Opinion
No. 24986
Decided June 12, 1935.
Negligence — Failure to comply with legal duty, imposed for benefit of person injured — Substitute or assistant entitled to same protection as other employees, when — Employee has authority to procure temporary assistance in emergency, when.
1. A substitute or assistant is entitled to the same protection as other employees in the service only if procured upon express authority from the employer or under circumstances from which authority may be implied.
2. An employee has implied authority to procure temporary assistance only when an unforeseen contingency or emergency arises rendering such temporary assistance necessary in the employer's interest.
3. Negligence is a failure to comply with a legal duty and, to be a predicate of an action, such duty must be one imposed for the benefit of the person injured and the failure to comply therewith must be the proximate cause of the injury.
ERROR to the Court of Appeals of Cuyahoga county.
This case originated in the Court of Common Pleas of Cuyahoga county, and the parties will be referred to as they appeared in that court. The action is one for damages for injuries claimed to have resulted from the negligence of the defendant, The Meyer Dairy Products Company. On its property, located on 63rd street in Cleveland, defendant operates an automatic device for the purpose of conducting cases of milk from its coolers and loading same upon its wagons. This device, which is operated by electric current, consists of a moving and rotating belt extending for a distance of about 15 feet and a system of stationary rollers. It extends outside of the building and is there open and uncovered. The premises where this building is located are surrounded by a high wire fence with a large swinging gate having thereon a sign "No Admittance", but which was open at the time here in question.
The claim of the plaintiff, a boy about nine years of age, is based upon the charge that while he was standing near the gate of defendant's premises, which was then open, a large number of bottles fell from this automatic loader and broke, and that the defendant invited him in such emergency to assist in gathering up the broken bottles; that after he had rendered the defendant the assistance requested he was permitted to remain on the premises; that defendant did not warn or apprise him of the dangers and perils incident to close contact with such device but, on the contrary, permitted him to play on or around it; and that he was caught and squeezed between the moving belt and one of the stationary rollers and thereby injured. The acts of the defendant in inviting plaintiff to enter the premises, in inviting and encouraging plaintiff to play on and about said automatic loading device while in operation, and in failing to warn plaintiff of the dangers and perils incident thereto, constitute the negligence complained of. The answer, though equivalent to a general denial, alleges that while defendant's employee was momentarily away from the milk wagon loading device on defendant's premises, the plaintiff, without invitation, permission, right or authority, voluntarily climbed upon said device and sustained injuries as the result thereof, and defendant specifically denies that it encouraged, invited, permitted or directed plaintiff to come upon its premises, and asserts that any injuries sustained were the result of plaintiff's own conduct and not of any negligence of the defendant. Upon trial of the case the court gave the jury, before argument, certain instructions requested by the defendant, among them its request No. 2, which is as follows: "Before Edward Gill could come onto the Defendant's premises as an invitee or licensee, his coming there must be with the knowledge, consent or invitation of the Defendant company through someone who is authorized to act for the company in that respect. Under the evidence in this case the employe loading the truck would not, except under the circumstances I am about to define to you, have authority to invite or permit the Plaintiff to come upon the Defendant's premises for any purpose, and if any such permission or invitation were extended by him to the Plaintiff, that would not bind the company and he would still be a trespasser. The exception I have just referred to would under the evidence here be limited to this, namely, that Edward Gill was rendering necessary assistance to this employe in his work of loading the truck with milk. That is to say, assuming that a case of milk bottles had fallen off the conveyor leaving broken glass on the ground or on the conveyor, or assuming that the cases were slipping back or were crooked in the conveyor and this little boy was shoving them up on the conveyor and keeping them straight in it, was it reasonably necessary for this employe to invite Edward Gill upon the premises to clear up the glass from the bottles so broken or direct the cases in the conveyor so that the man could go on loading the truck. In answering this question you must consider not whether it was merely convenient for the employe to have the boys clear up the glass or direct the cases of milk bottles, but rather whether under the circumstances he really needed such assistance; whether it was reasonably necessary in the performance of his duties to call upon these boys rather than to do the work himself. If you find from all the evidence in this case that no such necessity existed and that the employe could have himself done the work referred to, even though it was more convenient for him to have the boys do it, then I say to you that such employe had no authority to invite these boys, including the Plaintiff, onto the premises and his invitation even if given, was not the invitation of, nor did it bind the company, and in such case I say to you as a matter of law that your verdict should be for the Defendant, Meyer Dairy Products Company."
The trial resulted in a general verdict for the defendant upon which judgment was rendered. Upon proceeding in error, the Court of Appeals reversed that judgment upon the ground that the trial court committed error prejudicial to the plaintiff in giving defendant's special request No. 2 before argument, and also upon authority of Ziehm v. Vale, 98 Ohio St. 306, 120 N.E. 702, 1 A. L. R., 1381. The case was admitted to this court upon the allowance of a motion to certify the record.
Messrs. McKeehan, Merrick, Arter Stewart and Mr. C.M. Horn, for plaintiff in error.
Messrs. Payer, Corrigan Cook, for defendant in error.
The reversal of the judgment rendered for the defendant upon the general verdict in its favor was based upon error found in the giving of the requested instruction set out in the foregoing statement, and upon the refusal of the trial court to apply the principle of the case of Ziehm v. Vale, 98 Ohio St. 306, 120 N.E. 702, 1 A. L. R., 1381. The first question presented, therefore, is whether such instruction was erroneous. The requested charge was upon the issue made by the pleadings, the plaintiff having averred in substance that by reason of the emergency which arose in the conduct of defendant's business from the fact that a large number of milk bottles had fallen and broken, immediate action was required so that the defendant's loading device could continue in operation and its business proceed in its usual routine; that defendant's employee in charge of its work invited the plaintiff to come on the premises and into the vicinity of such loading device to assist in gathering up the fragments of broken bottles, which assistance plaintiff rendered, and then alleges that without warning of the dangers thereof, plaintiff was permitted to remain and play on or around such loading device.
The claimed vice of such requested charge consists particularly in the instruction that the verdict of the jury should be for the defendant unless the jury found not only that plaintiff was upon the premises upon the request and invitation of defendant's employee, to render assistance in the emergency existing, but that such assistance was really needed, and that if the jury found that such necessity did not exist and the employee could have himself done the work, the invitation was ineffective to bind the company and give the plaintiff standing, and ineffective to confer the rights of an employee. This contention presents the question of the nature and extent of the implied authority of an employee to call for assistance in the performance of his duties, thus placing the person so called under the same measure of protection as any other employee in the service. The rule applicable is stated in 18 Ruling Case Law, 580, Section 85, as follows:
"If an unforeseen contingency or emergency arises, rendering it necessary in the employer's interest that his employee have temporary assistance, the law implies authority to procure such necessary help; and a substitute or assistant procured under these circumstances is entitled to the same measure of protection as any other employee in the service. It is the emergency that gives rise to the implied authority, and if it does not in fact exist then neither does the implication of authority arise."
It is to be observed that under this rule the protection and relationship of employee does not arise merely by reason of the request of an employee for the assistance of another. An employee must either have express authority to engage such assistance or have done so under implied authority because of an unforeseen contingency or emergency giving rise to necessity in the employer's interest. Here the evidence discloses that the tipping of cases upon the conveyor and the consequent breaking of bottles was not an unusual occurrence but happened occasionally, and when it did defendant's employee, Brewer, stopped the conveyor and picked up the bottles. In our opinion, applying the rule above stated, it must be concluded that although the emergency requirement may have been overstated by the trial court, the proven facts still fail to show conditions giving rise to the necessity for such emergency assistance.
It is essential to here state some of the additional facts testified bearing upon this question and for the purpose of considering the further question presented. During the operation of the conveyor at the time in question it was under the control and supervision of defendant's employee Brewer. It was located on defendant's premises about 12 or 15 feet from the sidewalk. There is evidence that during this operation one of the cases tipped, causing bottles to fall outside and break; that at that time plaintiff and four other small boys were outside the fence on the sidewalk; that Brewer called the boys and directed them to pick up the broken glass; that for 15 or 20 minutes there. after the boys stood around and watched Brewer loading the boxes on the truck while the conveyor continued to operate; that when cases ceased coming onto the conveyor from the cooler, Brewer went in to ascertain the cause, and that immediately upon Brewer entering the cooler the plaintiff and one of his companions "stumped" — that is, dared — each other to get on the conveyor. Something was said with reference to some pieces of glass on the conveyor, and that plaintiff sought to get them, but testimony of the boys clearly discloses that plaintiff's attempted ride on the conveyor was the result of, as he called it, "stumping" his companion to do it. The latter went up first, and when he was at the top, plaintiff got on and called to another companion, "Look! I am taking a ride," and immediately thereafter his foot was caught in a roller and injured.
Brewer's testimony is that he not only did not ask the boys to come in but, on the contrary, directed them to stay out, and chased them out; that about 15 minutes before the accident happened some bottles had fallen out of the case; that he turned the switch, stopping the conveyor, picked up the, broken glass, and then again started the conveyor; that thereafter when he went into the cooler to ascertain why cases were not continuing to come out and found that it was because the filling operations inside had ceased; and that the boys were then standing on the sidewalk outside the fence. The boys do not state just where they were, but state that they were then "standing around" watching Brewer loading the truck. There is no evidence that when Brewer went into the building the boys were in the immediate vicinity of the conveyor. Upon Brewer's return the plaintiff was upon the conveyor and Brewer immediately turned the switch, stopping its operation. It is disclosed by the evidence that the supervision of the conveyor and the loading of the cases therefrom was then and theretofore done by the employee, Brewer, without any assistance, and that he had performed that work about four months, and that there was nothing unusual about the operation of the conveyor or the loading process at the time in question.
Ordinarily, whether the circumstances of any particular case constitute what may be deemed an emergency, such as to authorize a temporary engagement of assistance by an employee in charge of the work, is a question of fact for the determination of the jury under proper instruction. But certainly reasonable minds could arrive at but one conclusion with reference to such emergency from the facts presented by the record in this case. Assuming the existence of the facts disclosed by the record in their aspect most favorable to the plaintiff, it is difficult to see how the principle of temporary emergency employment could be here applied; for these facts disclose no situation that could by anyone be deemed an emergency from which the implication of authority to procure assistance would arise.
It is contended, however, that there was error prejudicial to the plaintiff in the instruction that unless the jury found such emergency situation was presented as to justify defendant's employee calling in the plaintiff to assist him, and that pursuant thereto plaintiff was invited upon the premises, their verdict must be for the defendant.
The facts above stated show the inapplicability of the Ziehm v. Vale case. It should be here observed that there is no evidence in the record of any habit or custom of children playing on or about this conveyor, nor is there any evidence that the plaintiff and his companions were ever at any previous time on or about the conveyor. Reliance is placed upon the claim that there was an invitation extended and direction given plaintiff by reason of the claimed emergency, and that it was pursuant thereto that plaintiff was on the premises of defendant. The charge of negligence in this particular is that the defendant should have foreseen the normal, childish desire to take a ride which actuated the plaintiff and his companion, who thereafter got upon the conveyor for the purpose stated. Assuming that Brewer, the employee, permitted plaintiff to enter said premises and that in doing so he was acting within the scope of his authority instead of contrary thereto, as the evidence indicates, what was the negligence which caused the injury? What duty was exacted of the defendant? Negligence is a failure to comply with a legal duty and, to be a predicate of an action, such duty must be one imposed for the benefit of the person injured and the failure to comply therewith must be the proximate cause of the injury. There is no evidence that the plaintiff or his companions had previously been upon the conveyor or had indicated a purpose to get upon it prior to the incident in question. If the plaintiff had previously indicated a purpose to get upon the conveyor and with knowledge of that fact defendant had started the conveyor without ascertaining that the plaintiff was not upon it, we then would have a situation more nearly like that presented in the Ziehm v. Vale case. The decision in that case was based upon the fact that the defendant's automobile was standing on a public street, where unquestionably the boy had a right to be, and that defendant knew that a boy four years of age had been playing on the running board, and that shortly thereafter, when about to start the engine and move his automobile, he took no precaution to ascertain whether the child was on or near the automobile when he started. Here the evidence shows that this conveyor had been in continuous operation. There was no change from a statical, or passive, to an active, or moving, condition; nor does it appear that there was knowledge, actual or constructive, that the plaintiff was in a place of danger. If the doctrine of the Ziehm case be extended to cover such a situation, then in every instance the driver of an automobile passing an active boy on the street, in order to protect himself from a charge of negligence, must stop his automobile. The record here discloses that this injury resulted not from any defective condition or sudden starting of the conveyor, but from the pursuit of the plaintiff's boyish purpose to take a ride, and that there was no legal duty of the defendant, the violation of which resulted in the injury complained of. The situation here is quite similar to that presented in the case of Holbrook v. Aldrich, 168 Mass. 15, 46 N.E. 115, 60 Am. St. Rep., 364, 36 L.R.A., 493, where a directed verdict was sustained in an opinion written by the late Mr. Justice Holmes, then a member of that court. A child rightfully in a grocery store was injured when she put her hand in the spout of a coffee grinder in operation to procure some grains of coffee. After stating that the defendants' invitation bound them to due care for the safety of those walking in the neighborhood while simply moving about, the court held they were not bound "to look out for or to prevent wrongful acts, on the ground that the acts if done might hurt the actor. Temptation is not always invitation. As the common law is understood by the most competent authorities, it does not excuse a trespass because there is a temptation to commit it."
Our conclusion is that upon the record before us the judgment of the Court of Appeals must be reversed and the judgment of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., STEPHENSON, JONES and ZIMMERMAN, JJ., concur.