Boston v. Kroger Grocery & Baking Co.

• Decision Date: 21 June 1928
• Docket Number: 26691,27100
• Citation: 7 S.W.2d 1006,320 Mo. 408
• Parties: Leslie Boston v. Kroger Grocery & Baking Company, and Rolla Wells, Receiver of United Railways Company, Appellants
• Court: Missouri Supreme Court

7 S.W.2d 1006

320 Mo. 408

Leslie Boston v. Kroger Grocery & Baking Company, and Rolla Wells, Receiver of United Railways Company, Appellants

Nos. 26691, 27100

Supreme Court of Missouri

June 21, 1928

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Reversed (as to Kroger Company) and affirmed (as to Wells, Receiver).

Jones Hocker, Sullivan & Angert for appellant.

(1) The court erred in refusing the demurrer to the evidence offered by the defendant, Kroger Grocery & Baking Company, because the driver of the truck, so far as the operation of the truck at the time of the collision is concerned, was a fellow-servant of the plaintiff. McIntyre v Tebbetts, 257 Mo. 117; Rowe v. United Rys. Co., 211 Mo.App. 526; Bender v. Kroger Grocery Co., 310 Mo. 496. (2) The dual capacity doctrine, as applied to the law of fellow-servant in this State, is well settled. Therefore, the act of the trial court in overruling this defendant's demurrer to the evidence cannot be sustained on the ground that there was evidence that at some times the driver had control of the plaintiff, because, at the time of the collision, the driver was not exercising any act of superintendence over the plaintiff. McCall v. Dry Goods Co., 236 S.W. 326; Wuellner v. Planing Mill Co., 303 Mo. 47; Burge v. Am. Car & Foundry Co., 274 S.W. (Mo. App.) 844; State ex rel. Duvall v. Ellison, 283 Mo. 541. (3) Plaintiff's Instruction 1 erroneously assumes or authorizes the jury to find that if the driver of the truck had authority over the plaintiff at any time, the plaintiff was entitled to recover, notwithstanding the fellow-servant rule, without regard to whether or not said driver was exercising any authority or control over the plaintiff at the time of the collision. Authorities, supra. (4) The court erred in refusing this defendant's Instructions I and J, which were based upon the merits as to the cause of the collision, regardless of the issue of fellow-servant. The first was based upon the testimony of the driver, which tended to show that he was not at fault. This defendant was also entitled to have that theory of the case submitted by proper instructions.

C. J. Krueger and Frank Coffman for respondent.

(1) The trial court did not err in overruling appellant's demurrer to the evidence, because: (a) Plaintiff and appellant's driver, Shields, were not fellow-servants. Bradshaw v. Standard Oil Co., 199 Mo.App. 688; McCauley v. Brewing Assn., 254 S.W. 868; Tabor v. Railroad, 210 Mo. 385; State ex rel. v. Ellison, 223 S.W. 651; Beck v. Lumber Co., 239 S.W. 166; McCall v. Dry Goods Co., 236 S.W. 324; Marin v. Rainey, 207 S.W. 858; Daggett v. Am. Car & Foundry Co., 284 S.W. 855; Strother v. Milling Co., 261 Mo. 15; Funk v. Iron Works Co., 277 S.W. 566; Bender v. Kroger Grocery Co., 310 Mo. 488; Freese v. Wire & Iron Co., 274 S.W. 778; Johnson v. Am. Car & Foundry Co., 259 S.W. 442; Wilson v. Johnson & Son, 242 S.W. 442; Lampe v. Express Co., 266 S.W. 1009; Prapuolenis v. Const. Co., 213 S.W. 792; Evans v. Wheel Co., 273 S.W. 749; Wagner v. Gilsonite Const. Co., 220 S.W. 890; Markow v. Gross-O'Reilly Chandelier Co., 190 S.W. 624; State ex rel. Lbr. Co. v. Robertson, 197 S.W. 79; State ex rel. Duvall v. Ellison, 283 Mo. 532. (b) When plaintiff and Shields were away from the plant Shields was in charge of the deliveries, with full authority to direct plaintiff in all respects, and plaintiff was instructed to do what Shields told him. Hence Shields, with such authority to direct plaintiff and control the movement of the truck, was so in charge of that branch of appellant's business of delivering groceries as to constitute him appellant's vice-principal while they were away from the plant. Authorities, supra. (c) It was plaintiff's duty to ride on the truck and perform his duties. But he did not, and could not, have anything whatever to do with operating it. This appellant had delegated exclusively to Shields. Hence, in the operation of the truck, plaintiff and Shields were not fellow-servants. Tabor v. Railroad, 210 Mo. 385; McCauley v. Brewing Assn., 254 S.W. 868. (d) And the evidence as to Shields's negligence in driving on the track without looking or listening was amply sufficient to make appellant's negligence a question for the jury. (2) Plaintiff's Instruction 1 covering the case was not erroneous, for: (a) Said instruction covered every element essential to be found in order to make a case for plaintiff. It did not exclude appellant's theory and need not include it. Lawbaugh v. McDonald Mining Co., 202 S.W. 619. (b) Instruction 5, given for appellant, submitted its theory in directing the jury to return a verdict for appellant if they found that the injuries occurred "when the chauffeur . . . was not giving any instructions to the plaintiff and did not have control of his movements." Plaintiff's Instruction 1 did not exclude such theory, and the instructions thus given were sufficient. Boyle v. Hardware Co., 238 S.W. 157; Colburn v. Krenning, 220 S.W. 940; Schinogle v. Baughman, 228 S.W. 900; Grote v. Hussman, 204 Mo.App. 466. (3) The court committed no error in refusing appellant's Instruction E for the reasons: (a) It ignored plaintiff's theory that Shields was a vice-principal, notwithstanding neither he nor plaintiff had authority over the other, and no question of superintendency was involved, and in so excluding plaintiff's theory of the case it was erroneous. Unterlacher v. Wells, 278 S.W. 79. (b) Neither was it a proper hypothesis, based on the test of what constitutes a fellow-servant. Prapuolenis v. Const. Co., 213 S.W. 792. (c) And Instruction 5, given for appellant, covered appellant's theory fully, that at the time of the injury Shields was exercising no control over plaintiff's movements.

Higbee, C. Davis and Henwood, CC., concur.

OPINION

HIGBEE

Plaintiff, an employee of the Kroger Grocery & Baking Company, sued the defendants for damages for personal injuries resulting from a negligent collision of a street car operated by Rolla Wells, as receiver, with a truck of the Kroger Grocery & Baking Company, in which plaintiff was riding. The amended petition charges negligent operation and collision of the truck and street car at the intersection of Newstead Avenue and Hodiamont Street in the city of St. Louis, without using ordinary care to foresee or avoid a collision. The answer of each defendant is a general denial. Plaintiff had a verdict for $ 20,000 damages. Pending motions for new trial, a remittitur in the sum of $ 7500 was entered and judgment was rendered for plaintiff against both of the defendants for $ 12,500, from which separate appeals were allowed. By stipulation these appeals have been consolidated and argued and submitted on one abstract of the record.

It has been stipulated also that if the judgment "is reversed out-right or affirmed as to the defendant Kroger Grocery & Baking Company, then it shall be affirmed as to Rolla Wells, Receiver of the United Railways Company of St. Louis; and if said judgment is reversed and remanded as to defendant Kroger Grocery & Baking Company, then the same shall be remanded for a new trial as to Rolla Wells, Receiver of the United Railways Company of St. Louis."

There is little, if any, disagreement between learned counsel as to the facts.

Adolph Pheedler testified: I was superintendent of transportation for the Kroger Grocery & Baking Company in December, 1923. The company maintained trucks of various sizes for delivery purposes; one was a tractor and trailer about thirty feet long. Harold Shields was the chauffeur or driver of one of these trucks. Leslie Boston, the plaintiff, was employed as a helper on the truck. I hired him. I told him his duties were to help on the truck; do anything the driver told him to do after they got away from the plant. He took his orders from the driver; he had to ride on the back end of the trailer; he had nothing to do with the driving. When the truck and trailer leave the warehouse they are usually full of merchandise, but there is usually room for the helper to ride in the trailer. The duty of the driver and helper is to deliver merchandise to the various Kroger Company stores in St. Louis. When they left the warehouse with a loaded truck the driver was given a route sheet with directions as to the route and order of delivering to the various stores. In addition to driving the truck the driver assisted in loading and unloading the merchandise. On December 3, 1923, when the truck and trailer were returned to the Kroger Company garage, I noticed a mark of yellow street-car paint on the right rear corner of the trailer. The plaintiff had been working for the company for about a year. The route sheet, with the addresses, was given to the driver. When the driver and helper arrived at a store they both took part in unloading the goods and if there was anything to be returned to the warehouse both helped in loading the same on the truck.

Harold Shields testified: I was the driver on December 3, 1923. Boston and I started out with the loaded truck and trailer at about 6:30 A. M. I kept the delivery sheet and kept the helper informed. We finished our first load, and returned and got a second load about noon and delivered all afternoon. Boston and I divided the work. Sometimes I delivered to one store and Boston at the next. While I drove from one store to another, Boston rode in the trailer, placing the goods ready for the next delivery, and to keep them from falling out of the trailer. It was a dark, drizzly, rainy day and the streets were wet. I was driving south on Newstead Avenue. On approaching the crossing of the street car lines at Hodiamont, I looked and listened; could not see or hear anything. I knew it was a street car line and that cars ran on...