Le Sueur v. Ayres, 3628

• Decision Date: 19 June 1950
• Docket Number: No. 3628,3628
• Citation: 191 Va. 119,60 S.E.2d 26
• Parties: BILLIE DANIEL LESUEUR v. DAVID AYRES, ADMINISTRATOR, ETC. Record
• Court: Virginia Supreme Court

Page 26

60 S.E.2d 26

191 Va. 119

BILLIE DANIEL LESUEUR v. DAVID AYRES, ADMINISTRATOR, ETC.

Record No. 3628.

Supreme Court of Appeals of Virginia

June 19, 1950.

John B. Boatwright, for the plaintiff in error.

A. Laurie Pitts, Jr. and John P. Flanagan, for the defendant in error.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

Lorenza Ayres, plaintiff's intestate, was killed when a truck in which he was riding, owned by LeSueur and driven by Thomas, overturned. His administrator brought this action against LeSueur and Thomas, charging that the accident was due to the negligence of Thomas, servant of LeSueur, in operating the truck. He recovered a verdict and judgment against both defendants and this writ of error was granted to LeSueur. Thomas, the driver, did not appeal.

LeSueur operated a feed store in the town of Dillwyn, Buckingham county, and made deliveries to some of his customers by truck. Thomas was employed by him to drive one of his trucks and to help with the loading and unloading. He had worked in that capacity for five or six months. Ayres was first employed on the day of the accident to help unload and deliver feed.

In the afternoon of December 30, 1948, Ayres was sent by LeSueur with Thomas to deliver feed to one of LeSueur's customers who lived a few miles from Dillwyn. Together they loaded the truck from a freight car and Thomas drove it to the home of the customer where they made delivery. On the way back, at a sharp curve in the road, they met an automobile, and in order to avoid a collision Thomas drove off the road and into a ditch, which was soft from recent rain. The truck ran in the ditch 94 feet and struck a stump which caused it to turn over on its side. Ayres fell, or was thrown, under the truck and was killed.

The evidence was clearly sufficient to support the finding that the accident was due to the negligence of Thomas in driving the truck. It was a two and one-half ton truck, eight feet wide and with a high body. The road, State Route No. 622, was 15 or 16 feet wide. The curve was sharp and Thomas was familiar with it. He knew that care was required properly to negotiate it. Yet, by his own admission, he approached it at 40 miles an hour, in the middle of the road, although he could not see the approaching car until his truck was at the point of the curve within about 20 steps of the car. The occupants of the car testified that the truck was running at 55 or 60 miles an hour; that it came around the curve entirely on their side and narrowly missed striking them as it swerved to its right and into the ditch. They had seen the truck coming and to get out of its way they had pulled into the ditch on their side and as far off the hard surface as they could get. The accident happened shortly after five o'clock and both vehicles had lights on. The jury were fully warranted in finding that the death of Ayres was caused by the negligence of Thomas.

The main defense relied on here is that Ayres and Thomas were fellow servants and that hence LeSueur was not responsible for the negligence of Thomas. The court instructed the jury that if Thomas had control over the truck and the deliveries, then he was a vice-principal and LeSueur was liable.

Thomas was twenty-three years old; Ayres was eighteen. Thomas was, as stated, the driver of the truck, while Ayres did not drive. Ayres was employed by LeSueur as a helper and he and Thomas worked together in loading and unloading the truck. Thomas had nothing to do with employing him and had no right to discharge him. Both were to receive the same wages. Thomas gave Ayres no orders but they both received their orders from LeSueur. LeSueur testified that Thomas had no control or authority over Ayres, but on cross-examination he was asked, 'Did Thomas have any direction or authority over Ayres, authority to tell Ayres what to do? ' He replied, 'Yes, sir.' Plaintiff relies on that answer, together with evidence that Thomas had control of the truck and of the delivery, as sufficient to make Thomas a vice-principal of LeSueur, and to support the court's instruction.

In Norfolk, etc., R. Co. v. Nuckols, 91 Va. 193, 21 S.E. 342, Nuckols, who was a track hand, was struck and killed by a passing engine due to the negligence of the engineer in charge of the engine. Judgment for the plaintiff was reversed for refusal of the trial court to instruct that the decedent assumed the risk of injuries caused by the negligence of fellow servants, and that the engineer and Nuckols, the track hand, were fellow servants.

In the opinion Keith, President, speaking for the court, stated the origin and some of the history of the fellow servant doctrine and the principles upon which it is founded. He reviewed former decisions of this court and found that the general doctrine had been fully and broadly accepted. He referred to the fact that the rule had been criticized and efforts made to limit and confine it, stating that 'in some States, what is called the doctrine of 'superior and subordinate' has been recognized; in others, the 'separate department' doctrine has been adopted;' but he then quoted from Northern Pacific R. Co. v. Hambly, 154 U.S. 349, 14 S.Ct. 983, 38 L.ed. 1009, to the effect that the application of those qualifications 'would result in frittering away the whole doctrine of fellow-service,' and that courts have been reluctant to recognize those distinctions 'unless the superiority of the person causing the injury was such as to put him rather in the category of principal than of agent -- as, for example, the superintendent of a factory or railway -- and the employments were so far different that, although paid by the same master, the two servants were brought no further in contact with each other than if they had been employed by different principals.' 91 Va. at pp. 204-5, 21 S.E. at p. 346.

Judge Keith goes on to say: 'It appears that the case of Norfolk, etc., R. Co. v. Donnelly, 88 Va. 853, 14 S.E. 692, repudiates the exceptions, and evinces a disposition to return to the simple terms of the rule stated by Chief Justice Shaw. It throws aside the doctrine of 'inferior and superior,' of gradations in employment, and of 'separate departments,' and states forcibly and clearly that 'all serving a common master, working under the same control, deriving authority and compensation from the same source, and engaged in the same general business, although in different grades or departments, are fellow-servants, and take the risk of each other's negligence.'' 91 Va. at p. 206, 21 S.E. at pp. 346-7.

He then states certain propositions as being fully warranted by the great weight of authority in this State and elsewhere, including this:

'The liability does not depend upon gradations in employment, unless the superiority of the person causing the injury was such as to put him in the category of principal or vice-principal.' 91 Va. at p. 207, 21 S.E. at p. 347.

It clearly appears from the opinion that the words 'principal or vice-principal' are meant to apply to those who represent the master in the performance of personal or non-assignable duties that he owes to his servant. This is emphasized and made clearer by the later case of Norfolk, etc., R. Co. v. Houchins, 95 Va. 398, 28 S.E. 578, 64 Am.St.Rep. 791, 46 L.R.A. 359, holding the brakeman on a train to be a fellow servant of the conductor by whose negligence he was killed. It is there again held that when a person enters employment he assumes the risk of the negligence of another in the same employment; and the mere fact that such other is a leader or boss to see to the execution of the work, 'does not of itself place the one so put in authority in the category of principal or vice-principal; but the question remains whether or not the negligent servant was performing some duty which the master owed to the injured servant for...