Frazier v. Ford Motor Co.

• Decision Date: 14 February 1955
• Docket Number: No. 43538,43538
• Citation: 365 Mo. 62,276 S.W.2d 95
• Parties: FRAZIER v. FORD MOTOR CO.
• Court: Missouri Supreme Court

Page 95

276 S.W.2d 95

365 Mo. 62

FRAZIER v. FORD MOTOR CO.

No. 43538.

Supreme Court of Missouri, En Banc.

Feb. 14, 1955.

Rehearing Denied March 14, 1955.

Shughart & Thomson, Harry P. Thomson, Jr., John M. Kilroy, Kansas City, for appellant, Ford Motor Co.

John B. Moritz, Walter A. Raymond, Kansas City, for respondent.

BOHLING, Commissioner.

Fred H. Frazier, plaintiff, secured a $9,000 verdict and judgment against the Ford Motor Company, a corporation, defendant, in a common law action for personal injuries sustained in the performance of his duties for defendant. He had rejected the Missouri Workmen's Compensation Act, Section 287.010 et seq. RSMo 1949, V.A.M.S. Plaintiff invoked the res ipsa loquitur doctrine. Defendant's answer was a general denial, coupled with pleas of contributory negligence, assumption of risk, and negligence of a fellow servant. Defendant contends that plaintiff failed to make a res ipsa case; that the court erred in admitting evidence and in giving and refusing instructions, and that the verdict is excessive.

Plaintiff had been an employee of defendant in the paint department on the second floor as a spray gun painter for about 21 years. He was transferred to defendant's sealer department on the third floor on Monday, September 26, 1949, and on Wednesday, the 28th, was injured while working in an automobile body on one of defendant's conveyor lines.

Defendant's overhead conveyor on the third floor of its plant in Kansas City is approximately 450 feet long. It is an oblong line and makes several curves. The conveyor chain is suspended by pressed steel ball bearing rollers spaced at intervals along the chain. The rollers travel on a 4 inch I beam, and are driven by an electric motor located in the body shop through a reduction gear with a sprocket on what is known in the record as a C-131 chain. The conveyor moves about 12 or 13 feet a minute when in operation.

A master switch at the motor is thrown by the electricians to start and stop the conveyor for the day's work. Other switches are located along the conveyor line. These are safety switches for stopping the conveyor and if one is turned off, the conveyor can be started again by turning it on if all the switches are in the 'on' position. A shear pin, made out of soft material, is located in the main sprocket, and if the conveyor hangs, this pin will shear and cause the conveyor to stop. There was testimony the conveyor would stop and start at intervals during the day and would hang up at times for some reason; that when it sheared the pin the bodies would bounce backwards and if it 'unclogged itself' without shearing the pin the line would bounce forward. The conveyor starts and stops gradually when operated by the electric switches.

Unfinished automobile bodies are suspended from the conveyor in the body shop by means of chains and 'C' hooks attached to bolts on the body floor. The total length of a chain and hook is about 4 feet. The suspension is toward the center of the body, a swinging attachment. The bottom of the body moves about 8 inches above the floor.

The bodies pass through the bonderizing or spray and the lamp or drying tunnel, which is just large enough for the bodies to pass through. They then enter the sealer department, move east on the conveyor down a ramp a distance of 12 to 15 feet, make a turn to the north for a few feet and then to the west, returning to the body shop.

Employees, known as 'sealers,' insert a sealer compound along the seams of the automobile body to prevent water from entering and the body from rusting. The sealer steps into the body upon its entering the sealer section and applies the compound by means of a long hose and calking gun operated under air pressure. Stepping into the suspended body with the hose and gun causes the body to sway a little.

A convertible automobile body, one without a top, entered the sealer department late in the afternoon. Plaintiff entered the body with his hose and calking gun. He would finish his task in about a minute, while the body was moving approximately its length. Plaintiff testified that when the body started into the curve to the north 'the line came to a sudden stop and throwed me off balance, lunged forward.' 'The body comes to an abrupt stop just momentarily and then it lurched forward violently and suddenly, * * * just approximately the length of the body.' This was unusual and unexpected, caused the suspended body to swing backward and forward and sideways and plaintiff to be thrown on his back to the bottom of the body in the rear and strike the sharp edges and hard surface of its metal parts. Plaintiff did not know what caused the body to stop and lurch. He did not do it.

Plaintiff got out of the body. He was sick, weak and trembling. He went to the men's rest room, about 20 feet away, and vomited. He returned and finished the convertible body. The conveyor had just started to move. Another job came through, but before he could finish it they shut the conveyor down for the day.

Plaintiff sustained injuries to the soft tissue of his back, right leg and hip, neck and head. No bones were fractured. He returned to work for defendant the following Monday, losing two day's time. He testified his work causes him pain. He has continued to earn regular wages.

The sealer department is also referred to as the ramp and the sealer operation as the ramp job.

Defendant had testimony to the feeect that the conveyor stopped and started gradually; that it stopped and started at irregular intervals during the day; that if the conveyor stopped it might cause an automobile body to swing 6 to 12 inches; that it was not possible for it to swing as contended by plaintiff, and that there was no unusual movement of the conveyor at the time involved. Witnesses for defendant also testified that they saw plaintiff as they were leaving the plant after work and plaintiff told them he had slipped on the ramp on the third floor and hurt his knee. Plaintiff denied making the statements.

Defendant contends plaintiff failed to make a submissible res ipsa loquitur case because the evidence permitted of as equally reasonable inferences of a cause or causes of plaintiff's injuries for which defendant was not liable as a cause or causes for which defendant was liable, such as, among others, the movement of the conveyor being the result of an act of a fellow servant, or a latent defect in the mechanism which the defendant had no opportunity to discover.

The Missouri Workmen's Compensation Act explicitly provides that the defenses of negligence of a fellow servant, contributory negligence of the plaintiff, and the risks assumed by the employee 'shall be allowed to an employer who has elected to accept this chapter, if the employee has elected to reject it.' Section 287.080 RSMo 1949, V.A.M.S. Under the statute control by a fellow servant for whose acts the master is not responsible to plaintiff would not be that exclusive control in the master required for a res ipsa loquitur submission.

In Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1003, we said: 'What is a res ipsa loquitur case anyhow? Reduced to simple terms, does it not merely mean that negligence can be proved by circumstantial evidence and that certain circumstances, as to the character of an accident, are sufficient to take the case to the jury'. The basis of the allowable inference 'is the doctrine of probabilities.' (Emphasis ours.) Byers v. Essex Inv. Co., 281 Mo. 375, 219 S.W. 570, 571. The doctrine is a rule of evidence, peculiar to the law of negligence, operating when applicable to make a prima facie case of negligence without direct proof thereof. It excuses a lack of precision in the proof.

In a res ipsa loquitur case the plaintiff has the burden of proving each factual ingredient necessary for a prima facie case. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 563, 92 A.L.R. 641. This includes the burden of prima facie establishing that defendant was negligent. Bond v. St. Louis-San Francisco R. Co., 315 Mo. 987, 288 S.W. 777, 782; Conser v. Atchison, T. & S. F. R. Co., Mo., 266 S.W.2d 587; Sleater v. John R. Thompson Co., Mo.App., 173 S.W.2d 591, 592. A factor bearing on the quantum of proof to make a submissible res ipsa case on defendant's negligence is the duty owed the plaintiff by the defendant.

It is stated in 35 Am.Jur. 920, Master and Servant, Sec. 500: 'Even though the defenses peculiar to the relation of master and servant embodied in the fellow servant rule and the rule as to assumption of risk are not regarded as fatal to the application of the rule res ipsa loquitur in its distinctive sense in all cases between parties in that relation, they necessarily confine the rule in its operation between such parties within narrower limits than when the relation of carrier and passenger is involved. The res ipsa loquitur rule is never to be applied except where the accident not only supports the conclusion of negligence on the part of the defendant, but also reasonably excludes every other, and obviously that condition is not satisfied in the case of a servant if the inference, from the accident and its physical or causes alone, that it was due to negligence for which the master would be responsible to the servant is no stronger or more reasonable than the inference that it was due to the negligence of a fellow servant, or to a risk which the injured servant had assumed for which the master would not be liable.' (Italics ours.) See also Annotation, L.R.A.1917E, 53, 124, 241; 65 C.J.S., Negligence, Sec. 220(8), b, (b), aa, page 1011; 57 C.J.S., Master and Servant, Sec. 501, page 58, notes 24, 25; 38 Am.Jur. 1000, Negligence, Sec. 303.

Missouri cases having the issue for determination are in accord with the above quoted text, as also are cases from other jurisdictions.

In Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 173 S.W. 686, 687, L.R.A.1917E, 233, plaintiff, who was...