Opinion
No. 27727.
February 28, 1929.
1. AUTOMOBILES. If plaintiff rode on defendants' ambulance without driver's consent, plaintiff was trespasser and could not recover for injuries where there was no willful wrong or gross negligence.
If plaintiff rode on defendants' ambulance in order to assist driver without driver's request, permission, knowledge, or consent, plaintiff was mere trespasser and could not recover for injuries sustained in collision between ambulance and automobile, where there was no willful wrong nor such gross negligence as amounted to willful wrong on part of driver of ambulance.
2. MASTER AND SERVANT. Plaintiff, voluntarily assisting defendants' servant at latter's request, cannot recover for servant's negligent acts.
Plaintiff, if voluntarily riding on ambulance to assist defendants' driver at latter's request, brought himself within class of fellow-servants who, as against defendant master, could not recover for negligent acts of driver resulting in collision with automobile in which plaintiff sustained injuries.
APPEAL from circuit court of Lauderdale county, HON. J.D. FATHEREE, Judge.
Amis, Dunn Snow, for appellants.
The rule is that when a servant having authority to employ assistance in the performance of his work, calls in some one to assist him, the person so employed becomes the servant of the master and the fellow-servant of the other regularly employed servant. Johnson v. Ashland Water Co., 71 Wis. 553, 5 Am. Ed. 243; Brooks v. Central Sainte Jeanne, 228 U.S. 688, 57 L.Ed. 1025; Osborne v. Knox Lincoln Ry., 68 Maine 49, 28 Am. Rep. 16; Eason v. S. E.T. Ry. Co., 65 Tex. 577, 57 Am. Rep. 606; Knicely v. W., etc., R. Co., 64 W. Va. 78, 61 S.E. 811; Bonner v. Bryant, 79 Tex. 540[ 79 Tex. 540], 15 S.E. 91; Mayton v. Pacific Ry. Co., 63 Tex. 77[ 63 Tex. 77]; 39 C.J. 554.
The case of Wischam v. Rickards, 136 Pa. St. 109, is a very interesting one, and it seems to us, well considered and well reasoned. In that case, the supreme court of Pennsylvania held that a servant cannot, by any act of his, impose upon his master a higher liability for negligence than the master is under to the servant himself. A person therefore who assists a servant at the latter's request only, can have no different remedy against the master from that which the servant himself has; and as a servant engaged in the service of a common master, and in a common employment, cannot recover against the master for injuries received through the negligence of the fellow-servant, so, such person who joins in the service at the servant's request and is so injured, cannot recover against the master because he makes himself one of a class, who, as against their master, have no right of recovery for one another's negligence. In 39 C.J., p. 554, sec. 661, it is said: "One who, having no interest in the work, volunteers assistance to servants of another, whether at the request of such servant or not, and is injured by the negligence or misconduct of such servant, stands in the position of a fellow-servant with such employee and cannot recover from the master, since he can impose no greater liability on the master than a hired servant. See, also, 4 Labatt Master Servant (2 Ed.), sec. 1653.
Under the testimony on behalf of the defendants, Beal Strayhorn, as touching the relation of the appellee to the trip being made in the ambulance, the appellee was a trespasser, and the only duty which the defendants, Beal Strayhorn, owed to him was not to wilfully injure him. There is no testimony in the record which shows there was any wilful intention of inflicting an injury upon the appellee by Digman, in the operation of the ambulance. If, therefore, the appellant's theory of the case had been sustained by the verdict of the jury, the appellee could not have recovered and the court so instructed the jury, but the jury found the facts on the defendants' theory of the case, against the defendants. The assumption therefore must be that the jury found the facts as testified to by the appellee, that is, that he got into the ambulance at the request of Digman, for the purpose of assisting Digman in making the emergency ambulance call. The court declined to instruct the jury that if they believed the facts as testified to by the appellee, that he was a fellow-servant of Digman and could not recover for injuries he may have sustained by reason of any negligence on the part of Digman in operating the ambulance. Several instructions were requested by the defendants on this subject, all of which were refused. But if it was error on the part of the court to refuse these instructions, such error is merged with the error of the court in refusing to sustain the defendant's motion to exclude the evidence and direct a verdict in their favor, and also in the court's refusal to grant the peremptory instruction requested by the defendants.
The court's refusal to sustain the motion to exclude the evidence and its refusal to grant the peremptory instruction requested by Beal Strayhorn, was based upon the idea that the appellee was, under his theory of the facts, an invitee, and that if the appellee's theory of the facts were correct and the jury found that Digman was guilty of negligence in operating the ambulance, which proximately contributed to his injury, the plaintiff was entitled to recover. But the court was wholly in error in proceeding upon the assumption that if the appellee's theory of the facts were correct, that he was an invitee. His testimony and theory of the facts brings his case clearly within the rule announced in the decisions and texts cited in this brief. As related to the trip of the ambulance in question, as disclosed by the appellee's testimony, his purpose in making such trip was to assist Digman about the business of Beal Strayhorn, and having voluntarily agreed to render such assistance, he made himself the servant of Beal Strayhorn and the fellow-servant of Digman. And he cannot hold Beal Strayhorn for the exclusive negligence of Digman in operating the ambulance.
Reilly Parker, for appellee.
In cases of emergency the true and exact relation of master and servant does not exist, but the relation which does exist may be settled by applying the rules applicable to master and servant, some courts holding that it includes the application of the fellow-servant doctrine while others hold that it does not include the application of this doctrine. And again it will be seen that the supporting facts relied upon are the reasons for the decision of those courts with a partial admission that the true relation of master and servant. Whether it be an emergency or not, when arrangement is made for service under such circumstances, the immediateness of the relief to be furnished and the lack of time and opportunity to form the completed relation of master and servant may be sufficient to prevent the formation of such relation, but at the same time create a relation involving rights and liabilities that some or all of the rules relative to the master and servant might be applied in case of injury, and yet such rules might not be applied under other circumstances.
In Barringer v. Zachary, 267 S.W. 182, a driver of a team working for his master had his wagon stuck in the mud and in getting assistance to get it out, requested the plaintiff to help him, and while so doing was injured through the negligence of the driver, and when the injured party sued the master for this injury the court said: "It is well settled that a stranger who is injured while rendering assistance to a servant of the master in an emergency is not upon the plane of a mere volunteer or intermeddler, and therefore barred of recovery, but he is an emergency assistant; one the servant had a right to engage, and when his assistance is enlisted in an emergency he is owed the same duty by the master and entitled to the same protection from the master as any other servant engaged in like employment, but is not a fellow-servant with those regularly engaged." The above is a typical case and parallel to the case at bar where none of the reasons for the application of the fellow-servant rule is involved and where there is no occasion for the establishing of the true relation of master and servant.
In N.O., etc., Ry. Co. v. Harrison, 48 Miss. 112, the plaintiff sued the railroad for an injury received by him when he claims that he was undertaking to uncouple some cars by the direction of an engineer in charge of this movement, after having been intimidated and frightened into undertaking the work. The court held that the railroad company was not liable, stating that the decision was based on two grounds. First, that if the plaintiff's theory was correct then the wrong of the engineer by a wrongful and malicious trespass was outside of and beyond the scope of his authority and for which the railroad would not be liable. And second, if it was not a willful trespass, then the plaintiff's contributory negligence was sufficient to defeat his recovery. It will be seen from this case that if the element of wilfulness and malice was taken out of the case, the only defense recognized by the court was one of contributory negligence, which is no longer sufficient to defeat a recovery, but the recognition of contributory negligence presupposes the negligence sufficient to sustain liability on the part of the defendant. Therefore, in this case the ordering of the plaintiff to perform service, and while so employed he was injured by the negligence of the engineer would be sufficient to create liability based upon negligence under the authority of this case.
The case most nearly like the case at bar that we have been able to locate is the General Auto, etc., v. State, 140 A. 48. In that case a man was killed in an automobile when the driver of the automobile and the deceased were employed by the same company, the driver being the manager of the branch office and the deceased subject to his orders. The duty being performed by the vice-principal was driving an automobile and the injury was due to the negligence of the driver in the operation of such automobile, and it was admitted that both parties were in the employment of the same master and were then engaged in duties incident to such employment, but the driver being a manager of a branch office and the other party subject to his orders and directions; while thus engaged the driver of the automobile was a vice-principal and not a fellow-servant. In the case at bar the negligent party operated the automobile, directed the movements thereof, engaged his help and these powers and the exercise thereof makes him not a fellow-servant of the party injured. In the case at bar there is no dispute concerning the question of the complete authority of the driver, Jim Digman, while operating the automobile ambulance in question. He engaged and invited persons to go with him and had full authority so to do. While making these trips the automobile was under his complete control. How fast he should go and the manner of operating the automobile and the performing of this service was exclusively under his control and it seems manifest to us that it would be impossible and improper to classify these parties as fellow-servants.
The appellee, Abraham Clayborn, instituted this suit in the circuit court of Lauderdale county against the Royal Feed Milling Company, a corporation, Beale Strayhorn, a copartnership, and Jessie R. Waller, and Jim Digman, seeking to recover damages for personal injuries alleged to have been sustained by him in a collision between an automobile owned and operated by the said Royal Feed Milling Company, and driven by its employee, the defendant Jessie R. Waller, and an ambulance owned and operated by the said Beale Strayhorn, and driven by one of its employees, the defendant Jim Digman. At the trial of the cause the court granted a peremptory instruction to the jury to return a verdict for the defendant Royal Feed Milling Company and Jessie R. Waller, but submitted the cause to the jury as against the defendants Beale Strayhorn and Jim Digman, and a verdict was rendered against these defendants for the sum of five thousand dollars; and from the judgment entered in pursuance of this verdict, the defendants Beale Strayhorn prosecuted this appeal.
The declaration averred that the appellants were engaged as partners in the business of operating ambulances, and in so doing used a number of vehicles and employed many persons, and among others the defendant Jim Digman; that on the occasion when the appellee was injured the said Digman was, in line with his employment, making a trip in an ambulance belonging to the appellants, and that he requested the appellee to go with him in said ambulance to assist in the duties to be performed by him for the appellants, as he had a right to do under the authority of his employment; that in obedience to this request the appellee entered the said ambulance, and rode therein until it was wrecked at the intersection of Sixth street and Twenty-First avenue in the city of Meridian. The negligence charged was that the ambulance was quoted at an unlawful and dangerous rate of speed by the driver, Digman; that the said driver negligently failed to keep the vehicle under easy and proper control, and negligently failed to keep a proper and sufficient lookout ahead; and that as a result of the reckless and dangerous rate of speed at which the ambulance was driven, and the failure of the driver to keep a lookout, and the negligence of the defendant Waller in operating the automobile of the defendant Royal Feed Milling Company, the two vehicles collided, thereby causing the ambulance to overturn and injure the appellee in the manner and to the extent particularly described in the declaration. To this declaration the appellants filed a plea of the general issue and gave notice thereunder of certain defensive matter which is not necessary to here set forth.
The appellee called as a witness in his behalf the defendant Jim Digman, who testified that he was employed by the appellants to drive the ambulance in making emergency calls, and that he was in charge of the ambulance at the time of the accident; that he had received an emergency call to take the ambulance to the scene of an automobile accident, and he requested one George Welsh, a bystander, to go with him to assist in such work as might be necessary at the scene of the accident; that it was frequently necessary for him to have assistance in removing the dead or injured from the scene of an accident; that he had authority to employ or call temporary help on such occasions, and he frequently requested bystanders to assist him in his work in operating the ambulance; and that the appellants had knowledge of this practice on his part. He further testified that on the occasion of the accident to the appellee he did not request any person other than Welsh to go with him; that he did not know the appellee was in the ambulance until after the wreck; and that he had ridden in it from the appellants' place of business to the scene of the accident without the witness' request, permission, knowledge, or consent; and he further denied that he had at any time in the past requested the appellee to ride in the ambulance or assist him in responding to any emergency calls.
The appellee testified that on the day he was injured he was at the appellants' place of business when an emergency ambulance call was received by Jim Digman, who operated the ambulance, and Digman then requested him to go with him and assist him in the ambulance service; that prior to that time he had been frequently requested by Digman to go with him on such calls, and, when he did so, that he assisted Digman in placing the injured or sick person or persons in the ambulance; that it was a regular practice for Digman to call bystanders to go with him to assist in the work necessary to be done; and that on the occasion in question he was requested to go and was going with Digman for the purpose of assisting him in the work necessary to be done in response to an emergency call to aid certain persons who had been injured. Henry Strayhorn, one of the appellants, testified that when responding to emergency calls, Jim Digman, the driver of the ambulance, had authority to, and whenever necessary did, call bystanders to assist him in the work necessary to be done.
At the conclusion of the testimony for the appellee, the appellants moved the court to exclude the evidence as against them and direct a verdict in their favor for the reason, among others, that the appellee was a voluntary servant assisting in the business of appellants in operating the ambulance for the purpose of rendering aid and assistance to persons said to have been injured; and that if it were true that the driver Digman was guilty of negligence in operating the ambulance, it was the negligence of a fellow-servant of the appellee, and therefore he could not recover against the principals, the appellants. This motion was overruled, and at the conclusion of the testimony the appellants again requested a peremptory instruction, which was refused, and the refusal of this instruction is now assigned as error.
The only witnesses who knew anything about the appellee's connection with the ambulance in responding to the particular emergency call were the appellee himself, and Digman and Welsh, who were offered as witnesses by the appellee, and on this point the appellee's testimony was in direct conflict with that of Digman and Welsh. If the testimony of the witnesses Digman and Welsh is accepted, the appellee was a mere trespasser, and the only duty the appellants owed to him was not to willfully or wantonly injure him, and the testimony was not sufficient to support a finding of willful wrong, or such gross negligence as amounts to a willful wrong on the part of Digman in the operation of the ambulance.
The testimony is undisputed that the driver of the ambulance had authority to employ or accept such assistance as was essentially necessary to perform the duties incident to an emergency call for the services of an ambulance, and according to the testimony of the appellee himself he was voluntarily riding in the ambulance, at the request of the servant of the appellants, for the purpose of rendering to this servant such assistance as was necessary to the full and proper performance of the duties incident to such emergency. The question that arises, then, is whether by so doing the appellee became the fellow-servant of the driver of the ambulance. On this question the authorities are not entirely harmonious; but we think that reason and the weight of authority is in support of the view that, under such circumstances, the appellee became the fellow servant of the driver of the ambulance.
In 39 C.J., p. 554, this doctrine is announced in the following language: "One who, having no interest in the work, voluntarily assists the servant of another, whether at the request of such servant or not, and is injured by the negligence or misconduct of such servant, stands in the position of a fellow-servant with such employee and cannot recover from the master, since he can impose no greater liability on the master than a hired servant; the master owes to him no higher duty than to a trespasser, and is liable only for his own or his servant's willful or wanton negligence."
In the case of Wischam v. Rickards, 136 Pa. 109, 20 A. 532, 10 L.R.A. 97, 20 Am. St. Rep. 900, it was held that: "A servant cannot, by any act of his, impose upon his master a higher liability for negligence than the master is under to the servant himself; and one who assists such servant in his duties at the servant's request only, can have no other or different remedy against the master, for negligence, than the servant had." And: "That the person assisting can have no higher rights than the servant in the performance of whose duties he joins has, is not so much because he is a volunteer, as because he makes himself one of a class, who, as against the master, have no right of recovery for the negligent acts or conduct of each other. Wherefore, as one who is engaged in the service of a common master, and in a common employment, cannot recover against the master for the negligence of a fellow-servant, whether paid for his service or not, so, if a stranger join at the request of a servant and is injured, he is in no better position than a mere volunteer."
In the case of Osborne v. Knox Lincoln R.R. Co., 68 Me. 49, 28 Am. Rep. 16, it was held that a servant cannot recover for an injury incurred in assisting a fellow-servant, either voluntarily, or on the request of such servant, and that: "A person who voluntarily assists the servant of another, in a particular emergency, cannot recover from the master for an injury caused by the negligence or misconduct of such servant; he can impose no greater duty on the master than a hired servant."
In the cases of Eason v. S. E.T. Ry. Co., 65 Tex. 577, 57 Am. Rep. 606, and Mayton v. T. P.R.R. Co., 63 Tex. 77, 51 Am. Rep. 637, it was held that a person volunteering to assist a servant of the defendant became the fellow-servant of the regular employee engaged in a particular service and could not recover for the negligence of such servant; while the supreme court of West Virginia, in the case of Knicely v. W. Va. M.R. Co., 64 W. Va. 278, 61 S.E. 811, 17 L.R.A. (N.S.) 370, approved the following statement of the rule: "`One who, without being requested or authorized by the master to do so, assists his servants to serve him, is deemed to be so far their fellow-servant as to limit the liability of the master to him, even though he would not be regarded as a servant so far as to make the master liable to strangers for his negligence. This is so where such assistance is given by the request of the servants; and it can make no difference in his favor that the person rendering such assistance does so unasked or even against the will of the master or of the servants, or both. In such case he may be a trespasser; and if so, he diminishes his right to recover for an injury received under such circumstances by his contributory fault. On the other hand, if his assistance is rendered at the request of the master or his authorized agent, he becomes for the time a servant in every legal sense, with the benefits as well as the burdens of that position.'" See, also, Brooks v. Central Sainte Jeanne, 228 U.S. 688, 33 S.Ct. 700, 57 L.Ed. 1025, for a discussion of this question.
Under the appellee's own testimony, he had no personal interest in the duties to be performed, and he voluntarily engaged in the services upon the request of a servant of the appellants, and by so doing he brought himself within the class of fellow-servants who, as against the master, cannot recover for the negligent acts or conduct of each other.
It follows from the views herein expressed that the peremptory instruction requested by the appellants should have been granted, and therefore that the judgment of the court below will be reversed, and judgment will be entered here for the appellants.
Reversed, and judgment for the appellants.