Marshall v. Schricker

Decision Date31 October 1876
Citation63 Mo. 308
PartiesJAMES B. MARSHALL, Respondent, v. WM. SCHRICKER, et al., Appellants.
CourtMissouri Supreme Court

Appeal from Johnson Circuit Court.

Ewing & Smith, with Pope, for Appellants.

I. The master is not liable in this case, unless the fellow servant, Clifford, by whose negligence the injury was occasioned, was not possessed of ordinary skill and capacity in the business entrusted to him, and the employment of such incompetent servant was attributable to the want of ordinary care on the part of the master. (Rohback vs. P. R. R. 43 Mo. 193, and cases cited.)

II. The rule, that a servant injured by the negligence or misconduct of his fellow servant cannot maintain an action therefor against his master, is not affected by the fact that such careless one was of superior authority, whose lawful directions the injured one was bound to obey. (Sauler vs. Androscoggin R. R. Co., 62 Me. 643; Shearm. & Redf. Negl. 115, and note 3, supra.)

A. B. Logan, for Respondent.

HOUGH, Judge, delivered the opinion of the court.

In October, 1871, the plaintiff was employed by the defendants to haul with his own team earth, stone and other materials from certain excavations then being made by them as contractors, in Johnson county, Missouri, on the line of the Warrensburg & Marshall railroad.

The plaintiff was, with other hands, placed under the direction of one Clifford, who was employed by the defendant to do the blasting required to be done in making said excavations, and acted as foreman for the defendants, in the prosecution of said work. At the time of the injury hereinafter mentioned, Clifford, the plaintiff, and other employees were working in a ““cut,” sixty or seventy yards long. During the progress of the work a blast was prepared by Clifford near one end of this “cut,” and the plaintiff, who was in close proximity thereto, was directed by Clifford to remove his team in a certain direction indicated by him, until the blast was exploded. The plaintiff removed his team about one hundred and eighty feet distant. When the discharge took place, a stone described by the plaintiff as being about the size of his two hands, was thrown in the direction of the plaintiff's team, and in descending struck and killed one of his horses. The present action was instituted to recover the damages thereby sustained by the plaintiff.

The petition alleged that the blasting was improperly and negligently done; that Clifford was incompetent for the execution or supervision of such work, and that the defendants were, at the time, aware of his incompetency. These allegations were denied by the defendants. On the issues thus made the testimony was conflicting, but the question of Clifford's incompetency, and the defendant's knowledge thereof, was not submitted to the jury. There was a verdict and judgment for the plaintiff, from which defendants have appealed. The only exception saved by the defendant was to the action of the court in giving the following instruction:

“The jury are instructed that if they believed from the evidence that the horse of said plaintiff was killed by the negligence of the servant of said defendants, in the prosecution of his employment, and that said plaintiff was not at said time a co-servant, and that said killing was done without the negligence of said plaintiff, then they will find for said plaintiff on the first count in the petition, and assess the damages at the value of said horse at the date of said killing, together with interest thereon from the date of demand of payment or any contract of defendants to pay, at the rate of six per cent. per annum, provided the plaintiff did not contribute to the negligence.”

It has been recently decided by this court, that in actions ex delicto based upon the simple negligence of a party to whom no pecuniary benefit could accrue by reason of the injury thereby inflicted, interest is not allowable. (Kenney vs. Han. & St. Jo. R. R. ante, p. 99; Atkinson vs. A. & P. R. R., post, p. 367.)

As the instruction given is in conflict with these cases, the judgment must, for that reason, be reversed. But the instruction also contravenes another rule to which this court has had occasion to make repeated reference. Questions of fact only should be submitted to a jury. This instruction submitted a question of law. The relation which Clifford and the plaintiff sustained to each other depended upon facts which were undisputed. Whether such relation was that of fellow-servants was therefore a question of law for the court. (McGowan vs. St. Louis and I. Mt. R. R. Co., 61 Mo. 532.) But if the testimony on this subject had been conflicting the instruction could not be upheld. In that event it would have been the duty of the court to have declared the law upon the alternatives presented by the testimony.

We are not aware of any case in this State in which a mere foreman, such as Clifford was, has been held to be an alter ego of the master. It does not appear from the record that he was charged with the performance of any of those executive duties which would constitute him, as to those under his control, the agent or vice-principal of the defendants. Nor was he engaged in a distinct department of the general service, and therefore a stranger to the service in which the plaintiff was engaged. He was as much engaged in the same general service when blasting, as he would have been in detaching the material to be removed with a pick or shovel. It would be carrying the rule on this subject to an absurd extreme to hold that those only are fellow-servants who are employed in doing precisely the same thing. The leading characteristics of a vice-principal are well illustrated in the case of Brothers vs. Carter (52 Mo. 372). The defendant was engaged in the construction of a bridge, over the Aux Vasse river, one span of which fell, severely...

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  • Berry v. Missouri Pac. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 5, 1894
    ...are disputed, or when they are undisputed, but admit of different constructions and inferences, it must be left to the jury. Marshall v. Schricker, 63 Mo. 308; Mauerman v. Siemerts, 71 Mo. 101; Charles v. Patch, 87 Mo. 450; Tabler v. Railroad Co., 93 Mo. 79, 5 S. W. 810; Fletcher v. Railroa......
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    ...... admit of different constructions and inferences, it must be. left to the jury." [ Berry v. Railway, 124 Mo. 223, 244-245, 25 S.W. 229; Marshall v. Schricker, 63. Mo. 308; Mauerman v. Siemerts, 71 Mo. 101.] Under. these rules, the trial court acted properly in overruling the. demurrer. ......
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