Bender v. Kroger Grocery & Baking Co.

• Decision Date: 06 October 1925
• Docket Number: No. 24979.,24979.
• Parties: BENDER v. KROGER GROCERY & BAKING CO.
• Court: Missouri Supreme Court

276 S.W. 405

BENDER v. KROGER GROCERY & BAKING CO.

No. 24979.

Supreme Court of Missouri, Division No. 2.

October 6, 1925.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

Action by Meyer Bender, a minor, by his next friend, against the Kroger Grocery & Baking Company. From an order sustaining plaintiff's motion to set aside an involuntary nonsuit and granting a new trial, defendant appeals. Affirmed, and cause remanded.

Bryan, Williams & Cave, of St. Louis, for appellant.

Roessel & Minton, of St. Louis, for respondent.

BLAIR, J.

Action in damages by an employee for personal injuries alleged to have been caused through the negligence of his employer. Trial by jury was begun, and, at the close of the plaintiff's case, the trial court gave an instruction in the nature of a demurrer to plaintiff's evidence. Thereupon plaintiff took an involuntary nonsuit with leave to move to have same set aside. Thereafter the court sustained plaintiff's motion to that end and granted a new trial. From this order the defendant has appealed. The amount claimed as damages fixes our jurisdiction.

The sole question is the sufficiency of the evidence to entitle plaintiff to have his case submitted to a jury upon the allegation of the amended petition that his injuries were caused by the negligence of defendant in failing to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work. The answer was a general denial.

That plaintiff was injured by the negligence of another employee, and was himself in the exercise of due care at the time, is not disputed by defendant in its brief here. It is the contention of defendant that plaintiff's injuries were caused by the negligence of a fellow servant, for which defendant is not liable. The vital question then is whether the particular act of defendant's servant, relied upon by plaintiff, was the act of a fellow servant, as such, or the act of the master. We will detail the evidence bearing upon that question.

Defendant is a corporation engaged in the grocery and baking business. It had numerous grocery stores in St. Louis and operated a bakery in that city, from which it supplied bread to its stores. Plaintiff was employed as a helper on a delivery truck, and it was part of his duty, in company with the truck driver, to deliver bread. The bread was loaded in trays upon trailers. The tractor, which furnished the motive power, had four wheels, and the trailer had two wheels. When the trailer was connected with the tractor, the front end thereof rested upon and was attached to the tractor by an appliance appropriate for the purpose. The trailer could be detached from the tractor, and, when so detached, it was necessary to support the front end of such trailer to keep it from tipping over. For this purpose the trailer was provided with a leg which could be let down before the tractor was disconnected. This leg kept the trailer in the proper position after the tractor was removed. The leg was described as a sort of jackscrew. When it was in use, it kept the trailer in a stable horizontal position and fully supported the trailer.

One Rufgardner was the driver of the truck. Plaintiff testified that he was directed to work under Rufgardner when they were out together making deliveries. When he was at work at the loading platform of the bakery, he was under the orders of Ben Easterday, who was a sort of loading platform foreman and had charge of the deliveries of the bread from the bakery to the trucks. When the truck load of bread had been delivered, it was the practice of the driver and his helper to return to the bakery for another load. If they found a trailer there already loaded, the trailer carrying the empty bread trays would be backed up to the platform, the leg would be let down, the tractor would be disconnected and would be moved away and attached to the loaded trailer. Plaintiff and his driver would then go out again to make deliveries. If there was no trailer already loaded, they would back the trailer up to the loading platform, remove the empty bread trays, and proceed to load the same trailer and to go out again to make deliveries. When a trailer would be backed up to the loading platform, its tailgate would be let down and rest upon the loading platform so that the loading platform, tailgate, and floor of, the trailer would form one even and continuous working platform or floor. The trailer itself was enclosed.

On the day plaintiff was injured, he and the truck driver, Rufgardner, returned to the bakery after having delivered a truck load of bread. Easterday, the man in charge of the loading platform, testified that he told plaintiff to unload the empty bread trays off the trailer and to get ready to reload. Plaintiff began to unload empty trays. Easterday then found that a trailer at the end of the platform had already been loaded, and he told Rufgardner to drop their body (trailer) there. He did not say anything to plaintiff about moving the tractor. Plaintiff was at work inside the trailer and had no notice of the intention to move the tractor. Rufgardner disconnected the tractor from the trailer and moved the tractor away without letting down the leg. Plaintiff could not see what Rufgardner was doing and did not know the truck was being moved. The trailer tipped over, and plaintiff sustained the injuries of which he complains.

The mere statement of the manner in which the injury to plaintiff occurred is sufficient to demonstrate that it was caused by the negligent act of Rufgardner. Defendant does not contend otherwise. Its position is that, assuming that Rufgardner was, for some purposes and for part of his time, a vice principal of defendant, at the time of the accident he was not acting in that capacity. We will assume, without so deciding, that Rufgardner was a mere fellow servant of the plaintiff at the time. If the injury was caused by the negligent act of Rufgardner in his capacity as fellow servant, the plaintiff cannot hold defendant liable therefor. The dual capacity doctrine is firmly established in this state. Fogarty v. St. Louis Transfer Co., 180 Mo. 490, 79 S. W. 664, 1 Ann. Cas. 136; Bien v. St. Louis Transit Co., 108 Mo. App. 399, 83 S. W. 986; Edge v. Railway Co., 206 Mo. 471, 104 S. W. 90; Hollweg v. Telephone Co., 195 Mo. 149, 93 S. W. 262.

The duty of the master to exercise ordinary care to furnish his servant a reasonably safe place in which to work is one of the duties owing by the master to his servant, which cannot be delegated to a fellow servant so as to relieve the master from liability for the negligent performance by such servant of an act constituting part of such duty of the master. The following cases, among others, are cited in plaintiff's brief in support of this proposition and amply support same: Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S. W. 481, 17 L. R. A. (N. S.) 292; White v. Montgomery Ward & Co., 191 Mo. App. 268, 177 S. W. 1089; Zellars v. Water & Light Co., 92 Mo. App. loc. cit. 123 to 127; Scheidler v. Iron Works, 172 Mo. App. 688, 155 S. W. 897.

Our task, then, is to determine whether the act of Rufgardner, in obedience to an order of Easterday, was an act affecting the safety of the place where plaintiff was directed to work, or was merely an act incident to the relationship of plaintiff and Rufgardner as fellow servants. Defendant cites and relies upon four cases, the first of which is McIntyre v. Tebbetts, 257 Mo. 117, 165 S. W. 757. There Kuhr was the driver of the truck and had authority to hire extra men to help him load and unload his truck and to direct them in so doing. Under such authority he hired McIntyre. Upon instructions from Kuhr, McIntyre got off the truck to do an errand and, in attempting to get back upon the truck, was injured by the negligent act of Kuhr in starting the team while he was in the act of climbing back upon the truck and while he had his foot upon the hub of the wheel. Four of the judges of this court held that Kuhr in negligently starting his team too quickly and with a jerk was acting in the capacity of a fellow servant. Three of the judges dissented. The act of Kuhr in directing McIntyre to perform an errand expressed the idea of his dominance over McIntyre. With the thought of that direction to McIntyre disassociated from Kuhr's particular act in starting the team, not the slightest difficulty is encountered in determining the status or the two men as fellow servants at the time of the injury. Presumably, the truck was in good repair and the team tractable. The safe place to work and safe instrumentalities with which to work had been provided. It was the negligent use of such instrumentalities by a fellow servant which caused the injury. There was no question of safe place to work in that case.

The next case cited is State ex rel. Duvall v. Ellison, 283 Mo. 532, 223 S. W. 651, which was a certiorari case. In that case we found no conflict with McIntyre v. Tebbetts, supra, and quashed our writ. The case furnishes no support for defendant's contention here. However, to show that the place of work may be wherever a servant is required to work, we quote a portion of Chief Justice Walker's opinion, which quotes approvingly from the opinion of the court of appeals, as follows:

"`There is, however, another view of the case, which, if sound, renders the defendant liable, if the facts are believed by the jury, without regard to whether Blough was a fellow servant or not; and that has to do with the charge of negligence in failing to furnish plaintiff's son with a reasonably safe place in which to work or in failing to keep it reasonably safe. Such a duty is a primary duty, which is nondelegable. Combs v. Round Tree Const. Co., 205 Mo. 367, 104 S. W. 77; Dayharsh v. Hannibal & St. Jos. R. Co., 103 Mo. 570 [15 S. W. 554, 23 Am. St. Rep. 900]; * * * Miller v. Missouri Pacific R. Co., 100 Mo. 350, 357 [19 S. W. 58, 32 Am. St. Rep. 673]; * * * ...