Parker v. Nelson Grain & Milling Co.

• Decision Date: 08 April 1932
• Docket Number: 30073
• Parties: Ebbie Parker v. Nelson Grain and Milling Company, Appellant
• Court: Missouri Supreme Court

48 S.W.2d 906

330 Mo. 95

Ebbie Parker v. Nelson Grain and Milling Company, Appellant

No. 30073

Supreme Court of Missouri

April 8, 1932

Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.

Affirmed and remanded.

A L. Berger and Morrison, Nugent, Wylder & Berger for appellant.

(1) The act complained of was an act of a fellow-servant and not a vice-principal, which invoked the dual capacity doctrine and plaintiff would not be entitled to recover against the defendant. Hawk v. McLeod Lumber Co., 166 Mo. 121; Fogerty v. Transfer Co., 180 Mo. 490; Radtke v Basket & Box Co., 229 Mo. 1; McIntyre v. Tebbetts, 257 Mo. 117; Boston v. Kroger Co., 320 Mo. 408; Dickinson v. Jenkins, 144 Mo.App. 132; English v. Rand Shoe Co., 145 Mo.App. 439; Rogers v. Schiele, 148 Mo.App. 53; Kinser v. Cook Paint & Varnish Co., 249 S.W. 447; Burge v. Am. Car & Foundry Co., 274 S.W. 842; Lewis v. Am. Car & Foundry Co., 3 S.W.2d 282. (2) The plaintiff was not entitled to have the case submitted to the jury for the reason that no negligence on the part of Wildbahn was shown. State v. Ellison, 196 S.W. 1088, 271 Mo. 463; Nelson v. C. Heinz Stove Co., 8 S.W.2d 921; Weesen v. Railroad, 175 Mo.App. 374.

Woodruff & Gard for respondent.

(1) Judge Hall was correct in setting aside, after consideration, the nonsuit which, at the trial, he required plaintiff to take. The dual capacity doctrine does not apply under the facts in this case, because: (a) Wildbahn was a general superintendent (owner in fact) and whatever he did was done as superintendent and owner, so that his act was the act of the master himself. Certainly, when he took the hammer from plaintiff and struck the brittle steel knife he was still clothed with authority and was acting as superintendent. Funk v. Fulton Iron Works, 277 S.W. 566; Strother v. K. C. Milling Co., 261 Mo. 1, 169 S.W. 43; Fogarty v. Transfer Co., 180 Mo. 490, 79 S.W. 664; Miller v. Ry. Co., 109 Mo. 350, 19 S.W. 58, 32 Am. St. Rep. 673; Dayharsh v. Railroad, 103 Mo. 570, 15 S.W. 554, 23 Am. St. Rep. 900; Moore v. Railroad Co., 85 Mo. 588; Hutson v. Ry. Co., 50 Mo.App. 300. Also cases cited under the next heading, infra. (b) The negligence of Wildbahn consisted in his failure to keep plaintiff's place of work safe and to warn plaintiff of impending danger which are nondelegable duties of the master. Thomas v. Am. Sash & Door Co., 14 S.W.2d 1; Bender v. Grocery & Baking Co., 276 S.W. 405; Wuellner v. Crescent Planing Mill Co., 303 Mo. 38, 259 S.W. 764; Johnson v. Am. Car & Foundry Co., 259 S.W. 442; McCall v. Nugent Bros. Dry Goods Co., 236 S.W. 324; State ex rel. Duval v. Ellison, 283 Mo. 532, 223 S.W. 651; Acebedo v. Am. Car & Foundry Co., 291 S.W. 505; Markley v. Kansas City, 286 S.W. 125; House v. St. Louis Car Co., 270 S.W. 135; Cook v. Atlas Portland Cement Co., 214 Mo.App. 596, 263 S.W. 1027; Comesky v. Urbaner-Atwood Heating Co., 219 S.W. 999; Bradshaw v. Standard Oil Co., 199 Mo.App. 688, 204 S.W. 831; Mertz v. Rope Co., 174 Mo.App. 94, 156 S.W. 807. Also cases cited under preceding heading, supra. (2) On the record in this case the court cannot say as a matter of law that there was no evidence of negligence or evidence from which a jury court properly infer negligence. A sliver of steel struck plaintiff in the eye as the result of Wildbahn's hard blow on the brittle knife with the hammer, a result which was a natural and probable consequence of his act and this makes the question of negligence one for the jury. 39 C. J. 1054; 45 C. J. 1291; Compton v. Louis Rich Const. Co., 287 S.W. 480; Funk v. Fulton Iron Works, 277 S.W. 570; Walter v. Mo. Portland Cement Co., 250 S.W. 587; Lehnerts v. Otis Elevator Co., 256 S.W. 819; Buckner v. Stockyards Horse & Mule Co., 221 Mo. 766, 120 S.W. 766; Hogue v. St. Louis-San Francisco Ry. Co., 20 S.W.2d 304.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This case presents questions of dual capacity and actionable negligence. Plaintiff suffered personal injuries by the act of another Wildbahn by name, who, plaintiff contends, was a vice-principal, but who, defendant argues was at the time acting in the capacity of a fellow servant. At the close of plaintiff's case, defendant offered an instruction in the nature of a demurrer which the trial court marked "given" and was about to read to the jury. Thereupon plaintiff took a nonsuit with leave, and filed a timely motion to set aside the nonsuit, and for a new trial. The court sustained this motion and defendant appealed. The amount sued for fixes our jurisdiction.

At the time complained of, defendant was in the grain and milling business in Kansas City and had its operating plant there. Plaintiff was in the service of defendant as its stationary engineer, in charge of the engine room and boiler room at the plant. On the day of the injury, Mr. Wildbahn entered the engine room, having in hand a tool called a car mover, upon which he had been working and he asked plaintiff for assistance in putting it in condition. As its name implies, the car mover was used in moving freight cars by hand about the premises of defendant's plant. It was constructed on the principle of the lever, with a wooden handle which, when raised up and down, caused a metal plate, called the shoe and made to slide along a rail, to pry under and push forward the wheels of a railroad car. On the under side of the plate and running parallel and close to the railroad rail were two grooves or slots. Into each groove was set a piece of steel about two inches long and of oblong shape. These pieces of steel were called knives, and they were held in place by a bolted plate. From time to time the sides and edges of the knives coming in contact with the rails became worn with use, and then the knives were taken out of the grooves and were put back, but with the unused edges toward the rails. In answer to a question as to how he received his injury, plaintiff testified:

"Mr. Wildbahn came in with a car mover, and was trying to get the bolt out of the plate. The bolt would turn when he tried to turn the nut. He came in the plant with the car mover for assistance. I asked him if he had another bolt. He said he did. So I just took a chisel and cut the bolt. When I got the bolt off I found that the slot that the knife sits in had been battered. It was rather soft, malleable iron and I took a hammer and beat that back, and then I took the chisel to smooth it up. I was on the concrete floor, and I raised up. I had the knife, and I went to slip it in the slot. It went about half way in, but it wouldn't go all the way. I was going to smooth it more so that it would go in, and Mr. Wildbahn picked it up, and took the hammer and gave it a lick, and a piece flew in my eye. That is the nearest explanation I can give."

On cross-examination plaintiff further testified concerning the accident.

"Q. How did it happen that you got up from the floor and Mr. Wildbahn started in? A. I thought I had it smooth enough so that the knife would slip in. I raised up to try the knife to see if it would go in. While I was fooling with it Mr. Wildbahn reached over and took it from me.

"Q. You were both standing up? A. Yes, sir.

"Q. And you handed it to Mr. Wildbahn? A. No, he reached over and took it.

"Q. You had been working on it, and Mr. Wildbahn reached over and took it? A. Yes, sir.

"Q. Where did the hammer come from? A. I think the hammer was laying on a little bench there that we used for a chair."

Plaintiff stated that the knife which Mr. Wildbahn struck with the hammer was a highly tempered piece of steel. On cross-examination he likened a hard piece of steel, such as was the knife, to glass.

Philip E. Deerr, a foreman in defendant's plant at the time of the injury complained of, testified on behalf of plaintiff that he entered the engine room by one door as Wildbahn entered by another, with the car mover. Deerr remained in the room and observed the work of repair. In answer to a question as to what he saw, Deerr testified:

"Q. Will you tell the jury what you saw? A. Mr. Wildbahn brought a car mover in the engine room and gave it to Mr. Parker to put in some new knives. Mr. Parker and Mr. Wildbahn were both working on the car mover. There was one blade in it that was battered. That is, the car mover had one blade in, and the other blade was battered. When Mr. Parker went to put another blade in, it did not fit in the groove. Mr. Parker was on the floor trying to fix it so that a new blade would fit in. It would only go in part way."

After objections to Deerr's further statements had been passed on, he testified that he saw Wildbahn hit the knife with the hammer. On cross-examination Deerr was asked:

"Q. And Mr. Parker would chisel and hammer a while, and then Mr. Wildbahn would chisel and hammer? A. Yes, sir.

"Q. They were both working on the same job? A. Yes, they were working together."

Plaintiff and Deerr differed in this that plaintiff testified that after he was injured he went into the boiler room, and, when he returned later to the engine room, Wildbahn had departed with the car mover. Deerr on the other hand testified that plaintiff returned from the boiler room, and he and Wildbahn completed the task of putting the knife in its groove.

Plaintiff, in answer to a question, as to what Wildbahn did at the plant, answered: "He filled in around there, most any place they needed a man. He was our foreman -- Superintendent of the plant." Wildbahn had employed plaintiff, who also testified that Wildbahn "appeared to have full charge over the men at the plant of directing the work." Foreman Deerr testified concerning Wildbahn's position as follows:

"A. Mr. Wildbahn was there about a year. It might have been longer.

"Q. Did he do any work in the...