Pugmire v. Oregon Short Line R. Co.

• Decision Date: 11 December 1907
• Court: Utah Supreme Court
• Parties: PUGMIRE v. OREGON SHORT LINE R. CO

92 P. 762

33 Utah 27

PUGMIRE v. OREGON SHORT LINE R. CO

Supreme Court of Utah

December 11, 1907

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by Christine Pugmire against the Oregon Short Line Railroad Company. Judgment for plaintiff, and defendant appeals.

REVERSED.

P. L Williams, Geo. H. Smith, and Jno. G. Willis for appellant.

APPELLANT'S POINTS.

The relationship of master and servant is a contractual one, and that contract must possess all the essential elements necessary to the formation of a contract, the same as in all matters of contract. And another indispensable element necessary to constitute a contract of employment, and by some authorities said to be the final test of the relation is this: That he whom it is sought to charge as master must have the supreme control, not only in the selection of the servant and the determination of the work to be done, but also as to the mode of executing the work, the right to direct and control it in all of its details, and not merely as to the ultimate results. In other words, the employer must be master of the whole situation in order to create the relation. (Boot & Shoe Mfg. Co. v. Jamar, 93 Md. 404, 49 A 847, 86 Am. St. 428; Brown v. Smith, 86 Ga. 274, 22 Am. St. 457-459; Wood on Master and Servant, secs. 1, 4; 1 Shearman & Redfield on Negligence, sec. 160; 20 Am. & Eng Enc. of Law [2 Ed.], p. 11.)

Between master and servant, negligence is not inferred from the mere happening of an accident to the servant. (Wells v. Utah Construction Co., 23 Utah 524; Fritz v. Electric Light Co., 18 Utah 493; Railroad v. Dixon, 139 F. 737; Railroad v. O'Brien, 132 F. 593, 67 C. C. A. 421; Westland v. Mines Co., 41 C. C. A. 199, 101 F. 65; Railroad v. Barrett, 166 U.S. 617, 17 S.Ct. 707, 41 L.Ed. 1136; Patton v. Railroad, 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; O'Connor v. Railroad, 83 Iowa 105, 48 N.W. 1002; Brownfield v. Railroad 107 Iowa 254, -- N.W. 1038; Brymer v. Railroad, 90 Cal. 497, 27 P. 371; Huff v. Austin, 46 Ohio St. 386, 21 N.E. 864, 15 Am. St. 613; Wormell v. Railroad, 79 Me. 397, 10 A. 49, 1 Am. St. 321; Grant v. Railroad, 133 N.Y. 659, 31 N.E. 220.)

The burden of proving that that accident resulted from the negligence of the master rested upon the plaintiff to establish that fact. All that the evidence even tended to establish was the naked fact that some sort of an accident did occur, and this is absolutely insufficient to sustain the burden of proof that rested upon the plaintiff. Railroad v. Cox [Neb.], 67 N.W. 740; Railroad Co. v. Tindall [Kan.], 46 P. 12; Carter v. Railroad [Mass.], 58 N.E. 694; Duffy v. Uplon, 113 Mass. 544; Electric Co. v. Kelly, 57 N. J. L. 100, 29 A. 427; Bien v. Unger, 64 N. J. L. 596, 46 A. 593; Davidson v. Davidson, 46 Minn. 117, 48 N.W. 560; Mining Co. v. Kitts, 42 Mich. 41, 3 N.W. 240; Redmond v. Lumber Co., 96 Mich. 545, 55 N.W. 1004; Huff v. Austin, 46 Ohio St. 386, 21 N.E. 864; Kinkead v. Railroad, 22 Or. 35, 29 P. 3; Brownfield v. Railroad, 107 Iowa 254, 77 N.W. 1038; Railroad Co. v. McComas, 7 Colo. App. 121, 42 P. 676; Patton v. Railroad, 179 U.S. 658.)

This court has repeatedly held that the proof must be confined to the allegations, in accordance with the well-settled rule that is as old as our system of jurisprudence. (Edd v. Coal Co., 25 Utah 293; Ohlenkamp v. Railroad, 24 Utah 232 Coates v. Railroad, 24 Utah 304; Peay v. Salt Lake City, 11 Utah 331.)

Kinney & Wilson for respondent.

RESPONDENT'S POINTS.

The evidence shows that the relation of master and servant existed between the plaintiff and the defendant within the meaning of the rule requiring a master to exercise reasonable care to prevent injury to his employees. (2 Cooley on Torts, 1015; Rungue v. Oregon Coal Co., 44 Ore. 407, 75 P. 703; Coal Co. v. Hays, 97 Ala. 201, 12 So. 98; Brophy v. Bartlett [N.Y.], 15 N.E. 368; Rummell v. Dillworth, 111 Pa. St. 343, 2 A. 355; Dean v. East Tenn. Co., 98 Ala. 586, 13 So. 489; Fritz v. Telephone Co., 25 Utah 279; Aga v. Harback, 127 Ia. 144, 102 N.W. 833; 6 Current Law, 532; 6 Thompson on Negligence, 7649.)

Speaking of the relation of master and servant: "A far greater number of cases, most of them modern and many of them recent, apply the rule of res ipsa loquitur as a rule of circumstantial evidence under appropriate conditions of fact." (Mining Co. v. Pouch, 124 F. 148.)

We contend that the doctrine certainly does apply to relation of master and servant, where the evidentiary facts are of a character that justify its application. The mere fact that one person is the servant of another does not prevent the application of this doctrine. "It is applicable to the relation where under the circumstances shown, the accident would not have happened if due care had been exercised." (2 Labatt, Master and Servant, sec. 834; Shea v. New York, 173 Mass. 177; Capithorne v. Hardy, 173 Mass. 400; Mooney v. Lumber Co., 154 Mass. 407; Griffin v. Boston & A. Ry Co., 148 Mass. 143; Ross v. Cotton Mills, 140 N.C. 115, 52 S.E. 121; Stewart v. Carpet Co., 138 N.C. 60, 51 S.E. 362; Wombell v. Grocery Co., 135 N.C. 474; Wright v. Railroad, 127 N.C. 225; Kinney v. Railroad Co., 122 N.C. 964; Blanton v. Dold, 109 Mo. 64; Houston v. Bush, 66 Vt. 346, 29 A. 380; Winkleman v. Drug Co., 88 Md. 78; The Joseph B. Thomas, 81 F. 578; 2 Labatt on Master and Servant, 834, and cases cited. 6 Thompson on Negligence, 7646, et seq.; 4 Thompson on Negligence, 4464; 7 Words and Phrases, 6135; Bush v. Cypress Co., 114 La. 247.)

When evidence has been admitted out of the regular order, over objection from the opposing party, upon the assurance of counsel that it will be made competent thereafter, the failure of the opposing party, to move to strike out the objectionable evidence, when such subsequent proof is not made, is a waiver of his right in the premises. (9 Enc. of Evidence, 243; United States v. Gardner, 42 F. 832; State v. Rothschild, 5 Mo.App. 411; Leipird v. Stotler, 97 Ia. 169; 66 N.W. 150; McCarney v. People, 83 N.Y. 408, 38 Am. Dec. 456.)

McCARTY, C. J. STRAUP and FRICK, JJ., concur.

OPINION

McCARTY, C. J.

A rehearing was granted in this case, and we have again given the questions involved careful consideration. While we are still of the opinion that the result announced in the decision heretofore filed is correct, and that the judgment must be reversed, we are convinced that the opinion, in some particulars, ought to be modified. In view of such fact, the case is decided, ruled, and controlled by this opinion only.

The action in question was brought to recover for personal injuries alleged to have been sustained by plaintiff at Williams, in the state of Montana, where she was at work for defendant as a cook in one of its outfit, or hotel, cars. The complaint alleges that plaintiff was the servant of defendant, and as such, was required to work and remain in its car as the same was situated on a side track; that while working and remaining therein, the defendant, without notice or warning to plaintiff, negligently and suddenly ran one of its engines into said car, whereby plaintiff "suffered a violent blow upon the head cutting the scalp in four places, necessitating the cutting of all the hair from her head, and rendering plaintiff unconscious for several hours, back sprained and wrenched, so that the same is still sore and lame, arms bruised and sprained, right limb injured and sprained, and internal injuries causing serious injuries to female organs; that by reason of said injuries the said plaintiff has suffered, and for all time will continue to suffer, great bodily pain . . . and has been incapacitated, and for all time will be incapacitated from performing her daily work as a cook and housewife, and has been, and for all time will be, permanently crippled and scarred." The answer denies the allegations of negligence in the complaint, and affirmatively alleges contributory negligence on the part of the plaintiff. The answer further alleges that plaintiff was not a servant of the defendant; that she was permitted to be upon the car in question solely because plaintiff and one William Liffon Pugmire represented themselves to be husband and wife, and defendant, having employed said William Liffon Pugmire as manager of certain outfit cars, permitted plaintiff to accompany said Pugmire and be upon the cars with him as his wife, upon the belief that she was his wife; that, in consideration of said permission, the plaintiff agreed to release defendant from all damages on account of any injury she might sustain during her residence on said cars.

It appears from the record that on July 19, 1905, at Pocatello Idaho, the William Liffon Pugmire referred to in defendant's answer was employed by defendant company as manager of one of its outfit cars. At the time Mr. Pugmire was employed, he and plaintiff signed a release, of which the following is a copy: "Whereas, William Liffon Pugmire is employed by the Oregon Short Line Railroad Company as manager Outfit 76 on its outfit cars and lives on and about said cars, and has with him Christine Pugmire his wife; and whereas, they agree to waive and release the said railroad company from any and all rights they might otherwise have to sue and recover for damages on account of any injury to the said William Pugmire and Christine Pugmire during the continuance of such employment and residence on said cars: Now, therefore, in consideration of the permission to said William Liffon Pugmire and Christine Pugmire to be upon said cars as aforesaid, we do hereby release and forever discharge the said railroad company and its successors from any and all claim and liability for damages resulting from injuries which may be received by the said William Liffon Pugmire and Christine Pugmire...