57 Ark. 615 | Ark. | 1893
1. The exception reserved to the refusal of the court to give to the jury the first instruction requested by the defendants, and the exception taken to the rejection of their fourth prayer, raise in effect the same question; and the point made upon both of these exceptions is that if the attendant, John Martin, acted under the plaintiff’s direction or control while administering the baths, he was the servant of the plaintiff, and the defendants are not therefore liable for his alleged negligence. But we think the conclusion thus insisted upon is not, in a legal sense, deducible front the facts stated in the two instructions referred to, when those facts are considered in the light of all the other circumstances of the case.
Martin was one of several persons connected with the defendants’ bath-house in the capacity of attendants upon persons who desired their assistance in taking baths. These attendants were selected by the manager of the bath house, and during' the period of their service enjoyed the exclusive privilege of administering baths and of receiving the fees allowed therefor. In consideration of this privilege, they not only attended at the bathhouse for the purpose of performing their duties in assisting bathers, but kept the bath rooms clean and made the halls between the rooms comfortable by keeping them properly heated. It resulted, from the nature of their employment and from the supervision essential to the usefulness of the bath-house, that the attendants should be subject to the general control of the manager and to dismissal by him for any sufficient cause'. The manager had power to assigm either of them to the service of any visitor who had not selected an attendant for himself, and they could earn no fees otherwise than by using the rooms and other bathing appliances' belonging to the defendants. Their labors were all in furtherance of the business enterprise in which the defendants were engaged ; and it was entirely inconsistent with the interests of the latter, and with the duty they owed to the public as lessees and proprietors of the bath-house, that attendants upon bathers should be allowed to pursue their calling as independent contractors or as persons conducting a business not subordinate to the business of the defendants. This being so, we think the position of the attendants was such that the law, in affording a remedy to third persons for their negligence, will regard them as the servants of the defendants, whether they served under an actual contract with the defendants or not. Cooley on Torts, 623; Wood’s Master and Servant, sec. 304.
But we think they acted under a contract with the defendants ; and it is not speaking accurately to say that the administration of baths was the only service they rendered for the fees they received. The fees were paid to them by permission of the defendants, and were accepted as compensating them for all their labors at the bath-house, including their services in keeping the rooms and halls in a cleanly and comfortable condition. That they received no compensation except as it came to them in fees paid by the bathers they were selected or assigned to wait upon, and that bathers had the privilege of selecting their own attendants and paying the fees directly to them, are facts which go to show that the amount of the fees to be paid each attendant was uncertain and contingent; but such facts are entirely consistent with the proposition that the right to earn any fees at all grew out of a contract with the defendants. Martin’s position, then, was similar to that of a servant at'a hotel, to which reference is made by way of illustration in the case of Laugher v. Pointer, 5 Barnewall & Cresswell, 579. In that case it was held that where the owner of a carriage hired a pair of horses of a stable keeper to draw it, and the stable keeper provided a driver, the owner of the carriage was not liable for an injury to a third person caused by the driver’s negligence. “This coachman,” said the court, “was not hired to the defendant; he had no power to dismiss him. He paid him no wages. The man was only to drive the horses of the jobman. It is true the master paid him no wages, and the whole which he got was from the person who hired the horses, but that-was only a gratuity. It is the case with servants at inns and hotels. Where there is a great deal of business they frequently receive nó* wages from the owner of the inn or hotel, and trust entirely to what they receive from the persons who resort to the inn or hotel, and yet they are not the less the servants of the inn-keeper.” See also Quarman v. Burnett, 6 Meeson & Welsby,* 499. This ruling, it will be noticed, does not make the payment or promise of wages a test of the existence of the relation of master and servant; nor do any of the authorities make the payment or expectation of compensation essential to the creation of that relation as to third persons. “The real test” as to such persons, says Mr. Wood, “is whether the act (causing an injury) is done by one for another * * * with the knowledge of the person sought to be charged as master, or with his assent, express or implied.” Wood’s Master & Servant, secs. 7, 304, 306; Mound City Paint & Color Co. v. Conlon, 92 Mo. 221; Kimball v. Cushman, 103 Mass. 194; Heygood v. State, 59 Ala. 51.
There are many cases, of such familiar occurrence that it is needless to mention them, in which the duty of a servant to his master can only be performed by acts done according to the* direction of a third person whose convenience, taste, or physical condition determines the time and manner of doing' them. If Martin had served for daily wages paid directly by the defendants, it would still have been his duty to them to administer baths to the plaintiff according to the directions of the latter, who was guided in his wishes by the advice of his physician. And in such case the plaintiff would not have had less power to discharge Martin as an attendant at the bath house or to reg'ulate his general conduct there than he had in the present case. In either case he could' for good cause have refused the attendance of Martin, but he could not without the consent of the defendants have engaged the services of one whom they had not authorized to act as a regular attendant. Such being our view of the relation established between the parties by facts not in dispute, we think the court did not err in refusing to give the defendants’ first and fourth instructions.
2. The defendants’ third request to charg'e was in substance that although Martin was their servant, if the plaintiff gave him permission to leave him after his legs were placed in the vapor bath, and in consequence thereof he received the injury of which he complains, he is not entitled to recover. The court added to this a clause to the effect that in the case stated by the instruction the defendants would not be liable unless Martin was guilty of negligence in failing' to respond promptly to the plaintiff’s call for assistance. The modification was proper for the reason that there was testimony tending to show that the plaintiff consented to Martin’s absence on conditicm that he -would return promptly on being called and that his failure to do so caused or aggravated the injury.
3. But the court’s third, fourth and fifth instructions were not applicable to the only facts c r , J ° a cause of action which the evidence tended to prove. The plaintiff’s leg was injured either in the vapor box or in a bath tub in which he placed it after he left the vapor bath. If the injury was received in the tub, 'there is no contention that it was due to the negligence of Martin or any other attendant. If it was received at the vapor box through the want of proper attendance, or because the defendants were guilty of negligence in the construction of the box, or in failing to see that it was in a safe condition at the time the plaintiff used it, they were liable for the injury. The injury was peculiar in its effect upon the leg, and although the plaintiff testified that it was a burn and was received in the vapor box, he was unable to state the immediate cause of it. Whatever may have been the cause, the evidence did not warrant a finding that there was any neglect in fixing the temperature of the vapor bath, for it shows that the temperature of that bath could not be controlled by the attendants, and was uniform except as it was affected by the weather. The third, fourth and fifth instructions were therefore abstract and misleading, for each of them applies only to a case of neglect in preparing a bath the temperature of which was made too hig'h. For this error in the court’s charge, the judgment must be reversed, and the cause remanded for a new trial.