Taylor v. Bush

• Decision Date: 06 May 1907
• Citation: 66 A. 884,22 Del. 306
• Court: United States State Supreme Court of Delaware
• Parties: LEWIS E. TAYLOR, plaintiff below, plaintiff in error, v. GEORGE W. BUSH and SONS COMPANY, a corporation of the State of Delaware, defendant below, defendant in error

66 A. 884

22 Del. 306

LEWIS E. TAYLOR, plaintiff below, plaintiff in error, v. GEORGE W. BUSH and SONS COMPANY, a corporation of the State of Delaware, defendant below, defendant in error

Supreme Court of Delaware

May 6, 1907

Supreme Court, June Term, 1906.

WRIT OF ERROR to the Superior Court of the State of Delaware in and for New Castle County.

Judgment affirmed.

Franklin Brockson for plaintiff in error.

Christopher L. Ward and John P. Nields for defendant in error.

NICHOLSON CHANCELLOR, and SPRUANCE and BOYCE, J. J., sitting.

OPINION

NICHOLSON, CHANCELLOR

This was an action on the case brought in the Superior Court in and for New Castle County by Lewis E. Taylor, the plaintiff against George W. Bush and Sons Company, the defendant, for the recovery of damages for personal injuries.

Under the instruction of the Court below, the jury rendered a verdict in favor of the defendant, the plaintiff having declined to accept a nonsuit.

Upon this verdict judgment was entered and a writ of error taken by the plaintiff.

In the court below the motion for a nonsuit was based upon the ground that it appeared from the evidence of the plaintiff that he was a servant of the defendant when he was injured and that his injury was due to the negligence of a fellow-servant.

The facts in the case are in substance as follows:

The plaintiff was employed by the defendant company as one of the helpers on the defendant's coal wagons. He had been so employed for about three months, his hiring being from day to day, and he lived about fourteen blocks from the defendant's place of business and stables. The plaintiff and other servants of the defendant, drivers of coal wagons and "helpers", were in the habit of bringing their dinners each day, by permission of the defendant, to the stables and stable yard of the defendant, and of there eating their noon-day meal, either in the stable or stable yard, and leaving their dinner pails in the stable until the end of the day's work, when they carried them home.

The plaintiff's duties included some occasional work about the stables, when so ordered by the stable boss, such as putting straw in the stalls from the loft above, etc.

On the 7th of April, 1903, about six o'clock in the evening, the plaintiff, after receiving his pay slip and money at the company's office, which was situated about a block from the company's stables, walked to the stable yard, as he was in the habit of doing, to get his dinner pail. As he was walking on a passage way inside the company's stable yard, near a door of one of the stables on his way into the stable to get his dinner pail, a servant of the defendant by the name of Blake, one of the defendant's drivers, threw a bale of straw out of the stable loft, which fell upon and seriously injured him.

One of Blake's duties was to get straw out of the loft to bed his horses with, and he generally threw it out of the window, but there was a hole in the back part of the stable loft, and it was sometimes thrown down in that way.

The plaintiff had no notice or warning that the straw was about to be thrown down.

There are a number of assignments of error, but counsel on both sides practically agreed that there is but one question before this Court; that is, whether the plaintiff was a servant of the defendant at the time he was injured.

The counsel for the plaintiff in his elaborate and carefully prepared brief expresses the whole of his contention in the following words:

"It is respectfully submitted that the evidence shows that the plaintiff was not a servant of the defendant at the time he was injured; that he was injured by gross negligence of the defendant while he was on its premises at its invitation, and in the excercise of due care and caution upon his part; that the privilege of going upon the defendant's premises was a mere gratuity and not extended to him by any contract of service."

The ground upon which the plaintiff's counsel bases his contention that the plaintiff was not at the time he was injured a fellow-servant of Blake, the servant of the defendant who dropped the bale of straw upon him, in consequence of which he was injured, is that at that time he had finished his day's work and was off duty.

The question raised is an interesting and important one, and involves an examination and analysis of the reasoning of the authorities which have established what is called the fellow-servant or common employment doctrine, in order to determine its application to such a state of facts as is presented in this case, and ascertain whether the facts and circumstances of this case are within the scope of the doctrine.

A great number of authorities have been cited by counsel on both sides who have furnished the Court with very full briefs. No cases have been cited from our own reports, however, and the particular question involved comes before us as a case of first impression in this State.

The opinion of Chief Justice Shaw in the case of Farwell vs. Boston and Worcester R. Corp., 4 Metc., page 49, (1842) is unquestionably the "fountain head" of the "fellow servant or common employment doctrine," as Pollock states in his work on Torts.

Justice Harlan quotes and adopts the language of this opinion in the case of Hough vs. Railway Co., 100 U.S., page 215, (1879) when for the first time it was explicitly laid down by our Supreme Court, and in the leading English case, Bartonshill Coal Company vs. Reid, 3 Macq. H. L. Cases, page 266 (1858), that being the case in which the House of Lords first settled the doctrine for both England and Scotland, Lord Chancellor Cramworth also adopted and paid homage to this opinion of Chief Justice Shaw.

In order that we may have this doctrine before us in a most authoritative form, I will quote from Justice Harlan's opinion at length.

"'The general rule,' said Chief Justice Shaw, in Farwell vs. Boston & Worcester Railway Corporation (4 Metc. (Mass.) 49), 'resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal contemplation the compensation is adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is likely to know, and against which he can as effectually guard as the master. There are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation as any other.'"

"To prevent misapprehension as to the scope of the decision, he deemed it necessary, in a subsequent portion of his opinion, to add: 'We are far from intending to say that there are no implied warranties and undertakings arising out of the relation of master and servant. Whether, for instance, the employer would be responsible to an engineer for the loss arising from a defective or ill constructed steam-engine; whether this would depend on an implied warranty of its goodness and sufficiency, or upon the fact of wilful misconduct or gross negligence on the part of the employer, if a natural person, or of the superintendent or immediate representative and managing agent, in case of an incorporated company,--are questions on which we give no opinion.'"

"As to the general rule, very little conflict of opinion is to be found in the adjudged cases, where the court has been at liberty to consider it upon principle, uncontrolled by statutory regulations. The difficulty has been in its practical application to the special circumstances of particular cases. What are the natural and ordinary risks incident to the work in which the servant engages; what are the perils which, in legal contemplation, are presumed to be adjusted in the stipulated compensation; who, within the true sense of the rule, or upon grounds of public policy, are to be deemed fellow-servants in the same common adventure or undertaking,--are questions in reference to which much contrariety of opinion exists in the courts of the several States. Many of the cases are very wide apart in the solution of those questions."

It is obvious that we are not concerned with the limitations and exceptions we have cited for the purpose of giving a more complete statement of the doctrine. Upon each of these limitations or exceptions, and upon others as well that are not enumerated, there are a host of decisions and conflict of authority; but, as appears from the statement of the case before us already made, the only question for this Court to decide is whether the plaintiff at the time he...