Gens v. Wagner Electric Mfg. Co.

• Decision Date: 14 October 1930
• Parties: Emma Gens, Appellant, v. Wagner Electric Manufacturing Company and Wagner Electric Corporation
• Court: Missouri Supreme Court

31 S.W.2d 785

326 Mo. 503

Emma Gens, Appellant, v. Wagner Electric Manufacturing Company and Wagner Electric Corporation

Supreme Court of Missouri

October 14, 1930

Appeal from St. Louis County Circuit Court; Hon. John W McElhinney, Judge.

Affirmed.

Jos C. McAtee and Claude C. Findly for appellant.

(1) The demurrer should have been overruled. Obermeyer v Logeman, 120 Mo.App. 59, 229 Mo. 96. (2) Where concurring negligence is shown, either or both tortfeasors are liable. Newcomb v. Railroad Co., 169 Mo. 422, 182 Mo. 687; Bragg v. Railroad Co., 192 Mo. 359; Harrison v. Light Co., 195 Mo. 623; Vogelsang v. St. Louis, 139 Mo. 127; Berry v. Railroad, 214 Mo. 598. (3) Where injury is due to playfulness or any act of a fellow employee, not in line of his employment, if this is not the sole cause of the injury, and plaintiff was in the exercise of ordinary care, she is entitled to recover. Bassett v. St. Joseph, 53 Mo. 290; Carterville v. Cook, 129 Ill. 152. (4) Repeated acts of negligence or habitual carelessness are evidence of negligence, warranting a submission to the jury. Tucker v. Telephone Co., 132 Mo.App. 418; Isaacs v. Smith, 275 S.W. 558. (5) Where it is shown that the co-employee is a person of dangerous character and he was retained by the employer with knowledge thereof, it accords with principle to permit the injured employee to recover. 18 R. C. L. 810, sec. 264; Lamb v. Littman, 128 N.C. 361; 53 L. R. A. 852; Railroad Co. v. Day, 34 L. R. A. (N. S.) 111; 26 Cyc. 159. (6) Knowingly and wantonly retaining a careless and brutal employee, after knowledge of his habits brought home to the company, or to a superintending agent, and injury therefrom, may, and ought to, render the company amenable to the severest rule of damages. Cleghorn v. Railroad, 56 N.Y. 44; Perkins v. Railroad, 55 Mo. 202. (7) Knowledge of careless habits are to be imputed to defendant. McDermott v. Railroad, 87 Mo. 285. (8) Even if it appears that the unlawful act of the employee was in no proper sense incident to the servant's employment, yet the plaintiff is entitled to recover if there was a ratification by the master. 4 LeBatt's Master and Servant, sec. 1466; Richard v. Mfg. Co., 8 A. L. R. 1429. (9) The relationship and consequent duty continued during the noon hour. Ellsworth v. Metheny, 51 L. R. A. 389.

A. E. L. Gardner and Charles A. Houts for respondents.

(1) The act of Summerlad in pulling the chair from under Miss Gens was an act outside the scope of his employment, at a time when he was not performing any of the duties of his employment, and the defendants are not liable for the consequence thereof. Wolff v. Terminal Railroad, 282 Mo. 563; Snyder v. Railroad, 60 Mo. 413; Maniaci v. Express Co., 266 Mo. 643. (2) Summerlad's act in pulling the chair from under Miss Gens was a thoughtless joke or prank, for which the defendants are not liable. Smith v. Telegraph Co., 232 S.W. 482; Phillips v. Telegraph Co., 270 Mo. 676. (3) It was an act committed while both Summerlad and Miss Gens were off duty, and for such an act the defendants are not liable. Evans v. Automobile Co., 121 Mo. 277; Garretzen v. Duenckel, 50 Mo. 104; Harrington v. Mfg. Co., 240 Mass. 170; 13 C. J. 1296. (4) Neither could plaintiff recover against the defendants because of the "greasy" condition of the floor, because: (a) The petition does not charge that the "greasy" condition of the floor contributed to causing the chair to slip from under the plaintiff. (b) There is no evidence that the chair was caused in part to slip by reason of the greasy condition of the floor. (c) If the floor became greasy it was through the act of plaintiff in throwing the strippings on the floor, as to which act there was no evidence that it was done at the direction of her superiors. She could not recover because the work she was doing created the greasy condition. 39 C. J. 710, 711; Brown v. Conners, 149 Wis. 403; Vernon Cotton Oil Co. v. Catron, 137 S.W. 404; Riley v. Neptune, 181 Ind. 228. (d) The practice of throwing the stripping on the floor and the consequent greasy condition of the floor were known to plaintiff for a year and a half prior to her injury and the risk if any, was assumed by her. (5) The plaintiff, by continuing for a year and a half at the work she was engaged in doing at the time of her injury, with full knowledge of the condition of the floor, which condition was created by her, assumed whatever risk there was of injury resulting from that condition. Marlowe v. Kilgen, 252 S.W. 424; Hailacek v. Iron Works, 229 S.W. 803; Chrismer v. Telephone Co., 194 Mo. 189; Haviland v. Railroad, 172 Mo. 106; Bradley v. Railroad, 138 Mo. 293; Beasley v. Transfer Co., 148 Mo. 413; Winkler v. St. Louis etc. Co., 137 Mo. 394; Wulfert v. Murch Bros., 232 S.W. 243; Jones v. Cooperage Co., 134 Mo.App. 324. (6) The plaintiff's injury, received under the unusual circumstances in evidence, was one which the defendants, in the exercise of ordinary care, could not have anticipated, and in such a case the defendants cannot be said to have been negligent. Zasemowich v. Am. Mfg. Co., 213 S.W. 799; State ex rel. v. Allen, 291 Mo. 214; State ex rel. v. Ellison, 271 Mo. 463; Fuchs v. St. Louis, 167 Mo. 620; Majors v. Ozark Co., 205 Mo.App. 342; Wagner v. Railroad, 209 Mo.App. 127; Luehrmann v. Gas Light Co., 127 Mo.App. 213; Brubaker v. Electric Light Co., 130 Mo.App. 439; Hoepper v. Hotel Co., 142 Mo. 388.

OPINION

Atwood, J.

Wagner Electric Manufacturing Company, a corporation, and Wagner Electric Corporation were sued by Emma Gens for damages in the sum of $ 36,577.94 on account of personal injuries alleged to have been sustained by her through their negligence. Defendants' answer was a general denial. At the close of plaintiff's case the court gave an instruction in the nature of a demurrer to the evidence. Plaintiff thereupon took an involuntary nonsuit with leave to move to set the same aside. Such a motion was filed and overruled, and plaintiff has perfected her appeal to this court.

Plaintiff's petition charged that on or about the 21st of March, 1922, she was employed in repairing and rewinding armatures for defendants, and while so employed at defendants' factory at her usual place of work and at the place provided by defendants for plaintiff and other employees to eat lunch and spend lunch time, and just prior to the blowing of a whistle calling plaintiff to resume her work, while sitting at her work bench and on the chair provided by defendants, the defendants "through and by Arthur Summerlad, a person employed at said time and for some time prior and subsequent thereto by defendants, in the same department and room as the plaintiff, caught hold of, shoved, pulled, jerked, hit and shook the chair in which plaintiff was sitting on, causing said chair to slide, topple and fall over and from under plaintiff, causing plaintiff to be precipitated and thrown violently to the floor of said room, by which she suffered and sustained injuries as hereinafter specified." The specifications of negligence were that "Summerlad was incompetent, negligently and habitually careless and continually guilty of horseplay and roughness in play towards the ones in contact with him in his work and in said room provided by defendants," and was an improper and dangerous person to be placed in contact and association with other employees and particularly plaintiff, of which characteristics defendants knew or by the exercise of ordinary care could have known; that defendants "failed and neglected to provide, formulate, publish and bring to the notice of their employees rules and regulations covering the conduct and behavior of employees towards one another at the place of eating and during the rest period provided by the said defendants to their employees, when by the exercise of ordinary care, such rules and regulations could have been provided, formulated, published and brought to the notice of their employees, and particularly to said Arthur Summerlad, in time to have prevented the accident complained of herein;" that "defendants were negligent, in that defendants furnished plaintiff with a chair or stool to sit upon which was a dangerous and unfit chair, in that said chair was a great deal higher than the average, usual and customary chair, with long, spindle narrow legs with a narrow span at the base, and was such a chair as was liable to topple or fall over when said chair was pulled, jerked or hit by anyone; that as a result thereof, when said chair was hit while plaintiff was sitting thereon, by said Arthur Summerlad, the same was caused to topple over and fall over and slide, thereby causing plaintiff to fall to the floor and causing her to be injured;" that defendants required plaintiff to eat in the room where she was working, but failed to provide a safe and suitable place in which to spend her lunch time of thirty minutes "in that the room where she was required to eat was a repair room in which oil and grease were used and the said oil and grease fell upon and was collected upon the floor, making the same slippery and unsafe and causing the portable chairs used by employees at lunch and work time to be liable to slip and topple over, and that as a result of said negligent failure of defendants to furnish plaintiff with a reasonably safe place in which to eat her dinner and spend her lunch time of thirty minutes, she was placed in a position of danger, and when said Arthur Summerlad caught hold of, shoved, pulled, jerked, hit and shook the chair on which she was sitting, the same was caused to slip and slide over, causing her to be precipitated to the floor and injured as hereinafter stated." The injuries alleged and proved were serious and probably permanent.

From plaintiff's evidence it appears that s...