Booth & Flynn v. Price

• Court: Arkansas Supreme Court
• Writing for the Court: HART, C. J.
• Citation: Booth & Flynn v. Price, 39 S.W.2d 717, 183 Ark. 975 (Ark. 1931)
• Decision Date: 15 June 1931
• Docket Number: 32
• Parties: BOOTH & FLYNN v. PRICE

39 S.W.2d 717

183 Ark. 975

BOOTH & FLYNN v. PRICE

No. 32

Supreme Court of Arkansas

June 15, 1931

Appeal from Pope Circuit Court; J. T. Bullock, Judge; affirmed.

STATEMENT OF FACTS.

Appellee sued appellants for personal injuries received by him in helping it to put out a fire on a ditch digging machine owned by it to which was attached a gasoline tank. The suit was defended on the ground that appellee was a mere volunteer to whom appellants owed no duty except to wilfully refrain from injuring him after his perilous condition was discovered. Appellants also pleaded that appellee was guilty of contributory negligence and had assumed the risk.

The record shows that appellants were engaged in laying a gas pipe line from Clarksville, to Little Rock, Arkansas, which extended through Pope County, Arkansas. Its work required it to dig a ditch to lay the main in, and for that purpose appellant was using a large machine which ran along like a caterpillar tractor and dug the ditch. It had a large gasoline tank attached to it which furnished the motive power.

John L Price was hired by appellants as night watchman. His duties were to oil the parts of the machine which could not be oiled while it was being operated in the daytime. It was also his duty to stay near the machine during the night and watch it and the equipment around it.

In the early part of November, 1928, the watchman went to his duties in an automobile. He noticed that the machinery, which had been operated that day, had a leak in the gas line which ran from the main tank to the carburetor, and that gasoline was leaking out on the platform of the machine on the right-hand side. It was not the duty of the night watchman to repair the machine, and he had no tools whatever for that purpose. He had been given a coal oil lantern and had been instructed to light it when he went on duty every night and to set it lighted on the platform during the time he was on watch. On the night in question, he lighted the lantern and placed it on the platform where he had been instructed to keep it. He then went over and sat down in his automobile with his shoes off and ate a lunch. All of a sudden he noticed a big blaze around the machine and saw that it was on fire. He looked around and saw the light of an automobile on the public road about one hundred yards away and ran down to the road and hollowed to the occupants of the automobile to come and help him to put out the fire. The occupants of the automobile were W. L. Price, a cousin of the watchman, and Russell Perkins. They turned their automobile out of the road and jumped out of it for the purpose of helping the watchman to put out the fire. Perkins and J. L. Price first stopped and pushed the latter's automobile out of the way. W. L. Price grabbed a quilt which was in the automobile and ran on to the fire and commenced trying to put it out. The fire was burning steadily and had commenced to spew out of the feed line from the tank to the carburetor, and appellee got sprinkled with the escaping gasoline. He then wrapped the quilt around his arm and ran in through the flames and turned the stop cock which shut off the gasoline. His clothes caught on fire where he had been sprinkled by the gasoline, and he was very severely burned. After J. L. Price and Perkins rolled the automobile out of the way, each of them grabbed a quilt and ran to help W. L. Price beat out the fire. The gas line feed from the main tank to the carburetor, which was about a quarter of an inch in diameter, got so hot that it was melted loose from the main tank. This caused the escaping gas to boil and spray out through the hole. It was then that W. L. Price wrapped the quilt around his arm to protect it and went to the machine and checked the flow of gasoline by turning off the stopcock near the main tank, and in this way the flames set fire to his clothing and burned him severely before he and the others could get his clothes off of him. Other facts will be stated in the opinion.

The jury returned a verdict in favor of appellee for damages in the sum of $ 2,999; and from the judgment rendered, this appeal has been prosecuted.

Judgment affirmed.

John G Rye and W. P. Strait, for appellant.

Robert Bailey and Hays & Smallwood, for appellee.

OPINION

HART, C. J., (after stating the facts).

The principal assignment of error is that the court erred in not instructing a verdict in favor of appellants. In determining the rights of the parties to this lawsuit, the court must consider the relation in which they stood. On the part of appellants, it is insisted that the court should have told the jury, as a matter of law, that the relations of master and servant did not exist between appellant and appellee, and that appellee was a mere volunteer in helping the watchman of appellant put out the fire. Consequently, it is said that appellants owed him no duty in the premises except to refrain from injuring him after his perilous condition was discovered. They invoke the general rule that a person who is not authorized to perform as a servant the work, in doing which he was injured, cannot recover damages of the master, because the master, not having authorized him to act, owes him no duty. There is an exception to this rule, where the injured person is an "emergency servant," acting at the request of an employee who has, under such circumstances, authority to request his services, although ordinarily he is not invested with such power. Central Kentucky Traction Co. v. Miller, 147 Ky. 110, 143 S.W. 750, 40 L. R. A. (N. S.) 1184; Hollenback v. Stone & Webster Engineering Corporation, (Mont.) 129 P. 1058; Labatt on Master and Servant, vol. 4, § 1563; and 39 C. J. 554. The latter authority says that it has been held in the case of an "emergency servant" that the liability of the master for an injury to him is governed by the ordinary rules as to the liability of the master for an injury to a servant.

As stated in Marks v. Rochester Railroad Co. (Court of Appeals of New York) 40 N.E. 782, "In every business and employment there are exigencies which are not anticipated, and which require a servant to act, in the absence of the principal, for the immediate protection of his interest; and he may do things in his interest, when the emergency arises, which transcends his usual authority, and they will be deemed to have been authorized."

This court has recognized that where an emergency exists requiring immediate action to protect the master's interest, the servant has an implied authority to employ help, and the person so employed becomes the servant of the master and entitled to protection as such. See case note to Ann. Cas. 1913C, at 793. In St. Louis, Iron Mountain & Southern Railway Company v. Jones, 96 Ark. 558, 132 S.W. 636, recovery was refused a brakeman employed by the conductor of a freight train, the brakeman having been injured while assisting in loading and unloading freight. In Yazoo & Mississippi Valley Rd. Co. v. Kern, 99 Ark. 584, 138 S.W. 988, which was an action for damages for the death of a switchman employed by a yardmaster, the trainmaster alone having authority to employ a train crew, a recovery was likewise denied. Again, in Henry Quellmalz Lumber & Manufacturing Co. v. Hays, 173 Ark. 43, 291 S.W. 982, it was held that, if an unforeseen emergency arises rendering it necessary in the employer's interest that his employee have temporary assistance, the law implies authority to procure such necessary help, and an assistant so procured is entitled to the same protection as any other employee. In that case recovery was denied because the undisputed evidence showed that there was no sudden or unexpected emergency...