Healy v. Patterson

98 N.W. 576, 123 Iowa 73

Opinion

Deemer, C. J.

Defendant is a grain dealer, engaged in business at the town of Mitchellville. In connection with that business, he runs and conducts an elevator. This elevator had an elevated platform, supplied with a trapdoor to let the grain pass through, and also with an elevator dump, which was so arranged that, after a team had passed over it, by the use of a lever the operator could drop the hind wheels of the wagon, and at the same time elevate the front ones so that the grain would pass out of the hind end of the wagon ¡box, down through the trapdoor to a bin, from which place it was elevated into the main structure by machinery. The allegations of negligence are as follow's: “On or about the 6th clay of July, A. D. 1900, the defendant was taking in grain, and having his patrons drive upon the said platform and unload said grain in the manner as hereinbefore described. That the work of unloading and dumping said grain was under the control and management of the defendant herein, and the said labor of dumping to unload was performed by one Daniel Ault and Homer Davis, who were at the time mentioned in the employ of defendant. That upon the said 6th clay of July, A. D. 1900, this plaintiff hauled a load of corn to said defendant for one P. J. Quinliven, who had sold said corn to defendant. That one Sidney Daly, who was also hauling corn for the defendant, had just passed over said elevator platform, and his load of corn had been dumped out, as before described, and *hacl driven off said platform, when one of the aforementioned employes of the defendant, to wit, Homer Davis, closed down the trapdoor where said corn had dropped through, as hereinbefore described, and directed plaintiff to drive upon said platform; and this plaintiff drove upon said platform, as directed, by said employe, and, just as the front wheels of his wagon got upon said dump, the dump under the right front wheel of said wagon gave way by reason of the negligent way by which it was kept and handled — the said employe of the defendant having carelessly and negligently failed and neglected to properly fasten and secure said dump, and negligently allowing plaintiff to drive upon the same when it was not properly secured and fastened — and by reason of said negligence the front wheel of plaintiff’s wagon dropped down, which threw plaintiff off of said wagon, and, falling in front of said wagon, the same ran over his right arm, while loaded with about fifty bushels of shelled corn, and bruised and mangled the muscles and nerves of plaintiff’s said right arm, and caused muscular atrophy, whereby plaintiff’s right arm has become permanently disabled.” The defendant admits most of the facts pleaded by plaintiff, but denies that Davis, the employe, was employed for the purpose of handling or operating the dump, and avers that he was employed for work of an entirely different character; and, by the terms of his employment, was expressly excluded from any work in or about the dump. lie also alleges that plaintiff was guilty of contributory negligence. There is no charge in the petition that the dump was improperly constructed, or that it was out of repair. The sole allegation of negligence is the carelessness of an employe in fastening and securing the dump, and in allowing plaintiff to drive upon it while insecurely fastened, so that we are relieved of the necessity of considering the construction of the dump, or of defendant’s failure to provide the necessary number of servants and agents to properly operate it. The sole issue 'in the case is defendant’s liability for the acts and conduct of his servant Davis in failing to properly fasten and* secure the dump, and in allowing plaintiff to drive upon it before it was. properly fastened and secured.

i. negligence evidence.' The facts are not seriously in dispute. Prom the record we extract the following, which is all the evidence material to the issues presented: “Mr. Patterson weighed my load of .corn. When he weighed the corn, he said, ‘All right.’ Sidney Daly was ahead of me at the time my load was weighed. He was in the elevator approach, about 268 feet from the scales. Daly was hauling corn for Quinliven. Mr. Davis dumped Daly’s load of corn. When Daly drove on the scales, Mr. Davis pulled the trapdoor and unloaded his corn. I was behind Daly at the approach to the elevator, and, when he had his load unloaded, he drove off, and I drove on. There” was a thunderstorm coming up, and we were in a hurry to get in before the corn got wet. When I drove on, the front wheel of my wagon went down, and threw me down on the floor. When Daly drove off, Davis took the broom and swept in the corn; and, when he had shut down the trapdoor, he waved his hand to me, and said, ‘All right.’ I did not see Mr. Ault about the elevator dump at the time X unloaded. Had hauled grain to Patterson’s elevator a couple of times before. I don’t mean I delivered corn three different years, but on three dif ferent occasions. Had delivered corn before this load in 1900. I was personally acquainted with Mr. Patterson and Mr. Ault. I knew a dump was used there for unloading wagons in the elevator. I might have known it a little over a year. I am not certain. I was not personally acquainted with Mr. Davis, but had seen him around town before. • I think he was of age.” This was plaintiff’s own testimony. One of his witnesses testified: “I had a conversation with Mr. Patterson in regard to his elevator dump since that time — about its condition at that time. He said that the elevator was perfect when operated by the regular man that he had employed for that purpose. I think he said that, if the elevator 'wasn’t properly aujusted, it wouldn’t catch sometimes. This conversation was some time after the accident. I don’t remember. It might have been two or three weeks. He said that he considered the dump perfectly safe while Mr. Ault was operating it; that he had used it for years, and had never had an accident; and he said that, if Mr. Ault had been operating it at the time, the accident would not have happened. He said that, if the lever was not properly handled, that it would sometimes miss catching a little; that it had to be locked to.” Another said: “Mr. Ault was dumping grain there at the time. I think he was the only one present, except the parties coming in with the grain. His name is Daniel Ault. I had a conversation with him at the time in regard to the dumping of that platform. He said in that conversation that'he or Mr. Patterson always attended the dump, and that he was always very careful in handling the-dump, but I don’t remember any other words in connection with it. I don’t know what brought up that — whether it was something that I said. I had a conversation with him after this injury occurred. He said in that conversation that he had this Homer Davis working there— assist him in the work; that they were loading cars, taking in grain, and that one ear had been switched away from the elevator, and the section foreman had told them the car was leaking; that he and Homer Davis went to where the car was, and he sent Davis to the elevator or engine room, where they kept the tools, to get tools to repair the car, and that while Davis was there these loads of corn came in, and that, instead of calling him to come and dump the loads, that Davis went to dump the loads himself, and he dumped the first one, and, when the second one went on, the wheel dropped down, and the man fell out on the platform; that the team started to run, and Davis caught the team. Q. Did he say anything about the working of the dump at that time, and, if so, what ? A. He said in that conversation that Davis had no right to use the dump; that he was not hired for that purpose, and that was his work — Mr. Ault’s work — to use the dump; and that, if he had been there, the accident would not have happened. That is as near as I can remember the conversation. It has been a long time ago.”

This is all the relevant evidence in the case, and we have to determine, first, whether it establishes -the facts stated in the petition; and , second, whether these facts constitute a cause of action. If it shows the employment of Davis as a servant of defendant, it also establishes that he was not employed to use or in any manner to handle the dump, and that he had no right to use it; that at the time in question he volunteered to dump the loads which had passed onto the elevator ahead of plaintiff, and that neither Ault, who was employed to look after the dump, nor the defendant, knew that Davis had undertaken to manage the dump; and that whatever he did in connection with this appliance was wholly without authority from any one. Doubtless much of this evidence was incompetent, had it been objected to by defendant; but, as no objection was made, and as plaintiff is relying upon it as making out his case, we must accept it as the true version of the affair, and treat it accordingly. There is absolutely no evidence that Ault sent Davis to manage the dump, or that defendant had any knowledge of the fact that he was operating it. He was not employed for that purpose, and whatever he did was as a mere volunteer, and contrary to the terms of his employment.

2. negligence liability1of master. Appellant’s counsel say that it was defendant’s duty to provide agents and servants who could and -would properly protect the interests of his patrons. This is, no doubt, true, as an abstract proposition of law; but there is no allegation in the petition, and no evidence which -would justify a finding, that he did not provide servants who could and would properly protect his customers. Ault was employed for that purpose, and knew how to operate the dump with safety. He was not required to be present at all times. Plaintiff knew that Ault had operated the dirmp theretofore, and he had never seen Davis about the place prior to the time he received the injuries. Defendant is not to be held responsible for the acts of strangers, nor for the unauthorized and forbidden conduct of his employes, unless after knowledge thereof he was himself guilty of.some misconduct. Of course, where one invites another to deal with him and provides a place for the delivery of articles sold, he is bound to use reasonable care to make and keep the place in a reasonably safe condition for the uses intended. There is no charge in the petition that the dump was in an unsafe condition. Plaintiff’s theory is that defendant’s servant Davis was negligent in not properly handling the appliance. This may be conceded, and yet, if this servant was a mere interloper, and had no authority to operate the dump, and if he undertook to do so in violation of his instructions, the defendant is not responsible for his act. That a master is not responsible for the acts of his servant done outside of the course of his employment is fundamental. Marion v. C. R. I. & P. R. R., 59 Iowa, 428; Dolan v. Hubinger, 109 Iowa, 408; Kincade v. C. M. & St. P. R. R., 107 Iowa, 682; Porter v. C., R. I. & P. R. R., 41 Iowa, 358; Golden v. Newbrand, 52 Iowa, 59; Yates v. Squires, 19 Iowa, 26. Appellant’s counsel say that Davis’ act was within the scope of his employment. But the record does not bear them out in this claim. We have set out all the testimony on this proposition, and think there is an utter failure to prove that Davis had any authority to operate or to handle the dump.

3. Evidence. Plaintiff offered evidence tending to show the improper construction of the dump, which was excluded as irrelevant. The ruling was manifestly correct. Moreover, the questions propounded called for the opinion of a witness, a non-expert, who had no particular knowledge of the subject.

4. same. Again, a model was introduced in evidence, without objection, which showed the construction of the dump, and no prejudice resulted from the ruling, even if it was erroneous.

5 pleadings, 6. negligence of servant. Plaintiff further contends that the petition charges negligence in the keeping and handling' of the dump, and that the case should have gone to the jury on the question of improper construction and want of care in the handling of the same. Looking again to the allegations of the petition, it will be observed that there is no charge that the dump was improperly constructed or was out of repair. The sole charge is that the dump gave way by reason of the negligent manner in which it was kept and handled. This does not involve improper construction or want of repair. The thought of the pleader evidently was that Davis, who, it is charged, was defendant’s servant, improperly cared for and negligently handled the dump. Conceding that the petition also charges negligence on the part of defendant and Ault in not looking after the dump, yet this does not help the plaintiff, for the evidence clearly shows that defendant furnished a competent man, in the person of Ault, to care for and handle the device, and that he had no knowledge whatever that Ault was not performing his duty. Moreover, there was no evidence from which a jury could rightly infer that Ault himself was negligent. He (Ault) did not send Davis to look after the device, and, if Davis had not officiously and without authority undertaken on his own responsibility to do the work for which Ault was employed, this unfortunate accident would not have happened. It was not due to any actionable negligence on the part of either Ault or of the defendant. There is no evidence to show that Ault knew of the presence of defendant’s customers upon tlie dump. And if there bad been, be had the right to assume that no stranger "'votild attempt to work the dump in his absence. The negligent act of Davis intervened between Ault’s failure to work the dump and the happening of the accident, and for this negligent act neither Ault nor the defendant was in any manner responsible.

The. trial court was right in directing a verdict -for the defendant, and the judgment is artirmed.