ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR PORTO RICO.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an action for personal injuries suffered in Porto Rico. The declaration alleges that the plaintiff at the defendant's request made a trip on an automobile of the latter "for the purpose of aiding other employes of the defendant in moving a certain boiler which was the property of the defendant," and that in returning from the trip the automobile was so negligently operated by the defendant, its agents and employes, that it was driven into a ditch and the plaintiff was badly hurt. There was a trial by jury, in which, at the end of the plaintiff's evidence, the judge directed a verdict for the defendant and the plaintiff excepted. The evidence showed that the machine was driven by a servant of the defendant, so that it appeared in proof that the plaintiff was suing for an injury caused by a fellow-servant, as is to be inferred from the face of the declaration itself.
Notwithstanding the admission that the plaintiff was an employee of the defendant, imported by the words 'for the purpose of aiding other employes,' it is argued that
the plaintiff was not a fellow-servant, and therefore, although the contention hardly is open, the substance of the testimony may be stated. The plaintiff's general employers had sold a sugar mill to the Central, delivered in New Orleans. At the request of the Central they had sent over the plaintiff to put up a chimney, a battery of six boilers and a bagasse track. While at the work he seems to have been paid by the defendant and was under the direction of its chief engineer. The chimney had been nearly finished and the next work was to set up the boilers, but they had not arrived. The man in charge of the transportation directed the plaintiff to go and help to get a boiler, which, after asking the chief engineer for leave, he did. When they got to the boiler there were not enough machines to haul it, so that they had to return to the Central. On the way the driver seems to have been more or less drunk, and negligently, it must be assumed, upset the machine.
Whether the plaintiff was in the general employ of the defendant, as he seems to have been, or not, the service that he consented to render was the defendant's work. In rendering that, at least, he came under its orders and became its servant. Assuming in his favor that he was a volunteer, that fact did not enlarge his rights. Degg v. Midland Ry. Co., 1 H. & N. 773; Potter v. Faulkner, 1 Best & Sm. 800; Barstow v. Old Colong R.R. Co., 143 Massachusetts, 535, 536; Wischam v. Richards, 136 Pa. St. 109. Other cases will be found in 2 Labatt, Master & Servant, § 631. He was the defendant's servant not only while actually at work on the boiler but during the trip taken for the purpose of doing the work. Northern Pacific R.R. Co. v. Peterson, 162 U.S. 346, 358. Martin v. Atchison, Topeka & Santa Fe R.R. Co., 166 U.S. 399, 403. Texas & Pacific Ry. Co. v. Bourman, 212 U.S. 536, 538, 539. And he was fellow-servant with the driver of the machine. Martin v. Atchison, Topeka & Santa Fe R.R. Co., supra,
Northern Pacific Ry. Co. v. Dixon, 194 U.S. 338. Texas & Pacific Ry. Co. v. Bourman, 212 U.S. 536, 541. Beutler v. Grand Trunk Junction Ry. Co., 224 U.S. 85. If the law of Porto Rico does not differ in this respect from the common law, the direction to the jury was right.
Whether the common law rule prevails is not made clear by any authority cited. But by the act of March 1, 1902, (Rev. Stats. & Codes, 1902, p. 150), the English Employers' Liability Act was copied more or less exactly, as it has been in some of the States. That statute Presupposes the common law rules as to fellow-servants, Ryalls v. Mechanics' Mills, 150 Massachusetts, 190, 191, and the Porto Rican copy would be hard to account for except upon the same presupposition. If a master were liable for injuries caused by the negligence of a fellow-servant there would be no need of enacting that he should be liable for such injuries in specific cases, as the statute does, and no sense in the provision of § 10 that the act shall not apply to injuries caused to domestic servants, or farm laborers, by fellow-employes. Therefore, while we might hesitate if we were deducing the rule from the considerations on which it originally was placed, Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 205 U.S. 1, 11, 12, as indeed one might hesitate about the more general liability to which it is an exception, we must assume that it exists, even laying on one side the suggestion that the statute offers the only remedy for cases within it. We should add that this suit is not brought under the act.
It was argued, evidently as an afterthought for which no foundation was laid in the pleadings, that the defendant might have been liable on the ground that it employed an incompetent servant. This suggestion is based on a single expression concerning the driver, that it was his custom to drink while driving the machine. This neither stated nor meant, so far as we can judge, that it was the custom of the driver to drink to excess or so as to unfit
him for his work. The only other reference to the matter was by another of the plaintiff's witnesses, that the driver was "not in the mood or attitude which he usually had when we worked together in the shops," importing usual sobriety. It would have been permitting ...