Reed v. Ridout's Ambulance, Inc.

SOMERVILLE, J. The question of controlling importance in this case is whether the plaintiff at the time of his injury was riding in the defendant’s truck by invitation merely, or whether he was an employé of defendant and was riding in the truck in the course of his employment and service. Counsel for plaintiff conceive and insist that, because he was a “vocational student,” serving without pay, and for- the purpose solely of learning the business of embalming, he was not a servant or employé of defendant in any legal sense, and hence that the legal incidents of such a relation did not attach — thereby avoiding defendant’s theory of nonliability based on the fellow-servant doctrine of the common law. A further contention of plaintiff’s counsel is that even though it were conceded that the facts in evidence establish the common-law relation of employer and employé, yet, under the definition of “employé” found in our Workmen’s Compensation Act (Gen. Acts 1919, p. 237, § 36), plaintiff cannot be held to have been an employe. As a general proposition, it may be sufficiently accurate to define an “employé” as one who performs services for another for wages or hire; and some judges and lexicographers have thus defined it — aptly enough for ordinary cases, but inaccurately as a test of the legal relation of employer and employé with respect to their obligations and liabilities, whether to third persons or to each other. The payment of compensation is an incident of the relation merely, and not one of its essentials. The essentials are: The voluntary, rendition of service by the employé; its acceptance by the employer; and the employer’s right to direct and control the employé. I Labatt’s Master & Servant, 9, § 2, and the numerous definitions therein quoted. Id., 56, § 18. As Mr. Labatt observes: “One person may stand in the relation of master to another, although the former does not compensate the latter for his services. But the fact that the person who performed the work in question was or was not paid for his labor by another person tends more or less strongly to prove that the latter was or was not the master of the former. Elements of a less ambiguous quality, however, are commonly supplied by the testimony in cases of the type here under consideration; and it will be found that the payment of wages by one person or another has usually been viewed either as a merely corroborative circumstance, or as a circumstance to be disregarded, supposing the remainder of the. testimony to point to a conclusion different from that indicated by it.” Id., 60, § 19. Among the cases cited by the author, three are cases of “student” workmen serving without pay, and1 solely for the purpose of learning the master’s business: Huntzieker v. Ill. Cen. R. Co. (1904) 64 C. C. A. 78, 129 F. 548 (student flagman); Weisser v. So. Pac. R. Co. (1906) 148 Cal. 426, 83 P. 439, 7 Ann. Cas. 636 (student brakeman); Millsaps v. Louisville, etc., Ry. Co. (1891) 69 Miss. 423, 13 So. 696 (student fireman). These cases are, as to the facts of relationship, practically identical with the instant case. Other “student” workmen cases, in line with the foregoing, are Atchison, etc., R. *432 Co. v. Fronk, 74 Kan. 519, 87 P. 698, 11 Ann. Cas. 174; Norfolk, etc., R. Co. v. Boudurant’s Adm’r, 107 Va. 515, 59 S. E. 1091, 15 L. R. A. (N. S.) 443, 122 Am. St. Rep. 867; Rief v. Great Nor. Ry. Co., 126 Minn. 430, 148 N. W. 309. See, also, in accord as to the full employs status of one working under the employer’s control though without compensation, Barstow v. Old Colony R. Co. (1887) 143 Mass. 535, 10 N. E. 255; Johnson v. Ashland Water Co., 71 Wis. 553, 37 N. W. 823, 5 Am. St. Rep. 243; Aga v. Harbach, 127 Iowa, 144, 102 N. W. 833, 109 Am. St. Rep. 377, 4 Ann. Cas. 441. These cases hold also that such an employs cannot recover for an injury resulting from the negligence of a fellow servant. Our own case of A. G. S. R. R. Co. v. Burks, 148 Ala. 113, 41 So. 638, though analogous, is not strictly in point, since- there it was understood that the railroad company was to give employment to the “student’^ brakeman when he had qualified himself for the position he was learning to fill. However, we think the law is too well settled, both on principle and authority, to permit of further controversy; and our conclusion must be that on the undisputed evidence, including the testimony of plaintiff himself, plaintiff was an employé or servant of defendant, and was, when injured, engaged in that service in a common enterprise with a fellow servant,- through whose negligence he was injured—if negligence there was. This is based upon the plaintiff’s own evidence and does not depend upon any plea or evidence presented by defendant. The case of Fineberg v. Public Service Ry. Co., 94 N. J. Law, 55, 108 A. 311, is not in point, and its'holding is not in conflict with the. above-cited cases. There the plaintiff was injured while on a trolley car operated by the defendant, and while being instructed how to serve as its conductor by one of defendant’s employés. He , was not serving the defendant in any sense, and the conditions necessary to establish the relation of employer and employé were wholly wanting. Id the case of Wilkes v. Buffalo R. & P. Ry. Co., 216 Pa. 355, 65 A. 787, also cited and relied on by counsel for plaintiff, the plaintiff who had been a locomotive engineer on the defendant’s road, had qualified himself for expected employment as such an engineer on a special division of the defendant’s road by making a number of trips over that division, during which he received pay. Having thus qualified himself and stood his examination, he voluntarily and unnecessarily— though with the defendant’s permission-made another trip out on the engine “learning the road.” The court held that he was not in the service of the company while thus riding and observing, any more than if he had been sitting in a passenger car. As in the Fineberg Case, supra, the elements of service were wholly wanting. In Goehring v. Beaver Valley Trac. Co., 222 Pa. 600, 72 A. 259, the plaintiff was a borough policeman, and rendered services to the defendant company by riding on its cars and preserving order. On the occasion of his injury there had been no disorder and no duties to. perform, and he was riding back on the platform with the motorman. He was entitled to free transportation as an employé (as was the plaintiff in the Wilkes Case, supra), and it was left to the jury to determine whether his presence on the car at the time was in the capacity of employé or passenger. The point of decision in both of these-Pennsylvania cases was rested upon the proposition that an employé entitled to transportation, and exercising the right while not in service, is entitled to protection as a passenger; and, if the facts are equivocal, his status is a question of fact for the jury. ‘In actions for compensation under our Workmen’s Compensation Act, the existence of the relation of employer and employé must, of course, be based upon the definition of that relation as prescribed by the act (Gen. Acts 1919, pp. 206, 237, § 36). The language is: “The term ‘employer’ as used herein shall mean every person * * who employs another to perform a service for hire and to-whom the ‘employer’ directly pays wages. * * * The term ‘employé’ * * * shall be construed to mean * * * every person * * * in the service of another under any contract of hire, express or implied, oral or written. * * * ” See Ex parte W. T. Smith Lumber Co., 206 Ala. 485, 90 So. 807. The limitations connoted in these definitions are, however, appropriate only for the purpose and operation of the act, and do not affect the common-law relation of employer and employé, with -which alone we are here concerned. It is true that the evidence showed that Lawrence Ridout, the driver of the car, was-the assistant manager of the defendant company, and had authority to direct plaintiff in the course of his service. But that is immaterial here, since on this occasion Ridout was not exercising any authority but was performing the purely menial service of driving the ambulance. Dantzler v. DeBardeleben C. & I. Co., 101 Ala. 309, 316, 14 So. 10, 22 L. R. A. 361. As to' the several counts of the original complaint, grounded on the theory that plaintiff was in the ambulance as an invitee, it is clear that defendant was entitled to a peremptory instruction in its favor. As for the ninth count, the evidence wholly fails to support the charge of wanton injury to plaintiff, and, indeed, entirely refutes it. Moreover, the count charges a direct corporate act—an act by the corporation and not by one of its servants, and there *433 is nothing in the evidence tending to show direct corporate participation in the alleged wrongful act. City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Ex parte L. & N. R. R. Co., 203 Ala. 328, 83 So. 52. The fact that the trial judge first gave for defendant the affirmative charge with hypothesis was no impediment to the withdrawal of that charge and the giving of a peremptory instruction, the necessary evidence in support of plaintiff’s case being essentially lacking. Gary v. Woodham, 103 Ala. 421, 15 So. 840; Cowen v. Eartherly Hdw. Co., 95 Ala. 324, 11 So. 195. Had the former charge stood, it would have been the right of counsel to argue to the jury the issue of fact submitted to them, viz., the credibility of the evidence. „ Brown v. Mobile Elec. Co., 207 Ala. 61 (9), 91 So. 802. But when, as in the case of a peremptory instruction, no issue is submitted to the jury, and their bounden duty is to render a verdict according to the instruction, there is obviously nothing to be argued. Dorough v. Ala. Power Co., 200 Ala. 605, 76 So. 963; 38 Cyc. 1589. Certainly counsel could not, consistently with their own duty, advise/the jury to violate their duty, by willful disobedience to the instruction given to them by the judge of the court. A peremptory instruction leaves nothing for the jury to consider or discuss, and their office is perfunctory and formal only; that is, to sign the verdict as directed. Patterson v. Ala. F. & I. Co., 194 Ala. 278, 69 So. 952. The foregoing principles make it clear that the right to poll the jury-does not exist in the ease of a directed verdict, and so the authorities all hold. 38 Cyc. 1874, and cases cited in note 62. As observed by the Illinois court: “When the court directs a verdict an issue of law is raised upon the whole case, and there is no fact for the jury to find. To poll a jury upon the rendering of such a verdict would be an idle ceremony, resulting in no possible benefit to any one. Donnohue v. I. & L. M. Ry. Co., 87 Mich. 13; Bell v. Hutchings, 86 Ga. 562.” Rinser v. Calumet Fire-Clay Co., 165 Ill. 505, 46 N. E. 372. The poll should have been denied; and, being made, its result was properly and necessarily disregarded by the court. Plaintiff had the right to amend his complaint by adding new counts while the cause was in progress, and he was properly allowed to file the additional counts to whiéh demurrers were sustained. Code 1923, § 9513. But it was discretionary with the court whether additional evidence should be received, and the denial of that ^privilege to plaintiff cannot be complained of. Code 1923, § 9490. It remains now to consider those assignments of error based upon the elimination of counts 3, 4, 5, 6, 7, 8, 10, 12, and 13. Counts 3, 4, 5, and 8, deelare'upon defendant’s duty to make and enforce rules restricting or regulating the speed of the ambulance when being driven on the streets of Birmingham, alleging a breach of that duty, and proximately resulting injury to plaintiff. Counts 3 and 4 are radically defective, in that they show no other relation between plaintiff and defendant, with respect to this collision and injury, than the mere fact that it occurred “while he (plaintiff) was riding in one of defendant’s ambulances.” So far as appears, plaintiff and the driver may have been engaged in some independent enterprise of their own, as to which defendant owed them no duty whatever. Counts 5 and 8 by appropriate allegation avoid that deficiency, but we think they are clearly defective in' their failure to allege such facts as would give rise to the duty relied upon, viz., the duty to make and enforce rules applicable to the operation and speed of the ambulance. The basis of the employer’s duty to make and enforce rules for the conduct of his business has often been stated. “Whenever the character of an employer’s work is complex and dangerous, it is bis duty to safeguard his employés by the adoption of approved methods and the promulgation of approved rules and regulations. But if the work is simple in character, and free from complications and complexities, the employer is under no obligation to adopt rules.” 18 R. C. L. 573, § 80. So, in Cyc. the text declares: “Where a man is engaged in a complex and dangerous business he must adopt and promulgate such rules and regulations for the conduct of his business and the government of his servants in the discharge of their duties as will afford reasonable protection to them. But no-duty to adopt rules is imposed upon the master where the business is neither complex norextrahazardous, where the dangers incident to the work are obvious, or-of common knowledge, and fully understood by the servants, or where the practice already in force renders the rule unnecessary. * * * ” 26 Cyc. 11571 Labatt’s Muster & Servant (2d Ed.) § 1114. In the leading case of Zebrowski v. Warner, etc., Co., 83 N. J. Law, 55&, 83 A. 957, 46 L. R. A. (N. S.) 233, it was held: “Whether a particular rule should be enacted should not be left to the jury arbitrarily to find, but there should be proof that the' practice of promulgating such rules in similar manufactories under similar conditions is general. In the absence of proof that it is the general usage of other employers engaged in-similar lines of business to adopt rules claimed to be necessary, and that they would be practicable and useful, a master will not be charged with negligence for failure to make them [citing Berrigan v. N. Y., etc., R. Co.,131 N. Y. 582, 30 N. E. 57].” *434 And the court further observed: “It cannot be asserted that in a ease like this, each jury may say what they deem to be a proper rule, and thus arbitrarily direct the conduct of each manufacturing plant under regulations not general, but special, in their application. * * * Juries may decide whether the ordinary standard has been attained, but they may not impose a standard of their own.” To the same effect are Olsen v. N. P. Lumber Co., 40 C. C. A. 427, 100 F. 384; Moore Lime Co. v. Richardson, 95 Va. 336, 28 S. E. 334, 64 Am. St. Rep. 785. In the note in 46 L. R. A. (N. S.) 233, the editor has collected a large number of cases holding, as a matter of law, that where the work is simple in character there is no duty on the part of the master to promulgate rules for his servants. The case in hand is, we think, preeminently of that character. Driving a motorcar, even a heavy truck or ambulance, is a simple, ordinary, and individual act of common and daily occurrence. It is not collaborative, and in the defendant’s business it had no relation to the duties or the safety of other employés — except, perhaps, as in this case, of a single assistant, who knew of the danger, if any, and who was a participant in the act. The danger, inherent in the operation , of all motorcars on city streets, was open and apparent to ordinary observation and understanding. As to the impracticability of a rule 'limiting the speed of an ambulance used in emergency cases such as this, we think there can scarcely be two opinions. Speed is of the very essence of-effective service. Dependent upon traffic conditions at different times and places, a high rate of speed might be entirely safe on some occasions, and human life might depend upon it — as it often does depend upon the promptest medical or surgical relief. In the very nature of the case, the act was one involving discretion on the part of the driver, and not susceptible of control by preregulation. The conclusion cannot be avoided that these counts failed to show a condition which imposed on defendant the duty of regulation by the promulgation of a rule or rules. Moreover,* if the counts had gone to the jury, they were not sustained by the evidence necessary to'support them, since it conclusively appeared that when the ambulance entered Twenty-Sixth street it was moving at a speed of only 20 or 25 miles an hour, instead of 35 to 50 miles, as alleged; and that the collision was ’due to an unexpected failure of the brakes to function properly. Count 6 declared upon the wanton violation of the city ordinance limiting the speed of motor vehicles on the streets. Ordinances and statutes of this sort are for the protection of the public, as often declared by this court, and their violation is not actionable in favor of employés of the offending company. B. R. L. & P. Co. v. Mosely, 164 Ala. 111, 51 So. 424; L. & N. R. R. Co. v. Holland, 164 Ala. 73, 51 So. 365, 137 Am. St. Rep. 25; South. Ry. Co. v. Cooper, 172 Ala. 505, 55 So. 211. Manifestly, also, the count is defective in not showing that defendant owed to plaintiff that duty- of controlling the operation of the ambulance, since there is no allegation either of ownership or operation by defendant. The demurrer to this count was properly sustained. Count 7 is based upon the charge that Lawrence Ridout, the driver of the ambulance, was an incompetent driver, and was employed and retained in that capacity by defendant with knowledge of his incapacity, and a reckless disregard of consequences; the further charge being made that “while plaintiff was riding in one of the defendant’-s ambulances, and said Lawrence Ridout was driving the same, etc.,” plaintiff was injured. Although this count shows that plaintiff was an employé of defendant, it fails to show that he was engaged in any service whpn injured ; and, so far as appears, he was a mere trespasser on the ambulance at that time. The count was subject to the demurrer. The allegation of count 10 that plaintiff “was riding in an ambulance of the defendant by and with the consent of the defendant” shows that plaintiff was a licensee merely, as to Whom defendant did not owe the duty of ordinary care to avoid injuring him, but only the duty not to willfully or wantonly injure him. Lawrence v. Kaul Lumber Co., 171 Ala. 300, 301, 55 So. 111, 64 A. & E. R. R. Cas. 141. In the cases of Galloway v. Perkins, 198 Ala. 658, 73 So. 956, and MeGeever v. O’Byrne, 203 Ala. 266, 82 So. 508, relied on by counsel for plaintiff, the injured parties were invitees of the defendants, and were present in the automobiles as guests — a situation quite different from that of a mere licensee, and imposing a different and higher standard of care. This count failed, therefore, to show any breach of duty, since it charged only simple negligence. Counts 11 and 12 are employé counts, and charge that at the time of the collision plaintiff was in the ambulance in the performance of his duties as employé, and that he was under the orders and control of said Lawrence Ridout, who “negligently caused, permitted or allowed said ambulance to collide with a pole,” and who was then and there acting in the line of his duties as vice president (count 11), or as assistant manager, of the defendant, having control over plaintiff in the performance of the duties of his employment (count 12). Neither of these counts shows any act of superintendence or control by Ridout over the plaintiff, and hence it does not appear that the fact and the exercise of such authority had any relation what *435 ever to the collision and injury complained of. Moreover, as we have heretofore pointed out, the undisputed evidence offered hy plaintiff, including his own testimony, showed that ■Ridout was the driver of the ambulance, and, as a matter of law, was not exercising any duty of superintendence or control in so doing. If he drove the car in a negligent manner, he did it as a fellow servant, of plaintiff, and not as a superintendent. Linderman v. Tenn., etc., Co., 177 Ala. 378, 383, 58 So. 900. Count 13 charges that Ridout, while in the exercise of superintendence intrusted to him, negligently controlled the ambulance which was being driven by him, negligently causing it to collide with a pole, etc. For the reason just above stated, the demurrer was properly sustained, since the act of driving the ambulance was, as matter of law, the act of a fellow servant merely. It is unnecessary to notice a ruling on the evidence assigned for error, since it is not material to the case as we view it. Our conclusion is that the record is free from any error to reverse, and that the judgment must he affirmed. Affirmed. ANDERSON, C. J., and THOMAS and BOUEDIN, JJ., concur.