Opinion
Decided November 13, 1928.
Negligence — Directed verdict — Evidence taken most favorable to plaintiff — Master's duty toward persons voluntarily assisting servant — Third person not mere volunteer when assisting servant during emergency — Duty of land owner toward licensee by invitation — Implied authority of servant to procure help in emergency — Master's liability for servant's negligence injuring boy while backing truck into garage — Fellow servant rule inapplicable — Section 6244, General Code — Twelve year old boy not guilty of contributory negligence, when.
1. For the purpose of determining whether the trial court erred in directing a verdict for the defendant, the reviewing court must take the evidence most favorable to the plaintiff.
2. Master owes no duty to person voluntarily assisting servant, except duty not to wantonly or willfully injure him, where such person acts without promoting or protecting any interest of his own.
3. Where an emergency arises which makes it to the interest of the master that his servant in charge of his work should have temporary assistance, and servant calls on third person for help, the third person is not a mere volunteer, and the master through the servant owes him duty to exercise ordinary care while performing work of assistance requested.
4. One who comes on the land of another by express or implied invitation of the owner or occupant is a licensee by invitation, to whom the owner or occupant owes duty of ordinary care.
5. Servant may invite third person on master's premises so as to make him a licensee by invitation, provided that servant has express or implied authority to do so, and servant's authority to procure necessary help in interest of master in case of emergency is implied.
6. Liability of master for servant's negligence in backing truck against boy while attempting to back into garage held question for jury, in action for boy's injuries, under evidence that servant asked the boy to get out of cab in truck and guide him into the garage, since there was evidence that boy was not a mere volunteer.
7. Boy, riding with servant in truck, who received orders from servant to get out and guide him in backing into garage, held not barred from recovering against master for injuries sustained when truck was backed against him, as fellow servant, if he was such, since Section 6244, General Code, makes fellow servant rule inapplicable, where negligent act of fellow servant is done in obedience to immediate or peremptory instructions of employer or authorized employee.
8. Twelve year old boy, struck by truck while attempting to guide driver in backing truck into garage, could not be held guilty of contributory negligence as matter of law as to driver's employer.
ERROR: Court of Appeals for Lucas county.
Messrs. Miller, Brady Yager, for plaintiff in error.
Messrs. Smith, Baker, Effler Eastman, for defendants in error.
This proceeding in error is brought to reverse a judgment rendered in the court of common pleas of Lucas county in an action begun by the plaintiff, Galen Leroy Ohm, a boy about twelve years of age, to recover for personal injuries sustained by being hit by a truck while it was being backed into a garage. The action below was originally begun against Jacob Miller and George F. Schaefer, as partners, but it appears from the record that Jacob Miller died before the injuries were sustained. The partners had been in the flour and feed business, and, after the death of Miller, the defendant in error Schaefer carried on that business. The cause was tried upon the issues made upon the second amended petition, the answer of the defendant Schaefer, and the reply, and under those pleadings no judgment was sought against the partnership.
Upon the trial of the cause the court below directed a verdict in favor of the defendant Schaefer, upon the theory that the boy was a mere volunteer.
There is evidence in the record tending to show the following state of facts: The defendant Schaefer had a three-car garage which he used in his flour and feed business. On the day in question the truck of Schaefer being operated by his driver, and, as the day was wet, a tarpaulin was drawn from the cab of the truck to the back thereof to keep the load of flour and feed dry, thus preventing the driver from seeing back through the rear window of the cab. The driver had started to make a delivery earlier in the day, but, due to the rain, he had come back to the garage, and the defendant Schaefer had assisted him in backing in. Later, it having stopped raining, the driver, as he was about to start out, asked the plaintiff, Galen Leroy Ohm, if he did not want to go along, and the boy accepted the invitation. The defendant Schaefer had told this driver previously that, if he took anybody with him at any time, he should make him ride in the cab. The driver got into the cab of the truck with the boy and drove away. After having delivered some of the load, it began to rain, and the driver drove the truck back to the garage to protect the remainder of the load. As he drove up the alley and stopped to back the truck into the garage, he asked the boy to get out and guide him in. The boy did as requested, and the driver negligently backed the truck into the garage and into and against the boy, causing his injuries.
There is also evidence in the record to the contrary, but, for the purposes of determining whether the court erred in directing a verdict, we must take the evidence most favorable to the plaintiff. Pope, Admx., v. Mudge, 108 Ohio St. 192, 140 N.E. 501. It is a rule that ordinarily a master owes no duty to a person, who, without promoting or protecting any interest of his own, voluntarily assists the servant, except the duty not to wantonly or willfully injure him. McIntire Street Ry. Co. v. Bolton, 43 Ohio St. 224, 1 N.E. 333; Cleveland Terminal Valley Rd. Co. v. Marsh, 63 Ohio St. 236, 243, 58 N.E. 821 (52 L.R.A., 142); Toledo, Bowling Green Fremont Ry. Co. v. Pfisterer, 5 C.C. (N.S.), 359, 16 C.D., 669; 45 Corpus Juris, 840, Section 253.
In the instant case the boy got out of the truck into the alleyway, and went into the garage, at the request of the driver, to assist the latter in backing in, but did not go in to subserve any interest or purpose of his own.
There is, however, another rule, within which the instant case comes. It may be stated thus: Where an unforeseen happening or emergency arises that makes it to the interest of the master that his servant in charge of his work should have temporary assistance therein, and to meet the emergency, and serve his master's interest, the servant calls upon a person for assistance, and that person, in answering the call and performing the work requested, sustains an injury, the person assisting in compliance with the request is not a mere volunteer, and the master, through the servant, owes to the person so assisting the duty to exercise ordinary care. Baringer v. Zachary, 206 Ky. 229, 267 S.W. 182; St. Louis S.F. Rd. Co. v. Bagwell, 33 Okla. 189, 124 P. 320, 40 L.R.A. (N.S.), 1180, and annotations; Houghton v. Pilkington, 3 K.B., 308, Ann. Cas., 1913C, 790, and annotations.
The reasons upon which this rule is founded may be stated thus: One who comes upon the land of another by express or implied invitation of the owner or occupant is a licensee by invitation, and the owner or occupant owes the invitee the duty of ordinary care. Cleveland, C., C. St. L. Rd. Co. v. Means, 59 Ind. App. 383, 104 N.E. 785, 108 N.E. 375; Hargreaves v. Deacon, Admr., 25 Mich. 1.
A servant of the master may invite one upon the master's premises so as to make him a licensee by invitation, provided the servant has express or implied authority to extend the invitation. 45 Corpus Juris, 822, Section 232. Upon emergency, the law implies the authority of the servant to procure necessary help in the interest of the master.
In the instant case there is evidence tending to show that an emergency existed; that the plaintiff was called by the master's servant to assist in the interest of the master; that he was injured by the backing of the truck while so assisting; that plaintiff was a licensee by invitation; and that defendant Schaefer, in the operation of his truck, was guilty of negligence which was the direct and proximate cause of the injury to plaintiff. The cause should have been submitted to the jury.
The claim has been made that if the plaintiff was not a volunteer, he was nevertheless barred of his right of recovery by the fellow servant rule. Even if he was a fellow servant, under Section 6244, General Code, the fellow servant rule has no application, where the negligent act of the fellow servant is "done in obedience to the immediate or peremptory instructions or orders given by the employer, or any person who has authority to direct the doing of said act."
As the plaintiff was a child about twelve years of age, we could not say that he was guilty of contributory negligence as a matter of law.
For prejudicial error in directing a verdict for the defendant Schaefer, the judgment of the court below will be reversed, and the cause remanded for a new trial.
Judgment reversed and cause remanded.
RICHARDS and LLOYD, JJ., concur.