219 S.W. 719 (Mo.App. 1920), Kautz v. St. Louis Refrigerator Car Company
|Citation:||219 S.W. 719, 203 Mo.App. 522|
|Opinion Judge:||REYNOLDS, P. J.|
|Party Name:||JOHN KAUTZ, Respondent, v. ST. LOUIS REFRIGERATOR CAR COMPANY, Appellant|
|Attorney:||Nagel & Kirby and Charles P. Williams, for appellant. O. J. Mudd for respondent.|
|Judge Panel:||REYNOLDS, P. J. Allen, J., concurs in the result in a separate opinion, in which Becker, J., concurs. Allen, J., concurs in the result in a separate opinion, in which Becker, J., concurs. ALLEN|
|Case Date:||March 02, 1920|
|Court:||Court of Appeals of Missouri|
Appeal from the Circuit Court of the City of St. Louis.--Hon. Daniel D. Fisher, Judge.
(1) The dual capacity doctrine is the settled law of this State. English v. Rand Shoe Company, 145 Mo.App. 450. The claims of the defendant rest either upon the theory of distinct departments or upon the theory that the act complained of was the act of a vice-principal. The men were consociated in a common task. Card v. Eddy, 129 Mo. 518. The demurrer should have been sustained. The negligent act complained of was an act of manual labor of the same species and to the same end as that being performed by the plaintiff, and the master is not liable. Lee v. Beloit Bridge Works, 62 Mo. 565, 567; Stephens v. Lumber Company, 110 Mo.App. 398; Rogers v. Schiele, 148 Mo.App. 53; Dickinson v. Jenkins, 144 Mo.App. 132; Hawk v. Lumber Company, 166 Mo. 121; Padgitt v. Iron & Steel Company, 160 Mo.App. 544; Richards v. Mesker, 171 Mo. 666; English v. Rand Shoe Company, 145 Mo.App. 439; Freebourn v. Chamberlain Medicine Co., 136 Iowa 434; Gann v. Railroad, 101 Tenn. 380; Findlay v. Russell Wheel Co., 108 Mich. 286; Beckstein v. Gall, 173 Ill. 187, 69 Ill. 616; Allen v. Goodwin, 92 Tenn. 385; Burke v. Rubber Co., 21 R. I. 446; Richmond Locomotive Works v. Ford, 94 Va. 627; Kliegel v. Weisel & Vilter Mfg. Co., 84 Wis. 148; Foley v. Railway Co., 64 Iowa 644; Cashman v. Chase, 156 Mass. 342; Riono v. Rockport Granite Co., 171 Mass. 162; Flynn v. Boston Light Co., 171 Mass. 395; McQueeny v. Railway Co., 120 Iowa 522; Dimarcho v. Builders Iron Foundry Co., 18 R. I. 514; Ricks v. Flynn, 196 Pa. 263; Allen v. Cooper Co., 3 Alaska, 651; American Telegraph Company v. Bower, 20 Ind.App. 52. (2) Instruction Number 1, given for the plaintiff, ignores vital issues, draws misleading distinctions and is erroneous. (3) Instruction Number 2, given by the court for the plaintiff, ignores vital issues, purports to be complete instruction covering whole case and erroneous. Hall v. Manufacturers' Coal & Coke Co., 260 Mo. 351. (4) The court erred in giving to the jury the instruction for plaintiff numbered 4. It is misleading and conveys an erroieous impression of the duty of the defendant. Hensen v. Stave Co., 151 Mo.App. 244; Dunn v. Nicholson, 117 Mo.App. 374. In common with nearly all the other instructions for the plaintiff, it contains indefinite reference to other instructions. Drumm v. Bank, 92 Mo.App. 333. (5) Instruction Number 1 for the plaintiff and Instruction Number 1 for the defendant are conflicting and inconsistent.
(1) The act of French in placing the wheel against the lathe, whence it fell and injured plaintiff, was not, as far as concerns plaintiff, the act of a fellow servant, but was the act of a vice-principal. Mertz v. Rope Co., 171 Mo.App. 94; Propulonris v. Const. Co., 213 S.W. 792; Morin v. Rainey, 27 S.W. 858, 869; Bradshaw v. Standard Oil Co., 199 Mo.App. 688; Most v. Goebel Const. Co., 199 Mo.App. 336; Gibbs v. Duvall, 201 S.W. 605, 607; Goerner v. Car Co., 209 Mo. 141; White v. Montgomery, etc., Co., 191 Mo.App. 268; Strother v. Milling Co., 261 Mo 1; Gale v. Mill Co., 159 Mo.App. 639; Jorkiewics v. Brake Co., 186 Mo.App. 534; Miller v. Railroad, 109 Mo. 356; Bien v. Transit Co., 108 Mo.App. 399; Edge v. Railway Co., 206 Mo. 494. (2) French and plaintiff were not always, or at all points, fellow servants even in the work of unloading the car. Bien v. Transit Co., 108 Mo.App. 399; Note--I think the above is the best considered case in the State of Missouri and has been adopted and approved by the Supreme Court in Edge v. Railway Co., 206 Mo. 493-4, and Strother v. Milling Co., 261 Mo. 16; Edge v. Railway Co., 206 Mo. 494; Hollweg v. Telephone Co., 195 Mo. 156; Morin v. Rainey, 207 S.W. 860. (3) It was not plaintiff's duty to be on the lookout for dangers to him while rolling the wheels. Hawkins v. Railroad, 189 Mo.App. 210. (4) The right of direction and control exercised by French towards plaintiff made him as to plaintiff a vice-principal. Bien v. Transit Co., 108 Mo.App. 339; Mertz v. Rope Co., 174 Mo.App. 103 et seq.; Gibbs v. Duvall, 201 S.W. 607. (5) "The negligence of Rainey (French?) in rendering unsafe the place where plaintiff was expressly required to work at the time, was, in law, the negligence of the master casting liability upon the latter for the consequences thereof." Morin v. Rainey, 207 S.W. 861. (6) The right to "hire and fire" is not essential or necessary to the capacity of a vice-principal, nor does it matter that Littell was in authority over all. Gibbs v. Duvall, 201 S.W. 607. (7) If the arrangement or preparation of the "place" of work was to be done by French and plaintiff both, and French had and exercised at the time authority over plaintiff to direct and control him, then French was a vice-principal in such work, and if pursuant to such capacity he put the wheel against the lathe, or even had he directed plaintiff to do it, and that act endangered the "place," the act was the negligence of the master. Miller v. Railroad, 109 Mo. 356. (8) French had and exercised the authority to direct and control plaintiff at all times when working with him on the day of his injury. Plaintiff so testified and the jury so found, and this fixes the fact so for the purposes of this appeal. He, therefore, was not a fellow servant with plaintiff. Burkard v. Rope Co., 217 Mo. 450; English v. Shoe Co., 145 Mo.App. 451; Mertz v. Rope Co., 174 Mo.App. 94; Jorkiewics v. Brake Co., 186 Mo.App. 534. (9) If the placing of the wheel by French against the lathe rendered the "place" of the work dangerous, "it would seem to be a detail of such importance and of such character, as to be chargeable to the duty of the master." Gibbs v. Duvall, 201 S.W. 607 (citing Labatt on Mast. and Ser., sec. 1516, page 4545); Koerner v. Car Co., 209 Mo. 157 et seq. (10) Appellant having joined with plaintiff in submitting to the jury the issue of fellow service is estopped to claim error of the courts in overruling his demurrer on that point. Schenf v. Fries, 77 Mo.App. 360; Berkson v. Cable Ry. Co., 144 Mo. 219-220; Water Co. v. City of Neosho, 136 Mo. 508; Barr v. Hayes, 172 Mo.App. 600; Distilling Co. v. Wilson, 172 Mo.App. 618-619. (11) In arguing in this court the propriety of the ruling of the trial court on a demurrer to the evidence, plaintiff's evidence must be held to be true and defendant's evidence untrue. Williams v. Railroad, 257 Mo. 111-112. (12) Defendant, by putting in evidence, after the court's overruling his demurrer to the evidence offered at the close of plaintiff's evidence, waives the rights to have the plaintiff's case tested on plaintiff's evidence alone. Stauffer v. Railroad, 243 Mo. 305, 316; Whiteaker v. Railroad, 252 Mo. 450. (13) The duty of the master to make and keep safe the "place" of work is a non-delegable duty of the master which he cannot cast off to the shoulders of other persons. Morin v. Rainey, 207 S.W. 858, 861; Koerner v. Car Co., 209 Mo. 141, 151; White v. Montgomery, etc., Co., 191 Mo. App 268; Chulick v. American Car and Foundry Co., 199 S.W. 437; Zellars v. Water Co., 92 Mo.App. 107, a much-cited case.
[203 Mo.App. 526]
Plaintiff, while in the employ of defendant and engaged in unloading car wheels from [203 Mo.App. 527] a car and placing them in one of the departments of defendant's plant, rolling a wheel, came in contact with another wheel, which was standing in the passageway, leaning against a lathe, and the two wheels fell on his right leg, crushing it and necessitating its amputation above the knee. Placing his damages at $ 20,000, plaintiff recovered a verdict for $ 7500. Judgment following, defendant has duly appealed.
The charge of negligence in the petition upon which the case was tried is, that defendant, through its employees, then and there by defendant intrusted and charged with the duty of providing plaintiff a reasonably safe place to work, "did negligently place a certain large iron wheel, hereinafter referred to and designated as the stationary wheel, alongside and near to the passageway over which plaintiff was at the time of receiving the injuries herein described and pursuant to his said employment so engaged in moving and transferring said car wheels, in so careless and negligent and unskillful a manner as to be liable to topple over and fall upon and into said passageway, over and along which plaintiff was so engaged at his said work. That said stationary wheel had been and was so placed in an approximately upright position, and so slightly leaning as to be near a balance, and resting against and supported by a certain machine stationed, then and there, in said machine shop, and near to the said passageway, so that it was by reason of its approximate balance and great weight, liable in the ordinary course of the work of rolling and transferring the wheels out of said car and along the said passageway, to be jarred and struck and to fall over in said passageway and injure plaintiff. That in addition to being so leant against the said machine in said approximately upright position, as aforesaid, said stationary wheel was so placed and leant against said machine with the tread or heavy side of the same outwards and towards the said passageway along which plaintiff was, by defendant's order, so set to work, and so that the said stationary wheel, thus carelessly [203 Mo.App. 528] and negligently placed and leant against said machine...
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