Gleason v. Salt Lake City

• Decision Date: 31 December 1937
• Docket Number: 5870
• Citation: 74 P.2d 1225,94 Utah 1
• Court: Utah Supreme Court
• Parties: GLEASON v. SALT LAKE CITY et al

74 P.2d 1225

94 Utah 1

GLEASON v. SALT LAKE CITY et al

No. 5870

Supreme Court of Utah

December 31, 1937

Appeal from District Court, Third District, Salt Lake County, Allen G. Thurman, Judge.

Action by Rella Gleason against Salt Lake City and another, wherein plaintiff dismissed her action against named defendant. Judgment for defendant on a directed verdict at the close of plaintiff's case, and plaintiff appeals.

AFFIRMED.

J. W Stringfellow, A. H. Hougaard, and Bryan P. Leverich, all of Salt Lake City, for appellant.

Fisher Harris, City Atty., E. R. Christensen, and Gerald Irvine Asst. City Attys., Bagley, Judd & Ray, and A. H. Nebeker, all of Salt Lake City, for respondents.

FOLLAND Chief Justice. HANSON, MOFFAT, WOLFE, and LARSON, JJ., concur.

OPINION

FOLLAND, Chief Justice.

Plaintiff, Rella Gleason, tripped over a fire hose lying across the sidewalk on East Third South street, between Main and State streets, in Salt Lake City, and was injured. She sued Salt Lake City, a municipal corporation, and Auerbach Company, a corporation, on grounds of negligence. During the trial plaintiff dismissed her action against the municipal corporation and proceeded against Auerbach Company. The latter defendant, at the close of plaintiff's case, rested without introducing any evidence and moved the court to direct a verdict in its favor. The motion was granted, and plaintiff appeals.

We are not called upon to decide any question respecting the liability of the city. The only question on the appeal is as to the correctness of the court's action in directing the verdict for defendant Auerbach Company and against plaintiff. There is no dispute in the facts.

Defendant company has an elevator in the rear of its store. The elevator pit sometimes accumulated water by leakage from the hydraulic lift and from the surrounding ground, the store being located on an old creek channel. Its superintendent telephoned the Fire Department and requested that the water be pumped from the shaft. Such a condition had existed at other times, and on six or seven prior occasions the Fire Department equipment and men had responded to the call and had pumped the water out. The chief of the Fire Department testified that he directed the master mechanic to take certain equipment, which he desired tested, together with such men as were needed and to pump the water from the elevator shaft. The men and equipment, under the direction of the master mechanic, drove to the rear of Auerbach's store and immediately went to work pumping water. The engine did not work perfectly, so that they were about 45 minutes doing the work which should have been done in a very few minutes.

The men were regular firemen in civil service, were on duty for the city at the time, and were paid their regular salaries by the city. They took orders from the master mechanic, and the master mechanic from the chief. No other person participated in or directed the work. Auerbach Company did not pay anything to any of the firemen or to the city for the services rendered.

For the purpose of priming the pump, the firemen took water through a fire hose from a fire hydrant near the curb on Third South street. The hose was laid from the hydrant across the sidewalk and through an alley to the rear of defendant's store. At about the time the water was turned into the hose, plaintiff, walking easterly on the sidewalk, stumbled over the hose, which had expanded with the pressure of the water. The negligence alleged is the failure to give warning of the presence of the hose. No warning was given other than the mere presence of the hose.

Defendant denied the allegations of the complaint and alleged affirmatively that the injury, if any, was caused by plaintiff's want of ordinary care, and her negligence in failing to keep a lookout for her own safety.

Plaintiff contends defendant is liable for the alleged negligence of the firemen on two grounds: (1) That the city was not an independent contractor nor were its firemen, but that the city firemen were employees of the Auerbach Company in the performance of the work, and therefore that any negligence of the firemen was attributable to the company as their employer. (2) That if the Fire Department be classed as an independent contractor, yet Auerbach Company cannot escape liability because the duty of exercising due care to guard against injury to pedestrians using the sidewalk is a nondelegable duty.

As to the first point the firemen were not employees of the company. The relationship of master and servant is one that arises out of a contract of employment, express or implied, between a master or employer on the one hand, and a servant or employee on the other. 39 C. J. 33. An "express contract" is one expressed in words, while an "implied contract" is one where the mutual intent is manifested by particular acts and attendant circumstances. 28 R. C. L. 667. Here there was no express contract, either oral or written, by which the relationship of master and servant was created. If it existed at all, it would be because implied from the particular acts of the parties and the circumstances of the situation. We are unable to find any facts from which such a relationship could arise. The men did their work on request of the chief of the Fire Department made to the master mechanic. The firemen who went with the master mechanic acted exclusively under his orders. The equipment belonged to the city. The men were paid by the city and were in regular service as firemen of the city at the time. No one acting for Auerbach Company gave any instructions or directions respecting the work or the manner in which it should be done. All this plaintiff concedes, but she urges the test that it is the right or power of control of the employees that in the last analysis indicates whether or not the relationship is one of master and servant. She contends the company had control of the place of the work, and argues from that that it had the right to control the manner and means of the work. Plaintiff is correct in stating the law, but there is no evidence in the record which tends to prove that the company retained the right to control the operations of pumping. Indeed, all the evidence supports the opposite conclusion, that the work was done and intended to be done by the Fire Department free from any direction or control by Auerbach Company. See note on Independent Contractor, 18 A. L. R. 801.

If a fireman had been injured in the course of the work, could he recover compensation from Auerbach Company? On the record before us we think not. In the recent case of Weber County-Ogden City Relief Committee v. Industrial Commission, 93 Utah 85, 71 P.2d 177, 181, this court held that the relationship of master and servant existed between Ogden City and a relief worker, for the purposes of compensation, where the workman was sent to the city by a relief committee and paid for his services out of relief funds furnished by the state and federal governments. The decision turned on the fact that he worked for the city under the direction of its street supervisor. In the opinion it was said:

"In 1 Labatt's Master and Servant (2d Ed.) 56-74, the author discusses the elements generally held as indicative of the relation of master and servant. He refers to (1) exercise of control over the details of the work, (2) payment of compensation, (3) power of appointment, (4) power of dismissal, and (5) for whose benefit the given work was done. He regards the first element as the one which, in the last analysis, must 'always determine what was the essential nature of the relationship between the person who performed the given work and the person for whom it was performed.' The other elements are merely corroborative of the first if the first is shown to be present; and if the first element cannot be shown directly, the other elements are indicative of conditions which imply that control over the worker was in fact exercised by the person declared to be the master."

The right of control and the exercise of such right was a determining factor in fixing the liability of the employer notwithstanding the employee was paid wages by another in Phelps v. Boone, 62 App. D.C. 308, 67 F.2d 574, 575. There Boone, a physician, in the Navy Department, was assigned duty at the White House in Washington and furnished an automobile and driver. He used the car and driver to drive himself and friends on a purely personal trip, during the course of which an accident happened through the negligence of the driver. In holding Boone personally liable the court said:

"The latter became pro hac vice the servant of the former and this because for the time being, that is, when the act complained of happened, the driver was under the control of defendant in error and doing the things he was then directed by him to do.

"The usual test in such circumstances, that is to say, the determination of liability for a negligent act on the part of a servant, is the right or the power on the part of the person charged, to command and control the servant in the performance of the causal act at the moment of performance. Under the conditions the employer or master is the person who at the moment has the power of control."

A volunteer fireman was held not to be an employee of the city in Bingham City Corporation v. Industrial Commission, 66 Utah 390, 243 P. 113, 114, for the reason that such volunteer did not meet the following test:

"The usual test by which to determine whether one person is another's employe is whether the alleged employer possesses the power to control the other person in respect to the services performed by the latter and the power to discharge him for disobedience or misconduct. Under the...