Flori v. Dolph

• Decision Date: 20 February 1917
• Docket Number: No. 18438.,18438.
• Citation: 192 S.W. 949
• Parties: FLORI v. DOLPH.
• Court: Missouri Supreme Court

192 S.W. 949

FLORI v. DOLPH.

No. 18438.

Supreme Court of Missouri, Division No. 1.

February 20, 1917.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Action by Joseph J. Flori against Clifford M. Dolph. From a judgment for plaintiff, defendant appeals. Affirmed.

Fauntleroy, Cullen & Hay, of St. Louis, for appellant. Joseph A. Wright and Frank X. Hiemenz, both of St. Louis, for respondent.

BOND, P. J.

I. Action to recover damages for personal injuries. Judgment for plaintiff in the sum of $12,500. Defendant appealed.

The defendant, Clifford M. Dolph, owns a certain building in St. Louis, known as the Dolph building, in which two electric elevators are maintained for the convenience of the tenants and the general public. In order to insure the safety of the passengers who use these elevators, defendant employs the Equitable Inspection Company to make regular inspections and tests of the electric insulation and to supervise the "removal of old appliances and machinery and the installation of new machinery in case of changes, supervising all repairs, testing of motors," etc. On the morning in question, the Equitable Company examined the elevators, and, finding one of them out of repair, notified Geraghty Bros., who sent one of their employés, the plaintiff, Joseph Flori, to make the necessary repairs, and, having no helper available, they procured one from the French Electric Company, who went with plaintiff to assist him in his work. Arriving at the Dolph building, plaintiff found the south elevator out of commission, although the north elevator was still running and carrying passengers. Plaintiff went to the top of the building, where he found Mr. Ebert of the Equitable Inspection Company. Returning to the first floor, plaintiff told the boy in charge of the north elevator that he would have to get down into the pit, and for him "to raise the elevator up and stay between the second and sixth floors, not to go to the top, and be sure not to go below the second floor." He also stationed his helper as a guard at the door of the elevator so that no one would walk into the opening. Plaintiff then jumped into the pit as the elevator moved upward. The elevator boy, however, did not stop at the sixth floor, but ran the elevator to the seventh, causing the weights which counterbalance it to descend into the pit and strike plaintiff, seriously injuring him before he had time to extricate himself.

II. The two theories advanced in support of this appeal are: First, that the elevator boy became, for the occasion of the repair work, the servant of the plaintiff; second, that if the negligent act causing the injuries to plaintiff was outside the scope of the employment of the elevator boy, then defendant is not liable, nor if the elevator boy and plaintiff were fellow servants of the same master.

The first contention is readily determined upon the conceded facts. The owner of the building had a yearly contract with an electrical company for the inspection and supervision of these elevators. In the performance of that duty, it was discovered that one of the elevators was not in working condition. Thereupon the electrical company (the owner being absent) directed a corporation engaged in the business of repairing elevators to find out and repair the defect in the working of defendant's elevator. The plaintiff and another were sent for that purpose. It was necessary for plaintiff to get into the pit of the running elevator to ascertain what was wrong with the other. Before doing so, he told the operator not to allow it to run higher than the sixth floor, nor lower than the second floor, while he was working at the bottom of the shaft. The neglect of the elevator boy to follow these instructions caused the injury. The giving of such directions, instructions, or warnings (whatever they may be termed), did not of itself make the boy the servant of the workman. The boy was engaged in the service of the defendant. The workman was the servant of his employer, the contractor to whom the repair work had been let. This direction given to the servant of the defendant owner, by the servant of the contractor — nothing else appearing — could not in fact or in law make the former servant the servant of the latter servant, nor affect his relation to his own employer. On this point the authorities are clear that, to effect such a change of service or substitution of masters in a case like the present, the servant himself must expressly or impliedly consent to accept as his master the person giving him such orders or warning. Quinby v. Estey, 221 Mass. 56, 108 N. E. 908; Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922; Kelly v. Tyra, 103 Minn. 176, 114 N. W. 750, 115 N. W. 636, 17 L. R. A. (N. S.) 334; Standard Oil Company v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480; Snider v. Crawford, 47 Mo. App. 8. Besides, at appellant's request, the issue as to whether the elevator boy was the servant of plaintiff was submitted to the jury and resolved against appellant.

III. It is next important to determine the relationship of the contracting corporation, which sent the plaintiff to do the work, with the defendant owner. Obviously that was one of independence in the matter of repairing the elevator. The whole plan, including all the details of the...