Standard Oil Co. v. Adams

• Decision Date: 17 December 1937
• Citation: 111 S.W.2d 668,271 Ky. 221
• Parties: STANDARD OIL CO. v. ADAMS.
• Court: Kentucky Court of Appeals

111 S.W.2d 668

271 Ky. 221

STANDARD OIL CO. v. ADAMS.

Court of Appeals of Kentucky

December 17, 1937

Appeal from Circuit Court, Pulaski County.

Action by Ed Adams against the Standard Oil Company. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Ben V Smith & Son, of Somerset, for appellant.

R. C Tartar, of Somerset, for appellee.

THOMAS Justice.

At and prior to the happening of the accident here involved (January, 1936) the Standard Oil Company maintained a filling station in Somerset, Ky. which was in charge of E. P Buchanan, as superintendent, and John B. Gragg, as assistant superintendent. The filling station building sat some distance from the sidewalk with a more or less wide space between the two, sufficient to contain two service pumps about midway of the space with room enough for a driveway on either side, thereby creating facilities sufficient to serve four cars at one. On a day of the month referred to, a customer appeared and stopped his automobile on one of the driveways opposite a pump to obtain some gasoline. He was promptly waited on, and then attempted to continue his journey when he found that his automobile would not start. After some unsuccessful efforts to make it do so, he requested Buchanan to call a mechanic to remedy the defect, and his request was complied with. After some twenty or thirty minutes waiting, and no mechanic appearing, the appellant and plaintiff below, Ed Adams, drove up with his automobile. He was an automobile mechanic and had worked at the trade for fifteen years or more.

Buchanan knew him and informed him of the situation with reference to the customer's car and, perhaps, asked him if he would examine it. He undertook to do so and lifted the hood on one side of the customer's automobile and requested Buchanan to "step on the starter"; Buchanan in the meantime having taken his position on the front seat of the disabled car. After examining that side plaintiff went to the other side of the car and lifted the lid on that side when Buchanan and Gragg, who was present, both say that he made the same request of Buchanan; but which plaintiff denied, and stated that he told Buchanan at that time not to step on the starter. At any rate the movement produced at the time by Buchanan's stepping on the starter resulted in plaintiff losing a finger and sustaining damage to another one.

He later filed this ordinary action against defendant in the Pulaski circuit court to recover $2,000 as compensation for his injuries, and in his petition he alleged the foregoing facts, and charged that for the time being he was in the employ of defendant and that the injuries he sustained were produced by the gross carelessness and negligence of its superintendent, Buchanan. The petition was demurred to, but it was overruled, followed by other motions and the filing of an answer. The latter denied the negligence charged, as well as any duties defendant owed to plaintiff in the circumstances, and, in substance, averred that he was a mere volunteer; there being no authority in Buchanan to employ him to render any service in behalf of defendant, but only to serve the owner of the crippled automobile, pursuant to the request made by him. Following pleadings made the issues and at the trial the jury, under the instructions given by the court, returned a verdict in favor of plaintiff for the sum of $1,000 upon which judgment was rendered. Defendant's motion for a new trial was overruled, followed by this appeal.

A number of errors are relied on and argued by learned counsel for defendant, but the one to which the greater part of the brief is devoted is the refusal of the court to sustain defendant's motion for a directed verdict in its favor made at the close of plaintiff's testimony and again at the close of all the testimony. We are thoroughly convinced that counsel is correct in that contention.

It will be noted that plaintiff is relying upon what is known in the law as the "Emergency Employment" doctrine. A number of cases are cited, both domestic and foreign, in which it is defined, recognized, and applied. Many more could have been cited, since the principle it embodies is of universal application, of long standing, and not disputed by any court. In brief it is: That a regularly employed servant of a principal possesses implied authority to engage an assistant to aid the servant in performing a task, within the scope of the duties of the servant in serving his master, in cases of emergency rendering it absolutely necessary to obtain such assistance, and without which the emergency conditions could not be overcome by the servant, or any coemployee in the regular service of their common master. Some of the texts and some of the cases so defining the doctrine are, St. Louis & S. F. R. Company v Bagwell, 33 Okl. 189, 124 P. 320, 40 L.R.A., N.S.,1180, and annotations; Houghton v. Pilkington, 1912, 3 K. B. 308, Ann.Cas.1913C, page 792, et seq.; Bernhardt v. American Ry. Express Company, 218 A.D. 195, 218 N.Y.S. 123; Henry Quellmalz Lumber & Mfg. Company v. Hays, 173 Ark. 43, 291 S.W. 982; Shafer v. St. Louis & S.F. Ry. Company, 201 Mo.App. 107, 208 S.W. 145; Louisville & N. Ry. Co. v. Vaughn's Transfer Company, Ky., 123 S.W. 253; Central Kentucky Traction Company v. Miller, 147 Ky. 110, 143 S.W. 750, 40 L.R.A., N.S., 1184; W. H. Neill Company v. Rumpf, 148 Ky. 810, 147 S.W. 910, L.R.A.1917C, 1199; Kentucky Lumber Company v. Nicholson, 157 Ky. 812, 164 S.W. 84, 51...