Fogarty v. St. Louis Transfer Co.

• Decision Date: 10 February 1904
• Citation: 180 Mo. 490,79 S.W. 664
• Parties: FOGARTY v. ST. LOUIS TRANSFER CO.
• Court: Missouri Supreme Court

79 S.W. 664

180 Mo. 490

FOGARTY v. ST. LOUIS TRANSFER CO.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

MASTER—INJURY TO SERVANT—LEX LOCI— "DUAL CAPACITY DOCTRINE" OF ILLINOIS— STATUS OF FOREMAN CAUSING INJURIES— QUESTION FOR JURY.

1. Where a contract of employment was made in one state, under which the work to be done by the employé and the work which he did was in that state, and the accident happened in that state in the course of his employment, the liability of the employer will be determined by the laws of that state, in a suit against the employer in another state to recover damages therefor.

2. The "dual capacity doctrine," applied in Illinois in determining the liability of a master for injury to his servant, is: The mere fact that a master has a foreman over the injured servant does not make the master responsible for the foreman's negligence, nor does the mere fact that the foreman is sometimes, or generally, also a colaborer, excuse the master from his negligence; but every case must depend on its circumstances, and if the negligence complained of consists of some act done or omitted by one having such authority, which relates to his duties as a colaborer with those under his control, and which might just as readily have happened with one of them, having no such authority, the common master will not be liable; but when the negligent act complained of arises out of, and is the direct result of, the authority conferred on him by the master over his colaborers, the master will be liable.

3. Evidence, in an action by an employé against his employer for personal injuries received in Illinois, examined, and whether negligence of foreman, causing the injuries, was done in his capacity as foreman, or as colaborer with plaintiff, held to be a question for the jury, under the Illinois "dual capacity doctrine."

Appeal from Circuit Court, Franklin County; John W. McElhinney, Judge.

Action by Jeremiah Fogarty against the St. Louis Transfer Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Randolph Laughlin, for appellant. Johnson, Houts, Marlatt & Hawes, for respondent.

MARSHALL, J.

This is an action for $20,000 damages, for personal injuries received by the plaintiff on April 2, 1898, in East St. Louis, Ill. The petition alleges that the plaintiff was in the employ of the defendant, and at the time of the accident was engaged in the work of the master; that one George Edwards was the defendant's foreman and manager in East St. Louis, Ill.; that plaintiff was engaged in the work of the defendant in driving a wagon, loaded with heavy iron girders, and in the attempt to back the wagon into the alley between tracks Nos. 20 and 21 of the Big Four Railroad; that, while plaintiff was so engaged, "said Edwards, while acting as defendant's said foreman and manager, ordered the lead horses attached, and violently, carelessly, and negligently, and without notice or warning to plaintiff, and after having been advised by plaintiff that said load could not be backed, grasped, jerked, and wheeled about the lead horses of plaintiff's team, with such violence as to break the tongue of said wagon, and violently disturb the equilibrium of the wagon and its load, breaking the chain that bound the girders, overturning and breaking the wagon, throwing plaintiff upon the ground, and causing one of said girders to fall upon him." After all the evidence was in, the plaintiff by leave amended his second amended petition, so as to strike out all the specific acts of negligence charged, except one, and so as to make the allegations of the petition, following the portion above quoted, read as follows: "And plaintiff states that by reason of the negligence and carelessness of defendant's foreman and manager, in carelessly and negligently jerking and whirling the lead horses of the plaintiff's team as aforesaid, said wagon was upset as aforesaid, plaintiff was thrown to the ground, and one of the girders thrown upon him, crushing his left leg, and painfully injuring his right leg and hip joints." The answer is a general denial, coupled with special defenses, to wit: First, that the contract of employment of the plaintiff, the labor to be performed by him, and the injury received by him were all done in the state of Illinois, and hence that the laws of that state control in this case, and that the Illinois laws were and are that the master is liable for the acts of his vice principal so far as they relate to the exercise of the delegated powers and duties of the master, but that if the vice principal also acted as a colaborer, and the injury was caused by his negligence while performing the duties of a colaborer, and which might just as readily have happened if such duties had been performed and such negligent act been done by any other colaborer, the master is not liable; second, a plea of assumption of risk; and, third, a plea of contributory negligence. The reply is a general denial.

There is no conflict in the evidence. The facts proved upon the trial are as follows: The plaintiff was 36 years old, and had been in the employ of the defendant for about 8 years. At the time of the accident he was driving a "pull-up team"; that is, his team pulled up the wagons that came across the river from the boat to the levee in East St. Louis. He was employed, and his whole work was done, in East St. Louis, and the accident occurred there. The defendant is a Missouri corporation, and its principal office and its chief officers are all located in St. Louis. The bulk of its business is hauling freight to and from the railroad termini in East St. Louis to St. Louis. It had a stable in East St. Louis, where a great number of men and wagons were employed. George Edwards was the foreman or manager of the stable. He had power to employ and discharge the men, buy feed and stable supplies, direct the men as to when, where, and how they should work, see that they did their work, and as a part of his duty, as he expressed it, "I give any man a hand that I see needs it, at any part of the work that I see is required." The defendant had been engaged in hauling a lot of girders and structural iron from the railroad cars in East St. Louis to a building that was in course of construction in St. Louis. On the day of the accident the plaintiff, by the direction of Edwards, the foreman, had loaded four iron girders on a "long-reach" wagon; that is, a wagon intended for heavy hauling and having a long coupling pole. Three of the girders were 30 feet long, and one was 16 feet and 8 inches long. After they were placed on the wagon, the plaintiff tied the girders together in two places with four pieces of chain, of unequal size and strength, and then, by putting wagon stakes in the chain, he twisted it until the slack in the chain was taken up, and he then tied the ends of the stakes to the reach or coupling pole with a rope. When the wagon was thus loaded, it weighed 24,000 pounds. He then reported to Edwards that the wagon was loaded, and Edwards ordered him to get a "pull-up team," in addition to his own team, and drive it to the Big Four alley aforesaid, and leave it there for the night. The plaintiff found Walsh, a driver of a "pull-up team," and had him hitch his team to the wagon in the lead. Walsh and the plaintiff then walked on the "near," or left, side of their teams, and thus drove the wagon to the alley. When they reached there, the plaintiff directed Walsh to unhook his team from the wagon, and when it was done the plaintiff attempted to back the wagon into the alley aforesaid. One of the horses in his team would not back. When plaintiff had been so engaged for some minutes, Edwards drove up in his cart, and he jumped out and ran over to where the plaintiff was. What then occurred is best described by the plaintiff's own testimony, which is as follows: "While trying to back the team, I stood partly in front of my wheel, holding the reins in my hands. My off horse would not back at all. Then George Edwards rode up in his cart the same way I had driven. He jumped out of the cart, ran over to me, and said: `Jerry, what the hell is the matter with you now? You don't want to stay here all night monkeying with that wagon.' I says: `What the hell can I do, George? You see that big horse won't back for me.' He says: `Damn it to hell! get on that wagon, where you ought to be.' I got up. Then he ran out in front of the team, and began to pound them in the face, one with each hand. He didn't back them. Then he says, `Stay where you are, and we will seesaw them back.' `Eddie,' he says, `go over and get that team and hook them on,' and he did so. `Eddie,' I says, `be careful now, and don't let him pull too hard. Hold the pole, and don't let it swing with that near horse, and I will be able to back the wagon out.' Edwards said: `Go ahead with that team.' And he pulled it around, and I hollered: `Don't swing that wagon around in that way. Straighten them up, and don't let them pull so hard.' Then Edwards got in, and said: `Give me those lines. I will handle that team.' And he gave them a jerk, and swung them around as hard as they could run, and struck the wheel under the coupling pole. Edwards was in a passion when he grabbed the lines. The pole was pointing towards the right, and he swung the team around to the left. The horses came around as hard as they could run, and Edwards was running to try and keep out of their way. He was on the near side, and the horses were coming towards him. When the front wheel struck the reach pole, the front bolster went off where the iron was raised, and he pulled the front gear wheel under the wagon entirely, and two of the girders fell off, and me on top of them. Two fell off in front, and the other two fell to the bolsters, and one fell off the wagon entirely. I heard the tongue crack, and I fell off with the girders. I was sitting on them. This occurred about a second or so after...