Kelly v. Tyra

• Decision Date: 24 January 1908
• Docket Number: 15,401 - (150)
• Citation: 114 N.W. 750,103 Minn. 176
• Parties: JOHN A. KELLY v. JOSEPH TYRA
• Court: Minnesota Supreme Court

114 N.W. 750

103 Minn. 176

JOHN A. KELLY v. JOSEPH TYRA

Nos. 15,401 - (150)

Supreme Court of Minnesota

January 24, 1908

March 27, 1908

Action in the district court for Hennepin county to recover $4,605 for personal injuries. The case was tried before Frederick V Brown, J., and a jury which found for plaintiff in the sum of $1,000. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

This action was brought by plaintiff to recover for personal injuries as a result of defendant's alleged negligence. One Robinson, plaintiff's employer, who had the contract to construct a crematory building, sublet the roofing thereof to defendant. Defendant's servants, Michaelson and another, procured the consent of the contractor's foreman to use in their work large planks belonging to the contractor, extending from girder to girder, twenty two feet from the ground, "providing you take them down." Michaelson, on the occasion of the injury, told the men working on the floor below to look out, as he was "going to take them [the planks] down." He saw plaintiff coming, and said to him: "Look out, Kelly, and get your wheelbarrow out of the way." Plaintiff left his place of safety and came to the point of danger under the plank. While plaintiff was under the plank for the purpose of removing the wheelbarrow, the plank fell on him and inflicted the injuries for which recovery is here sought. The jury returned a verdict for plaintiff in the sum of $1,000. This appeal was taken from an order of the trial court denying defendant's alternative motion for judgment notwithstanding the verdict or for a new trial.

SYLLABUS

Fellow Servants.

Persons employed by different masters, although engaged in a common work, are not ordinarily fellow servants.

Fellow Servants.

Servants in the hire of a general employer and servants of his subcontractor, or of an independent contractor, are not fellow servants, unless the circumstances show that the servant submitted himself to the control of another person than his proper master, and either expressly or impliedly consented to accept that person as his master for the purpose of the common employment.

Volunteer.

A "volunteer" is one who introduces himself into matters which do not concern him, and does, or undertakes to do, something which he is not legally or morally bound to do or which is not in pursuance or protection of any interest. To such a person, in the absence of knowledge of peril, no affirmative duty to exercise care is due.

Master's Liability to Another Master's Servant.

Where the servant of one master has an interest in the work in any proper capacity, and at the request or with the consent of another's servants undertakes to assist in the work, he does not do so at his own risk; and, if he is injured by their carelessness, their master is responsible in tort.

Injury to Licensee.

Here plaintiff was in the employ of a building contractor. Servants of a roofing subcontractor, using large planks of the contractor, with his consent, were about to "take them down" from the girders upon which they rested to the floor below. One of defendant's servants saw plaintiff coming and said: "Look out Kelly (the plaintiff), and get your wheelbarrow out of the way." The plaintiff went to remove the wheelbarrow. A plank fell on him and inflicted the injuries for which recovery is here sought. It is held:

1. That the action of the jury in finding that "he was rightfully there" as a licensee with interest will not be disturbed.

2. That defendant was responsible for the tort of his servant.

C. H. Rossman, for appellant.

Woods, Kingman & Wallace, for respondent.

OPINION

JAGGARD, J. (after stating the facts as above).

The negligence of defendant's servants in this case was sufficiently shown. See McCauley v. Norcross, 155 Mass. 584, 30 N.E. 464, Dohn v. Dawson, 90 Hun, 271, 35 N.Y.S. 984. Cf. Hunt v. Pennsylvania, 51 Pa. St. 475.

1. The principal question presented by this appeal concerns plaintiff's right to complain of that negligence. This is one of the frequently recurring cases in which servants of different masters assist each other upon request in work connected with their employment. The law has treated such cases with due reference to the practical desirability of making possible co-operation between such servants for the benefit of their common objects, without violating the logic of their respective contracts of service. Such servants are not usually regarded as fellow servants, and are not held to have assumed the risk of the negligence of the servant of another master by which they may have been injured. This follows from the elementary rule that persons employed by different masters are not usually fellow servants. Pollock, Torts, 86, 88; Barrows, Neg. 130. And see note note on "which one of two or more persons is the master of one who is conceded to be the servant of one of them" (Hardy v. Shedden Co., 78 F. 610, 24 C.C.A. 261, 37 L.R.A. 33, Brady v. Chicago & G.W. Ry., 114 F. 100, 52 C.C.A. 48, 57 L.R.A. 712, and Delory v. Blodgett, 185 Mass. 126, 69 N.E. 1078, 64 L.R.A. 114, 102 Am. St. 328), although they may have a common object. See Pollock, C.B., in Abraham v. Reynolds, 5 H. & N. 142. Ordinarily servants in the hire of a general employer and servants of a subcontractor or of an independent contractor are not fellow servants. Larson v. American, 40 Wash. 224, 82 P. 294, 111 Am. St. 904; Engler v. City, 40 Wash. 72, 82 P. 136; Wagner v. Boston, 188 Mass. 437, 74 N.E. 919; Morgan v. Smith, 159 Mass. 570, 35 N.E. 101; Young v. New York, 30 Barb. (N.Y.) 229; Dohn v. Dawson, supra; Bishof v. Leahy, 54 A.D. 619, 66 N.Y.S. 342; Norman v. Middlesex, 71 N.J.L. 652, 60 A. 936; Kilroy v. Delaware, 121 N.Y. 22, 24 N.E. 192.

The English rule accords. The controversy has been largely connected with the discussion of Wiggett v. Fox, 11 Exch. 852 (*832). There the defendant, having contracted to erect a tower and having hired a subcontractor to do piecework, provided the scaffolding and tools, and kept an account of the time of employees of the subcontractor. It was held that such employees were engaged in a common employment with the contractor's other servants, and as a matter of law were their fellow servants. The various views and the general disapproval of this decision will be found in the note to 37 L.R.A. 52, in which the best discussion of this general subject will be found. The final conclusion is thus fairly summarized by Lord Watson in Johnson v. Lindsay (1891) App. Cas. 371, affirmed in Cameron v. Nystrom (1893) App. Cas. 308: "I can well conceive that the general servant of A. might, by working towards a common end along with the servants of B. and submitting himself to the control and orders of B., become pro hac vice B.'s servant in such sense as not only to disable him from recovering from B. for injuries sustained through the fault of B.'s proper servants, but to exclude the liability of A. for injury occasioned by his fault to B.'s own workmen. In order to produce that result, the circumstances must, in my opinion, be such as to show conclusively that the servant submitted himself to the control of another person than his proper master, and either expressly or impliedly consented to accept that other person as his master for the purposes of the common employment." And see Cooper v. Wright, (1902) App. Cas. 302, and Swanson v. N.E. Ry., 38 L.T.N.S. 201. Cf. Bentley v. Edwards, 100 Md. 652, 60 A. 283, 286, 287; Pioneer v. Hansen, 176 Ill. 100, 52 N.E. 17; Aldritt v. Gillette-Herzog Mnfg. Co., 85 Minn. 206, 88 N.W. 741.

The circumstances of this case render it unnecessary to resort to other tests, like payment of wages, or hiring or discharging, to determine whether or not the relationship of fellow servant existed. Plaintiff was not under the control of the defendant's servants, and was not their fellow servant. Though they were engaged in a common employment, they had no common master. Plaintiff was in the employ of the contractor. The laborers through whose fault he was injured were in the employ of the subcontractor. Defendant's argument, however, is that plaintiff became a fellow servant by undertaking to assist defendant's servants at their request by removing the wheelbarrow. Defendant's own servant testified that he had said to plaintiff, Kelly: "Get your wheelbarrow out of the way." The natural inference was that the wheelbarrow was in plaintiff's charge. The trial court properly refused to hold as a matter of law that plaintiff was either an assistant or a substitute, and had submitted himself to the control of defendant or of his servants.

Nor was plaintiff as a matter of law a mere volunteer. A volunteer is one who intrudes himself into matters which do not concern him, or does or undertakes to do something which he is not legally nor morally bound to do, and which is not in pursuance or protection of any interest. See 8 Words & Phrases, 7357. To one who is a volunteer properly speaking, even if assisting in the master's work at the request of a servant, no affirmative duty to exercise care is due originally, but only after knowledge of peril. Cincinnati v. Finnell (Ky.) 57 L.R.A. 266, 55 S.W. 902; Wischam v. Rickards, 136 Pa. St. 109, 20 A. 532, 10 L.R.A. 97, 20 Am. St. 500; New Orleans v. Harrison, 48 Miss. 112, 12 Am. 356; Osborne v. Knox, 68 Me. 49, 28 Am. 16; Mayton v. Texas, 63 Tex. 77, 51 Am. 637; Sherman v. Hannibal, 72 Mo. 62, 37 Am. 423; Everhart v. Terre Haute, 78 Ind. 292, 41 Am. 567; Rhodes v. Georgia, 84 Ga. 320, 10 S.E. 922, 20 Am. St. 362; Atchison v. Lindley, 42 Kan. 714, 22 P. 703, 6 L.R.A. 646, 16 Am. St. 515; Church v. Chicago, M. & St. P. Ry. Co., 50 Minn. 218, 52 N.W....