Pace v. Gibson

• Decision Date: 12 October 1959
• Docket Number: No. 13,13
• Citation: 357 Mich. 315,98 N.W.2d 654
• Parties: Hurles E. PACE, Plaintiff and Appellant, v. Robert C. GIBSON and Betty Gibson, d/b/a Harley Davidson Sales Company, jointly and severally, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 654

98 N.W.2d 654

357 Mich. 315

Hurles E. PACE, Plaintiff and Appellant, v. Robert C. GIBSON and Betty Gibson, d/b/a Harley Davidson Sales Company, jointly and severally, Defendants and Appellees.

No. 13.

Supreme Court of Michigan.

Oct. 12, 1959.

Anthony Renne, Pontiac, for appellant.

David C. Pence, Pontiac, for appellees.

Before the Entire Bench.

CARR, Justice.

This is an action for damages for injuries sustained by plaintiff because of alleged negligence on the part of the defendants. On June 4, 1957, plaintiff was employed by the Trans-American Freight Line as a truck driver working out of the Pontiac terminal of the company. The defendants were at the time engaged in business in the City of Pontiac, said business involving the servicing and sale of motorcycles. In the course of his employment plaintiff, operating a semi-trailer, went to defendants' establishment for the purpose of delivering two large wooden boxes each containing merchandise weighing approximately 700 pounds.

Plaintiff alleged in his declaration that at the request of defendants he assisted in the unloading operation, that in unloading one of the crates or boxes defendant Robert C. Gibson and his employee suddenly and without warning released their hold on the box whereupon it fell against plaintiff and upon his feet, causing injuries to him. The pleading averred that such conduct was negligent and resulted in the injuries for which plaintiff sought to recover damages. Defendants by answer denied all claims of negligence on their part, averred that the duty rested on the common carrier by which plaintiff was employed to deliver the merchandise, and that plaintiff requested assistance from defendants and their employee in unloading it. It was further pleaded that the carrier was guilty of negligence in not properly equipping the truck with facilities for unloading.

The case came to trial before the circuit judge and a jury. At the conclusion of plaintiff's proofs counsel for defendants moved for a directed verdict in their favor, asserting that negligence on the part of defendants had not been established, that under plaintiff's theory of the case he was merely a volunteer, that the duty rested on the carrier to unload the merchandise, and that as a result of his conduct plaintiff was guilty of contributory negligence as a matter of law. The trial judge concluded that under plaintiff's proofs he was a volunteer, and as such assumed the risk of being injured, that he could not recover except on a showing of willful or wanton misconduct on the part of the defendants, and that there was no proof of such misconduct, or of ordinary negligence. In accordance with the conclusions reached the motion was granted and verdict directed accordingly. Plaintiff's motion for a new trial was denied and he has appealed, claiming that the directed verdict was erroneous.

The record before us indicates that defendants' employee, Charles Robert Gabelman, assisted in the unloading of the boxes of merchandise. It further appears that the testimony of Gabelman, who had been subpoenaed by defendants as a witness, was, for the convenience of such witness, taken in advance of the impaneling of the jury. He was not a witness on the trial nor was the testimony so taken introduced by either party. Counsel for appellant has caused it to be included in the record, but under the circumstances it cannot be considered in the determination of the questions now before us. In consequence, insofar as factual issues are concerned, we are limited to plaintiff's testimony and to facts that are admitted under the pleadings.

Testifying as a witness in his own behalf plaintiff claimed that when he took the merchandise to defendants' place of business the discovered that there was no unloading dock, that such facility was necessary to the proper handling of the boxes, and that he stated to defendants that he should return the shipment to his employer's terminal and have it delivered through another carrier. He claimed further that defendants objected to such procedure, claiming that it would materially increase the cost to them, and that he was assured by Mr. Gibson, hereinafter referred to as the defendant, that if plaintiff would assist the defendants and his employee Gabelman the three could unload the boxes.

Plaintiff testified that he finally agreed to help in the unloading process, that defendant procured a large automobile or truck tire which he placed on the ground immediately at the rear of the trailer, that defendant stated in substance that each box would be moved to the rear of the trailer, the floor of which was approximately four feet above the ground, that the three men would then slide it down to within a few inches of the tire, and that it would then be released and permitted to drop. It was explained by defendant that this would permit each to withdraw his hands from the crate or box to prevent injury. The first crate of merchandise was unloaded in the manner indicated, the parties releasing their hold when it was some three or four inches above the tire. The second crate after bemoved to the rear of the trailer was lowered to a point, according to plaintiff's testimony, approximately two and one-half feet above the ground when he suddenly discovered that he could not stop its downward course, that it struck his legs, throwing him backward and down, and landed on his feet, causing serious injuries.

It was the claim of the plaintiff in substance that defendant and Gabelman suddenly released their hold on the box, and that because of his inability to control it alone the result indicated followed. He further testified that no warning was given to him of any intention on the part of defendant or Gabelman to release the box, that such conduct was not in accord with the plan of unloading as outlined by defendant and that the action of the latter and of his employee constituted negligence.

As above indicated it was the claim of the defendants in the trial court that plaintiff was, under his own testimony, a volunteer and that as such he assumed the risk of any negligent injuries that he might suffer in the course of the unloading operation. This Court in Diefenbach v. Great Atlantic & Pacific Tea Co., 280 Mich. 507, 273 N.W. 783, recognized the general rule that one who is merely a volunteer in rendering service to another cannot recover if injured because of negligence, there being no duty other than not to injure him by willful or wanton act. In the instant case there is no testimony justifying the conclusion that defendant, or his employee, was guilty of willfulness or wantonness resulting in the injury to the plaintiff. It does not appear that any such claim is made on behalf of appellant. If, therefore, he was in fact a volunteer assuming the risk of negligent injury, he is not entitled to recover. Smedley v. Mashek Chemical & Iron Co., 189 Mich. 64, 155 N.W. 357; Diefenbach v. Great Atlantic & Pacific Tea Co., supra.

Does plaintiff's testimony establish that he was a volunteer in the commonly accepted meaning of that term? We think the answer to the question depends on whether it can be said that he or his employer had an interest in the performance of the work in which he undertook to assist. In discussing the subject it is said in 92 C.J.S., p. 1032:

'It has been said that no definition of a volunteer can be given without qualification, since each case must be decided on its own merits. In a general sense a 'volunteer' is one who does or undertakes to do that which he is not legally or morally bound to do, and which is not in pursuance or protection of any interest; one who intrudes himself into matters which do not concern him. The word is more particularly defined as meaning one who enters into service of his own free will; one who gives his services without any express or implied promise of remuneration; one who has no interest in the work, but nevertheless undertakes to assist therein; one who merely offers his service on his own free will, as opposed to one who is conscripted. Under these definitions, a person who, although not obliged to do an act, yet has an interest in doing it, is not necessarily a volunteer.'

In view of certain agruments in the briefs of counsel with reference to the status of the plaintiff, the following statement found in 99 C.J.S. Workmen's Compensation § 75, pp. 298, 299, is of interest:

'In general, a person who does work for another while in the status of a volunteer is not entitled to the benefits of a workmen's compensation act as an employee; thus, an act under which only those who perform a service for hire are employees does not apply to a volunteer, and the mere doing of work without authorization by the person for whom it is done will not entitle the worker to compensation. Where an employee acts in the interest of his employer in coming to the assistance of a third person, he does not become an emergency employee of the person to whom he renders such assistance.'

The pertinent provision of the Michigan workmen's compensation law found in part 1, § 7 ¹ of the act is in accord with the general statement above quoted, and contains specific reference to a 'contract of hire, express or implied.' See, also, Powell v. Twin Drilling Co., 300 Mich. 566, 2 N.W.2d 505.

In accord with the exception to the general...