Reed v. Ridout's Ambulance, Inc.

• Decision Date: 22 January 1925
• Docket Number: 6 Div. 43
• Court: Alabama Supreme Court
• Parties: REED v. RIDOUT'S AMBULANCE, Inc.

102 So. 906

212 Ala. 428

REED v. RIDOUT'S AMBULANCE, Inc.

6 Div. 43

Supreme Court of Alabama

January 22, 1925

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages for personal injuries by Walter R. Reed against Ridout's Ambulance, Incorporated. Judgment for defendant and plaintiff appeals. Affirmed.

Allegation of complaint that plaintiff was riding in defendant's ambulance with defendant's consent held to show that plaintiff was mere licensee to whom defendant's only duty was not to cause willful injury.

The original complaint was in two counts, for simple negligence and willful and wanton injury; the allegations in each count being that plaintiff was injured by the misconduct of one Lawrence Ridout, acting as defendant's servant or employé, in the scope of his employment, while driving defendant's ambulance, in which plaintiff was riding at the time as an invitee of defendant. The specific misconduct charged in count 1 is that Ridout negligently drove the ambulance into a post or other obstruction; and in count 2 that he willfully and wantonly so drove it, well knowing that it would probably injure plaintiff.

A demurrer to these counts being overruled, defendant pleaded the general issue and several special pleas. Plea 2 sets up that plaintiff was an employé of defendant, so engaged at the time of his injury; that Ridout was a fellow servant of plaintiff; and that the injury complained of resulted from the negligence of a fellow servant. Plea 3 sets up the facts that the ambulance in which plaintiff was thus riding was going in the regular course of business to answer an emergency call to go and transport a dangerously wounded person to a hospital; that plaintiff entered the ambulance to go on said call, knowing its nature, and that the car would be driven at a high rate of speed; that the accident happened as the result of its being driven at a high rate of speed on the public streets; and that, knowing the danger, plaintiff negligently remained in the car without warning or protest to the driver.

The case went to trial on counts 1 and 2, and the general issue and on pleas 2 and 3 as answer to the simple negligence count.

When the evidence was completed and the arguments begun, the trial judge indicated that he would give the general affirmative charge for defendant on the theory that the evidence showed that plaintiff was an employé of defendant and not an invitee, as alleged. Thereupon, plaintiff obtained permission to file additional counts to his complaint numbered 3 to 13, inclusive. A demurrer was sustained to each of these counts except 9, which alleges:

"Defendant wantonly injured plaintiff, in that said defendant wantonly drove an ambulance in which plaintiff was riding at such a wanton speed as to cause same to run into a pole, and proximately causing plaintiff to be injured, as alleged in count 3."

Plaintiff was not allowed to introduce any additional evidence, to which denial he duly excepted.

The evidence showed that plaintiff was a partially disabled soldier who had become a vocational student under the War Risk Insurance Act of the federal Congress (U.S.Comp.St. § 514a et seq.), receiving from the government a pension of $100 a month while training for a vocation. He entered defendant's undertaking and embalming establishment about January, 1922, for the purpose of learning the business of embalming, and remained in that service until he was injured in September, 1922, except for a six weeks' absence at a New Orleans school in the summer. As to his relation to defendant, plaintiff testified as follows:

"I disremember the dates I went in Ridout's ambulance as a vocational student. *** The people up there had control and direction over me, according to the terms I made, and they told me when I first entered the office. I didn't have anything particular to do. We went out on ambulance calls. I'd go to the embalmer when he called me. When we went after a body I would assist and go with them. He would drive the ambulance himself, Mr. Ridout or whoever was there, and we would come back to the morgue. If we had a call to make to some residence or to the hospital, we would get the patient and take him, and when it came to sweeping up and things like that we would do that. I would sweep out the office and clean the rooms and do anything and attend to anything that they told me to. Mr. Ridout didn't pay me anything. My condition was that I was getting training--I was wounded in the left leg."

On cross-examination he further testified:

"I roomed at Mr. Ridout's, in the shop we call it, and took my meals out. *** Ridout furnished the usual accommodations with room; that is, bedclothes, linen, etc. I did a little of everything while I was at Ridout's that comes handy in the profession, a lot of work you do that is not concerned with your getting your training, such as sweeping out and things like that. *** I did everything that they asked me to do."

As to the particular service he was engaged in when injured, plaintiff testified:

"I received the call for the ambulance that afternoon myself. *** When I went out there, I told Mr. Lawrence Ridout to go to Sixth and Twenty-Sixth right away; something or other had happened. *** I got in (in) a pretty big hurry and said, 'Let's go.' Mr. Lawrence Ridout was driving."

The evidence shows that as the car was approaching Twenty-Sixth street it was going at about 20 miles an hour; that the driver, Ridout, applied the brakes at Twenty-Fifth street, and the car was slowing down, but the brakes gave way and failed to hold, and the car ran about a block out of control; that on Twenty-Sixth street a truck was in its path, and a pedestrian came from behind it, and to avoid striking him the driver turned the car in towards the curb and ran into a post, resulting in the collision and injury complained of.

Lawrence Ridout was assistant manager of defendant corporation's business, and had authority to supervise and direct plaintiff as to his services. Defendant employed 16 persons in its business.

The trial judge gave the defendant the general affirmative charge with hypothesis, and the jury after retirement came back and asked for further explanations as to the meaning of the charge. After some discussion, that charge was withdrawn, and a peremptory instruction was given to find a verdict for defendant. Responsive to this instruction, the jury brought in a verdict for defendant and plaintiff demanded a poll of the jury, which was objected to by defendant's counsel. The poll was made, however, and eleven of the jurymen stated it was not their verdict, but was given under the compulsion of the judge's instruction. The verdict was received over plaintiff's objection, and judgment was rendered thereon for defendant.

Black, Harris & Foster, of Birmingham, for appellant.

Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, for appellee.

SOMERVILLE J.

The question of controlling importance in this case is whether the plaintiff at the time of his injury was riding in the defendant's truck by invitation merely, or whether he was an employé of defendant and was riding in the truck in the course of his employment and service.

Counsel for plaintiff conceive and insist that, because he was a "vocational student," serving without pay, and for the purpose solely of learning the business of embalming, he was not a servant or employé of defendant in any legal sense, and hence that the legal incidents of such a relation did not attach--thereby avoiding defendant's theory of nonliability based on the fellow-servant doctrine of the common law. A further contention of plaintiff's counsel is that even though it were conceded that the facts in evidence establish the common-law relation of employer and employé, yet, under the definition of "employé" found in our Workmen's Compensation Act (Gen.Acts 1919, p. 237, § 36), plaintiff cannot be held to have been an employé.

As a general proposition, it may be sufficiently accurate to define an "employé" as one who performs services for another for wages or hire; and some judges and lexicographers have thus defined it--aptly enough for ordinary cases, but inaccurately as a test of the legal relation of employer and employé with respect to their obligations and liabilities, whether to third persons or to each other.

The payment of compensation is an incident of the relation merely, and not one of its essentials. The essentials are: The voluntary rendition of service by the employé; its acceptance by the employer; and the employer's right to direct and control the employé. I Labatt's Master & Servant, 9, § 2, and the numerous definitions therein quoted. Id., 56, § 18. As Mr. Labatt observes:

"One person may stand in the relation of master to another, although the former does not compensate the latter for his services. But the fact that the person who performed the work in question was or was not paid for his labor by another person tends more or less strongly to prove that the latter was or was not the master of the former. Elements of a less ambiguous quality, however, are commonly supplied by the testimony in cases of the type here under consideration; and it will be found that the payment of wages by one person or another has usually been viewed either as a merely corroborative circumstance, or as a circumstance to be disregarded, supposing the remainder of the testimony to point to a conclusion different from that indicated by it." Id., 60, § 19.

Among the cases cited by the author, three are cases of "student" workmen serving without pay, and solely for the purpose of learning the master's business Huntzicker v. Ill. Cen. R. Co. (1904) 64 C.C.A. 78, 129 F. 548 (student flagman); Weisser v....