Putnam v. Pacific Monthly Co.

Mr. Justice Burnett

delivered the opinion of the court.

The plaintiff’s theory, adopted by the court in the trial of the cause, is that, as a matter of law, the defendant in.running and operating the elevator as stated in the complaint was a common carrier of passengers and bound to exercise, as such, a high degree of care to those using the elevator. The contention of the defendant is that the operation of an elevator is not a matter of common carriage; and that, if it were, the relation of passenger and carrier did not exist between decedent and defendant at the time of the accident, but, on the contrary, that she was an employee to whom its measure of duty was to exercise only ordinary care in providing for her a reasonably safe appliance by which to reach her employment. Over the exception of the defendant the court took from the jury the defense of the negligence of a fellow-servant by instructing them peremptorily that the decedent and the operator of the elevator were not fellow-servants and directing the jury not to consider the defense of the negligence of one standing in that relation to plaintiffs intestate. The court, likewise disregarding the objection of the defendant, instructed the jury in consonance with the theory that the deceased was a passenger and the defendant a common carrier of passengers from which relation sprang the duty of the defendant to use a high degree of care to prevent accidents.

The authorities are not agreed upon the question of whether an elevator is an appliance of common carriage. A wide distinction in fact exists between the skyscrapers of New York, Chicago, and other large cities in which many elevators are in constant use, and a small building in a country town having an elevator for one or two stories. In the one case the elevators in a building may carry thousands of persons daily, while in the other it will be only used by comparatively few in a week. We do not find it necessary to establish an unvarying rule on the subject in this instance.

1. Conceding, however, as a postulate, for the purposes of this case only, that the defendant was a common carrier in the operation of the elevator, it does not necessarily follow that it sustained that relation to the decedent, or-that there was due to her from the defendant that high degree of care incumbent upon a common carrier as to its passengers. Neither is it necessary to indulge in a discussion of whether or not the.decedent was at the time of the injury a passenger or an employee, as the complaint itself has pnt her in the latter class, for it says she was employed by the defendant in its office on the fourth floor of the building, and that in order to reach .her work as such employee she was compelled to take and use the elevator, and that while going to her work as such employee she entered the elevator which was operated by another employee of the defendant. Hence, even if we should hold as a general rule that the operation and control of an elevator is or amounted to engaging in the business of common carrier of passengers, the initial pleading in the case has taken the decedent entirely out of that category and placed her in the class of employees.

The plain deduction from the testimony also is that the unfortunate girl was on her way to her work, for it shows that the distressing accident took place only ten minutes before the hour at which she was required to begin her labors. It is not shown that her compensation was increased or diminished by reason of her use of the elevator in going to her work. That contrivance was manifestly maintained for the convenience of those going to and from the place of business of the defendant, and it is so stated in substance in the complaint. On this distinction between passenger and employee as upon the main question of whether an elevator owner is a common carrier or not, the authorities are not agreed. In Knahtla v. Oregon Short-Line etc. Ry. Co., 21 Or. 136, 148 (27 Pac. 91), it was held that a laborer going from one point to another on a train engaged in clearing a railway track of obstructions is not a passenger. In Self v. Adel Lbr. Co., 5 Ga. App. 846 (64 S. E. 112), an employee riding on a log train in connection with his employment going to and from his work was not a passenger. To like effect is St. Louis Iron Mt. & S. Ry. Co. v. Wiggam, 98 Ark. 259, (135 S. W. 889). In Eidem v. Chicago, R. I. & P. Ry. Co., 158 Ill. App. 82, it was ruled that, where transportation to and fro is part of the contract of employment, the employee is not a passenger. In Manville v. Cleveland & T. R. R. Co., 11 Ohio St. 417, the plaintiff as manager of a gravel train was ordered to go to a certain place to get a train, and went on a passenger train beyond Ms destination and passed the night. Returning’ by train the next morning he was injured by negligence of the engineer before reaching his destination and it was determined that he was an employee and not a passenger. Section-hands carried on a car from place to place for work are deemed to be employees and not passengers in Indianapolis & Greenfield R. T. Co. v. Andis, 33 Ind. App. 625 (72 N. E. 145); South Ind. Co. v. Messick, 35 Ind. App. 376 (74 N. E. 1097). In the case of Ionnone v. New York, N. H. & H. R. Co., 21 R. I. 452 (44 Atl. 592, 79 Am. St. Rep. 812, 46 L. R. A. 730), it was concluded that a snow-shoveler being carried from one point to another in the progress of the work is not a passenger. In Shannon v. Union R. Co., 27 R. I. 475 (63 Atl. 488), a switch-cleaner going on a train from one switch to another was not a passenger. In Kilduff v. Boston Elevated Ry. Co., 195 Mass. 307 (81 N. E. 191, 9 L. R. A. (N. S.) 873), a track-la)mr being transported to and from his work was said not to be a passenger, and to the same effect is Birmingham Ry., L. & P. Co. v. Sawyer, 156 Ala. 199 (47 South. 67, 19 L. R. A. (N. S.) 717). In Sanderson v. Panther Lbr. Co., 50 W. Va. 42 (40 S. E. 368. 88 Am. St. Rep. 841, 55 L. R. A. 908), the foreman of a log’ging camp going on a log train to the main office of the company to see about hay for his horses is still an employee and not a passenger. In Walsh v. Cullen, 235 Ill. 91 (85 N. E. 223, 18 L. R. A. (N. S.) 911), a waitress lived in a hotel where she was employed, and, returning one evening from a walk, after her working-hours, was injured by the operation of the elevator which she took for the purpose of going to her room for the night. The court ruled that she was not a passenger but an employee. In Watt v. Murphy, 9 Cal. App. 564 (99 Pac. 1104), the janitor in a building in which there was an elevator used that appliance himself and was killed in the operation of it. It was stilted that he was a servant and not a passenger, and that the master or owner of the building was bound to use only ordinary care in providing a safe place for him to work, although it be an elevator. In McDonough v. Lanpher, 55 Minn. 501 (57 N. W. 152, 43 Am. St. Rep. 541), the employees of the defendant using the whole of a five-story building were permitted to ride in the freight elevator to and from their places of work, although they were not required to do so, and it was held that while so riding they were employees and not passengers, and that the degree of care required of the defendant was that of the master for his servant and not that imposed on a common carrier of passengers. In McDonald v. Simpson, 114 App. Div. 859 (100 N. Y. Supp. 269), a saleswoman in a mercantile establishment was going up in an elevator to get her street clothes at the end of her day’s work and was injured, but the principle was adhered to that she was still an employee. In Kappes v. Brown Shoe Co., 116 Mo. App. 154 (90 S. W. 1158), a large number of employees of the defendant were waiting for an elevator to take them down and out of the building at the end of a day’s work. While thus waiting a boy was crowded under the gate barring the entrance to the elevator and fell down the shaft, and the rule was applied that he was still an employee of the company and not occupying the relation of a passenger.

On the other hand, the case of Haas v. St. Louis etc. R. Co., 111 Mo. App. 706 (90 S. W. 1155), announced that a laborer being transferred from one place to another for the purpose of engaging in employment is a passenger. In the Louisville & N. R. Co. v. Scott, 108 Ky. 392 (56 S. W. 674, 50 L. R. A. 381), it is held that travel by an employee wholly disconnected from his service made him a passenger. Chattanooga R. T. Co. v. Venable, 105 Tenn. 460 (58 S. W. 861, 51 L. R. A. 886), states that gratuitous carriage to and from the work is passenger service. To the same effect is Johnson v. Texas Central Road Co., 42 Tex. Civ. App. 604 (93 S. W. 433). In Enos v. Rhode Island Sub. Ry. Co., 28 R. I. 291 (67 Atl. 5, 12 L. R. A. (N. S.) 244), the plaintiff earned from the defendant $8 and 14 passenger tickets per week, and it was held that when he was traveling on those tickets he was a passenger. In Doyle v. Fitchburg Road Co., 162 Mass. 66 (37 N. E. 770, 44 Am. St. Rep. 335, 25 L. R. A. 157), an employee traveling entirely for his own purpose and disconnected with his employment was classed as a passenger. In McNulty v. Pennsylvania R. Co., 182 Pa. 479 (38 Atl. 524, 61 Am. St. Rep. 721, 38 L. R. A. 376), it was decided that, where the transportation was a part of the pay of the employee, his travel when not connected with actual service made him a passenger. To the same effect is Dickinson v. West End St. Ry. Co., 177 Mass. 365 (59 N. E. 60, 83 Am. St. Rep. 284, 52 L. R. A. 326). A like doctrine is taught in Simmons v. Oregon Ry. Co., 41 Or. 151 (69 Pac. 440, 1022), where the plaintiff, although generally in the employment of the defendant, was at the time of the injury traveling on his own private business. In Williams v. Oregon Short Line Co., 18 Utah, 210 (54 Pac. 991, 72 Am. St. Rep. 777), the plaintiff was traveling on a pass to a place where he expected to obtain employment from the defendant, but the service was not to begin until he arrived at his destination. On this account he was held not to be an employee but a passenger. In Harris v. Puget Sound Elec. Ry. Co., 52 Wash. 289 (100 Pac. 838), the pass was issued as a part of the compensation to the employee. That made him a passenger on a train with the operation of which he had nothing to do, although he was going to a distant place to work and his wages were going on at the time of the injury.

2, 3. Many other cases might be cited on this question, and it is impossible to reconcile them all to a certain standard; but upon mature consideration we deduce this result: If, as part of the compensation to the employee, the carrier agrees to transport the former'to and fro between certain points when not engaged in actual service or when the travel is not closely connected with the employment, the employee must be considered a passenger because the carrier is for hire or is in a sense paid for by the work which the employee performs. On the other hand, if the carriage is merely for the mutual convenience of the parties, or either of them, in connection with the business in which the master is engaged, the relation of passenger and carrier does not exist between them, although as to the general public the employer is a carrier of passengers. In such cases as the latter the master is only bound to use ordinary care and prudence in supplying carriage for the employee, commensurate, indeed, with the danger to be reasonably apprehended, but not the highest degree of care due from a common carrier to passengers as such. A greater degree of absolute care is due from the master to the servant in a powder factory than in a milliner-shop; but in each instance the employer is only required to exercise ordinary care to provide a reasonably safe place in which to work and reasonably safe appliances for the convenience of the employees in connection with the enterprise, all in proportion to the inherent danger of the employment.

In the case in hand the elevator was immediately connected with the place of employment as a convenience both to employer and employee. It was a part of the duty of the latter to attend at the place to begin work at a stated hour, and, aside from the pleading on that subject, the decedent was so manifestly going to her work and her presence in the elevator was so immediately connected with her employment that she must be held to be an employee rather than a passenger. In her capacity as employee the measure of care due from master to servant is not different in this case from any other founded on the same relation, and the court was in error in instructing the jury on the basis of passenger and carrier as between the defendant and the unfortunate girl.

4. It appears by the complaint that the elevator in question was used and operated by the defendant in connection with its business, and that the elevator operator and the decedent were both employees of the defendant. In Brunell v. Southern Pacific Co., 34 Or. 256, 265 (56 Pac. 129, 131), this court, speaking through Mr. Justice Moore, quotes with approval the definition of “fellow-servant” given by Judge Thompson in his work on Negligence (volume 2, page 1203), as follows: “That all who serve the same master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow-servants who take the risk of each other’s negligence. ” Again, in Mast v. Kern, 34 Or. 247, 250 (54 Pac. 950, 951, 75 Am. St. Rep. 580), the court, speaking by Mr. Justice Bean, said: “The rule and the one now unquestionably established, and supported by the great weight of authority, both in this country and in England, is that the liability of' the master depends upon the character of the act in performance of which the injury arises, and not the grade or rank of the negligent employee. If the act is one pertaining to the duty the master owes to his servant, he is responsible for the manner of its performance, without regard to the rank of the servant or employee to whom it is intrusted; but, if it is one pertaining only to the duty of an operative, the employee performing it is a fellow-servant with his colaborers, whatever his rank, fqr whose negligence the master is not liable.” It is further said in the same opinion: “It is the personal and absolute duty of the master to exercise reasonable care and caution to provide his servants with a reasonably safe place to work, reasonably safe tools, appliances and instruments to work with, reasonably safe material to work upon, suitable and competent fellow-servants' to work with them, and to make rules and regulations needful for the safe conduct of the work; and he cannot delegate this duty to a servant of any grade so as to exempt himself from liability to a servant who has been injured by its nonperformance. "Whoever he intrusts with its performance, whatever his grade or rank, stands in place of the master, and he is liable for the negligence of such employee to the same extent as if he had himself performed the act or been guilty of the negligence. But when the master has performed his duty in this regard and provided competent employees, a reasonably safe place to work, suitable material, tools and appliances to work with, and needful rules and regulations, and the like, he has discharged his whole duty in the premises and is not liable to his servant for the negligence of another servant while engaged as an operative.

The complaint itself discloses all the elements in the definition of “fellow-servant” as given by Judge Thompson and approved by this court. The plaintiff does not pretend to say that the elevator was not a fit appliance and in good order for the purpose for which it was intended. The essence of the complaint is centered in the allegation of the negligence and carelessness of the man who operated the elevator. The testimony for the plaintiff shows that the elevator was found to be in good order immediately after the accident, except that a fuse was blown out, and this was explained by those witnesses speaking for the plaintiff as being caused by the contact of the body of the decedent between the elevator and the floor of the build” ing. It thus appears, or at least is not challenged by the complaint, that the defendant furnished a reasonably safe elevator for the convenience of its business and the use of its employees, and that the fault, if any, causing the tragedy, was the negligence of the operative. Under the doctrine of Mast v. Kern, 34 Or. 247, 250 (54 Pac. 950, 951, 75 Am. St. Rep. 580), the defendant had thus discharged its whole duty to the decedent employee. On the face of the complaint, as well as upon the testimony, the deceased and the operator of the elevator were fellow-servants, and the court was wrong in its instructions to the jury that they were not occupying that relation. The complaint was amenable to a general demurrer on the ground that it appears from that pleading that the injury to the deceased was on account of the negligence of her coworker. It is argued that, because the deceased had nothing to do with the operation of the elevator, she was not a fellow-servant with the elevator-man, although they were in the employment of the same principal and drew, their pay from the same source. The same might be said of a brakeman and a fireman on the same railroad train, or the man at the wheel, the fireman, and the engineer of a steamboat. In either of these cases neither person has anything to do with the duties of the other, yet it has often been held, and is a rule of common sense, that they are fellow-servants. The fellow-servant doctrine has been established by so many precedents in this state through a long series of years that it is now impolitic to disturb it except by legislation.

5. Another question, not necessary to the decision of this case under the circumstances already noted, but which ought to be settled as a matter of general practice, is based on the contention of the defendant that the plaintiff’s counsel in examining the jurors on the voir dire, by tbe form of tbe questions, purposely intimated to tbe jury that the defendant was protected against liability for accident by insurance in the Employers’ Liability Assurance Corporation of London, England, and that persistence in this course of examination extended so far as to amount to reversible error on the ground of misconduct of counsel. The matter is made the subject of 21 different assignments of error in the bill of exceptions. This line of interrogation seems to have been made a feature in the examination of every juror, in various forms, from asking whether the juror was acquainted with the corporation to whether he was a stockholder in it.

In the first place, it is quite as admissible to insure against loss by accident as against damage by fire. By as much as it is legitimate to provide protection by insurance against all manner of conflagrations whether started by the incendiary or the flash of lightning, by so much is it competent to arrange beforehand for defense against litigation whether initiated by the legitimate lawyer or the perniciously active ambulance chaser. A defendant is not to be mulcted because he is prudent enough to provide in advance by insurance against adverse contingencies in business. The mere fact, therefore, that in cases of this kind the defendant is insured against loss by accident and defended by counsel chosen or employed by the indemnifying company, cannot lawfully affect the decision of the issues in any manner whatever. Under such circumstances the insured has the same right to call upon the insurer to defend, as the grantee of real property under covenant of. warranty has to demand that his grantor defend in litigation attacking the title to the realty described in the conveyance. Speaking by Mr. Justice McBride, in Tuohy v. Columbia Steel Co., 61 Or. 527, 531 (122 Pac. 36, 37), this court has already said that: “It has been frequently held that a willful attempt by a plaintiff in a personal injury case to show that the defendant was protected by insurance constitutes reversible error. The ground for his holding is that a knowledge that the defendant has such protection might have a tendency to render the jurors careless as to the amount of the verdict.” On the other hand, “interest on the part of a juror in the event of the action or the principal question involved therein” in good common sense as well as by our statute is a ground of challenge for implied bias: Section 122, subd. 4, L. O. L. This provision would certainly be available against a juror who was in fact a stockholder or interested in an insurance company warranting against loss by the injury forming the basis of pending litigation. Many authorities hold flatly that it is reversible error to bring before the jury in any form, even by examination on the voir dire, the fact that the defendant is insured against any adverse result of the action on trial: Cosselmon v. Dunfee, 172 N. Y. 507 (65 N. E. 494); Brewing Co. v. Voith (Tex. Civ. App.), 84 S. W. 1100; Iverson v. McDonnell, 36 Wash. 73 (78 Pac. 202); Lowsit v. Seattle Lbr. Co., 38 Wash. 290 (80 Pac. 431); Eckhart & Swan Milling Co. v. Schaefer, 101 Ill. App. 500; Lassig v. Barsky (Sup.), 87 N. Y. Supp. 425; Hoyt v. J. E. Davis Mfg. Co., 112 App. Div. 755 (98 N. Y. Supp. 1031); Stratton v. Nichols Lbr. Co., 39 Wash. 323 (81 Pac. 831, 109 Am. St. Rep. 881); Harry Bros. Co. v. Brady (Tex. Civ. App.), 86 S. W. 615; Lipschutz v. Ross (Sup.), 84 N. Y. Supp. 632.

On the other extreme some precedents allow them to question the jurors not only about their possible interest in a given insurance company, but also as a basis therefor to show that the defendant is insured in that particular concern: Dow Wire Works v. Morgan (Ky.), 96 S. W. 530; M. O’Conner & Co. v. Gillaspy, 170 Ind. 428 (83 N. E. 738); Binklin v. Acker, 125 App. Div. 244 (109 N. Y. Supp. 125); Goff v. Kokomo Brass Wks., 43 Ind. App. 642 (88 N. E. 312); Aetitis v. Spring Valley Coal Co., 150 Ill. App. 479; Vindicator etc. Co. v. Firstbrook, 36 Colo. 498 (86 Pac. 313, 10 Ann. Cas. 1108); Swift & Co. v. Platte, 68 Kan. 1 (72 Pac. 271, 74 Pac. 635); Saller v. Friedman Bros. Shoe Co., 130 Mo. App. 712 (109 S. W. 794); Iroquois Furnace Co. v. McCrea, 191 Ill. 340 (61 N. E. 79); Hoyt v. Independent Asphalt Pav. Co., 52 Wash. 672 (101 Pac. 367); Heydman v. Red Wing Brick Co., 112 Minn. 158 (127 N. W. 561); Foley v. Cudahy Packing Co., 119 Iowa, 246 (93 N. W. 284); Girard v. Grosvenordale Co., 82 Conn. 271 (73 Atl. 747); Spoonick v. Backus-Brooks Co., 89 Minn. 354 (94 N. W. 1079).

Between the two extremes are many varieties of opinion shading into each other like the colors of the spectrum, so that it is impossible to deduce from them any fixed rule by which all disputes may be mathematically settled. Among many sensible statements on this vexed question, the following is here quoted: “Parties have the legal right to ascertain whether or not jurors have a pecuniary interest in the litigation, and the exercise of this right necessarily authorizes them to elicit information from them on this subject. This, however, in no way gives counsel a license to communicate improper matters to the jurors or to the court within their hearing in connection with such inquiry. Such an examination should be held strictly within the limits of such right and by direct question on the subject unaccompanied by suggestion or comment from counsel which may convey improper and prejudicial information to jurors. * * The line of demarcation between prejudicial and nonprejudicial remarks of this character cannot be readily drawn. Each case depends largely upon the circumstances- by which they are elicited and the probable effect upon the jurors”: Faber v. C. Reiss Coal Co., 124 Wis. 554, 563 (102 N. W. 1049, 1052).

6. The examination of a juror is nothing more nor less than the taking of testimony on the issues to be raised as to his qualifications to sit in the cause on trial. It is said in Section 856, L. O. L., that “the court may exercise a reasonable control over the mode of interrogation so as to make it as distinct, as little annoying to the witness and as effective for the extraction of the truth as may be.” In our judgment the only reasonable principle to be laid down is that in taking testimony on such an issue as on any other the scope of the examination is subject to the discretion of the court. The court should, as near as possible, steer a safe course between the Scylla of a packed jury on the one hand and the Charybdis of pettifoggery on the other. The plaintiff has the right to inquire about the interest, direct or indirect, of the jurors that may affect their verdict; but he has no right to abuse that privilege or make it a stratagem by which he can prejudice the jury with irrelevant matter. Any defendant has a right to a fair trial of the actual issues joined, unbiased by the popular prejudice against foreign insurance corporations needlessly injected into a case, even by indirection, where such concerns are not immediately involved. The trial court ought to control the interrogatories so as to exclude the element in question as far as consistent with the administration of exact justice in the case made. If needful to prevent putting the insurance of the defendant into the case unnecessarily, the court would be authorized to take repressive measures, even to dismissing the jury and continuing the case for a trial de novo. It would have been easy and would have served every legitimate purpose in the case to ask the jurors if they had any interest directly or indirectly in the result of the case or in the principal question involved. Considering the remoteness of probability that the average juror of Multnomah County would be a stockholder or interested in a corporation of London, England, it was an indiscretion of the court to allow that institution to be made such a prominent feature in the process of impaneling the jury.

The judgment of the Circuit Court is reversed and the cause remanded, with direction to enter a judgment of nonsuit.

Reversed, With Directions.

Rehearing allowed September 9, reargued October 6, decided December 2, 1913.