Herr v. Simplex Paper Box Corp. , 330 Pa. 129 ( 1937 )

It is said by the majority that smoking was not within the scope of the servant's employment; that striking the match to light the cigarette was a purely personal act, unauthorized and forbidden, for which reason defendant cannot be liable for its servant's negligence. It is true that the servant was not employed to smoke and that smoking was not within the scope of his employment. Nonetheless, his act of lighting the match made negligent the performance of what was clearly within the scope of his employment, namely, going to the place where gaseous vapors had been released to sign the receipt. The case would be quite different had the servant gone there for some purpose of his own. His going to the place was as much a part of his duty as signing the receipt after he got there. He had on numerous occasions in the past gone to the truck for the same purpose. This being true, it follows that it was a part of his duty to use due care under the circumstances. His failure to do so was nothing less than a negligent performance of the duty in which he was then engaged — going to that place to sign the receipt.

The inquiry here, therefore, is simply whether in the doing of an act within the scope of his employment the servant performed it negligently. It makes no difference that the performance of the act was made negligent by his smoking, which itself was not within the line of duty: Jefferson v. DerbyshireFarmers, Ltd. [1921], 2 K. B. 281; Maloney Tank Mfg. Co. v.Mid-Continent Petroleum Corp., 49 F.2d 146; Wood v.Saunders, 228 App. Div. (N.Y.) 69, 238 N.Y. S. 571; Triplett v.Western Pub. Service Co., 128 Neb. 835, 260 N.W. 387; seeWilliams v. Jones, 3 Haw. C. 602, 159 Eng. Rep. 668 (1865);Palmer v. Keene Forestry Assn., 80 N.H. 68, 112 A. 798;Keyser Canning Co. v. Klots Throwing Co., 94 W. Va. 346,118 S.E. 521; Restatement of Agency, section 235, comment (d).

The English authorities impose liability in a case such as this. In Jefferson v. Derbyshire Farmers, Ltd., supra, the defendant's employee lighted a cigarette while drawing gasoline from a tank. Defendant was held liable for damage done by the resultant fire on the ground that its employee failed to take due precaution in the performance of the authorized act of drawing the gasoline. BANKS, L. J., at page 286, expressed this position as follows, "It is not disputed that it was in the scope of Booth's employment to empty motor spirit from drums into tins and to do that in the garage. That act being by its nature within the scope of his employment, it was his duty to do that part of his work with reasonable care. To smoke and throw a lighted match on the floor while doing this work was not to do the work with reasonable care, and therefore a cause of action was established. . . ." ATKIN, L. J., voiced substantially the same view, "It is irrelevant to consider whether he was authorized by his employers to smoke. He was authorized to draw the benzol, and he was doing that act negligently. . . ." (page 289).

The case of Williams v. Jones, supra, was distinguished in the Jefferson case so narrowly as to seriously impair whatever authority the majority opinion may theretofore have had. It held not liable the employer of a servant who in lighting his pipe set fire to shavings on the floor of the plaintiff's carpenter shop in which he was working for defendant. The action was for negligent destruction of the shop. BLACKBURN, J., one of the greatest common law judges who ever sat on the English bench, dissented with MELLOR, J., from three other judges in the Exchequer Chamber and analyzed the problem as follows, "It is said that Davies, the servant, was not employed by his master to smoke or to light his pipe, and that is no doubt true; but the act of lighting a pipe was in itself a harmless act; it only became negligent and a breach of duty towards the plaintiff because it was done when using his shed and working there amongst inflammable materials. . . . It seems to me, therefore, that it was negligence in the course of his employment, such as to be in law the negligence of his master, the defendant."

Maloney Tank Co. v. Mid-Continent Petroleum Corp., supra, lends further support to the view taken here. There defendant's employees were engaged in dismantling oil tanks when one of them lighted a cigarette and dropped the match upon the oil-soaked ground. For damage done by the fire thus kindled defendant was held liable. In Wood v. Saunders, supra, an employee at a gasoline filling station caused a fire by his negligent smoking. The employer was likewise held responsible for his tort. In Triplett v. Western Public Service Co., supra, defendant's employees were constructing an electric line over fields covered with dead grass. Through the employees' smoking the grass was ignited, causing the damage for which defendant was held liable. Liability was imposed on the ground that the accident was the result of the negligent performance of the employer's work, for which it was responsible under the doctrine of respondeat superior. This case cannot be put aside, as the majority opinion does, on the ground that liability there rested alone on the fact that defendant knew or ought to have known of the practice of its employees to smoke, and was, consequently, negligent itself in the first instance.

It is to be noted in all the cases reviewed that the act of smoking combined with a condition of the employment to cause the damage done. In two the employee was working directly over gasoline, in another over shavings he had made in the course of his work, in a fourth over oil-soaked ground, and in that remaining the work was being done in a similarly hazardous environment. In each the condition of the employment was such as to require especial precaution against fire and explosion. As pointed out by BLACKBURN, J., in Williams v. Jones, supra, it is not the smoking alone that causes damage but rather the risk which has constantly lurked in the employment and which the smoking merely brings into operation. The employees' use of fire in those cases was only a failure to take the precautions the conditions of the employment required. Similarly here, the employee failed to take the precautions he ought to have taken in doing his master's work, and that made the master liable for his negligence.

Jefferson v. Derbyshire Farmers, Ltd., supra; Maloney TankMfg. Co. v. Petroleum Corp., supra, and Wood v. Saunders, supra, are distinguished in the majority opinion as cases "in which the employee is in possession of an inflammable article, and is controlling it for his employer's benefit." The distinction seems wholly artificial and also insufficient to dispose of the Maloney case where the inflammable material was oil-soaked ground of which the employees surely had not possession. Moreover, the court that decided the case was not concerned with possession, but stated rather, "It is our conclusion that where a master undertakes work in inflammable surroundings, he is responsible if his workmen are careless in the use of fire." There seems to me no logical reason why the employer should be liable when the employee has possession of the inflammable material and not liable when the employee is equally careless in doing his authorized work in the presence of a combustible substance of which he does not have possession.

To be sharply distinguished, however, are the cases cited in the majority opinion where it is not the employment or any condition of it that gives rise to the hazard of fire:Adams v. Southern Bell Telephone Telegraph Co., 295 Fed. 586;Kelly v. Louisiana Oil Refining Co., 167 Tenn. 101,66 S.W.2d 997; Ireton v. Atchison, T. S. F. Ry. Co., 96 Kan. 480,152 P. 625; Morier v. St. Paul, M. M. Ry. Co., 31 Minn. 351,17 N.W. 952. In Adams v. Telephone Co., supra, defendant's employee stopped at a house to make telephone repairs. Because no one was at home, he waited on the porch for the owner's return, meanwhile smoking his pipe, hot ashes from which he dumped into dry grass near the porch. A fire was started and the house burned down. The employer was held not responsible for the tort. Plainly no act done for the employer, nor any condition of the employment, required particular precaution as regards a fire hazard. The court recognized this fact when it said, "There is nothing inherently dangerous in smoking on country porches. It is a use to which many, if not most, of them are habitually put." In Ireton v. Ry. Co., supra, andMorier v. Ry., supra, railroad section hands lighted fires to warm their lunch. The fires spread, causing damage for which the defendants were held not liable. In these cases the employees were doing nothing whatever for their employers and so, of course, their conduct was not tantamount to doing their work negligently. In Kelly v. Louisiana Oil Refining Co., supra, defendant's employee while telephoning defendant threw a cigarette butt against the plaintiff's clothing. For the resultant injuries defendant was held not liable. Here again no act done for the employer, nor any condition of the employment, required precautions against the risk of fire. In the words of the court that decided the case, the act of smoking ". . . did not render the act of telephoning hazardous. . . ." The case marks the limit of the principle I deem controlling here. The scope of its application is stated and illustrated in section 235, comment (d), Restatement of Agency, "Although an act is not done for the purposes of the master and hence is not within the scope of the employment, if it is accompanied by authorized conduct its performance may cause the servant to be negligent in the manner of doing that which is within the scope of the employment. . . ." There follow two illustrations. In the first the employer is said to be liable where his servant while delivering gasoline negligently lights a pipe and drops the blazing match in a pool of gasoline on the ground. In the second liability is denied where the employee, a chauffeur, negligently throws his lighted cigarette out of the window into a passing load of hay. The distinction is apparent. In the first case, dropping the match was a negligent manner of performing the employee's duty of delivering the gasoline, whereas the chauffeur's throwing the cigarette, though negligent, did not amount to negligent driving. In the instant case striking the match was a negligent manner of performing the duty to go to the truck to sign the receipt.

The majority opinion cites cases from two jurisdictions that decline to hold the employer liable when the employment itself is the source of the danger in smoking: Feeney v. Standard OilCo., 58 Cal. App. 587, 209 P. 85; Yore v. Pacific Gas andElectric Co., 99 Cal. App. 81, 277 P. 878; Heard v.Flannagan, 10 Vict. L. R. Law 1. In the Feeney case the defendant's employee spilled gasoline while delivering it. Shortly afterward he lighted a cigarette and dropped the glowing match into this gasoline lying on the floor. An action was brought for the damage caused. Relying upon a section of the California Civil Code, without discussion of any authority, the court briefly holds the employer not liable for the employee's negligence through smoking, but goes on in an extended and thorough opinion to sustain recovery on the ground that the employee was negligent in the performance of his work for not having mopped up the gasoline he had spilled. In the Yore case, also a California case, defendant's workmen by throwing away lighted cigarettes ignited dried grass over which they were working constructing an electric power line. The Feeney case was relied upon; other cases were cited without analysis; the defendant was held not liable. In Heard v.Flannagan, defendant's employee was working on a haystack. After smoking he put his hot pipe into a pocket of his coat in which there were matches, laying the coat upon the stack. The matches were apparently ignited by the heat of the pipe, causing the damage for which defendant was held not liable in an opinion, the law of which is contained in one sentence without citation of a single authority: "The master is not liable for the acts of his servant which he never directly or indirectly authorized." These few cases from California and Australia represent a distinct minority in the law on the subject.

Two cases from our own jurisdiction, relied upon in the majority opinion, require passing notice: Vadyak v. Lehigh New England R. R. Co., 318 Pa. 580; Tshudy v. Hubbs StoresCorp., 310 Pa. 285. In the former a locomotive engineer, for the purpose of frightening boys standing near the tracks, released steam from the cylinders. Blinded by the vapors, one of them stumbled and fell beneath the wheels. The court pointed out that the engineer "wilfully and wantonly discharged steam," that it was not necessary to do so at the time, and that "the whole implication of the evidence is that he released the steam upon the child in a spirit of mischief. . . ." The defendant was held not liable. In the latter, Tshudy v. Hubbs StoresCorp., defendant's employee, a grocery store manager, "made a motion to throw" a knife at the plaintiff. The knife slipped from the employee's hand and injured plaintiff. Defendant was held not liable. Neither of these cases involve the negligent performance of the employer's business. In each the conduct of the employee was wilfullydirected toward the plaintiff, although the consequences were unintended. The cases fall within the familiar rule that a master is not ordinarily liable for the wilful misconduct of his servant, and are, it seems to me, so dissimilar to the instant case as to be of no help in deciding it.

In brief, the servant was authorized to go to the truck to give a receipt; he attempted to do this without exercising the care required by the circumstances, and was thus negligent in the course of his employment; for this reason the master is responsible.

I would affirm the action of the court below in entering judgment on the verdict.