
    PHILLIPS v. INTERNATIONAL HARVESTER COMPANY OF AMERICA.
    Plaintiff alleged that defendant harvester' company maintained agencies throughout the state, and that one H. was an agent, whose duties included the furnishing of trains to carry defendant’s traveling representatives to different points in the adjoining county; that plaintiff was employed hy defendant's general agent and manager, who directed plaintiff to ©0 to H. and obtain a team to make a necessary trip into the country; that plaintiff applied to H. for a team without knowledge of its viciousness; and that H. turned the team ove’l’ to a driver, who undertook to make the trip, "during which the team became halky, ran away, and injured plaintiff, to his damage, etc. The complaint also charged that defendant through its agent had knowledge of the dangerous habits and .character of the team in question. Held, that the complaint was fatally defective, both for failure to allege that the injury was caused hy defendant’s failure to notify plaintiff of the vicious disposition of the -team, or hy any negligence on the part of the driver, ,and also for failure to show that plaintiff, having been employed hy the general agent and manager of defendant, and not by defendant, was one of the class of persons to whom H. was required to furnish teams.
    Where >a compaint for injuries to plaintiff by the viciousness of a te,am furnished by defendant’s local agent for plaintiff’s accommodation charged that such local agent was not a superior servant of plaintiff and had no control or authority to direct plaintiff in the performance of his duties, the local agent could not he regarded as a vice principal.
    (Opinion filed, July 8, 1908.)
    Appeal from Circuit Court, Minnehaha County. Hon. Josbph W. JONES, Judge.
    
      Action- by A. P. • Phillips against the International -Harvester Company of America. From an order sustaining a demurrer to plaintiffs complaint, he appeals.
    Affirmed..
    Y. H. Wright, for appellant.
    A vice-principal is one to whom an employer delegates the duties the law Imposes on him, and- thé -employer is responsible because the duty is his own. Durkin v. -Kingston Coal' Co.,-33 Atl. 238; Pierce v. Oliver, 47 N. E- 489. The satisfactory evidence of a vice-princip-alship is his supervision, control and -subjection -to his orders and directions. , New, Omaha Thompson-Houston .Electric Eight Co. v. Baldwin, 87 N. W. 27-31. A vice-principal, for whose negligence an employer will be liable to other employees ■ must be one to whom he delegated ,a duty of his own- which is a direct personal and absolute obligation, from which nothing but performance can relieve him. Eewis. v. Seifert, 11 Atl. 514; Prevost v. Citizen Ice & Refg. Co., 40 Atl. 88; Casey v. Pennsylvania Aspha t Paving Co., 47 Atl. 1130; Johnson v. Western, N. Y. & P. Ry. Co., 49 Atl. 794.
    
      Bates & Parliman, for respondent.
    It does not appear from the complaint what icaused the team to run away. It (is not alleged to have been because of vicious disposition, hence might have been (consistently'with the complaint) accidental from some 'cause for which neither Hove nor the defendant is responsible. Thompson on Negligence, (2d Ed.) Vol. 4, Sec. 3774 and note; Del. Sij Nore v. Halliman, 47 N. E. 308; McGre-11 v. Buffalo' Office Building Company, 47 N. E. 305. If in -the prosecution 'of a lawful. act, a casualty purely accidental happens and one which cannot be ascribed to any want of care or skill, on the -part of the. party sought to be made liable therefor, no matter how grievous, no action can be supported for the damage raising therefrom. Thompson on Negligence, Vol. 1 (2d Ed.) Sec. 14; Brown v. Collins, 53 N. H. 442; Eos-ee v. Buchanan, 51 N. Y. 479; Nitro-glycerine case, -15 Wall. 524; Steen v. Williamson, 28 Pac. S3; Greggs v. Eleckenstein, 100 Am. Dec. 199; Turner ,v. Buchanan, 42 Am. Rep. 484. An employe who is injured in consequence of a mere accident, such a-s does not impute négligence to the master, cannot recover damages for the -injury. Thompson on Negligence, Vol. 5 (2d Ed.) Sec. 5358. A general- agent has authority to employ the plain-tiff in- behalf of the defendant, the complaint should, if it alleges an employment by, the defendant through an agent, allege the authority of the agent in the premises. It is not sufficient to allege that ithe agent employed the plaintiff on behalf of the defendant or as agent of the defendant. Am. & Eng. Enc. of PI. & Pr. Vol. 16, p-. 899-900 and cases cited. Oxford v. Turner, 24 N. Y. S. 793.
   CORSON, J.

This is an appeal by the plaintiff from ,an order sustaining- a demurrer to hi® complaint. The complaint is as follows : “The plaintiff, complaining of the defendant, says : (1) That the defendant, International Harv. Co. of America, a corporation, now is, and at all of the times hereinafter mentioned was, a corporation duly organized and existing according to law, and as such corporation it was, and now is, in the business of manufacturing, buying, selling and handling harvesting and other farm machinery and had and -maintained a general agency at Sioux Falls, Minnehaha county, S. D. (2) That at divers points in- South Dakota and elsewhere said defendant had maintained local agents and distributing points for carrying out the purposes and objects of its business, and, among other places at which it had a local agent for handling its machinery and looking after the salé thereof, the repair of machinery sold by it and through its agents, and also the collection of its notes, accounts, and other indebtedness, it had and maintained an .agency at Flandreau, .in Moody county, S. D., of which one -Ole Hove was the agent, and, among other duties imposed on .said agent, Ole Hove, it iwas part of his business, duty, and employment to furnish teams for the taking of the traveling representatives of said defendant to different points in and adjacent to Flandreau in said county and state, and all other near-by territory. '(3) That on or about the 23d day of July, A. D. 1904, this plaintiff was employed by the general agent and manager of the defendant corporation to proceed from Sioux’ Falls to Flandreau, and to.gqt into the country -from-there to look after .and attend to certain. of its business, and that such general agent and manager directed this plaintiff to go to said 'Ole Hove, its said agent at Flañdreau, and obtain from him a team of horses .for the purpose of making the necessary trip into the country; that this plaintiff was unadvised and had ¡never known of the character and nature of said team of horses, and, acting upon the presumption that they were perfectly safe and gentle, proceeded in accordance with the said employment and went to said Flañdreau and to said Ole Hove, the agent as aforesaid of said defendant corporation, and the said Ole Hove turned the said team of horses over feo a driver, who undertook to drive them into the country with this plaintiff, and that while on said trip said team became balky, ran away, and from their violent conduct in the premises threw this defendant out of the vehicle in which he was riding, and that, by reason thereof, he was seriously and permanently injured in his head and chest, from the effects of which he has never recovered, and that, by reason of the premises, he sustained damages in the sum of >$2,500, and, in addition thereto, was compelled to expend the sum of $65 in medical and other necessary expenses, no part of which sum has been paid; that said team (of horses were well known to’ 'said agent, Ole Hove, and to the defendant, to be dangefous -in the extreme, they having frequently run away prior to that time, and, as before stated, this plaintiff was unadvised and did not know of their dangerous habits and condition, and plaintiff further alleges, as hereinbefore stated, that it Was part of the business of said Ole Hove, by virtue of his agency and employment by the defendant, to furnish teams and conveyances for the transportation of the employees of said defendant in the discharge of their duties in the matters and things hereinbefore mentioned, and' that said Ole Hove was not a co-employe nor fellow servant of this plaintiff but their duties were wholly different in all respects. Wherefore plaintiff demands judgment against the defendant for -the sum of $2,565, together with the costs and disbursements of this action.”

It is contended by the respondent in -support of the ruling' of the court below in sustaining the demurrer that the complaint fails to charge any duty devolving upon the defendant to furnish a safe team to the plaintiff, or to state any facts upon which áüch a duty can be predicated; that, if a duty was'owing to the ¡plaiiítiff by the defendant,;, the .complaint fails-to; .charge the defendant..with-negligence or.f>ai'lure,tO!<observeithat .duty; that-if-there was a duty and defendant■ was c-negligent. .in,- the performanicer,o£ .ft,, under.the,.facts disclosed-in the„0omplaint,. the plaintiff cannot' recover,as; .the duty if any. was.to- aotviseitheiplainfiffi that ¡.the. team,.had theretofore-.ran away, and the failure to so advise him.,mus-t be ¡the proximate cause of the injury-upon-which .the right of .action,,is .based;, that it does not. appear-from. .the. .complaint what caused, the .team to run away; that it is not alleged, to- have, been because- of -the. vicious disposition of the -team, .hence, it-does not -affirmatively appear from the complaint -that the failure of the defendant to notify the- plaintiff of the character of the team was the proximate cause of the injury.; that the plaintiff alleges an employment not by .the- defendant, but by the general agent -pf -the company at Sioux Falls; that it is not alleged that the .injury was caused by reason of -any negligence on the part of the driver, or that the -driver was employed directly or indirectly by the defendant.. It will be (Observed that it is not alleged that the injury was ¡caused by the failure of the defendant to notify the plaintiff of the vicious disposition- of the team or any negligence on the part of -the driver or of -the defendant in the action, or that the defendant failed to perform any duty imposed upon it. •

The plaintiff in- his reply brief takes the- position that a safe team ¡and vehicle were in legal contemplation necessary articles which the master should furnish the servant to use in the performance of his duties, and if the -team was to. the knowledge of the master or vice principal dangerous and unsafe, and the employe or servant was not aware -thereof, and that the action o-f such dangerous team resulted in the injury to the servant or employe, the master would be responsible unless he or his vice principal had, prior to the injury, informed such servant or employe that the team was dangerous. There would be force- in .this contention if there 'was an allegation in the complaint directly alleging that it was the duty of the defendant to furnish, the plaintiff with a safe and suitable team with which to make his trips into- the -'country, and that duty was imposed upon the agent as a vice principal, but as before stated the complaint contains no such allegation. . It will be further observed that in the'complaint nó negligence is charged on the part of the driver or the defendant which resulted in the injury to the plaintiff. ■' - . . •

It will be further noticed that it is alleged in the complaint that the plaintiff was employed, not by the defendant, but by the general agent and manager of the defendant. If he (Vvás employed by the general agent and manager, and not by the defendant, he wa.s not one of the class of persons to whom it is ¡alleged the local agent wias required to furnish teams. If lit was intended by the plaintiff to allege that he was employed by the defendant, it should have been so stated in the complaint, and the statement that he was employed by the general agent negatives his employment by the defendant. 16 iAm. & Eng. PI. & Pr. 899, 900.

The contention of the appellant that the local agent at Flan-dreau was in 'the position of a vice principal in this transaction can hardly be sustained under the allegations of the complaint as the local agent was not a superior servant of the plaintiff, nor. did he have any control or authority to direct the plaintiff in the performance of (his duties.

It is «quite clear, therefore, that in the absence of an allegation that it wa:s the duty of the defendant to Ifurnish a safe and suitable team for the use of (the plaintiff, and that the injury was the proximate ''result of the negligence of the defendant or of Some one acting as vice principal in place of the defendant or authorized to bind it, the plaintiff .would not be entitled to recover under the allegations of the complaint.

The order of the circuit court sustaining the demurrer is af- < firmed.

HANEY, P. J., concurs only in the conclusion that the order appealed from should be affirmed.  