Chappee v. Gus V. Brecht Butchers' Supply Co.

• Decision Date: 03 July 1930
• Docket Number: No. 29230.,29230.
• Citation: 30 S.W.2d 35
• Parties: CHAPPEE v. GUS V. BRECHT BUTCHERS' SUPPLY CO. et al.
• Court: Missouri Supreme Court

30 S.W.2d 35

CHAPPEE v. GUS V. BRECHT BUTCHERS' SUPPLY CO. et al.

No. 29230.

Supreme Court of Missouri, Division No. 2.

July 3, 1930.

Appeal from St. Louis Circuit Court; Claude P. Pearcy, Judge.

Action by Zebia Chappee against the Gus V. Brecht Butchers' Supply Company and others. Verdict for plaintiff. From an order granting motions for a new trial, plaintiff appeals.

Affirmed in part, and reversed in part and remanded, with directions.

Bartley & Mayfield, of St. Louis, for appellant.

Banister, Leonard, Sibley & McRoberts and Frank P. Aschemeyer, all of St. Louis, for respondents.

DAVIS, C.

This is an action for damages for personal injuries. The record shows that plaintiff recovered judgment for $10,000 against three corporate defendants and an individual defendant, and that all of said defendants thereafter filed motions for a new trial, which the court sustained on the ground that instructions directing a verdict for said defendants should have been given. From the sustention of the motions for a new trial, plaintiff appealed.

The record shows that said defendants, against whom judgment was entered, later set aside, were the Gus V. Brecht Butchers' Supply Company, the Brecht Company, the Brecht Engineering Company, all corporations, and Albert Wisloh, an individual. The record also shows that the Gerst Bros. Manufacturing Company, a corporation, and Walter Browmsky, an individual, were made defendants by the petition, but that plaintiff, at the close of her case, dismissed as to these defendants. Consequently, they pass from further consideration.

The evidence adduced in behalf of plaintiff warrants the finding that the Gus V. Brecht Butchers' Supply Company, the Brecht Company, and the Brecht Engineering Company were inter-related corporations, and that deceased, Julius Chappee, was employed by the three corporations as a box maker and a truck helper. He had been in the employ of said defendants eight or nine months and was in their employ on the day he was injured, to wit, on May 19, 1926. Albert Wisloh was a truck driver in the employ of defendants. Chappee and Wisloh worked under the same foreman, whose position was that of foreman of the shipping department. When a truck was sent out to deliver articles, a helper would accompany the driver to assist in unloading. Sometimes he would also assist in loading the truck. On May 19, 1926, Wisloh was the driver of the truck and Chappee his helper. On said day about 10 a. m., Wisloh was driving defendants' truck westwardly along Cass avenue in the city of St. Louis. Cass avenue is about sixty feet wide, and along it run east and west-bound street car tracks approximately in the center of the street. When a driver of a truck desired a helper, he went either to Sherwood, the foreman, or Spilker, the superintendent, to have a helper designated. In the absence of the superintendent and the foreman, the driver selected the helper he desired. Chappee never drove the trucks. The custom or rule was that the chauffeur had the right to direct how the truck was to be loaded or unloaded. The truck was under the supervision of the driver. He chose the streets or the route to be traveled. The helper had no voice in the method or speed of travel. The driver had control of that.

On the day Chappee was killed, while the truck, driven by Wisloh, was proceeding westwardly along Cass avenue, Chappee was seated in the right-hand seat and Wisloh in the left-hand seat. A wagon, operated by Gerst Brothers Manufacturing Company and driven by Browmsky, with eye beams extending about eight or ten feet from the rear, drawn by two horses, was proceeding westwardly in the west-bound street car tracks. A street car was also running westwardly in the tracks in the rear of the wagon. Wisloh, driving the truck of the Brecht companies, with deceased seated as above related, passed the street car about 150 feet to the rear of the wagon, and, running in the west-bound street car tracks, collided with the eye beam extending from the wagon, so that the eye beam struck the right-hand side of the cab of the truck, thus hitting Chappee in the stomach and killing him. There was nothing in front of him to prevent Wisloh from seeing the wagon and the eye beams, as the day was bright. Other facts, if any, will be adverted to in the opinion.

I. The defendants, the Brecht companies, submit that, at the time of the casualty, Wisloh and deceased were...