Andrews v. Boedecker

Bailey, J. This was an action on the ease brought by the administratrix of Henry J. Boedecker, to recover damages for the death of her intestate. The suit was originally brought against Alfred II. Andrews and Frank Douglas, and, at a former trial, the jury found defendant Andrews guilty and assessed the plaintiff’s damages against him at 85,000, but found defendant Douglas not guilty. Judgment having been rendered on said verdict, Andrews appealed to this court, and on such appeal said judgment was reversed on account of an erroneous instruction to the jury, and also for the reason that the damages awarded by the jury were excessive. Andrews v. Boedecker, 17 Ill. App. 213. A second trial has now been had, resulting in a verdict and judgment against Andrews for 82,500, and he has again appealed to this court. The material facts in the case are set forth at length in Andrews v. Boedecker, supra, and need not be repeated here. The principal controversy at the second trial was upon the question whether the lumber which fell and caused the death of the plaintiff’s intestate was piled up by a person or persons between whom and the defendant there existed the legal relation of master and servant, so as to call for an application of the maxim respondeat superior. The evidence tended to show, and, we think, warranted the jury in finding, that a teamster, in the service of the defendant unloaded the lumber constituting the lower portion of said pile from the defendant’s wagon, and piled the same without assistance, the pile thus formed being about five feet high. Subsequently said teamster brought the residue of said lumber to the yard where it was to be unloaded, and took it from the wagon and placed it on said pile with the assistance of Andrew It. Honey, thus making the pile about twelve feet high. In unloading and piling said lumber said teamsters stood on the ground, and after raising each piece of lumber so as to balance it on the stake' of the wagon, raised the opposite end up so that Honey, who was standing on the pile of lumber, could get hold of it Honey then took it and placed it on the top of the pile. The service thus performed by Honey was voluntary and without compensation. He had a contract with the defendant by which he was to be paid 20 cents per thousand feet for taking the lumber from the piles and placing it on the platform of the dry-kiln, but aiding in unloading the lumber from the defendant’s wagons and piling it in the yard does not seem to have been within the terms of his contract. There is also some evidence tending to show that piling the lumber in the yard to a considerable height, rendered it easier for him afterward to transfer it to the platform. 1 That the relation of master and servant existed between-the defendant and his teamster is not questioned. Did it also exist between the defendant and Honey ? He was a volunteer, it is true, and was giving his services to the defendant gratuitously, but we are unable to see how that circumstance should change the liability of the defendant as to third persons. The services which Honey performed were in all respects subject to the defendant’s direction and control and it was wholly immaterial whether Honey was paid for them or not. On this question the case of Althorf v. Wolfe, 22 N. Y. 355, is directly in point. There it was held that a master who direeted his servant to remove snow and ice from the roof of his house was responsible for an injury thereby occasioned to a passer-by, whether the negligence was that of the servant or of a third person who volunteered to assist him. Booth v. Mister, 7 Carr. & P. 76, was an action on the case for damage done to the plaintiff’s cabriolet from the negligence with which the defendant’s cart was driven, and it was held that the defendant would be liable, although it should appear that the defendant’s servant was not driving at the time of the accident, but had intrusted the reins to a stranger who was riding with him, and who was not in the service of the defendant. The instructions of the court to the jury were in harmony with the principles above stated, and, applying those principles, the evidence was clearly sufficient to charge the defendant with liability for the negligence of Honey. But it is urged that the motive which induced Honey to render defendant these voluntary and gratuitous services was, that by piling up the lumber in the yard in the way he did, he rendered its subsequent removal to the platform of the dry-kiln more easy, and it is urged that for that reason a different rule should apply. The evidence being clear that the unloading of the lumber from the wagons and piling it in the yard was no part of Honey’s contract, we are unable to see how the motive by which he was induced to perform gratuitous services for the defendant can be of any consequence. The work which he did was the defendant’s and not his, and so far as he was allowed by the defendant to take part in its performance, he must be held to have established between himself and the defendant, so far at least as third persons are coneerned? the relation of master and servant. We have carefully considered thé other questions raised by the defendant’s counsel in their briefs, and are of the opinion that none of them are well taken. As we find no error in the record, the judgment will be affirmed. Judgment affirmed.