Langan v. Tyler

• Decision Date: 25 February 1902
• Docket Number: 42.
• Citation: 114 F. 716
• Parties: LANGAN v. TYLER.
• Court: U.S. Court of Appeals — Second Circuit

114 F. 716

LANGAN v. TYLER.

No. 42.

United States Court of Appeals, Second Circuit.

February 25, 1902

R. J Moses, for plaintiff in error.

F. V Johnson, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

Plaintiff sued as administratrix of Thomas Langan, deceased, to recover damages, on the theory that the accident which caused his death was the result of negligence for which the defendant should be held responsible to his estate. Langan, a man 33 years of age, was the brother-in-law of Anthony Brennan, aged 22, who was in the employ of defendant. He himself was engaged running a stationary engine on premises a few blocks away from defendant's, and used to do add jobs as he got a chance, putting in batteries and electric bells and repairing electrical apparatus. Brennan was employed in defendant's building 39 Great Jones street, having been hired by a Mr. Talmadge, who represented the owner as agent in charge of the premises. Brennan's duties were to run the elevator and take care of the boiler and keep the place clean. He had been instructed that if anything was the matter with the machine, if he needed any assistance, he was to report to Talmadge; that, no matter what was out of order, he was to see him first. Talmadge used generally to come on Tuesdays to inspect the premises, though some times he would not come for two weeks. The accident happened on February 9 1899. For some time prior thereto the elevator had been 'running all right.' Brennan testified that he ran the elevator throughout the day (February 9 from 7 a.m. to 5 p.m.); that he ran it the day before, and everything ran properly; that the only thing he noticed about it was that it did not make, as he thought, its proper speed; that in all other respects he saw nothing defective; he could control it to stop it anywhere he saw fit; that there was no apparent defect in it; and he ran it up till 5 o'clock, and the only objection he found was that it ran slowly. After he had shut down at 5 o'clock Brennan tried to telephone to Talmadge, but the latter was not in. He then, about 5:15 p.m. went where Langan was employed, and asked him to come over. On one occasion, about three months before the accident, when the commutator was sparking, he had, of his own motion, brought Langan over to fix it. He had subsequently mentioned this circumstance to Talmadge. On the occasion in question here, Langan came over to defendant's premises about 7 p.m., and went with Brennan into the machinery room. The two men took the machine apart, and after working over it about an hour put it together and started it. The details of the accident are not material,--decedent was killed by the giving way of a hanger; and there was evidence in the case, somewhat contradictory it is true, from which a jury might perhaps have reached the conclusion that the defendant was chargeable with the knowledge that for some time past its fastening had not been secure.

The brief of plaintiff seeks to sustain a right to recover upon the principle that a master is bound to provide a safe place to work in, and is responsible to his employe for an injury sustained by the latter from a defect in the building where he works, which the employer know of, or might have known of, by the exercise of ordinary care. The only question in the case, as presented here, is whether or not Langan's legal relation to defendant at the time of the accident was that of servant to master. Langan was not employed by Tyler, nor by Tyler's agent, Talmadge. He was a volunteer who undertakes to assist the servants of a master. Most of them deal with the question whether the master is liable to him for the negligence of the servants with whom he works. Where there is some personal interest on the part of the plaintiff in having the work done, as where a passenger on a street car helps to push it back over a switch, or a teamster helps the driver of a team ahead of him to repair some break-down which obstructs the road, or helps the servants of another to load his own cart with coal, it has been held that the relationship between the volunteer and the servant's master is not such as to warrant the application of the rule which relieves the master from any obligation to respond. Railway Co. v. Bolton, 43 Ohio St. 224, 1 N.E. 333, 54 Am.Rep. 803; Holmes v. Railway Co., L.R. 4 Exch. 254, L.R. 6 Exch. 123. There are other cases which hold that a mere volunteer, without any personal interest, cannot recover when the injuries result from the negligence of those servants with whom he works, not upon the ground that by volunteering he has made himself their fellow servant and established with their employer the legal relation of master and servant, but upon the ground that he cannot thus put himself in a better position than the servants he volunteers to help. So where servants of a railroad company were busy at a turntable, which moved with difficulty, and the plaintiff, observing them, called out to wait a moment and he would help them, and did so, and was injured by their negligence, the court said: 'He cannot, by volunteering his services, have any greater rights, or impose any greater duty, on the defendant than if he was a hired servant. ' Degg v. Railway, 1 Hurl.& N. 773. So, in another case, the court said:

'One who volunteers to associate himself with the defendant's servant in the performance of the defendant's work, and this without the consent, or even the knowledge, of the defendant, cannot stand in a better position than those with whom he associates himself in respect of their master's liability. He can impose no new or greater obligations on the employer than those to which he was subject in respect of the employed. ' Potter v. Faulkner, 31 Law J.Q.B. 30.

These authorities, however, come far short of sustaining the proposition that the volunteer may be volunteering to act make himself a servant, and impose upon the master obligations which the latter owes only to his servants.

As was stated before, neither defendant nor defendant's agent ever employed Langan. To Brennan no authority to employ extra help, or to select individuals to make repairs, or to improve the running of the elevator, was ever intrusted. The mere circumstance that three months before he had invited his brother-in-law to remedy the sparking at the commutator, and had told Talmadge he did so, to which the latter did not object, is not sufficient evidence of authority to employ an additional temporary servant to help do the master's work. The plaintiff's counsel submits the following proposition:

'Where the services are rendered by request of the man in charge, though the person assisting expects no pay, and is employed for a mere temporary purpose, he is for the time being a servant, and entitled to the same protection as any other servant.'

The cases cited on the brief, however, do not support this broad statement. Railway Co. v. Bolton, 43 Ohio St. 224, 1 N.E. 333, 54 Am.Rep. 803; Degg v. Railway Co., 1 Hurl. & N. 773, and Potter v. Faulkner, 31 Law J.Q.B. 30, have been referred to supra. In Bradley v. Railroad Co., 62 N.Y. 99, the track master, who engaged plaintiff to scrape snow with his team, had express authority to hire extra help when occasion required. The language of the proposition in the brief is evidently taken from Johnson v. Water Co., 71 Wis. 553, 37 N.W. 823, 5 Am.St.Rep. 243, where the court says:

'Plaintiff was engaged in defendant's work at the request of the man in charge of the work; and although it may be said that he was working for a mere temporary purpose, and that the plaintiff was not expecting any pay for the work done, and in that sense the employment was voluntary, still, being in the defendant's employment at the request of its servant or foreman, he was not a trespasser, and he was at the time being the servant of the defendant, and entitled to the same protection as any other servant of defendant, and probably subject to the same risks of injury from the negligence of his fellow servants.'

In that case plaintiff was in the employ of contractors who were digging a ditch for defendant. Other men were in the same trench, laying pipe and calking it for defendant. He was called by one George G. to help them, and the accident happened apparently because an insufficient force was employed in the laying and calking. But is should be noted that the case came up on demurrer, and the complaint alleged that one 'Pooley was the superintendent of said defendant, and as such superintendent had charge of said work of calking, and employed men to do such work, and when he was off George G. was authorized by Pooley to have control of the work and of the men who were assisting in such work. ' In Wiggett v. Fox, 11 Exch. 832, it was held that a subcontractor and his servants were the fellow servants of workmen employed by the contractor. In Warburton v Railway Co., L.R. 2 Exch. 30, the porter of a railroad company was held not to be the fellow servant...