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writ of garnishment, and therefore the attaching creditor could not subject that debt to execution. The defendant in the attachment suit also appears, and sets up that the debt due from the garnishee for work done was for wages earned in Illinois for work done therein, he (the defendant) being the head of a family, and therefore the wages are exempt. Would not the court be charged with the duty of hearing and determining both the issues thus presented? In passing upon the chaim of the intervenor, would not the court ascertain the facts of the transfer, and, finding that it had been made in Illinois, where both the defendant and the intervenor lived, would not the court apply the law of Illinois, in determining whether a legal and valid transfer of the debt bad been made, and would it be debarred from viewing the fact of the transfer in the light of the Illinois law, simply because the suit in Iowa had been brought by attachment and garnishment? If, then, it appeared that a valid transfer of the claim had been made, according to the law of Illinois, before service of the writ of garnishment, would not the intervenor defeat the attachment? Coming, now, to the issue as to the wages earned in Illinois, the court would, in like manner, ascertain the facts; and, it being made to appear that by the law of Illinois wages earned by heads of families are exempt from execution; that the attachment defendant lived in Illinois, and by working for the garnishee in Illinois had earned certain wages due and payable in Illinois; and that he was the head of a family, and was such when the wages were earned,—then the question would arise as to the law that should be applied in determining the question of exemption. The law exempting wages from execution goes upon the principle that the family of the workman has an interest therein, and the protection of the statute is afforded only to wages earned by the heads of families as distinguished from persons not so situated. Practically the exemption statutes, both of Illinois and Iowa, assign to the families the wages earned by the head thereof; and in Teuger v. Landsley the wife joined with the husband in suing out the injunction sustained in that case. Why should not the court, then, hold that when the wages were earned in Illinois by a resident head of a family, the statute of Illinois practically assigned the debt due for the wages thus earned to the family, and that the same force should be given to such statutory assignment as to a written assignment to a third party as against a writ of attachment in another state against the head of the family alone? But, aside from all refinements of this nature, upon the true principles of that enlightened comity that should exist between the sister states of this Union, it seems clear to me that the courts of Iowa should give full recognition to the policy of the Illinois statute, which is in harmony with that of Iowa, which is that the wages earned by the head of the family belong to the family, and cannot be seized for the debt of any member thereof, and that the beneficent purpose of the statute cannot be evaded by the device of crossing the state line and bringing suit in the courts of an adjoining state. The benefits of the exemption thus provided can be saved to all without trenching upon the jurisdiction conferred by the attachment laws of the state. The question
to be decided is not one of the jurisdiction of the court, but of the right of the family to wages earned, a right to be settled by the law of the place where the workman lives and performed the work which created the debt.
I have been drawn into this lengthy discussion of this question because of the conviction that the rule deduced from the Mooney Case, if carried out to its fullest extent, will work an unnecessary hardship to the very class of Iowa citizens which the Iowa statute was enacted to protect. For this reason I have argued the proposition at length, when it might have been sufficient, for the purpose of the present case, to have held that in a controversy in fact between non-residents of Iowa this court was free to determine the rights of the parties according to the law of the place where the wages were earned, it not being a question arising under any statute of Iowa. If, then, it be held that in fact the sums paid weekly to Mrs. Rice, by the garnishee, were so paid as wages earned by her husband, according to the contention of plaintiff, yet as it also appears that the wages were earned in Illinois, at the place of residence of Rice and his family, the conclusion would be that under the Illinois statute such wages are exempt from execution, and the garnishee is not liable to respond to the plaintiff herein for the amounts thus paid. For these reasons the garnishee is discharged.
TELANDER V. SUNLIN et al.
(Circuit Court, D. Minnesota, Fourth Division. January 18, 1891.)
1. MASTER AND SERVANT-NEGLIGENCE-FOREMAN'S AUTHORITY.
Where an employer places an employe as foreman in charge of a piece of work requiring several days labor, away from his own factory, and of such a nature as may reasonably be supposed to require the use of appliances for raising and lowering a heavy piece of iron, but does not furnish such appliances, the foreman has implied authority to provide blocks and tackle by borrowing or otherwise, and if he obtains and uses insufficient ones, whereby a workman under his control, without
fault on his own part, is injured, the employer is liable. 2. SAME.
The fact that at the commencement of the work sufficient blocks and tackle were in the required position, and were used by the foreman in doing part of the work, does not rebut the presumption of authority to procure what was needed, when such blocks and tackle were placed there by a third person, who had borrowed them for his own use in doing a different part of the work, and who afterwards re
moved them. 3. SAME-CONTRIBUTORY NEGLIGENCE.
Plaintiff was working in a dark place, on the interior of a large iron hoop, when the latter was raised and held suspended by rope and tackle, and he was directed to remove some dirt and stones from underneath it. While doing so the rope broke, and his hand was injured. He testified that he had a monkey-wrench in his hand, but it was crooked, and he could not use it, and that he was removing a stone weighing four or five pounds with his bands when the injury occurred. Held no sufficient proof of contributory negligence to warrant the court in directing a verdict.
At Law. On motion for a new trial.
This action is brought to recover damages for personal injuries. It was tried before a court and jury at the September term of the court, at Minneapolis, for 1890. The plaintiff had a verdict for $1,000, and a motion for a new trial was made by the defendants in due time, and heard before Judge Nelson and myself on the 10th day of November, 1890.
The leading facts developed at the trial are as follows: The defendants are boiler-makers, doing business in Minneapolis, and were at the time of the injury engaged in putting an intake pipe in position over a turbine wheel case for the Humbolt mill at Minneapolis. The intake pipe is a cylinder of boiler iron, weighing about 3,500 pounds, and large enough to permit four or five men to work inside of it. When in position it rests on and is riveted to the wheel case, which is outside, and surrounds, the turbine wheel. The intake serves as a conduit for the water passing in and over the wheel. There is an iron shaft from the center of the turbine wheel, extending up to the top of the platform in the wheel-house. The defendants had the contract of putting in this intake and riveting it to the wheel case. One Peterson was a boiler-maker in the employ of the defendants, and was placed by the defendants in charge of that work. The plaintiff was also in the employ of the defendants, and was furnished by them as one of the helpers to Peterson, and assisted him. He, (the plaintiff,) and the others with him, were under the control of Peterson, and were subject to his orders. The intake pipe was resting on uprights, five or six feet above the wheel case, and it was necessary to put an iron ring on and around it at the lower end. Through this ring the bolts are placed by which the intake is riveted to the wheel case when in position. The defendants instructed Peterson, a boilermaker, to go down and put the ring onto the intake, and put the bolts in, and let the intake down and rivet it to the wheel case. Plaintiff and one or two others were sent to assist him as helpers. Pursuant to instructions, Peterson put the ring on the intake, and let the intake down onto the wheel case, and, after putting the bolts in and moving the intake around so as to bring the holes of the intake and the wheel case in corresponding position, found it necessary to raise the intake for the purpose of removing dirt and stones which had fallen in between the intake and the wheel case, thereby preventing the smooth surfaces from coming together. Plaintiff and others assisted in doing this work, as helpers, and worked under Peterson's orders, and subject to his control. When Peterson was ready to raise the intake, for the purpose of cleaning out the stone and dirt, he found that there was no rope and tackle, or other appliance, for doing the work. The one that had been used by him in letting down the intake had been taken away. Peterson looked around and found a rope and tackle lying down in the tail-race on the platform belonging to the defendants, but, as he says, it was too short and too small; therefore he did not use it. Defendants had no other, and owned no other, rope and tackle, except this one that was lying in the tail-race at the time. Peterson, after looking about, found a rope and tackle in the wheel-house of the Humbolt mill, and borrowed it of one Spillman, who was in charge of the mill, and, by using a chain in connection with
it that belonged to the defendants, he rigged up an apparatus by which an attempt was made to raise and hold suspended the intake while the dirt and stones were being cleaned out. The plaintiff, during this time, was down in the wheel case, where it was dark, and did not assist in putting up the apparatus, and did not see it, and could not from where he was at work. After getting the apparatus for raising the intake ready, Peterson placed some parties at the windlass to raise the intake, and gave orders to plaintiff and one Goula, who was in the wheel case with plaintiff, to clean out the stones when the intake should be raised. Peterson then ordered the intake to be raised, and as soon as it was listed four or five inches plaintiff commenced to clean out the stones and dirt with his hands. The rope broke almost immediately after the intake was raised five or six inches, and the intake came down on plaintiff's hands while he was in the act of removing stones, and he sustained a permanent injury. Plaintiff says he had in his hand a monkey-wrench, but could not use it, as it was crooked, and he could not pick the stones out with it, and that he attempted to take them out with his hands, and he had his hand on a stone weighing four or five pounds that was between the surfaces when the intake fell. The other helper, Goula, used a stick, but plaintiff says that he did not see him, and that he received no instructions as to the means to be used. There was evidence tending to show that the rope was old and defective, and not of sufficient strength for the purpose, and that its defective character could be easily detected on inspection. There was also evidence tending to show that the iron shalt extending from the turbine wheel up through the intake to the wheel-house had a joint, or what is termed in the evidence a “nigger-head," on it, about three feet above the intake, and that the nigger-head rested on the plate that projected horizontally from the shaft about seven inches. Also evidence was given tending to show that the accident would not have happened if the chain by which the intake pipe was attached to the rope block had been so fastened as to come up over this obstruction on the shaft. Peterson made the attachment or hitch by doubling the chain. This had the effect of making an extra strain upon the rope by reason of the projection upon which the niggerhead rested. Peterson doubled the chain in making the attachment, instead of using it single, because, as he says, he thought that the chain was not strong enough unless it was doubled. Evidence was given to show that the chain, if it had been used single, would have come above the nigger-head, and thereby the extra strain would have been prevented, and that the chain was of sufficient strength to have been used single. When Peterson let the intake down at the time he removed the bolts, he used the rope and tackle that was then in position above the intake. This rope and tackle had been placed there by one Spillman, who was there in charge of the Humbolt mill, for the use of the mill. It belonged to the Twin City Iron-Works, and was borrowed by Spillman. It was placed in position by Spillman, and used by him in connection with another rope and tackle in letting the wheel down some two or three days before the accident. Defendants had nothing to do with letting this
wheel down, and it was no part of their work. It was work that belonged to the Humbolt mill alone. After the wheel was let down by Spillman, he left the rope and tackle in position, where he used it for a short time, and while it was there Peterson made use of it to let the intake down at the time he took the uprights out, and the defendants used it once to raise and lower the wheel case. Spillman, having no further use for this rope and tackle, returned it to the Twin City IronWorks from where he borrowed it. It does not distinctly appear how long the rope and tackle was in position above the intake, but it does appear that the wheel was let down about two days before the accident; that this rope and tackle was obtained and placed in position for that purpose; and Spillman testifies that he took it home about two days before the accident. It could have been in position but a short while.
Spillman, a witness produced on the part of the plaintiff, testified in relation to the borrowing of this rope and tackle, as follows. Speaking of the Twin City Iron-Works tackle he says:
“Answer. It belonged to the Twin City Iron-Works. Question. You had sent it back? A. We had borrowed it for our own use, and when we got through with it I sent it back. Q. Borrowed it for your own use? A. Borrowed it for our own use. Q. It was not defendants that had it, then? A. No, sir. It was not the defendants. We had it. Q. Do you know whether Mr. Cour or Mr. Sunlin obtained permission to use the Twin City tackle? A. No, sir. I don't know anything about that. When I borrowed the Twin City tackle- That man there, Cour's partner, is the man I got it from; that is, he went and dug them up for me in the Twin City Iron-Works. Q. Mr. Sunlin got it for you? A. Yes. I borrowed it from him; that is, he got it for me.
I borrowed it from him before, and I went down there to borrow them, and he is the man that helped me dig them up and find them. Q. Mr. Sunlin went down with you to get them? A. That is, I went into the boilerworks, and was looking around. I was a stranger, and went in and happened to find him, and I asked him where the rope block was, and he helped me find it. Q. You had permission before that to go and get it? A. Permission from somebody. I don't know. Scott got permission. Q. Did you prohibit the defendants from using that tackle for their work? A. No, sir. Q. Was this the first morning that Peterson was there at work? A. No, sir. He had been there before. Peterson had been there trying to put on the rim for three or four days, I guess."
Sunlin, one of the defendants, testified to the borrowing of this tackle, as follows:
"Q. Do you remember going with Spillman for the purpose of getting the Twin City tackle? A. Yes, sir. He came down to the shop- First I seen the man that I was figuring with on the work, and he says, .Can I get the rope?' And I says, “Yes.' And he says, • I will send the men down.' And this man that was up here gave his name as Spillman. He came with another man, and he came to me and says, • I want to get that rope.' I says, * All right. I will get it for you.' And I took him into the machine-shop. Q. What machine-shop? A. In the Twin City Iron-Works machine-shop. First I went to the president, and the man that acts as superintendent, and asked him if I could get the rope and tackle, and he says, 'Yes.' And I says, •I want to show this man where the rope was.' And I says, You can take it, because I will want this rope myself down there on this work.' Q. How long before the accident? Do you know? A. That must have been some-we