Hancock v. Aiken Mills, Inc.

• Decision Date: 31 March 1936
• Docket Number: 14267.
• Citation: 185 S.E. 188,180 S.C. 93
• Parties: HANCOCK v. AIKEN MILLS, Inc.
• Court: South Carolina Supreme Court

185 S.E. 188

180 S.C. 93

HANCOCK v. AIKEN MILLS, Inc.

No. 14267.

Supreme Court of South Carolina

March 31, 1936

Appeal from Common Pleas Circuit Court of Aiken County; Thomas M Boulware, Special Judge.

Action by Leonard Hancock, by guardian ad litem, against the Aiken Mills, Incorporated. From a judgment for plaintiff, defendant appeals.

Reversed and remanded, with directions.

CARTER J., dissenting.

Hendersons & Salley, of Aiken, for appellant.

Williams & Busbee, of Aiken, for respondent.

FISHBURNE Justice.

This action was instituted by Leonard Hancock, by his guardian ad litem, against the defendant, Aiken Mills, Inc., for the recovery of damages alleged to have been suffered by him on or about February 10, 1933. The plaintiff, at the time of the accident hereinafter referred to, lacked four months of being thirteen years of age. He resided with his parents in the defendant's mill village at Langley, in this state. The defendant owned the mill village and rented one of its houses on the Augusta road to Nish Hancock, the father of the plaintiff. The house next to it was rented to Ed. Christian an uncle of the plaintiff. The Hancock yard extended to within a few feet of the Christian house, and was separated therefrom by a plum tree hedge.

The chimney of the Christian house fell into disrepair, and on the 10th day of February, 1933, upon the request of Christian, the defendant, through its master mechanic, Cummings, sent J. B. Redd, a brick mason, with Ed. Dorsey, his colored helper, to repair the chimney. The chimney was on the side next to the Hancock house. Redd and his helper set up their mortar box quite near to the Christian house, but actually on the plot of land or yard occupied by the Hancocks, and started the operation of repairing the chimney. Between 7 and 8 o'clock in the morning they built a fire on the Hancock lot, but close to the Christian house, for the purpose of warming themselves. It was bitterly cold and freezing on the day in question, and a high wind was blowing. The plaintiff was severely burned while standing beside this fire, under the circumstances hereafter narrated.

Plaintiff's mother and father worked upon the night shift in the Clearwater mill, and slept in the daytime. While plaintiff's parents were working and sleeping, his aunt kept house and looked after him. He attended the Langley school and was in the fourth grade. On the day of the accident plaintiff was kept home from school by his aunt because he was sick with a cold, and had been given medicine for it. Shortly after the fire was built, the plaintiff went into the yard, while his parents were asleep and while his aunt was about her household duties, as stated by him, to get some water, when Redd called to him and sent him upon an errand to the grocery store across the street. After running the errand the plaintiff returned and stood by the fire in the yard. Up to this point there is no dispute, but from this point the testimony diverges. Dorsey, the negro helper, stated that the plaintiff came to the fire the first time about 7:15 o'clock that morning, and was about and around the fire until about 10 o'clock. Redd testified that the plaintiff came to the fire several times and warmed himself. While he was standing by the fire his overalls became ignited below the knees of both legs, in consequence of which he sustained severe burns, which confined him to his home for five or six weeks, but it was several months before his burns completely healed. Other testimony necessary to an understanding of the case will be discussed in connection with the issues involved.

The plaintiff predicates negligence upon the following delicts:

(a) That the defendant trespassed upon the premises occupied by the plaintiff, his parents and aunt, and started an open, unguarded, and dangerous fire thereupon, when it knew, or should have known, that it was a trespasser, that said fire was dangerous to children, and would probably attract plaintiff or other children to it and cause them injury.

(b) That the defendant induced the plaintiff to leave a place of safety, come to said fire, run an errand, and return to said fire, when it knew, or should have known, that it was highly dangerous for plaintiff to be about said open and unguarded fire, and that he was likely to be burned. And

(c) That it was the duty of the defendant, having set in motion said dangerous instrumentality and hazard to little children, to wit, an open and unprotected fire, to warn plaintiff to keep away therefrom, and to exercise due diligence to prevent his coming near enough to be burned; whereas, defendant violated that duty in causing the plaintiff to leave a place of safety and come to said fire, at which time he was severely burned.

The defendant interposed a general denial, and set up the plea of contributory negligence.

Upon trial of the case a verdict was rendered in favor of the plaintiff for $1,000, upon which judgment was duly entered. The defendant made timely motions for a nonsuit and for a directed verdict, and the case comes before us on appeal from the orders overruling these motions. The exceptions also assign error to the trial judge on account of his refusal to charge the jury certain requests submitted by the defendant.

One of the major points in the case is whether or not the defendant company was legally responsible for the fire built by the brickmason, Redd, and his negro helper, and we will first consider this question.

The appellant contends that there is no testimony tending to prove that it created or maintained the fire in question, and that under the doctrine of respondeat superior it cannot be held responsible for its existence.

Under the doctrine of respondeat superior it is generally held that the master is liable for the negligent acts or omissions of his servant while acting as such and within the scope of his employment. 39 C.J. § 1486; Osteen v. S.C. Cotton Oil Co., 102 S.C. 146, 86 S.E. 202, L.R.A. 1916B, 629.

The converse of this proposition is true. The master cannot be held liable under this doctrine for the negligent acts of omission of the servant when not acting within the scope of his employment. Moore v. Columbia, etc., R. Co., 38 S.C. 1, 16 S.E. 781. The test as to the liability of the master is whether the servant was guilty of negligence in the doing of his master's work. It is the character of the employment, and not the private instructions given by the master to the servant, that must determine his liability. See monographic note to Goodloe v. Memphis, etc., R. R. Co., 54 Am.St.Rep. 82. What is the scope of a servant's employment may be determined by implication from the circumstances of the case. Monographic note to Ware v. Barataria, etc., Canal Co., 35 Am.Dec. 192.

It is generally held that the act of a servant done to effect some independent purpose of his own and not with reference to the service in which he is employed, or while he is acting as his own master for the time being, is not within the scope of his employment so as to render the master liable therefor. Under these circumstances the servant alone is liable for the injury inflicted. If the servant steps aside from the master's business for some purpose wholly disconnected with his employment, the relation of master and servant is temporarily suspended; and this is so no matter how short the time, and the master is not liable for his acts during such time. 39 C.J. § 1490, page 1295. Marlowe v. Bland, 154 N.C. 140, 69 S.E. 752, 40 L.R.A. (N.S.) 1116; Morier v. St. Paul, etc., Ry. Co., 31 Minn. 351, 17 N.W. 952, 47 Am.Rep. 793.

No general rule can be formulated which will determine in each case whether the servant was acting within the scope of his employment. The rule may be deduced from the authorities that an act is within the scope of the servant's employment where reasonably necessary to accomplish the purpose of his employment, and in furtherance of the master's business.

Applying these principles of law to the facts in this case, we do not think that the court can say as a matter of law that in building the fire the servants of the defendant were acting outside of the scope of their employment. The test is whether or not the building of the fire was reasonably implied from the character of the work, the nature of the employment, and the duties incident to it, under the facts of the case.

The testimony shows that the weather was bitterly cold; it was raining and freezing, and there was a high wind. The master mechanic for the defendant testified that: "It is the general custom for bricklayers to build fires in cold weather so as to warm themselves. This day was very cold and the pipes were freezing. The building of such a chimney as this is outside work altogether. You have to handle brick and mortar, and they are very cold things." He further testified: "Mr. Redd was working for the company, and was about the company's business. Mr. Redd was in charge of the work, and was over the colored worker employed there. He had authority to order the negro to take up brick and cement, and anything else necessary on the house to fix the chimney." And further: "A fire is unnecessary to the work, even in cold weather. If a man wants to warm himself, or for his own convenience he usually builds one. They do not always build fires, but in the winter time it is the usual custom that they build fires to warm by. I could not say that all bricklayers build fires. * * * I did not say that it was absolutely necessary to have a fire to warm up by. * * * If I had stayed outside I would probably have been too uncomfortable to have done much work. A brick mason would have been very uncomfortable. He would have been very cold without one."

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