English v. Roberts, Johnson & Rand Shoe Co.
| Decision Date | 16 November 1909 |
| Citation | 122 S.W. 747,145 Mo.App. 439 |
| Parties | ARTHUR E. ENGLISH, by his Next Friend, Respondent, v. ROBERTS, JOHNSON & RAND SHOE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.
REVERSED.
Judgment reversed.
Merritt U. Hayden for appellant.
(1) The court erred in overruling appellant's motion for an order requiring respondent to elect upon which cause of action, or specification of negligence, he would proceed to trial for the reason that the two causes of action, set up in respondent's petition, were inconsistent with each other. McDermott v. Railroad, 87 Mo. 285; Drolshagen v Railroad, 186 Mo. 258; Behen v. Transit Co., 186 Mo. 430; Ennis v. Padgett, 122 Mo.App. 539. (2) The court erred in refusing to give the peremptory instruction asked by appellant at the close of respondent's evidence: (a) This instruction should have been given because there was no evidence showing, or tending to show, that Thien was a viceprincipal. Labatt on Master and Servant, vol. 1, sec. 433, p. 1229; Moore v Railroad, 85 Mo. 588; Miller v. Railroad, 109 Mo. 350; see authorities cited under (d) subdivision. (b) Even if Thien be held to have been a vice-principal, his remark to respondent to hurry cannot be termed an order which respondent was bound to obey. It was merely a suggestion and there was no negligence on the part of Thien in making it. Wood, Master and Servant, sec. 448, p. 886; Labatt, Master and Servant, secs. 437 and 438, pp. 1232, 1233 and 1235; Stephens v. Railroad, 86 Mo. 221; Ischer v. Bridge Co., 95 Mo. 261; Anderson v. Higgins, 122 Ill.App. 454; Herold v. Pfister, 92 Wis. 417; Ruchinsky v. French, 168 Mass. 68; Wanner v. Kindel, 4 Colo.App. 168; Coyne v. Railroad, 133 U.S. 370; Stephens v. Lumber Co., 110 Mo.App. 398. (c) The physical facts show that respondent was not injured while acting in obedience to the alleged order of Thien. Herold v. Pfister, 92 Wis. 417; Ruchinsky v. French, 168 Mass, 68; Wanner v. Kindel, 4 Colo.App. 168. (d) The proximate cause of respondent's injury was Thien's act in starting the machine in motion while respondent's hand was between the die and shank and in all acts connected with the operation of the machine. Thien and respondent were fellow-servants. Moore v. Railroad, 85 Mo. 588; Miller v. Railroad, 109 Mo. 350; Hawk v. Lumber Co., 166 Mo. 121; Richardson v. Mesker, 171 Mo. 666; Fogarty v. Transfer Co., 180 Mo. 504; Shaw v. Construction Co., 102 Mo.App. 666; Stephens v. Lumber Co., 110 Mo.App. 398; Rigsby v. Oil Well Supply Co., 115 Mo.App. 297; Schneider v. Railroad, 117 Mo.App. 129; Smith v. Car and Foundry Co., 122 Mo.App. 610; Anderson v. Higgins, 122 Ill.App. 454; Moore v. Cotton Mills, 56 S.E. 839; Doerr v. Daily News Pub. Co., 106 N.W. 1044. (e) This instruction should have been given because the testimony of respondent himself clearly discloses a case of assumed risk. 2 Thompson on Neg., 1008; Pauck v. Dressed Beef Co., 159 Mo. 467; Roberts v. Telephone Co., 166 Mo. 370; Mathis v. Stock Yards, 185 Mo. 434; Blundell v. Mfg. Co., 189 Mo. 552; Rigsby v. Oil Well Supply Co., supra. (3) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the evidence. See authorities cited under heading II. (4) The court erred in giving the first instruction asked by respondent, for the reason that a part of said instruction was contradictory of, and inconsistent with, another part thereof; and for the further reason, that said instruction was contradictory of, and inconsistent with, instruction number 10, given at the instance of appellant. Bluedorn v. Railroad, 108 Mo. 439; Frank v. Railroad, 57 Mo.App. 181; Modisett v. McPike, 74 Mo. 636. (5) The judgment should be reversed because the verdict is so excessive as to indicate that it was the result of bias, prejudice and passion. Newcomb v. Railroad, 182 Mo. 687.
C. W. Rutledge for respondent.
(1) (a) But one cause of action was stated in the petition. The allegation of negligence in defendant employing and retaining Thien in charge and control of the machine and plaintiff was merely an enlargement on the cause of action stated, and if unnecessary and surplusage, should have been reached by a motion to strike out. (b) Where objection is not made until the trial is about to begin, if the petition is susceptible of a construction that will constitute a good pleading, it will be so construed. Drolshagen v. Railroad, 186 Mo. 258. (c) Even where two inconsistent causes of action are stated in the petition, and the motion to elect was overruled and jury instructed on both theories, but the verdict was on only one count, the error in overruling the motion to elect is not prejudicial. Drolshagen v. Railroad, 186 Mo. 258. (d) Where petition sets up negligence of vice-principal and fellow-servant as causing the injury in same count, and the jury is instructed on both theories, yet where the act of negligence was that of vice-principal, the instruction on fellow-servant theory was harmless. McDermott v. Railroad, 87 Mo. 285. (e) The cause of action was tried on the theory that Thien was a vice-principal; the court instructed the jury on that theory only; the court expressly instructed the jury that plaintiff could not recover if Thien injured him while acting as fellow-servant. Surely the motion to elect, if proper, was most effectually sustained at the close of the case. (f) An allegation in petition that master was negligent in retaining an incompetent foreman or vice-principal is proper. Stevens v. Railroad, 86 Mo. 221. (2) (a) The established doctrine in this State is that whether an employee is a vice-principal is not determined by his comparative rank or his authority to employ and discharge workmen, but is ascertained by determining whether or not he is entrusted by the master to direct or control a particular work. Smith v. Foundry Co., 122 Mo.App. 610; Moore v. Railroad, 85 Mo. 588. (b) If Thien had a discretion to exercise, controlling on the plaintiff in the performance of the particular work, he and plaintiff were not fellow-servants as to that work. Fogarty v. Transfer Co., 180 Mo. 490; Moore v. Foundry Co., 85 Mo. 588; Miller v. Railroad, 109 Mo. 350; Hunt v. Desloge Co., 104 Mo.App. 377. (c) Where the act of negligence was due to the exercise of authority, the master is liable. And if the vice-principal had the power to decide how a thing should be done, the fact that he did it himself does not relieve the master. Fogarty v. Transfer Co., 180 Mo. 490; Devaney v. Iron Works, 4 Mo.App. 236; Gormley v. Iron Works, 61 Mo. 492; Hunt v. Desloge Co., 104 Mo.App. 377. (d) Where the servant occupies the dual capacity of vice-principal and fellow-servant, the question as to which capacity he occupied in connection with the injury and causing same is one for the jury. Fogarty v. Transfer Co., 180 Mo. 490; Smith v. Foundry Co., 122 Mo.App. 610. (e) The fact that Erskin was the superior over both Thein and plaintiff does not make them fellow-servants, as long as Thein had authority over the plaintiff in the particular wark. Smith v. Foundry Co., 122 Mo.App. 610; Bane v. Irwin, 172 Mo. 306; Rigsby v. Oil Well Co., 115 Mo.App. 297. (f) The proximate cause of the injury is not always the act which occurs last, or which does the injury. It is the act or order which causes the act or thing to be done which causes the injury. Moore v. Royal L. & Z. Co., 102 S.W. 616; Ruth v. Railroad, 70 Mo.App. 190; Labatt on Master and Servant, sec. 436, p. 1232. (3) (a) Assumption of risk must be pleaded to make it a defense. Rigsby v. Oil Well Co., 115 Mo.App. 297. (b) The servant has a right to assume his master will not send him into a place of danger without assuming the risks of doing so. Rigsby v. Oil Well Co., 115 Mo.App. 297; Hunt v. Desloge Co., 104 Mo.App. 377. (c) Where the negligence of the master caused the injury the risk is not assumed by the servant. Longree v. Mfg. Co., 120 Mo.App. 478; Harrod v. Hammond Co., 102 S.W. 637; Smith v. Foundry Co., 122 Mo.App. 610; Fogarty v. Transfer Co., 180 Mo. 490; Hunt v. Desloge Co., 104 Mo.App. 377. (d) It is not an inference of law that a boy of plaintiff's age was aware of the danger in obeying the order to work as fast as required by Thein, but it is a question of fact for the jury under appropriate instructions. Dowling v. G. B. Allen & Co., 74 Mo. 13; Rigsby v. Oil Well Co., 115 Mo.App. 297. (e) The master is liable even where the negligent order is sure to produce an injury. Gormley v. Iron Works, 61 Mo. 492. (f) The danger must have been known, understood and appreciated; or, so obvious and glaring that a reasonably prudent person of the age, experience and capacity of plaintiff would have refused to obey the order. Harrod v. Hammond Packing Co., 102 S.W. 637; Rigsby v. Oil Co., 115 Mo.App. 297; Blundell v. Mfg. Co., 189 Mo. 552. (4) Where the evidence tends to support the plaintiff's case, and there is no error in the instructions, the judgment should be affirmed. Moore v. Royal L. & Z. Co., 102 S.W. 616; Pohlman v. Foundry Co., 100 S.W. 544. (5) The instruction given for plaintiff states the law fairly, clearly and fully. It was more favorable to defendant than need be. Fogarty v. Transfer Co., 180 Mo. 490.
This is a suit for damages accrued to plaintiff on account of personal injuries alleged to have been inflicted upon him through defendant's negligence while plaintiff was engaged in feeding a heeling machine in defendant's shoe factory. The plaintiff recovered and the defendant appeals.
It appears that the plaintiff was a boy about fifteen years of age. He had had several months' experience in feeding and operating a heeling machine in the defendant's and other shoe...
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