Aga v. Harbach

• Decision Date: 17 March 1905
• Citation: 102 N.W. 833,127 Iowa 144
• Parties: AGA v. HARBACH.
• Court: Iowa Supreme Court

127 Iowa 144

102 N.W. 833

AGA

v.HARBACH.

Supreme Court of Iowa.

March 17, 1905.

Appeal from District Court, Polk County; C. P. Holmes, Judge.

Action at law to recover damages for personal injury. At the close of the evidence, the court directed a verdict for the defendant, and plaintiff appeals. Reversed.

See 93 N. W. 601.Healy Bros. and Kelleher, Carr, Hewitt, Parker & Wright, for appellant.

Ryan, Ryan & Ryan, for appellee.

WEAVER, J.

The defendant is a manufacturer of furniture in the city of Des Moines, Iowa. One of the shops in which this business is carried on is several stories in height, and in the basement of the building is a boiler and engine, which supply the power for operating the machinery upon the several floors above. The evidence shows without dispute that on December 11, 1899, the plaintiff, who is an engineer, was in actual charge of the engine and engine room, and that while so engaged he attempted to adjust an incandescent electric lamp by which the room was lighted, and, on taking hold of the lamp socket for that purpose, received an electric shock, resulting in his serious injury. There was also sufficient evidence to justify the finding that the lamp, or the wiring with which it was connected, was and had been for a considerable period of time in a defective and unsafe condition, that defendant was chargeable with negligence in respect thereto, and that plaintiff was exercising reasonable care at the time of the accident. Plaintiff's claim for damages is based on the theory that at the time of the injury he was in the defendant's service, and the defendant owed him the duty of providing a safe place for work. At the close of the testimony on plaintiff's behalf, the court directed a verdict in favor of the defendant on the sole ground that the evidence was insufficient to show the relation of master and servant between the parties, and that defendant was therefore under no obligation to exercise care for the plaintiff's safety. This is the controlling question presented by the appeal. It is the defendant's theory that plaintiff was never employed in his service, and that at the time of the accident he was operating the engine and caring for the engine room as a mere volunteer, without defendant's knowledge or authority. It is not denied that one Boehler was the engineer regularly employed to have charge of the engine. It further appears that Boehler, being sick, invited or requested plaintiff to take his place for a few days, until he should be able to resume the work, and that plaintiff was thus engaged at the time of his injury. This statement at once suggests an inquiry into the nature and extent of Boehler's authority in the premises.

It may be conceded that, generally speaking, a servant who is engaged to perform a given labor is not authorized to bind his master by the employment of a substitute or assistant. The relation of the master to a servant is one involving both responsibility and risk, and is not to be imposed by the act of another without authority or consent, express or implied. But in most lines of business the master cannot always remain, in person or by vice principal, in immediate supervision of the servant; and it not infrequently happens that some unforeseen contingency arises, rendering it necessary, in the master's interest, that the servant have temporary assistance. In many such cases it has been held that the servant has implied authority to engage such temporary service and that the substitute or assistant, if not in the law the employé of the master, is at least entitled to the same measure of protection as is the servant or agent upon whose request he rendered the assistance. Johnson v. Ashland W. Co., 71 Wis. 553, 37 N. W. 823, 5 Am. St. Rep. 243;R. Co. v. Scott, 71 Tex. 703, 10 S. W. 298, 10 Am. St. Rep. 804;Goff v. R. Co., 28 Ill. App. 529;Sloan v. R. Co., 62 Iowa, 728, 16 N. W. 331;Barstow v. R. R., 143 Mass. 535, 10 N. E. 255;Marks v. R. R., 146 N. Y. 190, 40 N. E. 782; Cleveland v. Spicer, 16 C. B. (N. S.) 399. It is also held that the substitute or helper employed and paid by the servant with the knowledge or acquiescence of the master is not a trespasser or mere volunteer, and, while engaged in the work of the master, the latter is bound to exercise reasonable care for his safety. Rummell v. Dilworth, 111 Pa. 343, 2 Atl. 355, 363;Anderson v. Guineau, 9 Wash. 304, 37 Pac. 449. While the master owes no duty to the intermeddler who officiously interferes and undertakes to perform services without request or employment, and while some courts are inclined to put in the same category those who perform services at the request or order of a servant having no general authority to employ or discharge assistants, the general consensus of opinion seems to be that one who in good faith enters upon the master's work at the request of a servant in apparent charge of such work is not a trespasser, but assumes for the time being the relation of a servant. As such servant, he occupies the same relation, and becomes subject to the same rules, including the operationof the fellow-servant rule, as do those who are directly employed by the master, even though he may not be entitled to recover wages. See cases already cited; also Mayton v. R. R., 63 Tex. 77, 51 Am. Rep. 637;Eason v. R. R., 65 Tex. 577, 57 Am. Rep. 606;Osborne v. R. R., 68 Me. 49, 28 Am. Rep. 16. Stated from another standpoint, the master has quite often been held liable to third persons for injuries occasioned by the negligence of persons performing his work at the request or employment of a servant to whom such work was intrusted. Booth v. Wister, 7 Carr. & P. 66; Haluptzok v. R. R., 55 Minn. 446, 57 N. W. 144, 26 L. R. A. 739;Althorf v. Wolfe, 22 N. Y. 355. If there be any doubt as to the soundness of the doctrine laid down in any of the cited cases, it wholly disappears when the acquiescence or consent of the master in the act of his servant may be inferred from proved circumstances. If, for instance, the servant has been in the habit of exercising such authority from time to time without objection from the master, or has made use of an assistant or substitute so frequently or for such a period that the fact may fairly be presumed to have come to the knowledge of those in authority over him, and such practice has not been forbidden, then such acts on the part of the servant may properly be held to have been ratified, and ratification is equivalent to original authority. Directly in point, see Haluptzok v. R. R., supra; R. R. Co. v. Scott, supra; Bradley v. R. R., 62 N. Y. 99. In very many of the cases arising for judicial consideration the authority of the agent or servant in a given case arises less from the use of express language or the giving of express directions than from the general conduct of the parties in relation to the business. 1 Am. & Eng. Ency. L. (2d Ed.) 959. Such authority may be implied from a single transaction. Story's Agency (7th Ed.) 959. But such inference is more readily and more surely drawn from a series of acts or a course of conduct. By ratification of past acts, others of a similar nature may be binding upon the principal or master, on the ground of implied authority. Story on Agency (7th Ed.) § 55. In the Haluptzok Case the court says: “Such authority may be implied from the nature of the work to be performed, and also from the general course of conducting the business of the master by the servant for so long a time that knowledge and consent of the master may be inferred. It is not necessary that a formal or express employment in behalf of the master should exist, or that...