Carey v. Davis

• Decision Date: 12 January 1921
• Docket Number: 32492
• Citation: 180 N.W. 889,190 Iowa 720
• Parties: ED CAREY, Appellant, v. FRANK R. DAVIS et al., Appellees
• Court: Iowa Supreme Court

180 N.W. 889

190 Iowa 720

ED CAREY, Appellant, v. FRANK R. DAVIS et al., Appellees

No. 32492

Supreme Court of Iowa, Des Moines

January 12, 1921

Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.

ACTION at law, to recover damages. Demurrer to petition having been sustained, the plaintiff elected to stand on his pleading without amendment, and judgment was entered thereon in defendants' favor for costs. Plaintiff appeals.--Reversed.

Reversed and remanded.

H. S Thomas, for appellant.

Miller & Wallingford, for appellees.

OPINION

PER CURIAM.--

Reduced to brief terms, the petition alleges that plaintiff was in the employment of defendants as a farm laborer, and that while so at work for and under the direction of defendants, on April 20, 1916, in the excavation of a gravel pit, he became overheated, and fell in a faint or fit of unconsciousness, and, having partially recovered therefrom and resuming work, he again suffered an attack of that nature, and while he was in that condition, the defendants caused him to be removed, and laid in a wagon box at or near the place where he had been at work, and left there in an even more exposed condition, unattended and without care or protection, for a period of four hours or more, until plaintiff had recovered sufficiently to make his own way home, with great difficulty.

He charges defendants with negligence in failing to give him reasonable care in his sick and helpless condition, and in aggravating his suffering by placing him in the wagon box, exposed to the rays of the sun and to the effect of weather conditions, whereby he became sick, confined to his bed, and has been wholly incapacitated for labor, and has suffered and still suffers pain and distress,--for all of which he asks to recover damages.

To this pleading the defendants demurred, on the ground that no facts are alleged showing actionable negligence on defendants' part, or any duty on their part to furnish the plaintiff the help or relief which he says he needed.

It is further said, in support of the demurrer, that plaintiff's claim is, in effect, an allegation that he suffered a sunstroke at the time and place in question, and that the court will take judicial notice that sunstroke on April 20, 1916, in Polk County, Iowa, is impossible.

The court sustained the demurrer generally; and, plaintiff electing to stand on his pleading without further amendment, judgment was entered in defendants' favor for costs; and plaintiff appeals.

I. Referring first to the final ground of demurrer, the assumed impossibility of sunstroke in this latitude as early as April 20th, it is quite without merit. In the first place, the petition does not allege that plaintiff suffered sunstroke. It is true, it does repeat, in varying terms, that he was overcome by heat, but it does not attempt to state the nature of the ailment so produced. The court has no knowledge or notice, judicial or otherwise, as to what degree of solar heat is necessary to produce sunstroke, nor is it able to name the day or date when the open season for its depredations begins; and surely counsel will hardly contend that, in passing upon a demurrer, the court is authorized to admit the testimony of experts on these matters.

II. The other question calls for more serious consideration. There is no allegation or claim that the faintness or prostration of the plaintiff was caused or in any manner produced by the neglect or misconduct of the defendants. So far as the pleading goes, the cause of his ailment is entirely unknown, a misfortune for which damages are recoverable from no one. If there by any failure of legal duty alleged, it is in the charge that, plaintiff being stricken down and rendered helpless while in the defendants' service, and upon their premises and in their presence, it became their duty to render him the needed aid and relief. Did such legal duty arise, under the alleged circumstances? It is unquestionably the well-settled general rule that, in the absence of any agreement or contract therefor, the master is under no legal duty to care for a sick or injured servant for whose illness or injury he is not at fault. Though not unjust in principle, this rule, if carried unflinchingly and without exception to its logical extreme, is sometimes productive of shocking results. To avoid this criticism, there is a tendency of the courts to hold that where, in the course of his employment, a servant suffers serious injury, or is suddenly stricken down in a manner indicating the immediate and emergent need of aid to save him from death or serious harm, the master, if present, is in duty bound to take such reasonable measures or make such reasonable effort as may be practicable to relieve him, even though such master be not chargeable with fault in bringing about the emergency. Says Judge Cooley:

"We shall not stop to prove that there is a strong moral obligation resting upon anyone engaged in a dangerous business, to do what may be immediately necessary to save life or prevent an injury becoming irreparable, when an accident happens to a person in his employ. We shall assume this to be too obvious to require argument." Marquette & O. R. Co. v. Taft, 28 Mich. 289.

In explaining a similar holding, the Indiana court states the limitations of this rule as follows:

"We did not decide that a corporation was responsible generally for medical or surgical attention to a sick or wounded servant; on the contrary, we were careful to limit our decision to surgical services rendered upon an urgent exigency, where immediate attention was demanded, to save life or prevent great injury. We held that the liability arose with the emergency, and with it expired." Terre Haute & I. R. Co. v. McMurray, 98 Ind. 358.

The case of Depue v. Flatau, 100 Minn. 299 (111 N.W. 1) though dissimilar in its facts, is related in principle to the one we have before us. There, the plaintiff called at the home of the defendant on a business errand, and accepted an invitation to dinner. As evening came on, he was suddenly taken sick, and requested the privilege of remaining over night; but this was refused. Defendant thereupon helped the plaintiff into his cutter, and started him in the direction of his home. Plaintiff had ridden but a short distance when he fell from his vehicle into the snow, where he lay all night, before he was rescued in a badly frozen condition. Having brought suit for damages, it was contended for defense that defendant was under no duty to entertain or keep the plaintiff in his own home, and that the obligation he was under, if any, was moral only, and for a breach thereof no action would lie. This contention was overruled, and plaintiff was allowed to recover. The court there says that the case falls within "the comprehensive principle that, whenever a person is placed in such a position with regard to another that it is obvious that, if he does not use due care in his own conduct, he will cause injury to that person, the duty at once arises to exercise care commensurate with the situation in which he finds himself * * * to avoid such danger; and a negligent failure to...