Brayman v. Russell & Pugh Lumber Co.

• Decision Date: 27 December 1917
• Citation: 31 Idaho 140,169 P. 932
• Parties: HENRY BRAYMAN, Respondent, v. RUSSELL & PUGH LUMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

169 P. 932

31 Idaho 140

HENRY BRAYMAN, Respondent, v. RUSSELL & PUGH LUMBER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

December 27, 1917

MASTER AND SERVANT-SCOPE OF EMPLOYMENT-SAFE PLACE TO WORK-FELLOW-SERVANT - INSTRUCTIONS - PHYSICIANS AND SURGEONS-PRIVILEGED COMMUNICATIONS-EXCESSIVE DAMAGES.

1. The scope of an employee's duties is to be defined by what he was employed to perform and by what, with the knowledge and approval of his employer, he actually did perform.

2. The employer must use ordinary care and diligence in providing the employee with a reasonably safe place to work; he is not the insurer of the safety of such place.

3. All the instructions given in a case must be read and considered together, and where, taken as a whole, they correctly state the law and are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole charge and was not misled by an isolated portion thereof.

4. Those are fellow-servants who are co-operating, at the time of an injury, in the particular business in hand, or whose usual duties are of a nature to bring them into habitual association or into such relations that they can exercise an influence upon each other promotive of proper caution.

5. Under the statute forbidding a physician to be examined as to any information acquired in attending his patient, the acquisition of which is necessary in order to enable the former to prescribe or act for the latter, all statements made to a physician by his patient while the former is attending the latter in that capacity, for the purpose of determining his condition, are privileged, al- though they have nothing to do with the patient's treatment, or the determination of his injuries.

6. It is immaterial in the application of such statute that the physician was not hired by the patient, but was hired by the patient's employer.

7. The patient does not waive the privilege provided by such statute, by testifying that in caring for his injuries he followed the physician's advice.

[As to confidential and privileged communication between physician and patient, see note in 33 Am.Rep. 435]

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment and order affirmed. Costs awarded to respondent.

C. H Potts, for Appellant.

It is a settled rule of law in this state that the legal measure of the master's duty or liability is the exercise of ordinary care, having regard to the hazards of the service to provide the servant with reasonably safe working places machinery and appliances, and the exercise of ordinary care to maintain them in a reasonably safe condition of repair. ( Wiesner v. Bonners Ferry L. Co., 29 Idaho 526, 160 P. 647, L. R. A. 1917C, 328; Armour & Co. v. Russell, 144 F. 614, 75 C. C. A. 416, 6 L. R. A., N. S., 602.)

It is prejudicial error to instruct the jury that it is the duty of the master to furnish the servant a reasonably safe place to work, or that it is his duty to keep such place in a reasonably safe condition, as the full measure of his duty is to exercise reasonable or ordinary care to furnish a reasonably safe place to work. (F. C. Austin Mfg. Co. v. Johnson, 89 F. 677, 32 C. C. A. 309; Chicago etc. R. Co. v. Merckes, 36 Ill.App. 195; Peoria etc. Ry. Co. v. Hardwick, 48 Ill.App. 562; Chicago etc. R. Co. v. Garner, 78 Ill.App. 281; Conway v. Illinois etc. R. Co., 50 Iowa 465; Louisville & N. R. Co. v. Mounce's Admr., 24 Ky. Law, 1378, 71 S.W. 518; Anderson v. Michigan Cent. R. Co., 107 Mich. 591, 65 N.W. 585; Hughley v. Wabasha, 69 Minn. 245, 72 N.W. 78; Chicago etc. R. Co. v. Oyster, 58 Neb. 1, 78 N.W. 359; Lincoln Street Ry. Co. v. Cox, 48 Neb. 807, 67 N.W. 740; International etc. R. Co. v. Bell, 75 Tex. 50, 12 S.W. 321; Texas & P. Ry. Co. v. McCoy, 90 Tex. 264, 38 S.W. 36; Gulf C. & S. F. Ry. Co. v. Beall (Tex. Civ.), 43 S.W. 605.)

Any instruction which tends to mislead the jury is reversible error. (Southwestern Tel. & Tel. Co. v. Newman (Tex. Civ.), 34 S.W. 661; Warner v. Beebe, 47 Mich. 435, 11 N.W. 258; Funk v. St. Paul City Ry. Co., 61 Minn. 435, 52 Am. St. 608, 63 N.W. 1099, 29 L. R. A. 208; Welter v. Leistikow, 9 N.D. 283, 83 N.W. 9; Dorr v. Camden, 55 W.Va. 226, 46 S.E. 1014, 65 L. R. A. 348.)

Defendant having provided that the warning should be given, had fully complied with the obligations placed upon it by law. ( Wiesner v. Bonners Ferry Lbr. Co., supra.)

"All of those engaged in the master's service in effecting a common purpose are to be deemed fellow-servants, notwithstanding the fact that the work is done in successive stages, different parts thereof being devolved upon different persons, and the labor performed by one set of employees being prior to that performed by another set." ( Citrone v. O'Rourke Engineering Const. Co., 188 N.Y. 339, 80 N.E. 1092, 19 L. R. A., N. S., 340-342; 4 Wigmore on Evidence, sec. 2389; Woods v. Lisbon, 150 Iowa 433, 130 N.W. 372; Reed v. Rex Fuel Co., 160 Iowa 510, 141 N.W. 1056; Epstein v. Pennsylvania R. Co., 250 Mo. 1, Ann. Cas. 1915A, 423, 156 S.W. 699, 48 L. R. A., N. S., 394; Holloway v. Kansas City, 184 Mo. 19, 82 S.W. 89.)

Ezra R. Whitla, for Respondent.

To constitute workmen fellow-servants they must be engaged in the same common work under the same employment, for the reason that the rule of "fellow-servant" is based upon the idea that by the association of the men each with the other in a common line of work they will exercise a mutual caution for each other's welfare. (Relyea v. Kansas City etc. R. Co., 112 Mo. 86, 20 S.W. 480, 18 L. R. A. 817; Merritt v. Victoria Lbr. Co., 111 La. 159, 35 So. 497; Nocita v. Omaha & C. B. St. R. Co., 89 Neb. 209, 131 N.W. 214; Edward Hines Lbr. Co. v. Ligas, 172 Ill. 315, 64 Am. St. 38, 50 N.E. 225; Christy v. Tremont Lumber Co., 129 La. 175, 55 So. 754; John Spry Lbr. Co. v. Duggan, 182 Ill. 218, 54 N.E. 1002; Frost Mfg. Co. v. Smith, 98 Ill.App. 308; Louisville & N. R. Co. v. Edmund's Admr., 23 Ky. Law, 1049, 64 S.W. 727; Koerner v. St. Louis Car Co., 209 Mo. 141, 17 L. R. A., N. S., 292, 107 S.W. 481; Hendricks v. Lesure Lumber Co., 92 Minn. 318, 99 N.W. 1125, 100 N.W. 638; Allard v. Northwestern Contract Co., 64 Wash. 14, 116 P. 457; Illinois Steel Co. v. Zemkowski, 220 Ill. 324, 77 N.E. 190, 4 L. R. A., N. S., 1161.)

"Fallers in logging camps are not fellow-servants of the members of a crew engaged in hauling logs from the woods, where they are left by the fallers." (Cunningham v. Adna Mill Co., 71 Wash. 111, 127 P. 850.)

The position the servant is in when the accident occurred or the employment in which he is working must be the proximate cause of the injury, and must be outside of the scope of his employment to relieve the employer of liability. (Terre Haute & I. R. Co. v. Mansberger, 65 F. 196, 12 C. C. A. 574; Phillips v. Chicago, M. & St. P. Ry. Co., 64 Wis. 475, 25 N.W. 544.)

It was the duty of the master to use reasonable care and diligence to furnish a safe place for the employee to perform his service in. (City of Minneapolis v. Lundin, 58 F. 525, 7 C. C. A. 344; Wiesner v. Bonners Ferry Lumber Co., 29 Idaho 526, 160 P. 647, L. R. A. 1917C, 328; Potlatch Lumber Co. v. Anderson, 199 F. 742, 118 C. C. A. 180.)

It is the duty of the master to furnish the servant with a reasonably safe place in which to work, and in default he is guilty of negligence. (Knauf v. Dover Lumber Co., 20 Idaho 773, 120 P. 157; Crawford v. Bonners Ferry Lumber Co., 12 Idaho 678, 10 Ann. Cas. 1, 87 P. 998; Craesafulli v. Winston Bros. Co., 18 Idaho 158, 108 P. 740; Crawford v. Bonners Ferry Lumber Co., 12 Idaho 678, 10 Ann. Cas. 1, 87 P. 998; Baltimore & O. R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772.)

The failure so to do is not assumed by the servant. (Yost v. Atlas Portland Cement Co., 191 Mo.App. 422, 177 S.W. 690; Patrum v. St. Louis etc. R. R. Co., 259 Mo. 109, 168 S.W. 622; Norris v. Holt-Morgan Mills, 154 N.C. 474, 70 S.E. 912, 2 N.C. C. A. 708; Southern Turpentine Co. v. Douglass, 61 Fla. 424, 54 So. 385.)

"When the master orders the servant to perform his work, the latter has a right to assume that the former, with his superior knowledge of the facts, would not expose him to unnecessary perils." (Hardy v. Chicago, R. I. & P. R. Co., 149 Iowa 41, 127 N.W. 1093; McMahon v. Idaho Mining Co., 95 Wis. 308, 60 Am. St. 117, 70 N.W. 478.)

The master is liable where he directs the employee into some work or to go into some place of danger without giving him warning thereof. (Oolitic Stone Co. v. Ridge, 174 Ind. 558, 91 N.E. 944; Industrial Lumber Co. v. Bivens, 47 Tex. Civ. 396, 105 S.W. 831; Missouri P. Ry. Co. v. Peregoy, 36 Kan. 424, 14 P. 7.)

This court has held from the earliest time that it is the duty of the master to furnish the servant a reasonably safe place in which to work. (Harvey v. Alturas Gold Mining Co., 3 Idaho 510, 31 P. 819; Barrow v. B. R. Lewis Lumber Co., 14 Idaho 698, 95 P. 682; Maw v. Coast Lumber Co., 19 Idaho 396, 114 P. 9; Tucker v. Palmberg, 28 Idaho 693, 155 P. 981; Cnkovch v. Success Mining Co., 30 Idaho 623, 166 P. 567. See, also, Bunker Hill etc. Com. Co. v. Jones, 130 F. 813, 65 C. C. A. 363; Chicago & A. R. Co. v. Scanlan, 170 Ill. 106, 48 N.E. 826; Knott v. Dubuque & S.C. Ry. Co., 84 Iowa 462, 51 N.W. 57; Nugent v. Cudahy Packing Co., 126 Iowa 517, 102 N.W. 442; Higgins v. Williams, 114 Cal. 176, 45 P. 1041; Grant v. Varney, 21 Colo. 329, 40 P. 771; Cudahy Packing Co. v. Sedlack, 69 Kan. 472, 77 P. 102; Gustafson v. Seattle Traction Co., 28 Wash. 227, 68 P. 721; Mueller v. Northwestern Iron Co., 125 Wis. 326, 104 N.W. 67.)

Where the instructions all read...