Fleeman v. Bemis Brothers Bag Company
| Decision Date | 20 December 1911 |
| Parties | TOBE FLEEMAN, Respondent, v. BEMIS BROTHERS BAG COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.
REVERSED.
Cause reversed.
Boyle & Howell for appellant.
(1) The court erred in overruling defendant's demurrer to the evidence. (a) For the reason that plaintiff was not in the exercise of ordinary care for his own safety at the time he was injured. (b) For the reason that plaintiff and Frank McPheeters, who set up the bale by the fall of which plaintiff was injured, were fellow-servants in the matter of setting up the bales. (c) For the reason that no general custom within the meaning of the law, was shown or proven, as alleged in the petition in the matter of blocking the bales and plaintiff knew the risk. (d) For the reason that it was the duty of plaintiff to block the bales before throwing bolts or other goods upon top of them. (e) If the injury was caused by the negligence of a foreman while performing the duties of a laborer, his negligence was the negligence of a fellow-servant, and the master would not be liable. Robinson v. Railroad, 133 Mo.App. 117; Knorp v Wagner, 195 Mo. 637; Blundell v. Mfg. Co., 189 Mo. 552; Bradley v. Tea Co., 213 Mo. 320; American Bridge Co. v. Leeds, 144 F. 605; Westinghouse v. Callaghan, 155 F. 397; Garland v. Railroad, 85 Mo.App. 579, 581; Davis v. Detroit Co., 20 Mich. 105; Wilson v. Fremont Mills, 159 Mass. 154; Welch v. Brainerd, 108 Mich. 38; Hoth v. Peters, 55 Wis. 405. (2) Instruction P-1, given by the court on behalf of the plaintiff, was erroneous in this that it permitted the plaintiff to recover. (a) If in the exercise of ordinary care he did not discover that the bale about which he was working was not blocked, it appearing by his own testimony that he made no effort to do so. (b) If Frank McPheeters knew that by reason of its not being blocked said bale was not reasonably safe and secure. (c) If Frank McPheeters knew or should have known that plaintiff would have reasonable cause to believe and did believe that the bale was blocked and in a reasonably safe condition. (d) The language (8th line, p. 219), "ordered plaintiff to place sme bolts of burlap on top of said standing bale of burlap," is without any subject and does not appear to be connected with the other parts of the instruction. The language does not show who ordered plaintiff. (e) The instruction ignores essential element of the case and does not cover the facts pleaded and proven in defense, and is conflicting with defendant's instructions. Flaherty v. Transit Co., 207 Mo. 318, 334; Toncrey v Railroad, 129 Mo.App. 596, 600; Bolles v. Railroad, 134 Mo.App. 696, 704. (f) And proper instructions given for defendant do not cure an erroneous instruction given for plaintiff, the presumption being that the jury discarded the true for the false. Ross v. Railroad, 132 Mo.App. 472, 481; Haywood v. Excelsior Springs Co., 129 Mo.App. 691, 698; Russell v. Poor, 133 Mo.App. 723, 729. (g) The words of said instruction, "that plaintiff acted, conducted and demeaned himself as an ordinarily prudent person would have done," are equivocal, and leave the jury to enter into the fields of a conjecture and speculation. It is erroneous to use such language in a general instruction covering the whole case. Hunt v. Railroad, 126 Mo.App. 79. (h) The instruction ignored the fact that the plaintiff's evidence showed that McPheeters and plaintiff were fellow-servants in the work of setting up the bales. Kappes v. Brown Shoe Co., 116 Mo.App. 154; Bennett v. Himmelberger, 117 Mo.App. 58; Dickey v. Dickey, 111 Mo.App. 304.
Bird & Pope for respondent.
The plaintiff proved a clear case of liability on the part of the defendant. Of course the "dual capacity" doctrine is recognized in this state. Fogarty v. Transfer Co., 180 Mo. 449; Bane v. Irwin, 172 Mo. 306, 317. (Act of ordering the bolts thrown on the bale was the act of a vice-principal.) And it is probably true that the act of McPheeters, the foreman, in standing the bale up was the act of a co-laborer of the plaintiff, but McPheeters, being the foreman and in charge of the men in the basement, had certain duties to perform for the defendant. It was his duty, as foreman, to seek out and remove any danger in the place of work of plaintiff. Frazier v. Company, (Mo. App.), 130 S.W. 485, Syl. 2; 20 Am. and Eng. Enc. L. (2 Ed.), p. 95. And it was his duty to warn plaintiff of any hidden danger not known to him. Musick v. Packing Co., 58 Mo.App. 322, Syl. 4; Zellars v. Light Co., 92 Mo.App. 107, Syl. 4; Anderson v. Coal Co., 108 Minn. 455, 122 N.W. 794; (Duty to warn when non-delegable.) Where one acting in the dual capacity of vice-principal and fellow-servant to another makes the working place unsafe by his negligent act as fellow-servant, and then in his capacity as vice-principal orders the servant into the unsafe place, whereby the servant is injured, the master is liable to the injured servant. And that is this precise case. Rigsby v. Supply Co., 115 Mo.App. 297, Syl. 8; Mack v. Railroad, 123 Mo.App. 539; Herdler v. Range Co., 136 Mo. 3, Syl. 6, 15. And in such a case the servant would not be guilty of contributory negligence in obeying the order of the vice-principal, although he knew his employer was negligent. Rigsby v. Supply Co., 115 Mo.App. 297, Syl. 11. And where the master negligently orders a servant's act which renders the working place unsafe, a prima facie liability against the master arises because of such negligent order. Bennett v. Lime Co., (Mo. App.), 124 S.W. 608, Syl. 2; Wilson v. Railroad, (Mo. App.), 121 S.W. 1089 Syl. 2, 20 Am. and Eng. Enc. L. (2 Ed.), p. 120. (6). And of course the negligence of McPheeters was the negligence of a vice-principal of the defendant. Miller v. Tel. Co. (Mo. App.), 126 S.W. 187, Syl. 4; McIntyre v. Tebbetts, (Mo. App.), 120 S.W. 625; Anderson v. Mining Co., 138 Mo.App. 76. And the risk of injury from a falling bale left unblocked through the negligent act of the foreman was not a risk of plaintiff's employment which he assumed. Rigsby v. Supply Co., 115 Mo.App. 297, Syls. 4 to 10. The order of McPheeters, the foreman, to place the bolts on top of the particular bale that fell was an assurance by him that plaintiff could safely obey the order. Bennett v. Lime Co., (Mo. App.), 124 S.W. 608, Syl. 2; Mack v. Railroad, 123 Mo.App. 542; Keegan v. Kavanaugh, 62 Mo. 230, Syl. 3; Herdler v. Range Co., 126 Mo. 3, 17; Sullivan v. Railroad, 107 Mo. 78. And plaintiff had a right to rely on the belief that the foreman had performed his duty and blocked the bale. Redmond v. Railroad, (Mo. Sup.), 126 S.W. 159, Syl. 15; Combs v. Const. Co., 205 Mo. 367, Syl. 2; 20 Am. and Eng. Enc. L. (2 Ed.), p. 120 (6). When a defendant by his negligent acts or omissions throws plaintiff off his guard, or when a plaintiff acts in a given instance upon a reasonable supposition of safety, induced by the defendant, when there is in reality dangers to which plaintiff is exposing himself in a way to an extent which, but for defendant's inducement, might be imputed to plaintiff as negligence, sufficient to prevent a recovery, such conduct on the part of plaintiff, so induced, will not constitute contributory negligence in law, and the defendant will not be heard to say that the plaintiff's conduct under the circumstances is negligent for the purpose of a defense to the action. McGee v. Railroad, 92 Mo. 208, 218; Sullivan v. Railroad, 107 Mo. 78; Bradley v. Railroad, 138 Mo. 306; Schlitz v. Railroad, 32 Mo.App. 438, Syl. 3, 449, 450.
This is a suit to recover damages for an injury plaintiff suffered while in the employ of defendant. The defendant is a corporation engaged in the manufacture and sale of burlap and other cloths. The injury was inflicted on the 27th day of October, 1908, while the plaintiff was working in the basement of defendant's building.
The plaintiff's evidence was to the effect that there had been placed against the walls of the building in a row about one dozen bales of burlap. These bales were 34 inches thick, 36 inches wide and 5 feet in length, and weighing about 1600 pounds, and were rounded at the corners. A man by the name of McPheeters was the defendant's foreman who supervised the work and also at times did a part of it himself. It was usual when a bale was stood up on its end in the row to block it in position to keep it from falling with a piece of wood placed between the lower edge of the bale and the floor. It was, however, the invariable custom to so block the end bale in the row. On the top of these bales were placed bolts of burlap weighing 100 pounds.
Shortly before plaintiff was injured McPheeters set a bale of burlap at the end of the row, but failed to secure it from falling by blocking it. The plaintiff and another workman while working trucked a quantity of the bolts to the row in question and proceeded to pile them on the burlap. While so...
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