Hiller v. Goodwin

• Decision Date: 30 April 1953
• Docket Number: 6 Div. 180
• Citation: 65 So.2d 152,258 Ala. 700
• Parties: HILLER et al. v. GOODWIN.
• Court: Alabama Supreme Court

Page 152

65 So.2d 152

258 Ala. 700

HILLER et al. v. GOODWIN.

6 Div. 180.

Supreme Court of Alabama.

April 30, 1953.

Lange, Simpson, Robinson & Somerville, Birmingham, for appellants.

Wilkinson & Skinner, Birmingham, for appellee.

PER CURIAM.

This is an action to recover damages for personal injuries received by appellee, plaintiff below, while a crated furnace weighing over nine hundred pounds was being unloaded at plaintiff's place of business from a truck operated by appellants, defendants below, as a common carrier of freight from one point in Alabama to another. The furnace reached its destination in a haul by defendants to plaintiff. There were verdict and judgment for plaintiff, from which defendants have appealed. No complaint is made as to the amount of the damages awarded.

The complaint alleged that the proximate cause of plaintiff's injuries was the negligence of a servant of defendants, acting in the line and scope of his employment in and about unloading said item of freight.

The defense was not guilty and contributory negligence. Other defenses were set up by special pleas, but the court sustained demurrer to them. They set up matter which is probably involved in appellants' contention that they were due the affirmative charge. We will proceed to discuss the contention. It is in short that the servant of appellants claimed by the evidence to have negligently caused plaintiff's injury, though the general servant of appellants had become pro hac vice the servant of appellee in and about the unloading of said freight. Or that if the act of appellee's agent in aiding in the process of unloading was negligent, proximately contributing to plaintiff's injury, he was in so doing acting in the line and scope of his authority as plaintiff's servant and did not become pro hac vice the servant of defendants.

The particular contention of appellants in that connection is that the Alabama Public Service Commission had promulgated two rules applicable to common carriers of freight by motor truck in intrastate commerce. They were put in evidence and numbered 21 and 205, respectively, and are as follows:

'Rule 21. Sec. 1. Where an article (or articles) in a single container or shipping form tendered, weighs 500 lbs. or more, or if the greatest dimensions exceeds 8 feet or greatest and intermediate dimension each exceeds 4 feet, loading or unloading shall be performed by the shipper or consignee, as the case may be. If requested, carriers will undertake, in behalf of the shipper or consignee, as the case may be, to employ additional help. No charge will be made for labor performed by the truck driver but a charge of one dollar and twenty-five cents ($1.25) per hour or fraction thereof, for each man furnished, other than the truck driver, shall apply from time vehicle arrives at the place of pickup or delivery until shipment is loaded or unloaded, as the case may be.

'Exception--The provisions of Sec. 1 will not apply if such article (or articles) weighing less than 500 pounds:

'(a) exceeds 8 feet, but does not exceed 22 feet in its greatest dimension and does not exceed 2 feet in any other dimension, or

'(b) if it does not exceed 10 feet in its greatest dimension and does not exceed 5 feet in its intermediate dimension and does not exceed 1 foot in its least dimension.

'Rule 205. Exceptions to Rule 21 of National Classification--Special Equipment Required for Loading and Unloading

'(a) Except as otherwise provided in individual rules, article or articles in a single container or other shipping form, which on account of weight, height, length or bulk requires special loading or unloading devices such as cranes, winches, hydraulic jacks, etc., carriers will, subject to available equipment, furnish such accessorial service.

'(b) Where the carrier performs either the loading or unloading and furnishes special lifting devices at the request--or with the consent--of the shipper or consignee, a charge of $7.50 per hour will be made for the use of such lifting device, which includes the services of the truck driver and/or operator.

'(c) When additional help is required a charge of $1.25 per hour will be made for each man furnished, other than the truck driver and/or lifting device operator.

'(d) In computing time under this rule, when more than one (1) hour is involved, any fractional part of a half hour will be computed as a one-half (1/2) hour, and begins when special equipment is dispatched from carrier's warehouse and ends when such equipment is returned and reaches carrier's warehouse.

'When special equipment is used in over-the-road service, it shall be the duty of carriers to dispatch such equipment via the most direct route and in computing time in this service, time consumed in transit will be based on allowing two (2) minutes for each mile of travel involved.'

Those rules are alleged to have been authorized by Title 48, section 301(5), Pocket Part, Code, which merely makes it the duty of the commission 'To supervise and regulate common carriers in all matters affecting the relationship between such common carriers and the traveling and shipping public.'

Appellee, in the first place, attacks the validity of those regulations in the light of due process involving the freedom of contract. We will not need to respond to that contention. But will for the present regard the regulations as proper, in accord with such a reserved holding by the Mississippi Supreme Court in Columbus & Greenville R. Co. v. Owens, 153 Miss. 628, 121 So. 265, 62 A.L.R. 521.

Since appellants' contention in that respect is a right to the affirmative charge, it must be treated in the light of the evidence most favorable to appellee. Appellee was engaged in the sheet metal business in Fayette, Alabama, and was receiving a shipment consisting of sheets of galvanized metal, and included a crated furnace weighing about nine hundred pounds, hauled by appellants to appellee's place of business. The furnace was located on the floor of the truck near the front, and was the last to be moved. Mr. Cunningham was an employee of appellee, generally aiding in the handling of material. He got on the truck to aid the driver in unloading it. No one told him to do so. He and the driver agreed that more help was needed. The office secretary who was checking in the freight went inside to call plaintiff to help. No other employees were in reach at the time. Plaintiff went out there in response to the call of his office clerk. Appellants as the carrier had not been requested by appellee to perform the unloading operation for him. Neither had appellee been advised that the shipment having arrived was ready for him to perform the duty required by the rule.

When appellee went out to help unload, the furnace had been pushed along the floor of the truck to its rear end with the end of the furnace extending out over the floor of the truck. Appellee testified that he had ordered the item but did not know of its arrival until they called him to help unload. When he went out there he found the crated furnace sticking out of the rear end of the truck which was backed up to the sidewalk. The driver of the truck was on the ground on one side of the crated furnace and Cunningham was in the truck. The driver told plaintiff to take one corner of the crate and that he would take one and Cunningham could help lower it to the sidewalk. Appellee took hold of the left hand corner and when Cunningham turned it loose, it skidded and fell striking appellee and seriously injuring him.

The immediate question is whether the driver under those circumstances became the servant of appellee for that operation, though he remained in the general employment of appellants. It is contended that under those regulations it was the duty of appellee to unload the furnace, and that the driver, though he might have been negligent, was the servant of appellee, and appellants were not responsible for the consequences of his negligence.

The majority of the authorities sustain the view that the driver did not as a matter of law become ipso facto for that operation the servant of appellee, though the regulation be valid and served to burden appellee with a duty to unload the furnace.

In the Owens case, supra, the Mississippi Supreme Court seemed to hold as a matter of law that when the duty to unload is on the shipper and not the carrier, the carrier's employees are agents of the shipper and not of the carrier in performing that service. There was no elaboration of that view nor authorities cited.

The question again came before the Supreme Court of Mississippi in the case of Yazoo & Mississippi Valley R. Co. v. Denton, 160 Miss. 850, 133 So. 656. In that case a person was injured by the negligence of a railroad porter who was assisting a mail clerk in loading United States mail onto a train of the defendant railroad company. The court held that the porter had ceased to be the servant of the railroad in performing the task but was that of the postal authorities and exonerated the railroad company. The opinion referred to the case of Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480, to which we will refer later. The Denton case reached the United States Supreme Court. Denton v. Yazoo & Mississippi Valley R. Co. 284 U.S. 305, 52 S.Ct. 141, 142, 76 L.Ed. 310. That opinion also referred to and quoted from the Anderson case, as holding that the carrier's liability is not wholly determined by whether the porter was the general servant of the carrier, 'but upon whether the work which he was doing at the time was their (carriers') work or that of another; a question determined, usually at least, by ascertaining under whose authority and command the work was being done. When one person puts his servant at the disposal and under the control of another for the performance of a particular service for the latter, the servant, in respect of his acts in that service, is to be...