of the packet company, and that at the time when the injuries occurred and the cause of action accrued, he was not so, but that, contrariwise, he had been employed by the company to work for it on this occasion alone, and "for a short space of time, to-wit, for the space of one hour;" that this time had elapsed; that the work had been done, and that McCue had been paid for it, and that after all this, and after the relation of master and servant had thus ceased, and McCue was attempting to get off the boat, and using due care &c., "the defendant and its agents then and there," regardless of their duty, recklessly and without any reasonable cause, pulled in and from under his feet &c., the gangway plank &c., by which he fell and was injured &c.

The defendant pleaded not guilty.

There was no doubt from the evidence that McCue was without fault and that the injuries which caused his death were owing to the reckless carelessness of the servants of the packet company.

On the trial, it appeared that McCue had before been occasionally employed by the packet company in the same way in which he had now been, but there did not seem to be any evidence that he was in their general employment, and this was the first time in the year 1868 in which he had been employed in this sort of work by the company.

The counsel of the packet company insisted, as the hiring was in the warehouse, as McCue had proceeded thence,

Page 84 U. S. 510

as the freight was to be carried thence, and as the packet company had no office on shore or anywhere else than the office upon the boat, where McCue could be paid, that his relationship to his employers had not terminated by the simple fact of his getting his money at the office on the boat, but, on the contrary, continued until he got back to the warehouse, or at least and rather until he had got off the boat; that until such latter time, he was the servant of the company, and that the injuries done to him having been done to him by his fellow servants of the company he could not recover from their common master, the packet company.

The counsel of the company therefore requested the court to charge according to this view and as matter of law upon the conceded facts that the plaintiff could not recover.

The court declined so to charge, and charged thus:

"McCue had been occasionally employed by the defendants' boats in the way in which he was in this instance, but there does not seem to be any evidence to show that he was in their general employment, and in this particular year it would appear that this was the first time he had been employed in this way, so that he was employed for a special purpose, which being accomplished, the agreement or contract ceased."

"The contract was made in the warehouse, the freight was there, the execution of the contract began there, and as soon as the last portion of the freight was carried on board of the boat, the contract terminated, unless, indeed, it continued because he was to be paid off and had the right to go ashore from the boat, and to be provided with the proper means of going ashore, so that in one sense it is true, I suppose, that the contract began on shore and was terminated by the act of going on shore by McCue."

"At the same time, it may also be said that as soon as he did the last work he was required to do and was paid off, that he was after that his own master with respect to the contract made between them; that then it was optional with him to do just as he chose."

"Therefore it will be left to the jury to say whether there was the relation of servant and principal or master as between

Page 84 U. S. 511

the deceased McCue and the defendant, at the time of the injury. And I am not now prepared to say, even if it were true that the relation of servant and master did subsist, that then the action could not be maintained, and I would like to have you find, gentlemen (inasmuch as it may be a material point, and of service hereafter) whether, as a matter of fact, there was or not a termination of the employment between the company and the deceased prior to or at the time of the injury. The counsel for the defendant insists that this is a question of law under the conceded facts; that inasmuch as soon as McCue was paid off he immediately proceeded to go on shore and was in the act of going on shore, that constituted a part of the service. But as the court thinks, for the reason that as soon as paid off, McCue was his own master, and had the entire control and disposition of himself to remain on board or go ashore, just as he pleased, in one aspect it may be said that the service was terminated. That question, however, the court leaves to the jury, and asks them to find what the fact is, from the evidence, on this point."

"Then, gentlemen, leaving the questions of fact to the jury, it will be for the jury to say under the evidence whether the plaintiff has made out his case as stated in the declaration. If the service was terminated and this injury was the result of the negligence of the servants of the defendant, then the plaintiff may recover."

The jury having found a verdict of $2,800 for the plaintiff, and judgment having gone accordingly, the packet company brought the case here on exceptions to the refusal to charge as requested, and to those parts of the charge within brackets, as given.

Page 84 U. S. 513

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