Putnam v. Pacific Monthly Co.
| Citation | 136 P. 835,68 Or. 36 |
| Parties | PUTNAM v. PACIFIC MONTHLY CO. |
| Decision Date | 02 December 1913 |
| Court | Supreme Court of Oregon |
In banc. On rehearing. Former judgment and opinion modified, and judgment of lower court reversed and remanded for new trial.
For former opinion, see 130 P. 986.
R.A. Leiter, of Portland (Griffith, Leiter & Allen and F.J. Lonergan, all of Portland, and Clarence L. Eaton, of Oregon City, on the brief), for appellant.
Samuel White, of Portland (Manning & White, of Portland, on the brief), for respondent.
Upon this rehearing we carefully examined this case, and, while a majority of the court are still of opinion that it should be reversed, we think the opinion should be modified in two respects: (1) In holding that the relation of the defendant to the deceased was that of master and servant, and that the degree of care required of defendant was only that of ordinary and reasonable care exacted from such relation; and (2) in holding that the relation of fellow servants engaged in the same common employment existed between deceased and the person operating the elevator. The testimony shows that the deceased was employed by defendant as a stenographer on the fourth floor of the building; that her duties began at 8:30 in the morning, and that the accident happened at 8:20. At the time of the accident her time was her own. She was not the servant of the defendant until it was time for her to begin such service.
This is not a case like many of those cited in the opinion, where a laborer going to his work is injured in the course of transportation. In such cases the time so occupied is the time of the employer, and is paid for by him. The service is being rendered just as effectually by the employé when he is being transported from one section of the road to another as when he is laying ties or grading. It is true that the complaint alleges that deceased was compelled to use the elevator in order to reach the room where she was employed but this allegation is denied, and the testimony discloses that there was a stairway which she could have used instead of the elevator. But holding plaintiff strictly to the pleading, and assuming for the purpose of this case that it was necessary for deceased to use the elevator in order to reach the place where her work was to be performed, does not in my view of the case, make her a servant of the defendant while so using it, or differentiate her in any way from any other passenger thereon. Primarily the elevator was built and operated for the use and benefit of the defendant. If it enabled persons having business with defendant, or its tenants, to reach the various floors of the building with less exertion, or more expeditiously, this was a profit to defendant in the way of an increased number of tenants customers, or business. If it enabled employés to get from one floor to another more expeditiously, this would also be a matter of convenience and profit to defendant. It was placed there just as a stairway would have been, and for the same purpose, namely, for the use and profit of the employer. We are of the opinion that, under the circumstances here disclosed, the deceased was as much a passenger as any other person using the elevator, and that the degree of care due her was just the same that defendant owed to any person not in its employ, who might have seen fit to use it in order to transact business with the defendant.
This measure of care is fully defined by Mr. Justice Moore in Kelly v. Lewis Investment Co., 133 P. 826, as follows: "By the great weight of authority, however, it has been determined that a landlord who for a consideration stipulates to maintain and operate, for the accommodation of his tenants and their visitors, a passenger elevator into which the public are impliedly invited to enter to be carried to desired floors is subject to the highest degree of skill and foresight consistent with the efficient use and operation of the means of conveyance, the same as is imposed by law upon public carriers of passengers" (citing Hutchinson Carriers [3d Ed.] § 100; 1 Thompson, Neg. § 1078; Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 125 S.W. 439, 27 L.R.A. [N.S.] 124; Treadwell v. Whittier, 80 Cal. 574, 22 P. 266, 5 L.R.A. 498, 13 Am.St.Rep. 175; Deposit Co. v. Sollitt, 172 Ill. 222, 50 N.E. 178, 64 Am.St.Rep. 35; Springer v. Ford, 189 Ill. 430, 59 N.E. 953, 52 L.R.A. 930, 82 Am.St.Rep. 464; Ohio Valley Trust Co. v Wernke, 42 Ind.App. 326, 84 N.E. 999; Cubbage v. Estate of Youngerman [Iowa] 134 N.W. 1074; Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 S.W. 1010; Goodsell v. Taylor, 41 Minn. 207, 42 N.W. 873, 4 L.R.A. 673, 16 Am.St.Rep. 700; Lee v. Publishers Knapp & Co., 155 Mo. 610, 56 S.W. 458; Becker v Lincoln R.E. & Bldg. Co., 174 Mo. 246, 73 S.W. 581; Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S.W. 1035; Quimby v. Bee Bldg. Co., 87 Neb. 193, 127 N.W. 118, 138 Am.St.Rep. 477).
If the deceased was a passenger and not a person then engaged in the service of the defendant, defendant is liable for the negligence of its operator, unless the deceased was a fellow servant engaged in the same common employment with him, which brings us to the second error alleged in the petition for rehearing.
The definition of the term "fellow servant" has gradually undergone a change in favor of the employé. In the early history of jurisprudence a suit for damages by a servant against his master, while it was tolerated, was always looked upon with disfavor by the courts as a sort of moral petit treason, and every limitation that judicial ingenuity could devise was interposed to make recovery difficult; but in the progress of years this strictness has greatly relaxed, and the doctrine of the assumption of risk and negligence of fellow servant has been placed upon a decent and logical basis. The rule as to who are fellow servants, when reduced to its lowest terms, may be stated as follows: "The master is not responsible for an injury inflicted upon his servant by the negligence of a fellow servant engaged in the same common employment." This is the sum of all the modern authorities, and should not be lost sight of in the midst of all verbiage in which it is sometimes obscured. The definition means something, and every word and phrase means something. It is not enough that the parties should be fellow servants. The Governor of the state and the janitor of the statehouse are in a sense fellow servants of the state; the chief attorney of the greatest railroad in the state is in a sense a fellow servant with the conductors and brakemen of the same road. And right here is where many courts have gone wrong, by omitting or forgetting the concluding and important qualification of the rule, namely, that the fellow servants must be engaged in the same common employment.
The reason of this rule is clearly and succinctly stated in 4 Thompson, Neg. § 4970, in the following language: "It is perhaps on the question, What
is common employment? that we find the greatest divergencies of opinion. In a few jurisdictions the rule under consideration is restricted to cases where the servant injured and the servant inflicting the injury are so closely associated that they can watch over each other's conduct, and, if necessary, report it to the common master. The reason for the general rule is one of public policy. Its object is to secure to the public a more faithful service from the employés of railway companies, navigation companies, and other companies conducting a business wherein the safety of the public is involved, by making it the interest of each one of the employés of such persons or corporations to look after and encourage carefulness and fidelity in all the rest. This reason can have no application to employés whose situation allows them no corrective influence over each other; but where this doctrine obtains and the servants are so disassociated that the purpose of the rule is defeated, they are not deemed fellow servants within the meaning of the rule under consideration, but the rule of respondeat superior applies. *** It has been reasoned that an application of the fellow-servant rule which would put one servant in the situation of accepting the risk of the negligence of another servant so remote from him that there is no opportunity of exercising that superintending care which the rule is intended to enforce would operate as a penalty, and would be sheer cruelty." This proposition is so clearly in accord with justice and reason that it does not require the citation of authorities to support it. The authorities cited by the learned author above quoted abundantly support the text. Now let us make a concrete application of the text to the case in hand. The deceased was a girl, a stenographer, to whom presumably, the machinery of an elevator was an unknown quantity. She had not and could not have that intimate knowledge of the working of an elevator, or acquaintance of the person in charge of it, that would or might lead her to suggest caution in the manner in which he should perform his duties, neither would she be likely to have that acquaintance or skill in the operation of the machine necessary to enable her to judge as to whether or not it was carefully handled. She was engaged in mental and clerical work; the operator was engaged in a different and mechanical work, about which she knew nothing. Except for the fact that they were hired by the same corporation there was nothing in common between them, and to hold that deceased assumed the risk of the negligence of the person operating the elevator is to hold that all persons serving under the same employer are fellow servants in a common employment, which is contrary to justice and enlightened...
To continue reading
Request your trial