Samuel R. Russell, of Morford, Young & Conaway, Wilmington, for appellant.
Joseph A. Julian, Jr., Wilmington, for appellees.
SOUTHERLAND, C. J., WOLCOTT, Justice, and CAREY, Judge, sitting.
This is an appeal by the defendant from a judgment entered on a jury's verdict in a personal injury action. The basic question presented is whether or not the Fellow Servant Doctrine is available to the defendant as a defense. The plaintiff's injuries were caused by the negligence of one Richardson, the defendant's chauffeur, while operating the defendant's automobile in which the plaintiff was riding.
The defendant occupied a house on the estate of her daughter-in-law. As part of her household she employed Richardson as a full-time chauffeur and the plaintiff as a part-time house servant. The terms of employment agreed upon between[54 Del. 119] the plaintiff and the defendant were for a fixed hourly wage and the furnishing of transportation to and from the plaintiff's home to the defendant's residence. At the time of the plaintiff's injuries she was being transported in the defendant's automobile by the defendant's chauffeur from her home to the defendant's residence.
The wages of both Richardson and the plaintiff were paid by the defendant's daughter-in-law. However, the defendant controlled and directed the activities of both Richardson and the plaintiff within the scope of their employment.
At the close of the trial the defendant moved for a directed verdict in her favor upon the ground that the Fellow Servant Doctrine was a complete defense to the action. The trial judge denied the motion holding that while the plaintiff and Richardson were in fact fellow servants, yet, Richardson, at the time of his negligence, was not performing any act of their common employment, but was in fact performing one of the primary duties of their employer. He accordingly ruled that the Fellow Servant Doctrine was inapplicable.
The Fellow Servant Doctrine has long been the law in Delaware. Commencing in 1857 with Flinn v. Philadelphia, Wilmington, & Baltimore Railroad Co., 1 Houst. 469, and culminating in 1915 with Krause v. Emmons, 6 Boyce 104, 97 A. 238, a long series of cases have applied the doctrine in actions by an employee seeking recovery from the employer for injuries caused by the negligence of a fellow employee.
Since 1915 no reported decision in Delaware applying the doctrine has been called to our attention, nor has our own research brought one to light. The reason, of course, is that by 39 Laws, Ch. 233, the Delaware Workmen's Compensation Law of 1917 was enacted. This law, inter alia, abolished the Fellow Servant Doctrine in actions brought by an employee against an employer. However, not all employees or servants were covered by the terms of the Workmen's Compensation [54 Del. 120] Law. Certain
classes of employees were excepted from the operation of the law by 29 Laws, Ch. 233, § 3193vv. This section, as subsequently amended, is now found as 19 Del.C. § 2307, by which the Workmen's Compensation Law is presently expressly inapplicable in actions brought by farm laborers and domestic servants against their employers.  It follows, therefore, that the Fellow Servant Doctrine is available as a defense in this action if the facts and circumstances require its application.
The doctrine as laid down in the law of Delaware is that when one enters the service of another, he takes upon himself the ordinary hazards and risks of his employment, including the risk of injury from the carelessness or negligence of another in the same employment. Therefore, if a servant is injured by the negligence of a co-servant engaged in a common employment, no liability may be imposed upon the employer for injuries resulting from that negligence. Wheatley v. Philadelphia, Wilmington, & Baltimore Railroad Co., 1 Marv. 305, 30 A. 660; American Bridge Co. v. Valente, 7 Penn. 370, 73 A. 400.
The plaintiff argues that inasmuch as she was being transported from her home to the residence of the defendant where she was to go to work, her employment for that day had not commenced and that, accordingly, she was not at the time of the accident the servant of the defendant and, hence, not the fellow servant of Richardson. Therefore, it is argued, there could be no common employment between her and Richardson and, accordingly, the Fellow Servant Doctrine is inapplicable.
We think, however, in this aspect of the case, that we are controlled by the decision of our Supreme Court in Taylor [54 Del. 121] v. George W. Bush & Sons Co., 6 Penn. 306,66 A. 884. In that case a servant of the defendant employed as a helper on the defendant's coal wagons was injured when a bale of hay thrown from an upper window of defendant's stable by a fellow servant struck him. At the time of the injury the plaintiff had been paid at the defendant's office at the close of the working day and had returned to the defendant's stable one block away for the purpose of retrieving his lunch pail which he ...