Kalmich v. White

• Decision Date: 22 December 1920
• Citation: 95 Conn. 568,111 A. 845
• Court: Connecticut Supreme Court
• Parties: KALMICH v. WHITE (two cases).

111 A. 845

95 Conn. 568

KALMICH v. WHITE (two cases).

Supreme Court of Errors of Connecticut.

December 22, 1920

Appeal from Superior Court, New Haven County; John W. Banks, Judge.

Actions by Michael Kalmich, Jr., and by Michael Kalmich against Abraham White. Judgments of nonsuit in each case, and plaintiffs appeal. Judgments set aside, and new trial ordered in each case.

Actions by father and son to recover damages for injuries to the minor plaintiff, brought to the superior court in New Haven county and tried together to the jury before Banks, J., who entered judgment as of nonsuit. Error, judgments set aside and new trial ordered in each case.

These are suits by a minor acting by his next friend to recover for personal injuries, and by his father to recover for loss of services and for expenses incurred in consequence of the injury. The two cases were tried together, and at the close of the plaintiff's case the trial judge granted a motion for judgment as of nonsuit in each case. From the denial of motions to set aside the nonsuits these appeals were taken.

The plaintiff's evidence tended to show that the minor plaintiff, nine years old, while playing in the freight-yard of the New York, New Haven & Hartford Railroad Company at Meriden, was invited by the defendant's servants in charge of defendant's motortruck to assist them in unloading scrap metal from the truck into a freight car. He did so, and when the truck was empty rode back to the defendant's place of business, where the truck took on another load, which the minor plaintiff also assisted in unloading. When the truck started back for the second time the plaintiff was sitting on the driver's seat between the driver and another servant of the defendant, and was directed to get down and stand on the running board of the truck because his presence on the driver's seat interfered with the steering of the truck. While the minor plaintiff was riding on the running board, the truck was driven around a corner at such a rate of speed that the minor plaintiff was thrown off the running board and received the injuries complained of. There was no evidence that the defendant's servants were authorized to ask for assistance in their work, or to invite the minor plaintiff to ride on the truck.

Charles S. Hamilton, of New Haven, and Morris M. Wilder, of Meriden, for appellants.

William B. Ely, of New Haven, for appellee.

BEACH, J.

At the time of the accident the driver of the truck was on his master's business and in the ordinary course of his employment, and, since there was some evidence from which the jury might have found that the minor plaintiff's injuries were caused by lack of ordinary care in turning a sharp corner at so high a rate of speed while the boy was riding on the running board, the defendant's contention is and must be that the respondent superior rule does not apply, because the defendant owed no duty to the minor plaintiff. This claim of immunity is put on the ground that the plaintiff was a mere volunteer. A " volunteer," in this sense, is one who, without the assent of the master and without justification arising from a legitimate personal interest unnecessarily assists a servant in the performance of the master's business. In England such a volunteer is held to be, in some respects, in the position of a servant. Degg v. Midland Railway, 1 H. & N. 733; Webb's Pollock on Torts, 126. There are some authorities to the same effect in this country. Osborne v. Knox & Lincoln Railway, 68 Me. 49, 28 Am.Rep. 16. But the general American doctrine is that a volunteer is not at all in the position of a servant because the master has not assented to his employment. See cases cited in the note to Corrigan v. Hunter (139 Ky. 315, 122 S.W. 131, 130 S.W. 798) 43 L.R.A. (N. S.) 187; 30 Yale Law Journal, 85. The American rule rests on the sound premise that a servant has no authority as such to change existing legal relations between the master and third persons. This being so, the minor plaintiff while riding on the truck was a mere trespasser because the driver had no authority to take on passengers. Compare Brennan v. Fair Haven & W. R. Co., 45 Conn. 284, 29 Am.Rep. 679, and Bergan v. Central Vermont Railway Co., 82 Conn. 577, 74 A. 934. The rule of liability to trespassers, for which the defendant contends, is that -

" No duty exists towards trespassers save that of refraining from wantonly or willfully injuring them." 29 Cyc. 442.

This rule has been applied in many cases where the plaintiff was injured while riding upon the defendant's vehicle without the defendant's knowledge or permission and at the invitation of an unauthorized servant. See cases collected in note to Corrigan v. Hunter, supra. In the later case of Walker v. Fuller, 223 Mass. 566, 112 N.E. 230, it is said that, because the plaintiff was riding in the defendant's automobile without any invitation from the defendant, it was immaterial to inquire whether the defendant was negligent.

It would seem from these cases that Shearman & Redfield go too far when they speak of the rule above quoted as " everywhere overruled." Shearman & Redfield on Negligence, § 64, note 27. But that rule is, we think, subject to the modification laid down by Lord Abinger in the famous donkey case (Davies v. Mann, 10 M. & W. 545) that -

" Even if this ass was a trespasser, and the defendant might by proper care have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there."

That is to say, that when the presence of a trespasser in a position of peril...