Dyer v. McCorkle

PRESTON, J. The judgment is affirmed. As justification for this holding we offer the following: Plaintiff, a minor then twelve years of age, brought this action against defendant corporation as master and the other defendant as its servant, to recover damages for personal injuries suffered by him on April 11, 1926, on account of the alleged negligence of said servant. Negligence was denied by both defendants and contributory negligence, was pleaded; defendant master especially denied liability for the acts for its servant which resulted in said injuries to plaintiff. Plaintiff had judgment. The amount of the verdict, as such, is not questioned; neither is serious contention made that negligence was absent. In fact, no defense of any kind is urged for the defendant servant. The prime issue is the liability, if any, of the master under the facts here appearing. Defendant corporation owned and operated at the time in question a dairy farm near and milk route in Fresno city. The co-defendant, its employee, was engaged in delivering milk and cream to customers in said city, using therefor an electric truck. For a considerable period of time next prior to said accident, he had practiced the plan of enlisting the aid of young boys in making deliveries to the various homes served with milk and cream. The boy then so engaged would ride upon the running-board of the truck and deliver bottles to one side of the street while the driver delivered them to the other side. In the dispatch of this business if the driver was in his seat prior to the return of the boy to the truck, he would set the truck in motion before the lad actually reached it, the latter jumping on the running-board and seizing an upright bar while the truck was in motion. These boys would be paid small sums of money by the driver as well as given candy to eat and milk to drink. *218 The older brother of plaintiff had followed this practice for a period ending about six weeks before the accident and during the subsequent six weeks plaintiff had almost daily-followed the truck in its afternoon deliveries. He estimated that he made fifty trips with said driver during said period. He had received small sums of money frequently from the driver as well as candy and milk. At the time in question the driver, having no milk to deliver on his side of the street, was in his seat on the truck as plaintiff, returning from a delivery at a home, reached a point some four or five feet distant from the truck. The truck then began to move and in endeavoring to jump to the running-board and to seize said bar to balance himself, plaintiff fell, was run over and his leg was broken and other injuries were received by him. The question is: Did the master of the truck, under these circumstances, owe the plaintiff the duty of ordinary care? It should be noted that defendant driver did not take the witness-stand nor did the manager or any other officer of the corporation deny knowledge of or assent to this practice on the part of said driver of engaging these young boys to assist him. The manager was simply asked whether the authority of the servant included power to hire assistants in his work. Presumably this question related to the authority of the servant to employ assistants for the company and did not relate to authority in the servant to solicit and procure assistance on his own account. The contention of appellant is that if authority in the servant to engage the services of boys is conceded, plaintiff becomes an employee of the master and hence comes under the Workmen’s Compensation Act; that if the servant had no authority to engage such services, then plaintiff was a mere volunteer to whom the master owed no duty except for injuries resulting from the servant’s wilful act. There is no evidence whatever upon which to conclude that plaintiff was an employee of the master. In attempting to board the truck of defendant corporation, plaintiff was there as one of three classes of persons: A trespasser, a licensee or an invitee. If there without the knowledge or consent of the master or servant, he was a trespasser. If there without the knewledge of the master but with the knowledge of the servant, who had no authority to invite *219 him, he was a mere licensee. But if there with the consent of the master or with the consent of the servant having authority, express or implied, to grant the privilege, he was an invitee. As an invitee he was entitled to ordinary care at the hands of the servant and the omission in this particular would be binding upon the master if at the time of infliction of the injury the servant was engaged in accomplishing an object in the line of duties assigned to him by such master. Whether or not the consent of the master was present is a question of fact. The verdict for plaintiff includes such a finding by the jury if evidence may be found in the record to sustain it. Save this no other question is here in doubt. Direct evidence of such consent is not required. It may be implied from custom, usage or conduct on the part of the master or servant. (Brown v. Feather River Lbr. Co., 203 Cal. 493, 498 [57 A. L. R. 812, 265 Pac. 203]; Lawrence v. Kaul Lbr. Co., 171 Ala. 300 [55 South. 111]; Harvey v. Deep River Logging Co., 49 Or. 583 [12 L. R. A. (N. S.) 131, 90 Pac. 501]; Hodge v. Sycamore Coal Co., 82 W. Va. 106 [95 S. E. 808].) It may also be true that the nature and character of the work being done by the servant will contribute force to the conclusion that the master knew of and consented to the presence on his premises of a person procured by his servant to aid him in his work. In the ease of Purtell v. Philadelphia etc. Coal etc. Co., 256 Ill. 110 [Ann. Cas. 1913E, 335, 43 L. R. A. (N. S.) 193, 99 N. E. 899], where employees of a coal company engaged in unloading coal from vessels, hired and paid an eleven year old boy to carry water for them, the custom of so doing having prevailed for many years, the court concluded that said employment of a water boy must have been known to those in charge of the company’s yard and that it was a reasonable and economical measure taken by said employees in the performance of their work. The boy was struck and injured by a block hanging from a boom in such a manner as made working conditions unsafe on the coal dock. The court, affirming the judgment awarding him damages, further held that he was on the premises of the company by its implied invitation to do work in which he and the company were interested and *220 that the company was required to exercise reasonable care for his safety while so working there. In Atkins v. Lackawanna Transp. Co., 182 Ill. 237 [54 N. E. 1004], it was held that where the owners of a vessel engaged in carrying merchandise permitted a boy to board it for the purpose of supplying its employees with drinking water, for which purpose they hired him, said owners must exercise reasonable care toward the boy while he was on the vessel. In Illinois Cent. R. R. Co. v. Hopkins, 200 Ill. 122 [65 N. E. 656], it was held that one going to a railroad depot to deliver meals to mail clerks on a train, pursuant to their agreement with her, such practice having been followed for years with the knowledge and consent of the railroad company, was not a mere licensee upon the depot platform, but was to be regarded as there by the implied invitation of said railroad company. Here we have neither a denial by the servant or the master of authority in the servant to engage upon his own account the services of plaintiff in the dispatch of the master’s business. Neither do we have a denial by the master of knowledge of or consent to the custom practiced by the servant. Indeed, the custom was so open, notorious and continuous that the master could hardly have been ignorant of it. In fact, the character of the work was such as to make probable acts of this kind on the part of the servant. Viewing the evidence as a whole, coupled with the absence of pertinent evidence in the possession of defendants, we are of the clear view that it is sufficient to sustain the verdict. In the case of Giannini v. Campodonico, 176 Cal. 548 [169 Pac. 80], there is not only denial by both master and servant of authority, to engage the services of the plaintiff but there is an entire absence of facts upon which to predicate a holding that authority in the servant to engage the plaintiff was granted. Moreover, the nature of the work of the servant was such as to practically preclude the idea that aid or assistance would or should be sought. We, therefore, find no conflict between the holding there made and the one we here make. There is a second appeal in the case entitled “Winifred Dyer Sibley, Plaintiff and Respondent, vs. B. T. McCorkle *221 and Frank M. Helm, Inc., a corporation, doing business under the firm name and style of Jersey Farm Dairy Company, Defendants and Appellants,” Appellate Court No. 6351, Civil, an action for hospital and medical bills incurred in treating the infant plaintiff for injuries received. That case is controlled by the ruling above and such is the stipulation of the parties. On authority of the conclusion we have announced, the judgment in this cause too is affirmed. Richards, J., Curtis, J., Waste, C. J., and Seawell, J., concurred.