Bradley v. James H. Forbes Tea and Coffee Company
| Decision Date | 03 July 1908 |
| Citation | 111 S.W. 919,213 Mo. 320 |
| Parties | CARRIE BRADLEY, Appellant, v. JAMES H. FORBES TEA AND COFFEE COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.
Affirmed.
James M. Rollins for appellant.
(1) The master's position to his servant is that of a superior. The servant's relation to his master is that of subordination. The master owes a duty of inspection to his servants. The servant owes no duty of inspection of his master's premises. Shortel v. St. Joseph, 104 Mo. 120; Gutridge v. Railroad, 105 Mo. 526; Scott v. Springfield, 81 Mo.App. 312; Hughes v Fagin, 46 Mo.App. 44; Thompson v. Railroad, 86 Mo.App. 148; Devore v. Railroad, 86 Mo.App. 429. (2) Defendant's claim that its demurrer should have been sustained has no merit, and the case was one for the jury to consider under proper instructions. The evidence shows that a man by the name of Fitzgerald was defendant's foreman and as such had charge of the employees on the different floors of defendant's establishment. The evidence conclusively shows that Bradley was engaged as a coffee mixer on the third and fourth floors and that he obtained the coffee by going to the stock room and selecting the desired brands from the piles of sacks of coffee therein. The piles were made under the direction of the said foreman, whose duty it was to see that the piles were kept in a safe condition. Where the place in which the servant is set to work is like the place in question, not necessarily or inherently dangerous, but of such a nature that it may be maintained in a reasonably safe condition by the master, by the exercise of ordinary care, the master, if he fails to exercise such care, in consequence of which a careful servant is injured, is liable in all cases except one. The excepted case may be stated thus: When the master intrusts to a competent servant the arrangement, inspection and repair of a place wherein work is performed, such servant cannot recover for an injury he receives in consequence of a situation he creates or defects he fails to discover or repair. The facts in the case at bar do not call for the application of this exemption. FIRST. The evidence affirmatively shows that deceased was not intrusted by his employer with properly arranging or storing the sacks of coffee in the stock room, so as not to endanger the safety of persons working about the same. It is true that his employment as a coffee mixer occasioned frequent visits to the stock room where he obtained the coffee and that on occasions he assisted in carrying in and storing the sacks of coffee in tiers or piles, at the direction of the foreman, but he had nothing to say about how the sacks of coffee should be arranged or stored, whether they should be arranged in piles or tiers, high or low, or otherwise. When he thus assisted he did so in obedience to the foreman, who for the master directed the work, which, therefore, when completed, represented in plan and arrangement the will of the master. SECOND. There was no evidence tending to show that the master intrusted to Bradley the duty of inspecting and repairing the piles of sacks of coffee. On the contrary, the evidence affirmatively shows that this duty was intrusted to the foreman. If, however, there had been such evidence, it was a question for the jury. Nicholds v. Plate Glass Co., 126 Mo. 65. The fact that Bradley may have been told or accustomed to look out for leaning piles did not increase his obligation nor lessen that of the master. Covery v. Railroad, 27 Mo.App. 179. (3) Nor can Bradley's death be attributed to the negligence of a fellow-servant, since the duty of the master to exercise care to furnish a safe place is a positive or absolute duty, which the master owes to the servant, and those to whom he intrusts it are vice-principals, regardless of whether they are of high or low degree in the employment. They represent the master if intrusted with any of the master's duties to the servant. Zellars v. Mo. W. & L. Co., 92 Mo.App. 123.
Seddon & Holland for respondent.
Regardless of the question of alleged errors, the judgment of the lower court should be affirmed because it is for the right party. The lower court should have given a peremptory instruction to find for defendant. Livengood v. Joplin, 179 Mo. 229; Knopp v. Wagner, 195 Mo. 637; Henson v. Armour, 113 Mo.App. 618; Kelly v. Railroad, 105 Mo.App. 365; Gleeson v. Excelsior Mfg. Co., 94 Mo. 201; Schaub v. Railroad, 106 Mo. 74; Mathias v. K. C. Stock Yards, 84 S.W. 60.
Plaintiff instituted this suit in the circuit court of the city of St. Louis to recover the sum of $ 5,000 damages for the killing of her husband, John M. Bradley, through the alleged negligence of the defendant. There was a trial before the court and a jury, which resulted in a verdict and judgment for the defendant, from which the plaintiff duly appealed. The facts are few, and are substantially as follows:
At the time of his injury and death John M. Bradley and plaintiff were husband and wife. Defendant was a business corporation, engaged in the wholesale tea and coffee business in the city of St. Louis. On and prior to November 20, 1903, said John M. Bradley was in the employ of defendant as a "laborer or foreman," and among other duties he was to perform was the selecting from the stock certain grades and kinds of coffee, and carry them to the third or fourth floor of the building and there mix them so as to make different blends for the trade. The coffee in stock was stored on the first floor and was piled up in rows three feet wide, that being the length of the coffee sacks, and extended from the west wall toward the east a distance of some ten or twelve feet and were about twelve feet in height. The different rows were about the same length and height and were parallel with each other. The sacks of coffee weighed from two hundred to two hundred and fifty pounds each.
Bradley was an experienced coffee man, and was perfectly familiar with the manner in which the coffee was piled. For three years he had assisted in building and tearing down those piles. Frequently when one pile was removed the one next to it would settle more or less and bulge out in the center. If the bulge was so great as to endanger the pile falling, Bradley and some other employees of the company would adjust the matter, but if the bulge was only slight no attention was paid to it. A few days prior to the accident the deceased was summoned to serve on the jury in the circuit court, and while he was in attendance upon the court other employees of the company performed his duties. The day prior to his return the foreman in charge of the business and another employee of the company partially removed one of the center rows of coffee, which caused one of the adjoining rows to bulge or lean somewhat, but not sufficient to cause them to apprehend that there was any danger of its falling. It remained in that condition until the next morning, November 20, 1903, when Bradley returned to work. Shortly after he resumed his duties he went to the row of coffee which had been partially removed, without having been informed of the leaning condition of the adjoining row, and began removing additional sacks of coffee therefrom, when, without warning, the leaning row of coffee fell upon him and broke his back, which resulted in his death on the next day.
I. At the close of plaintiff's case, the defendant asked an instruction in the nature of a demurrer to the evidence, which was by the court refused, and to which action of the court in refusing to give said instruction defendant duly excepted. The defendant declined to introduce any evidence, and the court submitted the issues to the jury under certain instructions given, and, as elsewhere stated, the jury found for the defendant, and plaintiff duly appealed.
The contention of learned counsel for plaintiff convicts the trial court of having committed many errors during the progress of the trial, and asks this court to review the rulings of the trial court.
In response to that request we are confronted with the assertion of counsel for defendant that the judgment is for the right party regardless of the errors assigned; and contend that the evidence as disclosed by the record does not make out a case for the plaintiff, and that the court erred in not sustaining its demurrer to the evidence, and renews that contention in this court.
We will first consider defendant's demurrer to the evidence, and if we find that the evidence was not sufficient to make out a prima-facie case for plaintiff, and that the demurrer should have been sustained, then the necessity of making an examination and passing upon the numerous questions presented by plaintiff will be obviated.
It is the contention of the defendant that Bradley came to his death as the result of a risk which was assumed by him and which arose in the course of his employment. In other words, it is contended that he was killed, not because the master furnished him an unsafe place in which to labor, as contended for by the appellant, but that the danger in this case was created and arose solely out of the fact that the servants of defendant were removing the sacks of coffee from one pile, which had a tendency to make the adjacent piles lean and bulge out of a perpendicular line. Some of the sacks had been removed by employees Burgin and Burchard the day before the accident, and on the morning of the accident deceased was removing additional sacks from the pile himself, and it was not until he had removed several of them that the adjacent pile fell upon and crushed him.
The law seems to be well settled in this State and elsewhere in this class of cases that if the...
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