Gardner v. Stout

• Decision Date: 17 September 1938
• Docket Number: 35023
• Parties: J. W. Gardner v. Charles Banks Stout, Warda Stevens Stout, Alice Adeline Stout, Doing Business as Majestic Flour Mills Company, and Leslie Schroeder, Appellants
• Court: Missouri Supreme Court

119 S.W.2d 790

342 Mo. 1206

J. W. Gardner v. Charles Banks Stout, Warda Stevens Stout, Alice Adeline Stout, Doing Business as Majestic Flour Mills Company, and Leslie Schroeder, Appellants

No. 35023

Supreme Court of Missouri

September 17, 1938

Appeal from Lawrence Circuit Court; Hon. Emory E. Smith Judge;

Reversed and remanded as to appellant Schroeder and reversed as to other appellants.

E J. McNatt, R. K. McPherson, Arthur W. Allen and Paul W. Barrett for appellants.

(1) The trial court erred in refusing the defendants' demurrer at the close of the plaintiff's evidence and at the close of all the evidence because it affirmatively appears that if the plaintiff has a claim or cause of action against the defendants it is under the Workmen's Compensation Law of Missouri and not a common-law action for damages. The defendants properly pleaded as a defense to the plaintiff's cause of action that his claim against them if any, was under the Missouri Workmen's Compensation Act. Warren v. Amer. Car & Foundry Co., 327 Mo. 755, 38 S.W.2d 718; Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330; Downey v. Kansas City Gas Co., 92 S.W.2d 580. The defendants, doing business as the Majestic Flour Mills Company, employed ninety employees, including the plaintiff J. W. Gardner. Neither the employer nor the employee had rejected the Workmen's Compensation Act and they are conclusively presumed to have accepted the act. Secs. 3300 3301, R. S. 1929; Hope v. Barnes Hospital, 227 Mo.App. 1055, 55 S.W.2d 319; Walker v. Sheffield Steel Corp., 224 Mo.App. 849, 27 S.W.2d 44. When the employer and employee come within the Workmen's Compensation Act all other rights and remedies theretofore existing in favor of the employee are excluded and the employee's right to sue at common law for pain and suffering is destroyed. Sec. 3301, R. S. 1929; Sylcox v. Natl. Lead Co., 38 S.W.2d 497; Holder v. Elms Hotel Co., 92 S.W.2d 620; Hughes v. Maryland Cas. Co., 76 S.W.2d 1101; Stotsckey v. Shell Pipe Line Corp., 226 Mo.App. 861, 46 S.W.2d 955; Howes v. Stark Bros. Nurseries & Orchards Co., 223 Mo.App. 793, 22 S.W.2d 839; Blaine v. Huttig Sash & Door Co., 105 S.W.2d 946. The assault on the plaintiff, J. W. Gardner, by the defendants' foreman, Leslie Schroeder, was an accident arising out of and in the course of his employment compensable under the Workmen's Compensation Law of Missouri; and the court should have so declared by sustaining the defendants' demurrer at the close of the plaintiff's evidence and at the close of all the evidence. Keithley v. Stone & Webster Eng. Co., 226 Mo.App. 1122, 49 S.W.2d 296; Pearce v. Modern Sand & Gravel Co., 99 S.W.2d 850; Gillmore v. Ring Const. Co., 227 Mo.App. 1217, 61 S.W. (2d), 764; Odell v. Lost Trail, Inc., 100 S.W.2d 289; Davis & Son v. Ruple, 222 Ala. 52, 130 So. 772; Lacher v. Roxana Pet. Co., 40 Ohio App. 444, 179 N.E. 202; Early-Stratton Co. v. Rollison, 300 S.W. 569; Zygmuntowicz v. Am. Steel & Wire Co., 240 Mass. 421, 134 N.E. 385; Perry v. Beverage, 121 Wash. 652, 209 P. 1102; Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330. It is ordinarily held that if an employee is injured on the premises of the employer in going to or from work he is entitled to compensation for such injuries. The employment is not limited to the exact moment when the workman reaches the place where he begins his work or to the moment when he ceases his work. It necessarily includes a reasonable amount of time and space before and after ceasing actual employment, having in mind all the circumstances connected with the accident. Wabash Railroad Co. v. Ind. Comm., 128 N.E. 290; Jeffries v. Pittman-Moore Co., 147 N.E. 919; Indian Hill Golf Club v. Ind. Comm., 140 N.E. 871; Field v. Scharmetti, 156 N.E. 642; Deman v. Hydraulic Eng. Co., 159 N.W. 380; Payne v. Wall, 132 N.E. 707; Behr v. Ind. Comm., 14 P.2d 915; Bountiful Brick Co. v. Giles, 276 U.S. 154, 72 L.Ed. 507; Texas Employers' Assn. v. Bolcher, 53 S.W.2d 327; Metting v. Lehr Const. Co., 32 S.W.2d 121; Howes v. Stark Bros. Nurseries & Orchards Co., 223 Mo.App. 793, 22 S.W.2d 839. This same rule applies when an employee has either been discharged or has voluntarily quit the service of his employer and a reasonable time must elapse for him to leave the premises before the Workmen's Compensation Law becomes inoperative, and if an accident happens to an employee while leaving the premises of his employer, within a reasonable time after his discharge or his voluntary termination of the services, then the injuries arising from such accident are compensable. Davis & Son v. Ruple, 222 Ala. 52, 130 So. 772; Lacher v. Roxana Pet. Co., 40 Ohio App. 444, 179 N.E. 202; Early-Stratton Co. v. Rollison, 300 S.W. 569; Zygmuntowicz v. Am. Steel & Wire Co., 240 Mass. 421, 134 N.E. 385; Perry v. Beverage, 121 Wash. 652, 209 P. 1102. (2) The trial court erred in refusing the defendants' demurrers and in submitting the plaintiff's case to the jury under Instruction 1 for the reason that there is no evidence that the defendants' foreman, Leslie Schroeder, was a habitually violent foreman or that the defendants had knowledge of any such characteristics or propensities on the part of the foreman. Admittedly, the general rule is that the master or employer is civilly liable for an assault by an employee on a fellow employee if the act is from its nature in the scope of his employment and pertains to the duties or business of the employment. Or, if the assault is an act of superintendence by a vice-principal, and is in furtherance of the employer's business. Compher v. Telephone Co., 127 Mo.App. 553, 106 S.W. 536; Sooby v. Postal-Telegraph Cable Co., 217 S.W. 877; Gray v. Phillips Bldg. Co., 51 S.W.2d 181; Scott v. St. L.-S. F. Ry. Co., 52 S.W.2d 459; 8 A. L. R. 1432; 9 L. R. A. (N. S.) 475; 14 L. R. A. 737; Jones v. St. Louis Pocket Co., 43 Mo.App. 398. The rule is based on the agency doctrine of respondeat superior and applies to assaults by employees on third persons as well as to assaults on fellow employees. Smothers v. Welch & Co. House Furnishing Co., 310 Mo. 144, 274 S.W. 678; Rohrmoser v. Household Fin. Corp., 86 S.W.2d 103; Priest v. Woolworth Five & Ten Cent Store, 62 S.W.2d 926; Chisholm v. Berg, 78 S.W.2d 486. The rule is usually applied where the master authorizes the use of force or the nature of the employee's duties are such as are usually accompanied by the use of force. 1 Restatement of Law of Agency, sec. 245. The assault complained of, however, must have been committed in the scope of the employee's employment and in the prosecution of the employer's work, or ratified by the employer. Haehl v. Wabash Ry., 119 Mo. 325, 24 S.W. 737; State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W.2d 801. But, when the plaintiff bases his cause of action on the theory that the defendants negligently employed a habitually incompetent or vicious employee he must allege and prove; (a) that the employee, whose negligence or incompetence caused the injury was habitually negligent or incompetent; (b) that the injury was caused by the same character of negligence or incompetence, of which the evidence shows the employee to have been habitually guilty, or that his incompetency was of the same character shown in the particular case; (c) that the fact of habitual negligence or incompetence of the employee was known, or by the exercise of reasonable care should have been known, by the defendants at the time of the employment, or that such knowledge was or should have been acquired prior to the injury, and (d) that the employer, after actual or constructive knowledge that the employee was habitually negligent or incompetent, either employed or retained the employee. Sustar v. Bambrick Bros. Const. Co., 179 Mo.App. 495, 162 S.W. 730; Burns v. McDonald Mfg. Co., 213 Mo.App. 640, 252 S.W. 984; Isaacs v. Smith, 275 S.W. 555; Grube v. Mo. Pac. Ry. Co., 98 Mo. 330, 11 S.W. 736; Reed v. Koch, 220 Mo.App. 175, 282 S.W. 515; Allen v. Lumber Co., 171 Mo.App. 492, 157 S.W. 661; Murroz v. Amer. Car & Foundry Co., 296 S.W. 228; Houston v. Amer. Car Foundry Co., 282 S.W. 170; Proctor v. St. J. Ry. Co., 64 Mo. 112. A single act of negligence or incompetence does not prove habitual incompetence of the employee or knowledge or ratification on the part of the employer. Houston v. Amer. Car Foundry Co., 282 S.W. 170; Gratten v. Suedmeyer, 144 Mo.App. 719, 129 S.W. 1058; Tucker v. Telephone Co., 132 Mo.App. 418, 112 S.W. 6; Lee v. Detroit Bridge Co., 62 Mo. 565; Ann. Cas. 1912C, 96; 14 L. R. A. (N. S.) 765. (3) The verdict for $ 10,000 actual damages and $ 10,000 punitive damages is so excessive, in view of the injuries shown, as to demonstrate that it was the result of passion and prejudice on the part of the jury and the trial court should have set the verdict aside. Partello v. Mo. Pac. Ry. Co., 217 Mo. 645, 117 S.W. 1138; Jones v. St. L.-S. F. Ry. Co., 287 Mo. 80, 228 S.W. 780; Adams v. Mo. Pac. Ry. Co., 100 Mo. 555, 128 S.W. 637; Bente v. Finley, 83 S.W.2d 155; 39 L. R. A. (N. S.) 1064. When a verdict is so excessive as to show that it was the result of passion and prejudice it is the duty of the trial court to set it aside. Chlanda v. Transit Co., 213 Mo. 244, 112 S.W. 249; Morrell v. Lawrence, 203 Mo. 363, 101 S.W. 571; Devine v. St. Louis, 257 Mo. 470, 165 S.W. 1014; Rigby v. St. Louis Transit Co., 153 Mo.App. 330, 133 S.W. 110; Ostrander v. Messmeu, 315 Mo. 1165, 289 S.W. 609. It is the duty of the trial court to set aside an excessive verdict for exemplary or punitive damages as well as an excessive verdict for compensatory damages. State ex rel. v. Ellison, 268 Mo. 225, 186 S.W. 1075; Smith v. Atchison, T. & S. F. Ry. Co., 194 S.W. 71; Hardy v. Lewis Automobile Co., 297 S.W. 169; Hunter v. Kansas City Rys. Co., 248 S.W. 998; 4 Sedgwick, Damages (9...