Beale v. Clayborn

• Decision Date: 28 February 1929
• Docket Number: 27727
• Citation: 152 Miss. 681,120 So. 812
• Parties: BEALE & STRAYHORN v. CLAYBORN. [*]
• Court: Mississippi Supreme Court

120 So. 812

152 Miss. 681

BEALE & STRAYHORN v. CLAYBORN. ^[*]

No. 27727

Supreme Court of Mississippi

February 28, 1929

Division A

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE Judge.

Action by Abraham Clayborn against Beale & Strayhorn and others. From a judgment for plaintiff against defendant named defendant named appeals. Reversed and rendered.

Judgment reversed.

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 Texas 540, 15 S.E. 91; Mayton v. Pacific Ry. Co., 63 Texas 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 letter'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 lability 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...