Hitchcock v. Artic Creamery Co.

• Decision Date: 25 January 1915
• Docket Number: 29590
• Citation: 150 N.W. 727,170 Iowa 352
• Parties: ANNA HITCHCOCK, Admrx. of Estate of Wesley Hitchcock, Deceased, Appellee, v. ARCTIC CREAMERY COMPANY, Appellant
• Court: Iowa Supreme Court

150 N.W. 727

170 Iowa 352

ANNA HITCHCOCK, Admrx. of Estate of Wesley Hitchcock, Deceased, Appellee, v. ARCTIC CREAMERY COMPANY, Appellant

No. 29590

Supreme Court of Iowa, Des Moines

January 25, 1915

REHEARING DENIED SATURDAY, MAY 15, 1915.

Appeal from Woodbury District Court.--HON. DAVID MOULD, Judge.

ACTION to recover damages for personal injury resulting in the death of plaintiff's intestate. Defense, that deceased was a mere volunteer to whom the defendant owed no duty at the time of the injury. Judgment for the plaintiff. Defendant appeals.

Affirmed.

J. W Hallam and Geo. W. Finch, for appellee.

Sears & Snyder, for appellant.

GAYNOR J. DEEMER, C. J., LADD and SALINGER, JJ., concur.

OPINION

GAYNOR, J.

This is an action brought by the administratrix of one Wesley Hitchcock to recover damages for injuries resulting in his death.

It appears that Wesley Hitchcock was employed by the defendant in its creamery at Sioux City for the purpose of washing cans, and other light work in connection with cleaning of cans and other utensils about the creamery. At the time of the happening of the injury and death complained of, other employees, under the direction of one Richard Bates, the engineer who had been placed in charge of the work by the defendant company, were lowering an iron pipe through a hole in the floor of the creamery for the purpose of placing it in an upright position from the basement to the ceiling of the room in which they were working; that at said time, immediately beneath the floor of the room from which they were lowering the pipe, there were a number of electric wires, heavily charged with electricity; that while they were so doing, Wesley Hitchcock was called to their assistance, he being in the same room and near by, washing cans and then in the discharge of the duties incident to his employment; that upon such request, Wesley Hitchcock came to their assistance, and took hold of the pipe for the purpose of helping to lower it to the basement through the hole in the floor; that while they were in the act of lowering the pipe through the hole, it came in contact with the electric wires stretched beneath the floor, and the pipe thereby became heavily charged with electricity, and being communicated to Wesley Hitchcock, caused his death.

The negligence charged is in calling the said Wesley Hitchcock from his ordinary work, the work for which he was employed, to undertake a more dangerous and hazardous task, without warning him or giving him, in any way, notice of the danger attending his act, and in failing to inform him of the presence or existence of the electric wires, of which he had no knowledge, and in failing to furnish him with a safe place in which to do the work, and in permitting him to work in the vicinity of dangerous and deadly wires, heavily charged with electricity, the location of which was fully known to the defendant, its managers, and other employees in charge of the work, or which they should have known in the exercise of reasonable care, and in failing to turn off the electric current from the wires in question while the work was being done, and in failing to turn off the electric current after they discovered that the pipe was being charged with electricity, and deceased was unable to extricate himself.

The defendant's answer sets up the defense of contributory negligence, the negligence of the fellow servant, assumed risk, and further alleges that the wires claimed to have been the cause of the injury were entirely foreign to the work done, and further alleges that Hitchcock was, at the time, a mere volunteer, in that he left the work he was hired to do without the knowledge or consent of his employer.

Upon the issues thus presented, the cause was tried to a jury and a verdict returned for the plaintiff. Upon this verdict, a judgment was entered for the plaintiff, and from this defendant appeals and assigns as error:

1st. The undisputed evidence shows that in going to assist and in assisting, he was a mere volunteer; that it was outside of the scope of his employment; that he was not ordered or directed by the defendant, or anyone in authority for the defendant, to engage in the work in which he was engaged at the time of his injury; and that he went to it of his own volition, and without orders, and engaged in work foreign to his regular employment, as a volunteer.

2d. The evidence wholly fails to show that anyone in authority, as a vice-principal, with authority to bind defendant, was in charge of the work, or gave any orders in connection with it, and shows without contradiction that the only person who was in charge of defendant's work and plant was not there; and there was no vice-principal in charge of the work, and that no one gave any orders, in any event, to the deceased, to engage in the work in which he was employed at the time he received his injury.

The question presented by these assignments of error we will dispose of first, and they present this question: Did the deceased, at the time of the injury, sustain such relationship to the defendant that, in the relationship, there was involved responsibility, on the part of the defendant, for injuries received by the deceased while so engaged?

We recognize the principle which has been well settled in the law, not only of this state, but in other jurisdictions, that the master has the primary right to determine who shall serve him in any particular capacity. The relation of master to a servant involves responsibility and risk, and this responsibility and risk cannot be imposed upon him by another, except with his authority or consent. This authority may be expressed or implied. A mere volunteer, as such, has no claim upon the master, based upon any relationship which creates any right in him to impose this responsibility and risk. He is a mere trespasser, an interloper, one to whom the master owes no duty except that active one which exists in all relationships in life, not to wantonly or wilfully injure him. The master cannot always act personally in relation to, and in the discharge of, his own business. He acts largely through others to whom he delegates authority and power to manage, control, direct and supervise both his business and his servants.

We find evidence in the record of the following facts: One Gear was manager of defendant's plant. Bates was its engineer. Hamm was his assistant. The duties assigned to Bates were to take care of the boilers, pumps, pipe lines, the heater and the ice machine and everything of a mechanical nature to be taken care of and kept up. Bates talked with Gear two or three days before the pipe in question was ordered. Gear told him to get it, but there was no talk as to when it should be delivered. Bates spoke to Gear about getting help at the time they talked about putting the pipe in. Gear told him if he needed help, to get Charlie Wilcox. Bates was in charge of the job connected with the putting of the pipe through the floor. Gear was at home sick.

Bates testified: "I had charge of the machinery. Hamm was under my control. He was my assistant, and the only one I had anything to do with. I knew how to do the work. It was in my department. Three of us tried to put the pipe though, but could not. We needed help. The buttermaker and this other boy came. It was my judgment and direction to run it through the floor as we did. I saw them all working at the pipe. I felt a shock and let go. I tried to pry the lad (meaning Hitchcock) off, and told someone to pull the switch. I knew at the time there were electric wires under the floor, eight inches below and twelve inches north of the hole. I saw them when I made the hole. I did not turn off the switch. There was nothing to prevent my doing so. So far as I know, Hitchcock did not know of the wires. I cut the hole the way I saw fit. It was left to me; Mr. Gear gave me no instructions. I had no authority over anyone except Hamm."

Hugo Larch testified: "I worked for the Arctic Company when Wesley was hurt. His job was washing cans. At the time of the accident, they were putting in an exhaust pipe for the engine. Mr. Bates, the engineer, had charge of that work, and it was for his engine, the engine downstairs. I saw the hole that was cut through the floor. Should judge it was about a foot square."

Hamm testified: "I got my orders what to do from Mr. Bates, the engineer. Whatever he had to do, I helped him at it, and under his direction. I was assisting him to lower the pipe when Hitchcock was hurt. Mr. Bates was directing the work. When we first tried to get it through the hole, the hole was not large enough, and we laid the pipe on the floor. It was Mr. Bates who cut the hole larger. I was his assistant, and was acting under his direction in doing the work. The pole struck the electric wire below. It cut through the insulation and came in contact with the copper wire. Both Mr. Bates and myself knew that the wires were there. It was possible to have turned the switch before putting the pole down, and I don't know any reason why it wasn't done. I never saw Hitchcock in the basement where these wires were before the accident. The putting down of the pole was in connection with the engineering department which was in charge of Mr. Bates. The putting down of this pipe was no part of Hitchcock's work, nor of Wilcox's nor of Kimberg's, but we needed all the help we had to get the pipe through the floor."

Bates further testified: "Mr. Gear told me to do this work. The pipe was ordered under his direction. Gear was there when the pipe was delivered. This pipe was necessary for carrying out the plans of my department. It was Hamm's duty to help me if anything was done, and to do anything I directed him in my department. Gear...