Kalmich v. White

111 A. 845, 95 Conn. 568

• Court: Supreme Court of Connecticut
• Decided: December 5, 1920
• Status: Published

Opinion

Beach, J.

At the time of the accident the driver of the truck was on his master's business and in the ordinary course of his employment, and since there was some evidence from which the jury might have found that the minor plaintiff's injuries were caused by lack of ordinary care in turning a sharp corner at so high a rate of speed while the boy was riding on the running-board, the defendant’s contention is and must be that the respondeat superior rule does not apply, because the defendant owed no duty to the minor plaintiff. This claim of immunity is put on the ground that the minor plaintiff was a mere volunteer. A volunteer, in this sense, is one who, without the assent of the master and without justification arising from a legitimate personal interest, unnecessarily assists a servant in the performance of the master’s business. In England such a volunteer is held to. be, in some respects, in the position of a servant. Degg v. Midland Railway Co., 1 Hurl. & Nor. 773; Webb's Pollock on Torts, 126. There are some authorities to the same effect in this country. Osborne v. Knox & Lincoln Railroad, 68 Me. 49. But the general American doctrine is that a volunteer is not at all in the position of a servant because the master has not assented to his employment. See cases cited in the note to Hunter v. Corrigan, 43 L. R. A. (N. S.) 187 (139 Ky. 315, 122 S. W. 131); 30 Yale Law Journal, 85. The American rule rests on the sound premise that a servant has no authority as such to change existing legal relations between the master and third persons. This being so, the minor plaintiff while riding on the truck was a mere trespasser because the driver had no authority to take on passengers. Compare Brennan v. Fair Haven & Westville R. Co., 45 Conn. 284, and Bergan v. Central Vermont Ry. Co., 82 Conn. 574, 74 Atl. 937. The rule of liability to trespassers, for which the de fendant contends, is that “no duty exists toward trespassers except that of refraining from wantonly or wilfully injuring them.” 29 Cyc. 442. This rule has been applied in many of the cases where the plaintiff was injured while riding upon the defendant’s vehicle' without the defendant’s knowledge or permission and at the invitation of an unauthorized servant. See eases collected in note to Hunter v. Corrigan, supra. In the later case of Walker v. Fuller, 223 Mass. 566, 112 N. E. 230, it is said that because the plaintiff was riding in the defendant’s automobile, without any invitation from the defendant, it was immaterial to inquire whether the defendant was negligent.

It would seem from these cases that Shearman and Redfield go too far when they speak of the, rule above quoted as “overruled everywhere.” Shearman & Red-field on Negligence (6th Ed.) § 64, note 27, p. 160. But that rule is, we think, subject to the modification laid down by Lord Abinger in the famous donkey case (Davies v. Mann, 10 M. & W. 545), that even if the donkey was a trespasser, “ as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.” That is to say, that when the presence of a trespasser in a position of peril becomes known, the duty then arises of using ordinary care to avoid injuring him. . 29 Cyc. 443. In Isbell v. New York & N. H. R. Co., 27 Conn. 393, we applied the rule of Davies v. Mann to the case of cattle trespassing on a railway, and held the defendant liable; and in Brennan v. Fair Haven & Westville R. Co., 45 Conn. 284, 297, we said: “If it be admitted that the plaintiff was a trespasser on the defendant’s car his right of action is not necessarily thereby defeated. ’ ’ Some of the cases in which this: same doctrine has been applied so as to permit a .recovery by tres passers on moving vehicles, are Evarts v. St. Paul, M. & M. Ry. Co., 56 Minn. 141, 57 N. W. 459; Davis v. Ohio Valley Banking & Trust Co., 32 Ky. Law Rep. 627, 106 S. W. 843; Stipetich v. Security Stove & Mfg. Co. (Mo.), 218 S. W. Rep. 964.

Independently of authority, the duty to avoid injuring one whose presence and peril are known is so imperative that it must apply to trespassers; and in the performance of so elemental a duty it is hard to draw any distinctions between the degree of care which ought to be exercised toward trespassers and that which is owing to other persons. Of course, the duty to a trespasser lies within comparatively narrow limits, because the owner of property is not ordinarily bound to anticipate and provide for the presence of trespassers. 1 Street, Foundations of Legal Liability, p. 155 note. Thus, the owner of a motor-car is not bound to keep a lookout for trespassers, nor is he bound to maintain his car in a reasonably safe condition for the carriage of trespassers, but suppose that, while driving his car on his private driveway, he sees a trespasser in the path of the car and in peril of being run down; what ordinary steps to avoid injuring him may he rightfully omit to take? As we said in Isbell v. New York & N. H. R. Co., 27 Conn. 393, if the owner, or his servant, is bound to give any warning at all, he is for the same reasons bound to check his speed, if necessary, or to stop. In short, to use ordinary care to avoid injuring the trespasser.

We do not mean to imply that a trespasser who is guilty of contributory negligence may recover, but we do hold that his original fault in committing the trespass will not justify the omission of any ordinary precautions against injuring him, after his presence and his peril are known.

It is also contended that the defendant owed no duty to the minor plaintiff for the additional reason that he came upon the truck at the invitation of a servant,- who went outside of the scope of his employment in giving such an invitation; and it is of course true that the defendant is not liable for the direct and proximate consequences of any act of his servant done outside of the scope of his employment. For example, if the minor plaintiff had been injured while climbing on the truck in response to the driver’s invitation, the defendant would not be liable. But at the time when this accident occurred the driver had long ago returned to his employment of driving the truck in the master’s business, and the injury was not due- solely to the fact that the boy was on the truck, but also to the fact that the servant, for the very purpose of facilitating the performance of the master’s business, ordered him to ride upon the running-board.

The condition then existing was one which is not uncommon, where the presence of a trespasser on a moving vehicle becomes known to the servant or servants controlling its movements in the ordinary course of their employment, and it is an elementary proposition that the rule of respondeat superior then begins to operate. Isbell v. New York & N. H. R. Co., 27 Conn. 393; Evarts v. St. Paul, M. & M. Ry. Co., 56 Minn. 141, 57 N. W. 459; Davis v. Ohio Valley Banking & Trust Co., 32 Ky. Law Rep. 627, 106 S. W. 843; Stipetich v. Security Stove & Mfg. Co. (Mo.), 218 S. W. Rep. 964. See, also, the cases on ejection of trespassers from railway trains, collected in notes to § 64, 1 Shearman & Redfield on Negligence (6th Ed.).

Applying these conclusions to the case at bar and without expressing any opinion on the issues of fact involved, we think there was some evidence from which the jury might have found that the driver’s act in directing the minor plaintiff to ride on the running-board placed him iii a position of peril known - to1 the driver, that the driver, in afterward operating the car on-his master’s business, did not use ordinary care to avoid injuring the minor plaintiff, and that the minor plaintiff himself was in the exercise, of such care as might reasonably be expected from a boy of his age and experience.

There is error, the judgments are set aside, and a new trial is ordered in each case.

In this opinion the other judges concurred.