Whalen v. Centenary Church of St. Louis

• Decision Date: 31 January 1876
• Citation: 62 Mo. 326
• Parties: JAMES WHALEN, Respondent, v. THE CENTENARY CHURCH OF THE CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

62 Mo. 326

JAMES WHALEN, Respondent,

v.THE CENTENARY CHURCH OF THE CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

W. F. Causey, for Appellant, cited Shearm. & Redf., Negl., 2 ed., ch. 6, p. 109; Mann vs. Oriental Mill Co., Am. Law Reg., Dec., 1875; Finney vs. Railway, 62 Barb., 218; Harper vs. Ind. R. R., 47 Mo., 567; Rohback vs. Pac. R. R., 43 Mo., 187; Brothers vs. Cartter, 52 Mo., 372.

Cline, Jamison & Day, for Appellant, cited Brothers vs. Cartter, 52 Mo., 372; Gibson vs. Pac. R. R., 46 Mo., 163; Harper vs. Ind. R. R., 47 Mo., 567; McDermott vs. Pac. R. R., 30 Mo., 115; Rohback vs. Pac. R. R., 43 Mo., 187; Priestly vs. Fowler, 3 Mus. & W., 1; Farwell vs. B. & W. R. R., 4 Met., 49; Wigmore vs. Jay, 5 Exch., 345; Tenant vs. Webb, 18 C. B., 797; Wright vs. N. Y. Cent. R. R., 25 N. Y., 572; Warren vs. Erie R. R. Co., 39 N. Y., 470; Caldwell vs. Brown, 53 Penn. St., 453.

Farish & Griffin, for Respondent, cited Gormley vs. Vulcan Iron Works, 61 Mo., 492; Lewis, Adm'r, vs. St. L. & I. M. R. R., 59 Mo., 495; Harper vs. Ind. & St. L. R. R., 47 Mo., 567; Brothers vs. Cartter, 52 Mo., 372; Gibson vs. Pac. R. R., 46 Mo., 163.

NAPTON, Judge, delivered the opinion of the court.

This was a suit for damages brought by a stone mason to recover damages from the defendant, by reason of negligence of the defendant.

The plaintiff was originally employed by the contractors for the stone work of the building, but upon the completion of this job, and his consequent discharge, the superintendent, placed in charge of all the work, employed the plaintiff to cut off some stone projections in the upper part of the building for the purpose of putting up gutters.

To perform this work a swinging scaffold was necessary, and Mr. Legg, the superintendent, built or had the scaffold built. The scaffold proved to be defective, or perhaps, not securely fastened to the poles, and the plaintiff, whilst at work, was precipitated to the ground and considerably injured.

The principal defense in this case is based upon the well settled doctrine which regulates the relation of master and servant, which was discussed by C. J. Shaw, in Farwell vs. B. R. R. Co. (4 Metcf., 49), and since pretty generally adopted. The doctrine, is that one servant cannot recover from his master damages for an injury occasioned by the negligence of his fellow servants. The policy of this rule is mainly based on the nature of the contract between servant and master, and the legal presumption that the compensation of the servant has been adjusted by risks of this sort. The servant, as C. J. Shaw observed, “does not stand towards the master in the relation of a stranger, but is one whose rights are regulated by contract.”

But it is conceded, that if the master employs incompetent servants, or defective machinery, the risks arising from either of these are not implied by the contract.

To provide a safe place where the servant can work, would seem to be one of the most obvious duties of the employer. A master is bound to exercise proper care in the materials and machinery given to a servant to work upon, or with, and if this duty is neglected,...