Curtie v. Koch

• Decision Date: 27 May 1926
• Docket Number: No. 3945.,3945.
• Citation: 282 S.W. 1045
• Parties: CURTIE v. KOCH.
• Court: Missouri Court of Appeals

282 S.W. 1045

CURTIE v. KOCH.

No. 3945.

Springfield Court of Appeals. Missouri.

May 27, 1926.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action by Herman Curtie against V. E. Koch. Judgment for plaintiff, and defendant appeals.

R. A. Pearson, of Joplin, for appellant.

J. D. Harris, of Carthage, for respondent.

COX, P. J.

Action for personal injury, caused by a scaffold on which plaintiff was standing giving way and causing him to fall. Plaintiff recovered, and defendant appealed.

The defendant was engaged in building a septic tank at the city of Carthage in Jasper county. The tank was being built of concrete, and its walls were to be built to a height of about 30 feet. What is called a casing was placed on each side of the wall, and the concrete poured into the space between the casings. Scaffolds were built on which the workmen stood and walked while performing the work. These scaffolds were constructed by standing 2×4 studding on end some 18 inches apart and nailing crosspieces thereon at the proper height, and then laying boards 2 inches thick upon these crosspieces. The workmen then stood on the scaffold to perform their work. A section of the wall some 4 or 5 feet high would be built in this way, and then another 2-inch board placed in a similar way high enough to permit the workmen to proceed. In building the higher sections of the scaffold and working thereon, pieces of lumber would sometimes be handed up from the lower section of the scaffold. Plaintiff was a day laborer, and his duty was to handle and pass lumber to the carpenters or to other workmen to be by them passed to the carpenters. As he was engaged on one section of the scaffold passing boards thereon up to a higher section of the scaffold, a crosspiece supporting the board on which he stood gave way, and he fell and received the injury which is the basis of this suit. The scaffolds on which to work and the casing to hold the concrete were built by carpenters, and, as the work proceeded and the walls became higher, the scaffolds would be raised as already stated.

The crosspiece which gave way and caused plaintiff to fall did so by reason of being insecurely nailed at one end. That end had but one nail in it, which, it was shown, was insufficient to securely hold it. The plaintiff began work on Monday, and was injured the next day. He testified that he had nothing to do with, building the scaffold from which he fell, and was not there when it was nailed up. Defendant contends that there was evidence sufficient to raise an issue of fact on that point, but we do not regard that question as decisive, and shall not discuss it further.

The plaintiff, the carpenters, and all other workmen were under the same foreman, and defendant contends that, since they were all engaged in a common enterprise of building a septic tank, they were all fellow servants, and hence, if a carpenter did nail on a crosspiece in a negligent manner, his negligence was that of a fellow servant, and for that reason plaintiff could not recover. The court refused to submit the fellow-servant question to the jury, evidently holding that under the evidence the plaintiff and the carpenters who built the scaffolds were not fellow servants.

The merits of this case rest upon the fact whether plaintiff, a laborer, and a, carpenter whom he may assist by passing lumber to him were fellow servants when the carpenter negligently nailed the crosspiece on the studding to support the floor of the scaffold. There is no fixed rule by which to determine under what circumstances workmen are fellow servants. Each case must rest upon its own facts. One general rule to be observed in determining whether employees are fellow servants is often stated as follows: All are coservants who are engaged by the same master in carrying on some general enterprise, and who are so related and associated in their work that they can observe and have an influence over each other's conduct, and report delinquencies to a common correcting power. Servants not so related are not fellow servants, even though they may be employed by a common master and engaged in work to accomplish the same general purpose. Relyea v. Kansas City, Ft. S. & G. Ry. Co., 112 Mo. 86, 93, 20 S. W. 480, 18 L. R. A. 817; Haas v. St. Louis & S. R. Co., 111 Mo. App. 706, 90 S. W. 1155; Oker v. Hill-O'Meara Const. Co., 158 Mo. App. 213, 220, 138 S. W. 84: Brandt v. Kansas City Breweries Co., 159 Mo. App. 568, 572, 141 S. W. 444; Holder v. Ford Motors Co. (Mo....