Summary
In Drexler, surpra, a young boy was asked to assist a laborer, who was employed by the boy's father, to put a roof on a chicken house.
Summary of this case from McKinney v. Polaris Amphitheater Ltd. Part.Opinion
No. 32286
Decided April 18, 1951.
Master and servant — Services rendered at request of another — No express agreement as to payment — Reasonable value for services recoverable — Recovery based on inference contract existed — Facts and circumstances may repel inference of agreement to pay — Person furnishing tool to another requested to render assistance — Duty of care required — Safe condition of tool — Person rendering assistance at request of servant — Not volunteer where servant authorized to request assistance — Workmen's compensation — Relationship of employer and employee exists, when — Contract for hire necessary — Obligation of employer to pay person employed, essential.
1. To constitute the relationship of employer and employee under the Workmen's Compensation Act there must be a contract of hire express or implied; and it is impossible to have such a "contract for hire" without an obligation that the person denominated the employer pay the person employed. ( Coviello v. Industrial Commission, 129 Ohio St. 589, approved and followed.)
2. Ordinarily, where one person renders services at another's request and there is no express agreement relative to payment therefor, the person rendering the services may recover for the reasonable value thereof.
3. In such an instance, the trier of the facts may fairly infer, as a matter of fact, that a contract existed between the parties under which one was to pay a reasonable amount for the services rendered by the other.
4. Where there are additional facts and circumstances which make it appear more reasonable that the parties did not understand that they sustained to each other such contractual relation, such facts and circumstances may repel any inference of an agreement to pay for such services.
5. Where one party requests another party to render assistance for some purpose of interest or advantage to the first party and the first party furnishes to the second party a tool to use in the performance of such assistance, the first party is under a duty to the second party to use ordinary care either to have such tool in a reasonably safe condition for use by the second party in a manner consistent with the purpose of the assistance to be given or to warn if such tool is not in such safe condition.
6. One, who renders assistance to another at the request of the latter's servant or employee, is not a volunteer, where the servant or employee is authorized to call on others for such assistance.
APPEAL from the Court of Appeals for Summit county.
Plaintiff instituted an action to recover from defendant for the loss of his eye, claimed to have been proximately caused by defendant's negligence.
Plaintiff's father had employed defendant to replace the roof on a small building, which had previously been erected for use by plaintiff in raising rabbits and chickens. In doing this, defendant's large truck, equipped with a crane and winches, became mired in soft ground. Turner, the employee of defendant in charge of the truck, sought to extricate the truck by the use of wire cable and a power winch on the truck.
As an anchor for the cable, Turner used a steel shaft. This shaft and a metal sledge were furnished by defendant as a part of the regular equipment of the truck. The head of the steel shaft had been severely battered and extended to approximately twice the diameter of the shaft.
Turner drove the shaft into the ground with the sledge and attached the cable to the shaft. However, when the motor power was applied to the winch and cable, the shaft was pulled out of the ground.
Turner then asked plaintiff, a boy of 16, to strike the steel shaft with the sledge in order to keep the shaft in the ground while tension was applied on the cable by the power winch. Plaintiff did as requested. The tension on the cable kept the steel shaft vibrating and chattering and difficult to strike squarely with the sledge.
While plaintiff was striking this shaft, as requested by Turner, a particle of the battered end flew off and entered plaintiff's eye.
Turner had specific instructions from the defendant to get help on the job if needed and not to call in for such help unless he had to.
Plaintiff's father testified that, when he discussed the job to be done with Turner prior to the time that defendant sent Turner out to do the job, he asked if Turner could give him some estimate of what the job would cost, and that Turner said it should not cost more than $5, based upon his previous experience. However, plaintiff's father testified that Turner did not give him any price for doing the job at that time. Plaintiff's father testified further that, while Turner was doing the work, nothing was said as to how much the job would cost, but that, after the work was completed, Turner said that the job would cost plaintiff's father $12.
Turner testified that, when he got back from doing this job, he had a talk with defendant's son, who was apparently in charge of the business at that time, and was asked approximately how long it took him. He said that it took him approximately three and one-half hours, during part of which he was stuck. The defendant's son then asked if Turner thought $12.50 would be too much for the job and Turner said he did not. Turner further stated that he told the defendant's son, when asked how he got out when stuck, that he got out by the help of plaintiff and plaintiff's father who "gave me a hand." He testified further that he did not say anything to defendant's son about hiring plaintiff or his father.
Plaintiff's father testified that the whole job took about three hours and that about two of those hours involved an effort "to get the truck out of the stalled position in the mire."
When the truck became mired, Turner not only asked plaintiff to strike the steel shaft with the sledge, but also asked plaintiff's father to help in getting the truck out by holding a piece of timber in position at the rear wheels so that, if the truck got out of the mire, it would come up on the timber.
Plaintiff's father did not pay the $12, which Turner told him that the job would cost, until between three or four months later. When he paid, he received a statement from the defendant marked "paid" and describing the charge made as follows: "Put up roof on chicken house — $12."
Plaintiff testified that nothing was said, at the time he was asked by Turner to strike the steel shaft, in respect to plaintiff being paid for rendering that service, that he neither was paid nor expected to get paid, and that what he did was done without the expectation of getting any recompense.
There was no evidence that anything was said tending to indicate that plaintiff was to be paid anything for what he did.
The trial court arrested the case from the jury and rendered judgment for the defendant.
That judgment was affirmed by the Court of Appeals. The case is before this court on appeal, a motion to certify having been allowed.
Messrs. Brouse, McDowell, May, Bierce Wortman, for appellant.
Messrs. Englebeck, Cotton Kaufmann, for appellee.
The Court of Appeals affirmed the judgment of the Common Pleas Court on the ground that plaintiff was an employee of defendant under the Workmen's Compensation Act, so that plaintiff's action was barred by Section 1465-70, General Code, prohibiting any action "against an employer" complying with certain provisions of the act "for any injury * * * of an employee arising out of his employment by such employer."
In Coviello v. Industrial Commission, 129 Ohio St. 589, 196 N.E. 661, the syllabus reads in part:
"3. To constitute the relationship of employer and employee under the workmen's compensation law there must be a contract of hire express or implied.
"5. It is impossible to have a `contract for hire' without an obligation that the person denominated the employer pay the person employed."
The Coviello case involved a construction of Section 1465-61 (2) defining the word "employee" in the Workmen's Compensation Act. That statutory language has not been changed.
This raises the question as to whether there was a contract for hire between the plaintiff and the defendant under which the defendant was obligated to pay the plaintiff anything. If there was not, then plaintiff's action is not barred by Section 1465-70, General Code, because the injury, for which recovery is sought, was not an "injury * * * of any employee," within the meaning of that section.
Ordinarily, where one person renders services at another's request and there is no express agreement relative to payment therefor, the person rendering the services may recover for the reasonable value thereof. In such an instance, recovery is allowed because the trier of the facts may fairly infer, as a matter of fact, that a contract existed between the parties under which one was to pay a reasonable amount for the services rendered by the other. Columbus, Hocking Valley Toledo Ry. Co. v. Gaffney, 65 Ohio St. 104, 114, 61 N.E. 152. Obviously, where there are additional facts and circumstances which make it appear more reasonable that the parties did not understand that they sustained to each other such a contractual relation, the justification for such an inference will not be present. Railroad Co. v. Lee, 37 Ohio St. 479. Thus, it is well settled that there may be circumstances, other than kinship or domestic ties existing between the parties, which repel any inference of an agreement to pay for such services. Annotation, 54 A.L.R., 548.
The testimony of plaintiff's father, as to the arrangements made for this work, indicated that he understood that the charge made for the work would be based on the time involved in doing it. Turner's testimony indicated that the charge was made on that basis. The help rendered by plaintiff and by his father would tend to reduce the time involved in getting the truck out of the mire. This was time for which plaintiff's father would be required to pay. It would seem reasonable, therefore, that neither plaintiff nor his father would have rendered their help with any expectation of receiving pay from the defendant, since the source of such pay would necessarily be an additional amount which plaintiff's father would then be charged for the work. For the same reason, the defendant would not reasonably anticipate that either plaintiff or his father expected compensation for their help.
Defendant contends that no consideration may be given to the testimony of plaintiff that he did not expect to be paid or to the testimony of Turner, tending to indicate that he did not contemplate that plaintiff was to receive any compensation. Defendant argues that parties to a contract are bound by what they do and say and cannot contradict the meaning, which they have thereby expressed, by denying that they intended such a meaning. If every word and act had but one permissible meaning, it would never be necessary, in considering the formation of contracts, to inquire into the intent of a speaker or actor. However, that is not always the case. Therefore, if an expression, in view of the circumstances under which it was used, may fairly mean either one of two things, each party is at liberty to attach thereto the one of those meanings which he had, at least unless he was in some way responsible for the other party's mistake in attaching thereto the other meaning. See I Williston on Contracts, 298, 299, Section 95.
In the instant case, even if we assume that the words and acts of Turner and the plaintiff, in view of the circumstances, may fairly be found to mean that Turner intended to obligate defendant to pay plaintiff for his services and plaintiff intended to charge defendant for his services, it is clear that they may also fairly be found to mean that Turner did not intend to obligate defendant to pay plaintiff for his services and that plaintiff did intend to render those services for the defendant without any charge therefor. That being so, the testimony of Turner as to what he meant by what he did and said, as well as the testimony of plaintiff as to what he meant by what he did and said, would appear to be admissible. Such testimony would definitely negative the existence of any implied contract, under which defendant would be obligated to pay plaintiff anything for what he did. Columbus, Hocking Valley Toledo Ry. Co. v. Gaffney, supra.
The Common Pleas Court, relying upon General Ry. Signal Co. v. Valois, Admr., 25 C.C. (N.S.), 423, arrested the case from the jury and rendered judgment for defendant on the ground that plaintiff was a volunteer to whom defendant owed no duty to furnish reasonably safe tools.
In support of the decision of the Common Pleas Court, defendant contends that, if plaintiff was not an employee, he must have been a volunteer, and, if he was a volunteer, defendant owed him no duty except not to wantonly or willfully injure him.
It is not necessary to determine whether plaintiff could be an employee of defendant without being an employee of defendant within the meaning of the Workmen's Compensation Act. We do not believe that it necessarily follows that, because plaintiff was not an employee of defendant, defendant did not owe plaintiff a duty to use ordinary care in furnishing him a safe tool.
It is generally held that the occupier of premises, who invites another to enter upon the premises for some purpose of interest or advantage to such occupier, owes to the person so invited a duty to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation. 38 American Jurisprudence, 754, Section 96. The reason for imposing this duty, with respect to invitees and not with respect to licensees or trespassers, is that the invitee is on the premises for a purpose of interest or advantage to the occupier. In the instant case, plaintiff was asked by Turner to use the sledge and steel shaft for a purpose of interest and advantage to the defendant. Turner had been specifically authorized by the defendant to call upon others for such help when he needed it. The same reasons, which justify imposing upon the occupier of land a duty to an invitee to use ordinary care with respect to his premises, justify imposing upon this defendant a duty to use ordinary care with respect to the tools furnished to the plaintiff to enable the plaintiff to perform the services which he was rendering to help the defendant. Hilleary v. Bromley, 146 Ohio St. 212, 216, 217, 64 N.E.2d 832.
Our conclusion is that, where one party requests another party to render assistance for some purpose of interest or advantage to the first party and the first party furnishes to the second party a tool to use in the performance of such assistance, the first party is under a duty to the second party to use ordinary care either to have such tool in a reasonably safe condition for use by the second party in a manner consistent with the purpose of the assistance to be given or to warn if such tool is not in such safe condition.
In many of the cases where the question has arisen as to whether a party, who has been requested to render assistance, was or was not a volunteer, there was no showing, as in the instant case, that the servant or employee who requested the assistance had any authority to make such a request. For this reason, in determining that the person so assisting was not a volunteer, this court has sometimes stressed the fact that the person called upon to render assistance had "some purpose or benefit to be subserved in his own behalf in addition to the purpose of so assisting." Cleveland Terminal Valley Rd. Co. v. Marsh, 63 Ohio St. 236, 58 N.E. 821, 52 L.R.A., 142; Street Ry. Co. v. Bolton, 43 Ohio St. 224, 1 N.E. 333, 54 Am. Rep., 803. That problem is not involved in the instant case if, as Turner testified, he was specifically authorized by the defendant to call upon others for help when he needed it.
It is not necessary to consider, and this court has not considered, the specifications of negligence, other than that involving the failure of defendant to furnish a safe tool to the plaintiff.
For the reasons hereinbefore set forth, the judgment of the Court of Appeals is reversed and the cause is remanded to the Common Pleas Court for further proceedings.
Judgment reversed.
ZIMMERMAN, STEWART, MIDDLETON and HART, JJ., concur.
WEYGANDT, C.J., and MATTHIAS, J., concur in paragraphs one, five and six of the syllabus and in the judgment.