Chasteen v. Singer Sewing Mach. Co.

• Decision Date: 14 August 1931
• Citation: 41 S.W.2d 621,226 Mo.App. 57
• Parties: WILLIAM CHASTEEN, RESPONDENT, v. SINGER SEWING MACHINE COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

41 S.W.2d 621

226 Mo.App. 57

WILLIAM CHASTEEN, RESPONDENT, v. SINGER SEWING MACHINE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Springfield

August 14, 1931

Appeal from Circuit Court of Jasper County, Division Two.--Hon Grant Emerson, Judge.

REVERSED.

Judgment reversed.

Howard Gray and T. C. Tadlock for appellant.

The court should have sustained appellant's demurrer at the close of respondent's case, because the testimony showed that respondent and defendant's manager were fellow servants. Roger v. Schiele, 148 Mo.App. 53; Stephens v. Lumber Co., 110 Mo.App. 398; Madden v. Ry. Co., 167 Mo.App. 143; Kinser v. Cook Paint & Varnish Co., 249 S.W. 447; Bokamp v. Ry. Co., 123 Mo.App. 270; Robinson v. Ry. Co., 133 Mo.App 101; State v. Haid, 18 S.W.2d 478; McIntyre v Tebbetts, 257 Mo. 117; English v. Rand Shoe Co., 145 Mo.App. 439; Chappee v. Brecht Butchers Supply Co. et al., 30 S.W.2d 35; Vannest v. Ry. Co., 181 Mo.App. 374; Lewis v. American Car & Foundry Co., 3 S.W.2d 282. The demurrer should have been sustained because the cause of action or negligent act relied on, to-wit: "Unsafe place to work" was wholly unproven. Joslin v. Ry. Co., 3 S.W.2d 352; Milliken v. Commission Co., 202 Mo. 637.

Roy Coyne, Wm. O. Hanks and S.W. Bates for respondent.

(1) "Where the boss is entrusted with the power of control of the practical business, he is not conclusively regarded as a fellow servant." State ex rel. Duvall v. Ellison, 273 Mo. 532, l. c. 539, 540, 541 and cases cited; McCauley v. Brewing Co., 300 Mo. 638, l. c. 652; Mertz v. Leschen & Sons Rope Co., 174 Mo.App. 94, 156 S.W. 807; Johnson v. American Car & Foundry Co., 259 S.W. 442; Fogarty v. St. Louis Transfer Co., 180 Mo. 490; Dressen v. National Building Material Co., 5 S.W.2d 1, l. c. 2. (2) Whether boss was negligent, and, if so, whether the negligent acts were committed by him in the capacity of vice-principal, were questions for the jury. Funk v. Fulton Iron Works, supra; Acebedo v. American Car & Foundry, 291 S.W. 505; McCauley v. Brewing Assn., 300 Mo. 638; Bien v. St. Louis Transit Co., 108 Mo.App. 399; Mertz v. Leschen & Sons Rope Co., supra; Miller v. Mo. P. Ry. Co., 109 Mo. 350; Johnson v. American Car & Foundry Co., supra; McCall et al. v. Nugent Bros., 236 S.W. 324.

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

--In this suit the plaintiff in his petition alleged that the defendant, a corporation, was engaged in the business of storing, displaying, selling and delivering Singer Sewing Machines from its place of business located at 521 1/2 Main street in Joplin, Missouri, having in its employ at this location less than ten employees and not determined to be engaged in a business hazardous to its employees; that the building in which the business was conducted faced on Main street, and to the back of said building was an alley, the surface of which was about four feet lower than the rear door in the building and that the defendant in the course of its business was accustomed to and did load from the rear door of said building sewing machines and other merchandise into trucks or vehicles being situate in said alley for such purposes.

The petition contains also the following:

"Plaintiff further states that on the 27th day of September, 1930 and for a long time prior thereto he was in the employ of the defendant engaged as a workman and helper in and about said building and place of business; that it became and was his duty under the direction of J. S. Foreman, the superintendent and manager of defendant's place of business, among other duties, to help and assist in loading merchandise of the defendant from said doorway into trucks or vehicles so located in said alley, as aforesaid.

"Plaintiff for his cause of action states that on said 27th day of September, 1930, aforesaid, while in the course of his employment as such employee of the defendant, as aforesaid, and acting under the orders and directions of the defendant's foreman, aforesaid, this plaintiff stepped from said doorway, at the back or east end of said building, into the alley, aforesaid, for the purpose of assisting in lifting a heavy sewing machine out of said doorway into said alley and loading it into an automobile truck in said alley; that whilst he was so engaged in the discharge of his duties, as aforesaid, under the direction and in compliance with the orders of the said J. S. Foreman, superintendent and manager, aforesaid, and in the exercise of due care, the defendant by and through its said foreman, the said J. S. Foreman aforesaid, carelessly, recklessly and negligently, suddenly and without warning caused and permitted said sewing machine to fall from said doorway directly on and against this plaintiff, striking, bruising and injuring plaintiff in and upon the right side and abdomen of plaintiff and plaintiff in undertaking to protect himself from the fall of said sewing machine was compelled to use such violent exertion in catching and holding said sewing machine, that as a direct result of said carelessness and negligence of the defendant, as aforesaid, in causing and permitting said sewing machine to fall from said doorway into said alley upon and against this plaintiff and striking and bruising plaintiff and the exertion and strain plaintiff was compelled to undergo in so undertaking to protect himself, plaintiff was seriously injured in and upon the right side and abdomen and as a direct result thereof developed a strangulated inguinal hernia in his right side, was compelled to go to the hospital in Webb City, Missouri, and there undergo treatment and operation on account of said injuries so caused by the negligence and carelessness of the defendant, as aforesaid, and as a direct result of said injuries the plaintiff was permanently injured, has suffered and will continue to suffer intense physical pain and mental anguish, was required to undergo a serious operation for said injuries, as aforesaid, and was required to pay and has become obligated to pay large sums of money for physicians and surgical treatment and care and for hospital bills and attendants; that he was and has since been and is now wholly incapacitated from performing his usual work and labor and will be so incapacitated for a long time in the future; that plaintiff was an able-bodied man prior to said injuries and earned and received from $ 40 to $ 50 each week for his services as such employee, as aforesaid; that plaintiff has been and will be for a long time unable to perform any labor or work or earn any money on account of said injuries all to plaintiff's damages in the sum of $ 10,000.

"Plaintiff states that said injuries and loss are directly due, and proximately caused by the negligent failure of the defendant company to provide and maintain plaintiff a safe place to work, whilst he was preparing to assist in moving said sewing machine from said doorway into the alley, aforesaid, in that the defendant by and through the said J. S. Foreman, manager and superintendent of said business, failed to prevent said sewing machine from falling upon and against the plaintiff, resulting in the aforesaid injuries and loss to plaintiff.

"Wherefore, plaintiff prays judgment against the defendant in the sum of $ 10,000, on account of his injuries, expense and loss of time so caused by the negligence of the defendant, as aforesaid, and for his costs herein."

The defendant filed the following answer, caption and signature omitted:

"Now on this day cames the defendant and for its answer to the plaintiff's amended petition herein, denies each and every allegation in said amended petition, except that the defendant was at the time alleged in said petition and now is a corporation.

"The defendant, further answering said amended petition and as another defense to plaintiff's cause of action, states that if plaintiff was injured at the time and place alleged in said petition by the act of the said J. S. Foreman, named in said petition then this defendant is not liable therefor, for the reason at said time and place the said Foreman was acting with the plaintiff as his fellow servant."

The reply denied specifically that the plaintiff and J. S. Foreman were acting as fellow servants, and denied generally each and every allegation of new matter contained in the answer.

A trial was had to a jury and on December 13, 1930, a verdict was returned in plaintiff's favor for damages in the sum of $ 2500, and on the same day judgment was rendered for the plaintiff for that amount.

Proper steps were taken for appeal. Several assignments of error are presented but one question only will be considered as its solution will determine this case. We are of the opinion that under the facts disclosed by all the evidence, a recovery cannot be upheld. The defendant did not stand on its demurrer at the close of plaintiff's evidence but introduced its evidence, and having done so, this court should consider all the evidence in the case. [Downing v. Loose-Wiles Biscuit Co. (Mo. Sup.), 8 S.W.2d 884.]

There is but little controversy as to the facts in this case. The evidence is all one way as to the condition of the place where plaintiff was working at the time of the injury. The evidence all showed that the defendant used the building for storing Singer Sewing Machines, and as they were removed from the building they were removed through a rear door at which place the surface of the alley was approximately twenty-eight inches below the floor in the doorway. There is...