280 P. 965 | Cal. | 1929
Lead Opinion
The judgment is affirmed. As justification for this holding we offer the following:
Plaintiff, a minor then twelve years of age, brought this action against defendant corporation as master and the other defendant as its servant, to recover damages for personal injuries suffered by him on April 11, 1926, on account of the alleged negligence of said servant. Negligence was denied by both defendants and contributory negligence was pleaded; defendant master especially denied liability for the acts for its servant which resulted in said injuries to plaintiff. Plaintiff had judgment. The amount of the verdict, as such, is not questioned; neither is serious contention made that negligence was absent. In fact, no defense of any kind is urged for the defendant servant. The prime issue is the liability, if any, of the master under the facts here appearing.
Defendant corporation owned and operated at the time in question a dairy farm near and milk route in Fresno city. The co-defendant, its employee, was engaged in delivering milk and cream to customers in said city, using therefor an electric truck. For a considerable period of time next prior to said accident, he had practiced the plan of enlisting the aid of young boys in making deliveries to the various homes served with milk and cream. The boy then so engaged would ride upon the running-board of the truck and deliver bottles to one side of the street while the driver delivered them to the other side. In the dispatch of this business if the driver was in his seat prior to the return of the boy to the truck, he would set the truck in motion before the lad actually reached it, the latter jumping on the running-board and seizing an upright bar while the truck was in motion. These boys would be paid small sums of money by the driver as well as given candy to eat and milk to drink. *218
The older brother of plaintiff had followed this practice for a period ending about six weeks before the accident and during the subsequent six weeks plaintiff had almost daily followed the truck in its afternoon deliveries. He estimated that he made fifty trips with said driver during said period. He had received small sums of money frequently from the driver as well as candy and milk. At the time in question the driver, having no milk to deliver on his side of the street, was in his seat on the truck as plaintiff, returning from a delivery at a home, reached a point some four or five feet distant from the truck. The truck then began to move and in endeavoring to jump to the running-board and to seize said bar to balance himself, plaintiff fell, was run over and his leg was broken and other injuries were received by him.
The question is: Did the master of the truck, under these circumstances, owe the plaintiff the duty of ordinary care? It should be noted that defendant driver did not take the witness-stand nor did the manager or any other officer of the corporation deny knowledge of or assent to this practice on the part of said driver of engaging these young boys to assist him. The manager was simply asked whether the authority of the servant included power to hire assistants in his work. Presumably this question related to the authority of the servant to employ assistants for the company and did not relate to authority in the servant to solicit and procure assistance on his own account.
The contention of appellant is that if authority in the servant to engage the services of boys is conceded, plaintiff becomes an employee of the master and hence comes under the Workmen's Compensation Act; that if the servant had no authority to engage such services, then plaintiff was a mere volunteer to whom the master owed no duty except for injuries resulting from the servant's wilful act.
There is no evidence whatever upon which to conclude that plaintiff was an employee of the master. In attempting to board the truck of defendant corporation, plaintiff was there as one of three classes of persons: A trespasser, a licensee or an invitee. If there without the knowledge or consent of the master or servant, he was a trespasser. If there without the knowledge of the master but with the knowledge of the servant, who had no authority to invite *219 him, he was a mere licensee. [1] But if there with the consent of the master or with the consent of the servant having authority, express or implied, to grant the privilege, he was an invitee. As an invitee he was entitled to ordinary care at the hands of the servant and the omission in this particular would be binding upon the master if at the time of infliction of the injury the servant was engaged in accomplishing an object in the line of duties assigned to him by such master.
[2] Whether or not the consent of the master was present is a question of fact. The verdict for plaintiff includes such a finding by the jury if evidence may be found in the record to sustain it. Save this no other question is here in doubt.
Direct evidence of such consent is not required. It may be implied from custom, usage or conduct on the part of the master or servant. (Brown v. Feather River Lbr. Co.,
It may also be true that the nature and character of the work being done by the servant will contribute force to the conclusion that the master knew of and consented to the presence on his premises of a person procured by his servant to aid him in his work. In the case of Purtell v. Philadelphia etc. Coal etc.Co.,
In Atkins v. Lackawanna Transp. Co.,
In Illinois Cent. R.R. Co. v. Hopkins,
[3] Here we have neither a denial by the servant or the master of authority in the servant to engage upon his own account the services of plaintiff in the dispatch of the master's business. Neither do we have a denial by the master of knowledge of or consent to the custom practiced by the servant. Indeed, the custom was so open, notorious and continuous that the master could hardly have been ignorant of it. In fact, the character of the work was such as to make probable acts of this kind on the part of the servant. Viewing the evidence as a whole, coupled with the absence of pertinent evidence in the possession of defendants, we are of the clear view that it is sufficient to sustain the verdict.
In the case of Giannini v. Campodonico,
There is a second appeal in the case entitled "Winifred Dyer Sibley, Plaintiff and Respondent, vs. B.T. McCorkle *221 and Frank M. Helm, Inc., a corporation, doing business under the firm name and style of Jersey Farm Dairy Company, Defendants and Appellants," Appellate Court No. 6351, Civil, an action for hospital and medical bills incurred in treating the infant plaintiff for injuries received. That case is controlled by the ruling above and such is the stipulation of the parties.
On authority of the conclusion we have announced, the judgment in this cause too is affirmed.
Richards, J., Curtis, J., Waste, C.J., and Seawell, J., concurred.
Dissenting Opinion
I dissent. The opinion of the District Court of Appeal, First Appellate District, Division One, heretofore filed herein and written by Justice Parker, pro tem., clearly expresses my views of the legal situation presented by the record and I hereby adopt the following portion thereof as my dissenting opinion:
"The main point presented and urged by appellant goes to the liability of the Dairy Company, the admitted employer, and appellant urges its freedom from responsibility on the ground that the driver was acting wholly without the scope of his employment. Appellant contends that the boy either was an employee of the Dairy Company or he was not; that if he was an employee, his recourse was to the accident commission; that if he was not an employee, he was a mere volunteer. The theory of the trial in the lower court was that there was no employment and the plaintiff insists such to be the case. Appellant seems content, as far as its argument proceeds, to concur in this. However, the main question to be determined is as to the acts and conduct of the servant McCorkle and the scope of his employment and authority. There is no evidence in the record that the Dairy Company ever had any knowledge of the fact that the driver was permitting boys to ride in the truck or to assist in the deliveries. True, the infant plaintiff testified that one time the driver told him that he did not want `too many kids' on the truck, but as against the Dairy Company this one item of testimony cannot be considered as even the slightest evidence of knowledge or acquiescence on the part of the employer. It is manifest that throughout the *222
transaction the driver was acting within the scope of his employment in so far as the delivery of the milk might be regarded as the very purpose of such employment. It is further apparent from the record before us that in pursuit of the employment the servant had no authority, express or implied, to employ, invite or permit assistants to aid him in his work. Appellant has put forth many reasons why the judgment of the trial court should be set aside; respondent, on the other hand, urges as many reasons why it should be affirmed. It would serve no useful instructive purpose to set out in detail these various contentions and analyze each — distinguishing, approving or rejecting in turn. . . . From the facts of the case as hereinafter outlined we are of the opinion that the relationship of employer and employee did not arise or result as between the infant plaintiff and either McCorkle or the Dairy Company. That is to say, no such relationship arose or was implied to the extent that the matter of compensation would properly or at all come before the industrial accident commission pursuant to the Workmen's Compensation Act. As between plaintiff infant and the Dairy Company there was no appointment or contract or apprenticeship, express or implied, oral or written; nor was there any authority, express, implied or incident to the performance of his duties, that empowered the driver McCorkle to create, as between the infant and the Dairy Company the relation of master and servant or employer and employee. The term of service was on no schedule, nor was any wage provided therefor. No duty of service was accepted by the plaintiff or any obligation of wage payment fastened upon defendant Dairy Company. The case of Giannini v. Campodonico, supra, is illustrative of the law applicable. In that case the facts bear a striking resemblance to the case at bar. Plaintiff there was a boy of fourteen years of age and resided across the street from the stable owned by defendant, who employed a colored stableman to take care of the horses and wagons and keep the stable in order. On the morning of the accident the boy saw the stableman leaving in a buggy, and at that time the stableman requested the boy to clean the stable during his absence and promised him a nickel upon his return. A small door which was part of a large sliding door was left open for the boy. Subsequently the boy and two other boys entered *223
the stable, and while in the premises the large sliding door fell, breaking the leg of the boy who had been engaged by the stableman, and inflicting other injuries upon him. Upon several occasions theretofore the boy had performed errands for the stableman at the latter's request and received some sort of renumeration. The door which fell down had previously been out of order and the stableman had attempted to remedy the defect. The court holds as follows: `Disregarding the testimony advanced by defendant and looking only to the case presented by plaintiff, no ground for holding the defendant liable appears. It is well settled that as against a trespasser or mere licensee the owner of the property owes no duty to keep the property in safe condition. The only duty is to abstain from wanton or wilful injury. In other respects he who thus enters upon the premises does so at his own risk and subject to all the ordinary risks which attach to such premises. It is only in the case of one who has been expressly or impliedly invited upon the premises that the duty exists to exercise due care not to injure him or permit the premises to be in such condition that injury results. The first question is whether the request of the stableman in this case is such an invitation as to render the boy an invitee. The facts show that the duties of the stableman were of such a menial character that the position could not have carried with it the implied right to delegate the work or hire others to assist in the same. In fact, the duties were such that the stableman could very easily perform them without aid. It must, therefore, be held that the request to do the work was unauthorized and could not impose any additional liability upon the defendant. The stableman's promise to pay the boy to clean the stable could not make the latter an invitee. Neither can paid services raise such a relation, especially where it is not pretended that they were brought home in any way to the defendant. The fact that respondent is a minor does not give him any greater rights under the circumstances. "That might excuse him from concurring negligence, but cannot supply the place of negligence on the part of defendant or confer an authority on one who has none. It may excite our sympathy but cannot create rights or duties which have no other foundation."' This ends *224
quotation from Giannini v. Campodonico,
"In the case of Curry v. Addoms,
"We are of the opinion that by no specious reasoning should the doctrine be extended. By giving such loose or careless construction to the terms `willful' and `wanton' as is sought here would be to destroy entirely any distinction between the various degrees of negligence. To sustain the contention of respondent here would be to hold affirmatively that wanton and willful misconduct means lack of ordinary care and would be in direct defiance of authority and destruction of principle. The court below, under the facts should have granted the defendant's motion for a nonsuit." *228