Blank, Helen

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NOTES AND COMMENTSAGENCYRIGHT OF AN ASSISTANT TO RECOVER DAMAGES FOR THE NEG-LIGENCE OF THE SERVANTThe Cloverdale Dairy Co. forbid their employees to hire assistants,or to permit outsiders to ride upon their trucks, upon which they hadpainted "no riders" signs. One of their drivers, without their knowl-edge, employed one Briggs, a minor, to assist him in deliveries. Theevidence showed that Briggs always got on the truck away from thecompany's premises, and always left when the company made its routeinspection. Briggs was injured through the negligence of the driver,and he brought a tort action against the Dairy Co. in the CommonPleas Court of Belmont County. The trial court excluded evidencetending to show plaintiff had knowledge of the defendant's rules. Judg-ment was rendered for the plaintiff. The Court of Appeals affirmedthe judgment. The Supreme Court held the exclusion of evidencereversible error, in that the trial court's ruling did not allow defendantopportunity to show whether plaintiff was the servant of the companyor of the driver. This, it held, should have been submitted to the jury,and the case was reversed and remanded. The Cloverdale Dairy Co. v.Briggs, Infant, 131 Ohio St. 261, 2 N.E. (2d) 592, Ohio Bar, June8, 1936 (1936).According to agency theory, an assistant can hold the master liablewhen the servant had authority, express or implied in fact, to seek aid inhis work. Cooper v. Lowery, 4 Ga. App. I2o, 6o S.E. 1015 (19o8) ;Bayne v. Billings, 3o R.I. 53, 73 Atl. 625 (I909); White v. Levi &Co., 137 Ga. 269, 73 S.E. 376 (1911); Potter v. Golden Rule Gro-cery Co., 169 Tenn. 240, 84 S.W. (2d) 364 (i935).Such authority may be implied when an emergency arises that makesit necessary in the employer's interest that his employee have temporaryassistance. Pennsylvania Co. v. Gallagher, 40 Ohio St. 637, 48 Am.Rep. 689 (1884); Hollidge v. Duncan, i99 Mass. 121, 85 N.E. 186,17 L.R.A. (N.S.) 982 (19o8); Sloan v. Central Iowa R. Co., 62Iowa 728, i6 N.W. 331 (1883); L. & N. R. Co. v. Ginley, iooTenn. 472, 45 S.W. 348 (1897); Mechem, Agency, Sec. 306. Wherethe work is arduous but is purely manual and requires no skill or dis-NOTES AND COMMENTS 7cretion, the power to appoint a subservant may be implied. Lezn v. Cityof Omaha, 102 Nebr. 328, 167 N.W. 214 (918); Williams v.Wood, 16 Md. 22o (i86o); Eldridge v. Holway, I8 Ill. 446 (r857).In the Brigg's case, the employment of the servant did not carrywith it any express authority to hire an assistant and the evidence wouldseem to reveal none of the elements necessary to imply an authority.In such instances, it has been held that the servant is but the servantof the servant and not of the master; and some courts have said thatthe assistant cannot recover from the master for any injury resultingfrom the unauthorized hiring by the servant. James v. Muelhlebach,34 Mo. App. 512, (1889); Looney v. Bingham Dairy Co., 75 Utah,53, 282 Pac. 1030, 73 A.L.R. 427 (1929); Raible v. Hygienic Ice &Refrigerating Co., i19 N.Y.S. 138, 134 App. Div. 705 (1909);Driscoll v. Scanlon, 165 Mass. 348, 43 N.E. IOO (1896).The only other agency theory which might plausibly be advancedon the plaintiff's behalf is that of estoppel. If the defendant placed hisservant in such a position that he had the apparent authority to hire anassistant, and if the plaintiff, dealing with the servant, reasonably reliedupon this apparent authority, the employer might justly be estopped fromdenying his liability. In the principal case, however, the plaintiff cannotavail himself of this theory, as it appears from the admitted evidencethat the assistant actually knew there was no authority to appoint asub-servant.Discarding the agency theory for the moment, one might regardthe plaintiff as a mere third person. If the plaintiff had been the guestof the servant, who was driving the master's car in the course of busi-ness, and who had no authority to extend such invitation, the masterwould not be liable to the guest even if the servant were wantonly andwilfully negligent. Union Gas & Electric Co. v. Crouch, 123 OhioSt. 8I, 174 N.E. 6, 33 Ohio L. Rep. 441, 74 A.L.R. 16o (1930).If it could be said that the plaintiff assisted with the work, derivingno benefit to himself, that is, was a mere volunteer, the courts have heldthe assistant stands sufficiently in the relation of a servant to precluderecovery from the master under the fellow-servant doctrine. Mayton v.Railroad, 63 Tex. 77, 51 Am. Rep. 637 (1885); New Orleans R. R.Co. v. Harrison, 48 Miss. 112, 12 Am. Rep. 356 (1873); Osborne v.Knox & Lincoln R. R., 68 Me. 49, 28 Am. Rep. I6 (1877) ; Flowerv. Penn. R. R. Co., 69 Pa. St. 210, 8 Am. Rep. 25I (1871).Ohio courts, however, hold a mere volunteer not a servant of themaster, but consider him in the same position as a trespasser, and assuch, he can recover from the master only for injury wilfully and72 LAW JOURNAL- DECEMBER 1936wantonly inflicted by the servant. General R. Signal Co. v. Valois, 25Ohio C.C. (N.S.) 423, 35 Ohio C.D. 302 (19o9); Lake Shore &M. S. R. Co. v. Duer, 21 Ohio C.C. 512, II Ohio C.D. 761 (19oi);Cleveland Terminal & Valley R. R. Co. v. Marsh, 63 Ohio St. 236,58 N.E. 821, 52 L.R.A. 142, 9 Am. Neg. Rep. 167, 44 Bull. 343(190oo); Ohm v. Miller, 31 Ohio App. 446, 167 N.E. 482 (1928).But where the assistant, at the request of a servant having no author-ity to seek such aid, serves some purpose of his own, as well as assistingin the work of the master, he is not a mere volunteer, but neither is hea servant of the master. He is considered on the premises by sufferanceof the master and as such is entitled to be protected against the neg-ligence of the owner of the premises or his servants. Cleveland Terminal& Valley R. R. Co. v. Marsh, supra; McIntyre Street Railway Co. v.Bolton, 43 Ohio St. 224, I N.E. 335, 54 Am. Rep. 803 (1885);Delivery Co. v. Callachan, 9 Ohio App. 65, 31 Ohio C.A. 345(1917); General R. Signal Co. v. Valois, supra.The facts in the principal case might conceivably be brought underthis latter doctrine, as the plaintiff served both his own purpose and thatof the master. Following the Marsh case, supra, the assistant could thusrecover, not on the basis that he was a servant, but on the ground thathe was a third person to whom the master was liable for the negligenceof his servants.As to the ruling on the exclusion of evidence, if the trial court'sdecision was based on the authority implied in fact of the driver toappoint an assistant, the court was correct in excluding evidence thatBriggs had knowledge of the rules of the company, as this would beirrelevant; and the Supreme Court erred in its reversal of the decision.In view of that evidence which was admitted this theory would seem un-tenable, however, as against the weight of evidence. If recovery wasallowed on the basis of apparent authority to hire an assistant, whichauthority was relied on, so as to create an estoppel, the Supreme Courtwas correct in holding the exclusion of the evidence to be reversibleerror as this evidence would have helped disprove the essential elementof reliance. Finally, if judgment was rendered for the plaintiff on theground that he was a third person, the decision of the trial court shouldhave been sustained.Unfortunately, the opinion of the Supreme Court cites no authorityand gives no indication of which view was adopted. Since the reversalcan only be supported on the theory of estoppel, this would seem the mostplausible explanation of its ruling. HELEN BLANK.

Right of an Assistant to Recover Damages for the Negligence of the Servant

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Right of an Assistant to Recover Damages for the Negligence of the Servant

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