Wischam v. Rickards

20 A. 532, 136 Pa. 109, 1890 Pa. LEXIS 1017

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: October 6, 1890
• Docket: No. 155
• Status: Published

Opinion

Opinion,

Mb. Justice Gbeen:

This case is an exceedingly close one, highly exceptional in its facts, and apparently without a precedent among the authorities. The defendant was delivering a heavy fly-wheel, weighing five thousand pounds, to a Mr. Blessing, at the factory of the latter. The wheel was divided into two equal sections, and the first of them had been delivered on the pavement in front of Blessing’s factory in the morning. Blessing’s men, under his direction, had put up a scaffolding as high as the door-way leading into the building, about two feet high, and had raised the section already delivered, up nearly to the top of the scaffold, when Rickards’ men returned with the other section and insisted upon unloading it at once. The first section was then dropped down, and the chain taken off and fastened to the second section, and it was raised clear of the wagon and over the scaffold. Some difficulty was experienced with the rope and chain, and the section was dropped till it rested on the scaffold and against the wall. While in that position, Harvey, Rickards’ foreman, climbed up on the wheel and loosened the chain and stepped down on the rim of the wheel, and it was claimed by the plaintiff his weight on the rim caused the wheel to topple over and fall on the plaintiff and injure him. It was testified by Weigel, as well as by Wiegner, Blessings’ foreman, that while the wheel was being moved, just about the time the chain became tangled, Harvey called for help, and Wischam was either called for by Wiegner, or he happened to be on the ground, and he assisted in moving the wheel. Wiegner and Weigel were Blessing’s men, and they were assisting, and when Wischam came up he was told, as he testifies, by Wiegner to catch hold of the chain. He does not say whether he did so or not, nor does any other witness say what he was doing at the moment of the accident, but they all say that when the wheel fell he was under it. There was a lack of definite statement on this subject, and it does not appear that the attention of the witnesses was called to it in their examination. However, it is a fair inference that Wischam was called by Wiegner to assist, and that he did assist in some way, or was present for that purpose when he was injured. Wischam saj^s Wiegner called to him to come out and help, and told him to take hold of the chain. Wiegner says he don’t recollect calling him, but that he saw him around,, and that he did help. As the court charged the jury that if Wischam was a mere volunteer he could not recover, we will have to assume that the jury believed his statement that he was directed by Wiegner, who was his boss or foreman, to help, 4nd did help in consequence of that direction. The case, on its facts, then, stands thus: Wischam, being ojie of Blessing’s men, assisted in moving the wheel at the instance of Blessing’s foreman, who called for him by the request of Harvey, Rickards’ foreman, and received his injury whilst rendering assistance in these circumstances. The case, or rather the question of Rickards’ liability, is complicated by the fact that the movement of the wheel was a joint movement in which both Blessing and Rickards were interested, and by the fact that Wischam acted under orders from his own foreman. Rickards was certainly not bound to put the wheel inside Blessing’s building. His delivery would have been complete when delivery on the pavement or on the scaffolding was made. The first section was completely delivered when it was deposited on the pavement. But Blessing wanted the wheel in the building, and while the men were all there, that was what they were trying to do, and in that act all the men were participants. It is true the delivery from the wagon on the platform was not quite completed when the accident happened, and, therefore, we think it must be regarded as having happened while the defendant’s men wei;e performing their act of delivery.

Now, it is perfectly clear that if the plaintiff was a mere volunteer, that is, assisted entirely of his own motion, by his own voluntary proffer of service, the defendant would not be liable. All the authorities are that way, and so the court charged the jury. The question is, if he assisted at the request of the defendant’s servant, or in consequence of such request, is the defendant liable ? There are two cases, one of which was cited in the paper-books, which have a very important bearing on that question. One of them is the case of Potter v. Faulkner, 101 E. C. L. R. (1 B. & S.) 800. The defendant’s porters were lowering bales of cotton from the defendant’s warehouse and his carter was receiving them into his lorry (small wagon). The plaintiff, who was waiting with a lorry to receive a load of cotton for his master, at the request of the defendant’s carter assisted him, and in consequence of the negligence of the defendant’s porters a bale of cotton fell upon and injured him. Held, that the defendant was not liable to an action. In the report of the case the following facts are stated amongst others : “ The lorry which was being loaded at the time of the accident was the property of the defendant, and the parties above and the carter below were his servants, of which the plaintiff, before the accident, had notice. The carter of the defendant’s lorry, which was being loaded in the manner before mentioned, requested the plaintiff, who was waiting with his master’s lorry for his turn, to help him to move into their proper places in his cart the bales which were being lowered for him. The plaintiff thereupon got upon the defendant’s lorry and was assisting him when the accident happened.” The court, Erle, C. J., said : “ The plaintiff intervened to assist the servant who was in the cart, and, so far as the master was concerned, was a volunteer upon1 the occasion and was injured by what was found to be negligence in the defendant’s servants in the warehouse. The question is, can the plaintiff, under the circumstances, sue the master for the negligence of his servants ? This is the case of one who volunteers to associate himself with the defendant’s servant in the performance of his work, and that without the consent or even the knowledge of the master. Such an one cannot stand in a better position than those with whom he associates himself, in respect of their master’s liability: he can impose no greater obligation upon the master than that to which he was subject in respect of a servant in his actual employ; and it is clear law that the master would not have been liable if the servant below had been injured by the negligence of the servants above. As between master and servant, the duty of the master is to take due care to employ other servants of competent skill and ordinary carefulness; when he has done that, he has done his duty as between himself and his servants, and we are of opinion that the liability contended for by the plaintiff does not attach to an employer.”

It will be perceived that the court considered the plaintiff to be a volunteer, notwithstanding he intervened only at the request of the defendant’s servant. Now, while it may seem a little strained to call such a person a mere volunteer, the reason given for the non-liability of the master is more substantial, to wit, that the plaintiff’s act of associating himself with the defendant’s servant, in the performance of the work, was done without the knowledge or consent of the master, and therefore he could acquire no better position than that of the servant with whom he associated himself.

The other case to which reference has been made is Flower v. Penna. R. Co., 69 Pa. 210. In that case, a locomotive being at a water station in the city of Lancaster, the fireman asked a boy ten years old standing there to turn on the water. Whilst he was climbing on the tender to put in the hose, the remainder of the train came down with the ordinary force and struck the car attached to the engine; the jar threw the boy under the wheels and he was killed. In an action by the parents for his death it was held that the company was not liable. Ag-NEW, J., in delivering the opinion, said: “ The true point of this case is that in climbing the side of the tender or engine at the request of the fireman, to perform the fireman’s duty, the son of the plaintiff did not come within the protection of the company. To recover, the company must have come under a duty to him which made his protection necessary. Viewing him as an employee at the request of the fireman, the relation itself would destroy his right of action: Caldwell v. Brown, 53 Pa. 453; Weger v. Penna. R. Co., 55 Pa. 460; Cumberland V. R. Co. v. Myers, 55 Pa. 288. Had the fireman himself fallen in place of the boy, he could have had no remedy. It does not seem to be reasonable that his request to the boy to take his place, without any authority, general or special, can elevate the boy to a higher position than his own, and create a liability where none would attach had he performed the service himself.”

The very important proposition, declared in this case, is that the servant of the company cannot impose a higher liability upon it than it was under to himself, by any act of his, and that the person rendering assistance in the service of the company, at the request of its servant, can have no other or different remedy against the company than the servant himself had. It seems to be a reasonable doctrine, founded in sound principles, and it has received full judicial sanction in the two cases cited.

Degg v. Railway Co., 1 H. & N. Exch. 773, was the case of one who was a pure volunteer, but the reasoning of the opinion is in conformity with the same doctrine. Bbamwell, B., thus states the facts and decision: “ The defendants were possessed of a railway and carriages and engines; their servants were at work on the railway in their service with those carriages and engines; the deceased voluntarily assisted some of them in their work; others of the defendants’ servants were negligent about their work, and by reason thereof the deceased was killed; the defendants’ servants were competent to do the work; the defendants did not authorize the negligence. We are of opinion that, under these circumstances, the action is not maintainable. The cases show that if the deceased had been a servant of the defendants, and injured under such circumstances as occurred here, no action would be maintainable; and it might be enough for us to say that those cases govern this, for it seems to be impossible to suppose that the deceased, by volunteering his services, can have any'greater right or impose any greater duty on the defendants than would have existed had he been a hired servant.”

It will be seen that the fundamental idea of the reasoning is that the volunteer can have no greater rights than those servants have who ¿ire engaged in the service in which he joins ; and it is not so much because he is a volunteer as because he makes himself one of a class, who, as against their masters, have no right of recovery for each other’s negligence. This appears plainly enough from another consideration. If a servant is paid for his service, of course he has only the rights of associated servants, and those do not include a right of recovery for the negligence of a fellow-servant. Why should he have a higher right where he is not paid? Baron Bramwell, meeting this idea in the case cited, says: “ But we were pressed by an expression to be found in those cases to the effect that ‘ a servant undertakes, as between him and the master, to run all ordinary risks of the service, including the negligence of a fellow-servant: ’ Wiggett v. Fox, 11 Exch. 832, and it was said there was no such undertaking here. But in truth, there is as much in the one case as in the other; the consideration may not be as obvious, but it is as competent for a man to agree, and as reasonable to hold that he does agree, that if allowed to assist in the work, though not paid, he will take care of himself from the negligence of his fellow-workman, as if he were paid for his services.”

It is manifest, therefore, and is perfectly well settled law, that one who is engaged in the service of a common master, and in a common employment, cannot recover against the master for the negligence of a fellow-servant, whether he is paid for his service or not. Now, the cases of Potter v. Faulkner and Flower v. Railroad, first above cited,'are full authority for the further position, that if the stranger joins in the service at the request of one of the servants of the master, he is in no better position than a mere volunteer.

In the present case, the plaintiff’s intervention in the service in which he was injured was induced by the order of his own superior, and the learned court below thought, and so held, that he could not be regarded as a volunteer, but rather as in the performance of a duty. At first blush this seems very forcible and quite reasonable, and it had much weight with the writer until a thorough study of the subject, and of the authorities, led him to a different view. As I regard the matter, the cases teach us that it is not because the associated servant is a volunteer that he is denied redress for the negligence of a fellow-servant, but because it is the well-established law of the relation between the servants whom be joins, and their master, that there is no such liability on the part of the master. Hence, by joining them in their common service, he becomes, as to the master, one of them, with the same rights and duties as to the master, but with no higher rights as against him. Certainly, without his consent he cannot reasonably be subjected to a greater obligation, by the act of one of his servants in engaging the service of another, than he is under to that servant. If this be so, as was held in the cases cited, how does it matter in what manner' the request of the defendant’s servant was communicated to the plaintiff ? Let it be that it came in the form of an order from his own superior, and that he wag in duty bound to obey that order. It was still only done at the request of the defendant’s servant, and the question we have to decide is the liability of the master. We have seen that his liability cannot be increased, without his consent, by the act of his servant, and it is that reason which is fundamental in the discussion which demonstrates his freedom from obligation for his servant’s act. But if this is the determining reason of the argument, it is just as applicable where the servant’s request is communicated through, or made the basis of an order by a third person to the plaintiff. It is very plain, for that is decided, that if Wiegner, who was Wischam’s superior, had himself joined the service at the request of Harvey and been injured, he could not have recovered. How then can he confer upon Wischam, who is at best only his representative, a right of action against Rickards which he did not possess himself ? We cannot see. It may be true that Wischam was subject to a duty to obey Wiegner, but that was no duty to the defendant; it was no duty to which the defendant had any relation whatever, and it is only the defendant’s obligation that is in question here.

We cannot think, therefore, that the defendant’s liability was in any manner increased by the fact that Harvey’s request for assistance was answered by Wischam’s joining in the service in consequence of an order from his superior. It was still only a participation by Wischam in an associated service, the law of which excludes him from compensation to be recovered from the master for the negligence of his associates.

There is, however, a feature of the subject which requires consideration, and it is that which makes this case so exceedingly close. It is illustrated in the case of Abraham v. Reynolds, 5 H. & N. Exch. 142. There the plaintiff, a servant of I. & Co., who was employed by the defendants to carry cotton from a warehouse, was receiving the cotton into his lorry when, in consequence of the negligence of the defendants’ porters, in lowering the bales from the upper floor of the warehouse, a bale fell upon him. Held, that the plaintiff and the defendants’ servants, not being under the same control or forming part of the same establishment, were not so employed upon a common object as to deprive the plaintiff of a right of action against the defendants for such negligence. The facts found by the assessor were that the plaintiff went to the warehouse of the defendants to receive cotton bales into his wagon and carry them to his employers ; that the cotton was in a room on the fifth floor, and was lowered by the defendants’ servants into the lorry below. The plaintiff brought his lorry under the warehouse and received three or four bales, when one of the defendants’ men called to him to pull in a bale; while he was doing so another bale fell upon him from above. It was argued that there should be no liability on the part of the defendants, the owners of the warehouse, because the plaintiff was engaged in a common service with the defendants’ servants. But the court held otherwise, substantially on the ground that the plaintiff was merely acting for his own master, and was necessarily present for the purpose of receiving the cotton, and therefore had no relation with the defendants. Pollock, C. B., said: “When two persons serve the same master, one cannot sue the master for the negligence of his fellow-servant. The rule applies to every establishment. No member of an establishment can maintain an action against the master for an injury done to him by another member of that establishment, in respect of which, if he had been a stranger, he might have had a right of action..... Here it is said that there was common work. If it was agreed that this work should be done by all,-the rule might apply; but it does not apply merely because the parties had a common object, if they had separate ends, and for some purposes, antagonistic interests. There, as in a case, put by my brother Martin during the argument, of warping a vessel into a dock, mariners at one end and dock laborers at the other, dragging at a rope, either party would be entitled to bring an action for an injury received in consequence of the negligence of the others. It is carrying the matter too far to say that the mariner would have no right of action against the employer of the dock laborers if injured by the negligence of the latter. They have different objects and different liabilities.” This reasoning clearly illustrates the grounds of the decision. The plaintiff was merely receiving the cotton as the agent of his own master, and while doing so was injured by the negligence of the warehouseman’s servants. There was no community of service, as each was in the employ of a different master.

Another case of a similar kind is that of Wright v. Railroad Co., L. R. 1 Q. B. Div. 252. There the plaintiff shipped a heifer in a box-car of the defendant’s road, and took passage on the same train himself. On arriving at the station, the car was shunted to a siding to get the heifer off. There were only one or two porters available to shunt the box-car, and the plaintiff assisted in shunting the car to the side track to get the heifer off, and while doing so the box-car was run into by a train, which had been negligently allowed by the defendant’s servants, and the box-car was driven against the plaintiff and seriously injured him. It was held the defendant was liable for the injury, because the plaintiff was not acting merely as a volunteer, and he was not a fellow-servant, but only assisted in the delivery of his own goods, on his own behalf. Lord Coleridge said: “ It is plain that the plaintiff was not acting merely as a volunteer, in which case he would have been bound to take all the risks upon himself which he met with in the employment. Nor was it the case of master and servant, in which case the defendants would not have been liable for the negligence of a fellow-servant. But the defendants being bound by contract to deliver the heifer to the plaintiff, they by their representative, the station master, allowed the plaintiff to take part in the delivery, and they were therefore bound to see that he did not get injured by the negligence of their servants.” Cleasby, B., said: “ It is said that as the plaintiff was assisting the defendants’ servants he became a fellow-servant. But this distinction makes no difference, for this reason: persons who engage in work with fellow-servants are said to take the chances of the sort of negligence which they themselves or their fellow-servants may be guilty of. Is the plaintiff here in the position of a fellow-servant? The plaintiff was in that position in Degg v. Railway Co. and in Potter v. Faulkner. But he is not so here. He has not agreed, to be the fellow-servant of the defendants’ servants. But, according to a usual practice, he has assisted in the deliveiy of his own goods on his own behalf, not as a servant of the company.”

These citations indicate the grounds upon which the decision was put, and they are in substance that the plaintiff had a right on his own behalf to be present and aid in the delivery of his own goods, without thereby assuming the relation of a servant to the defendant. In the present case that was not the fact. The plaintiff did become one of the servants of the defendant, to assist in the defendant’s act of delivering the wheel. He was so acting in response to the request of one of the defendant’s servants; he had no right or interest in the wheel or its delivery, and what he did was done on behalf of the defendant and in conjunction with the defendant’s servants. The delivery was not completed, but was going on when the accident occurred, and the delivery was the act of the defendant. The participation of the plaintiff was not that of an owner receiving his own goods, but was that of a servant assisting the servants of the defendant, and this circumstance brings it within the rule of non-liability. The distinction is refined, but it seems to be substantial, and we feel constrained to recognize it and enforce it.

Judgment reversed.