Allen v. Larabee Flour Mills

• Decision Date: 24 June 1931
• Docket Number: No. 29572.,29572.
• Citation: 40 S.W.2d 597
• Parties: GEORGE ALLEN v. LARABEE FLOUR MILLS CORPORATION and UNION TERMINAL RAILWAY COMPANY, Appellants.
• Court: Missouri Supreme Court

40 S.W.2d 597

GEORGE ALLEN v. LARABEE FLOUR MILLS CORPORATION and UNION TERMINAL RAILWAY COMPANY, Appellants.

No. 29572.

Supreme Court of Missouri.

Division One, June 24, 1931.

Appeal from Buchanan Circuit Court. — Hon. L.A. Vories, Judge.

REVERSED AND REMANDED (with directions).

G.L. Zwick and O.E. Shultz for appellant Larabee Flour Mills Corporation.

(1) The court committed error in overruling defendant Mills Company's demurrer. There was no duty upon the Mills Company to inspect a loaded car delivered to its plant by the Terminal Company. It had no control over said car before it was delivered to its plant to be unloaded. There were no patent defects. The Terminal Company, as a carrier, is obligated to supply cars that are reasonably safe, but that duty cannot be shifted to this defendant. McGinley v. Coal Co. (Pa.), 73 Atl. 552; McMullen v. Carnegie Bros. (Pa.), 27 Atl. 1043; 18 R.C.L. 585, sec. 90; Near v. Ry. Co., 261 Mo. 80; 39 C.J. 333, sec. 452; Powell v. Electrical Co., 195 Mo. App. 155; Loehring v. Construction Co., 118 Mo. App. 181. (2) The sufficiency of defendant's instructions is not an issue, since defendant's demurrer should have been given. Graney v. Ry. Co., 157 Mo. 677.

Mytton, Parkinson & Norris for respondent.

(1) The non-delegable duty of the Larabee Flour Mills Corporation was to exercise ordinary care to furnish its servant with reasonably safe appliances and with a reasonably safe place of work, irrespective of the ownership of such premises or appliances; particularly when, as here, the defendant had the opportunity to inspect the car of wheat plaintiff was unloading, but in violation of custom and with a knowledge of the peculiar hazards of plaintiff's employment, neither made, nor caused any inspection to be made, and used and dealt with said car in such a manner as practically to adopt it in its business as its own and as subject to its control. Killion v. Lumber Co., 16 S.W. (2d) 730; Arnold v. Graham, 219 Mo. App. 249; Hawkins v. Railroad, 183 Mo. App. 323; Clark v. Iron & Foundry Co., 234 Mo. 436; Wichita Falls, etc., Railroad Co. v. Puckett, 157 Pac. 112; Dangelo v. Danforth Co., 192 Fed. 678; New Ohio Washed Coal Co. v. Hinman, 119 Ill. App. 287; Peter C. McCallion v. Railroad Co., 88 Pac. 50; Spaulding v. Granite Co., 159 Mass. 587, 34 N.E. 1134; D'Almeida v. Railroad Co., D'Almeida v. Boott Mills Co., 209 Mass. 81, 95 N.E. 398. (2) The mere fact that the Union Terminal Railway Company may also have been negligent, and that its negligence may have concurred or combined with the negligence of defendant in causing plaintiff's injury, is beside the question, since one injured by concurrent or joint tortfeasors may sue either one or both parties, and neither can cast the liability upon the other. Waller v. Ry. Co., 59 Mo. App. 410; Fledderman v. Transit Co., 134 Mo. App. 199; Godfrey v. Payne, 251 S.W. 133; Waggoner v. Bank of Bernie, 281 S.W. 130; Ballard v. Power & Light Co., 298 S.W. 131; Bradley v. Becker, 11 S.W. (2d) 8.

FERGUSON, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while employed by the defendant Larabee Flour Mills Corporation. The Union Terminal Railway Company, a corporation, was joined as defendant.

The petition alleges that plaintiff was employed by the defendant Larabee Flour Mills Corporation, and that he was injured on the 18th day of January while engaged "in the work of operating a shovel and unloading a car load of wheat" which had been delivered to defendant Larabee Flour Mills Corporation at its milling plant in the city of St. Joseph, Missouri. The petition describes the size, mechanism and manner of operating the "power shovel" used for the unloading of wheat from railroad cars. Negligence is charged as follows: "That the car which the plaintiff was unloading said wheat from had been coopered by the defendant Larabee Flour Mills Corporation, and the defendant Union Terminal Railway Company, and by arrangement between them, and said defendants carelessly and negligently caused said car to be coopered in such a manner that an obstruction was placed upon the floor for the purpose of covering a hole in the floor of said car, so that the same extended above the surface of the car a considerable distance, and rendered it certain that when wheat was loaded into the car an operator operating the shovel would likely be injured by reason of said shovel coming in contact with said obstruction; that the defendants coopered said car well knowing that it was to be loaded with wheat, which was to be unloaded at the defendant Larabee Flour Mills Corporation's mill, and the defendant Union Terminal Railway Company did its part of coopering said car for the defendant Larabee Flour Mills Corporation, and both of said companies negligently coopered said car and negligently failed to inspect the same, and negligently caused the same to be furnished and wheat to be loaded in the same, and negligently loaded wheat in the same, and caused said car to be transported to the unloading dock of the defendant Larabee Flour Mills Corporation, and negligently caused and permitted the plaintiff to use a power-shovel as hereinabove set forth, in the unloading of said wheat from said car; that the coopering of said car in said manner created a hidden and inherently dangerous instrumentality and appliance and work and place of work for employees engaged in the work of unloading said wheat." The petition then alleges that on the day aforesaid "the plaintiff while in the exercise of care, was engaged in the work of unloading said car and holding said power-operated shovel, and in using said shovel and sinking the same into the wheat, the same came in contact with said obstruction upon the bottom of said car, and then and thereby threw and jerked the plaintiff with great force and violence." The injuries the plaintiff claims to have received are set out and damages asked in the sum of $50,000. Defendants filed separate answers.

At the conclusion of plaintiff's evidence the defendant Union Terminal Railway Company's demurrer to plaintiff's evidence was sustained, whereupon plaintiff took an involuntary nonsuit as to said defendant Union Terminal Railway Company, with leave to move to set the same aside.

The demurrer to plaintiff's evidence offered by the defendant Larabee Flour Mills Corporation was overruled. At the close of all the evidence in the case the defendant Larabee Flour Mills Corporation offered a demurrer to the evidence, which the court overruled, and the case was thereupon submitted to the jury as to that defendant alone. The jury returned a verdict finding the issues for the defendant. Plaintiff's motion for a new trial was sustained, the grounds assigned by the court therefor being that error was committed in giving defendants instructions numbered 1, 5, 8, 9 and 10. From the action of the court in granting plaintiff a new trial, defendant Larabee Flour Mills Corporation appealed.

Plaintiff was employed by the Larabee Flour Mills Corporation as a "scooper" on January 14, 1924, and the injury which he is alleged to have sustained occurred four days later on January 18, 1924. He had had "five or six years'" experience in that kind of work. The Larabee Flour Mills Corporation had wheat stored with the St. Joseph Public Elevator Company, for which it held warehouse receipts. The St. Joseph Public Elevator Company was an independent corporation, having no connection whatsoever with the milling corporation, and is duly licensed to do a public warehouse business. As from time to time the milling corporation would make withdrawals from its wheat stored with the elevator company its employee in charge of that part of the business would call the elevator company by telephone and order and direct that a specified number of cars of wheat per day be loaded out during a definite period of time, whereupon the elevator company would make a request on the Union Terminal Railway Company to be supplied with the number of cars to be loaded each day. The Terminal Company is a common carrier supplying and furnishing facilities for switching, moving and transporting freight and railroad cars for railroads and industries in and near St. Joseph, Missouri. When the cars to be used in transporting the grain were ordered from the Terminal Company, that company would proceed to cooper the cars — that is, install grain doors, "stop leaks," "put the cars in shape for loading" and "in case a car was leaking they papered or boarded it or whatever was necessary to prevent leakage — prevent grain from coming out of the car" or "if there is a leak in the floor they put something on, papers, lath, various things on the floor to stop the leakage." The Terminal Company would then deliver the cars to the Elevator Company for loading, and generally the cars were marked "OK" with chalk by the Terminal Company's car cooper. Neither the milling corporation nor the elevator company had any facilities for nor undertook the coopering of cars. The loading was done by the elevator company. The assistant foreman of the elevator company describes the method of loading as follows: "The grain is run into the scale bin, then through a big, long spout into the car; the spout goes into the car with a kind of horn both ways, branches out." The owners of the grain had nothing to do with either coopering or loading the car. When the cars were loaded they were then transported by the Terminal Company to the unloading dock of the milling corporation, the charges therefor being paid by the milling corporation. The milling corporation removed the grain from the cars by means of a large automatic scoop or shovel which was propelled or drawn by electric power. The shovel or scoop was placed and guided by the "scooper" who was in charge of and operated it. Oft times the scoop or shovel would strike or come in contact with obstructions in the floor of the car,...