Kliefoth v. Northwestern Iron Co.

74 N.W. 356, 98 Wis. 495, 1898 Wisc. LEXIS 176

• Court: Wisconsin Supreme Court
• Decided: March 1, 1898
• Status: Published

Opinion

Maeshall, J.

As we view this case, the decision of the-question raised by the exception to the ruling of the trial court on the sufficiency of the complaint is decisive of the-appeal. The only negligence of the defendant alleged, is that of knowingly placing one Arndt, an incompetent person for the work, in charge of the engines and boilers in its blast furnace, where such plaintiff and servant were co-employees. That is followed by an allegation that the injury to the plaintiff was caused by the wilful negligence and carelessness of said Arndt. Without the allegation of incompetence, it could not seriously be contended but that the complaint sets forth clearly a case of injury to an employee by the negligence of a fellow-servant, which, under one of the most familiar rules of the law of negligence, is- damnum absque injuria. Hoth v. Peters, 55 Wis. 405; Heine v. C. & N. W. R. Co. 58 Wis. 528; Pease v. C. & N. W. R. Co. 61 Wis. 163. So the effect of the allegations contained in the complaint is to charge negligence of the master without charging that such negligence caused the injury complained of, unless it can be said that there is a sufficient connection between the charge of negligence of the master in that it employed an incompetent servant, and the charge that such servant, through his negligence and carelessness, caused the injury to plaintiff, to leave room for a reasonable inference that such negligence and carelessness was attributable to the inconjpetency alleged. If the master knowingly, or through want of ordinary care, employs or retains in his employ an incompetent-employee, he is liable to a co-employee for any injury received by the latter in the- common employment, provided such incompetency be the proximate cause of the injury. But however incompetent such servant may be, unless the essential causal relation exists between it and the injury necessary to actionable negligence, the master is not liable. So here, if the injury to the plaintiff is attributable to the negligence of Arndt, it does not reach back further, so as to connect with the alleged negligence of the defendant in employing Arndt, but stops with the negligent servant as the real producing or efficient cause, unless the mere act of negligence comes within the scope of the term incompetence.

In reaching the conclusion here, full effect is given to the very liberal rule for the construction of pleadings, that prevails under our system, stated in the recent case of Miller v. Bayer, 94 Wis. 123, in substance, thus: In determining whether a complaint states a cause of action the question is not whether the plaintiff used the most appropriate language in stating his case, but whether the language used will permit a construction which will sustain the pleading, and to that end such effect should be given to its allegations as will support rather than defeat it, if that can be done without adding, by way of construction, material words not necessarily implied, or giving to the language used a meaning that cannot be reasonably attributed to it.

In applying the foregoing rulé it is important to look to the meaning of the words “ incompetent ” and “ negligent,” as ordinarily understood. The former means, want of ability for the purpose (Stand. Diet.); not adequate, sufficient, fit, suitable, or capable (Webst. Diet.). The latter means, careless, heedless, liability to omit what ought to be done,want of attention (Stand. Diet.); habitually omitting, careless, heedless, neglectful, incompetent, thoughtless, or regardless (Webst. Diet.). So it is clear that the word “ incompetent” signifies either ignorance of how to do a thing perfectly, or that mental make-up or acquired habit which renders one neglectful, careless, and incompetent, though possessing sufficient knowledge and experience to do with reasonable care and skill the work in hand. In such circumstances, the inattention or carelessness refers, not to a particular act, but to general character, so as to affect, in fact, the capacity of the person for the work he is employed to do. So laid down in Maitland v. Gilbert Paper Co. 97 Wis. 476, where very recently we had occasion to discuss this subject. It was there said, in effect, that a competent man is a reliable man, both as to physical and mental attributes and the disposition with which he generally does his work. So, capacity to do the work properly so far as physical ability is concerned, reasonable knowledge of how the work should be done, and the mental balance and self-control that enables one reasonably to bring into use his intelligence and experience, all go to the subject of competency. It has been frequently held that proof of a single act of negligence will not raise an inference of incompetence. It must necessarily follow that, ordinarily, a mere allegation that a person was negligent in the performance of some particular act is not equivalent to an allegation of incompetence, and will not raise an inference that the act was attributable to incompetence. Baltimore Elevator Co. v. Neal, 65 Md. 438; Huffman v. C., R. I. & P. R. Co. 78 Mo. 50.

Erom the foregoing it follows logically that the allegation in the complaint before us that the turning on of the steam was negligently done does not reasonably admit of an inference that the negligence was attributable to that incapacity which is the true test of incompetency, and the result is that we must conclude that the complaint fails to show, directly or by reasonable inference, by any allegation of fact, that the injury complained of was the result of the incompetence of Arndt, for which defendant would be liable, but does show, if anything, that it was attributable to mere negligence of Arndt, from which no liability of defendant can flow. Therefore, the demurrer ore teñios should have been sustained.

By the Gowrt.— The judgment of the circuit court is reversed, and the cause remanded for further proceedings according to law.