Gordner v. St. Louis Screw Co.
| Decision Date | 08 April 1919 |
| Citation | 210 S.W. 930,201 Mo.App. 349 |
| Parties | CHARLES E. GORDNER, Respondent, v. ST. LOUIS SCREW CO., Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Wilson A. Taylor, Judge.
AFFIRMED.
Judgment affirmed.
Jourdan Rassieur & Pierce for appellant.
(1) A master is liable for the negligent act of the servant only when the negligent act itself is within the scope of the employment, and the fact that the servant acted voluntarily for the supposed benefit of the master does not render the master liable. Farber v. Railroad, 32 Mo.App. 378; Snyder v. Railroad, 60 Mo. 413; Walker v Railroad, 121 Mo. 575; Hartman v. Muehlebach, 64 Mo.App. 565; Wyllie v. Palmer, 137 N.Y. 248; Guthrie v. Holmes, 198 S.W. 854; Marion v Railroad, 59 Iowa 429; Healy v. Patterson, 123 Iowa 73; Brown v. Jarvis Engineering Co., 166 Mass. 75; Wiltse v. State Road Bridge Co., 63 Mich. 639. (2) When injury results from the use of a vehicle, or other instrumentality, used by the servant and not furnished by the master, the master is liable only when the contract of employment requires the servant to use such instrumentality in the service of the master, or where the nature of the servant's duties under the employment is such that the use of such instrumentality is necessary to its proper performance. 6 Labatt on Master & Servant, sec. 2282; Jackson v. Robinson & Co., 7 Ky. Law Reporter 743; Wilson v. Railroad, 63 N.J.L. 385; Gewanski v. Ellsworth, 164 N.W. 996; Railroad v. Robinson, 173 S.W. 822; Lewis v. National Cash Register Co., 84 N.J.L. 598; Phillips v. Western Union Tel. Co., 270 Mo. 676; Carl Corper Brewing, etc., Co. v. Huggins, 96 Ill.App. 144.
Kinealy & Kinealy for respondent.
(1) On demurrer to the evidence plaintiff is entitled to every favorable inference to be drawn from the evidence. Knorpp v. Wagner, 195 Mo. 137; Enloe v. Car & Foundry Co., 240 Mo. 443. (2) The master is liable for the negligence of the servant within the scope of his employment, which includes all acts pertaining to or implied from his duties. 26 Cyc. 1518 tit. Mast. & Serv.; 18 R. C. L. 794-5, tit. Mast. & Serv.; Ephland v. Railroad, 137 Mo. 187; Barnes v. Railroad, 192 S.W. 1041; Green v. Standard Oil Co., 199 S.W. 746; Meux v. Haller, 179 Mo.App. 466. (3) The duties and scope of employment may be implied from the conduct of the parties; Kirkpatrick v. Pease, 202 Mo. 470; Moran B. & N. Co. v. St. L. Cav. Co., 210 Mo. 715; Laclede Co. Co. v. Moss Tie Co., 185 Mo. 25; Lillard v. Wilson, 178 Mo. 145; Law Reporting Co. v. Grain Co., 135 Mo. 10; Reilly v. Railroad, 94 Mo. 600; Meux v. Haller, 179 Mo.App. 466; Weinsberg v. Cordage Co., 135 Mo.App. 553; Busch v. Busch, 81 Mo.App. 562; Patton v. Rea, 2 C. B. N. S. 606; Lovington v. Bauchens, 34 Ill.App. 544; Williams v. Nat. Cash Reg. Co., 157 Ky. 836; Lewis v. Nat. Cash Reg. Co., 84 N.J.L. 598; Singer Mfg. Co. v. Rahm, 132 U.S. 518; Standard Oil Co. v. Parkinson, 82 C. C. A. 29; Waters v. Pioneer Fuel Co., 52 Minn. 474; Turcotte v. Ryan, 39 Can. S. P. 8. (4) It is for the jury to draw inferences from the testimony. Guthrel v. Guthrel, 153 Mo.App. 215. (5) An act may be within the scope of the servant's employment, although it be unnecessary, or not required by the master, or even contrary to his orders. Chandler v. Gloyd, 217 Mo. 394; Moore v. Light Co., 163 Mo.App. 266; Shamp v. Lambert, 142 Mo.App. 567; Collett v. Rebori, 107 Mo.App. 711; Gibson v. Dupree, 26 Col. App. 324. (6) The discretion given a servant in and about the performance of his duty is to be considered in determining whether an act is within the scope of his employment. Canfield v. Railroad, 59 Mo.App. 354; Railroad v. Baugh, 149 U.S. 368; Barmore v. Railroad, 85 Miss. 426.
Plaintiff, respondent here, instituted this action against the St. Louis Screw Company, a corporation, appellant here, and one Edward Mongrain, to recover damages for personal injuries sustained by plaintiff resulting from a collision between an automobile owned and operated by defendant Mongrain and a wagon driven by plaintiff. At the time of the collision defendant Mongrain was in the employ of his codefendant, the St. Louis Screw Company, as its master mechanic at a plant operated by that company in the city of St. Louis, and liability is asserted against that company upon the theory that Mongrain was acting within the scope of his employment as the company's servant at the time of plaintiff's injury. The trial, before the court and a jury, resulted in a verdict and judgment against both defendants in the sum of $ 4000. From this judgment the defendant St. Louis Screw Company alone has appealed.
The evidence shows that at the time of respondent's injury, to-wit, November 7, 1916, and for a long time prior thereto, the appellant owned and operated two plants in the city of St. Louis; one, termed the "north plant," was located at Prescott and Keber Streets, one block east of Broadway, while the other, termed the "south plant," was located on Clarence Avenue, a little more than a block east of Broadway, and nine or ten blocks south of the north plant. The north plant was a rolling mill, having in connection therewith a blacksmith shop, facilities for welding and other mechanical equipment. The south plant, at which was appellant's main office, was a screw factory.
Plaintiff was injured shortly before 5:40 P. M., on the day above mentioned. He was driving his horse and wagon northwardly on Prescott Avenue, between Broadway and appellant's south plant, crossing Clarence Avenue, a street extending east from Broadway to this south plant, when his wagon was struck by the automobile driven by Mongrain who was proceeding east on Clarence Avenue. The evidence touching the alleged negligence of Mongrain in operating the automobile, and the conduct of plaintiff in driving his wagon need not be stated, since upon this appeal, of the St. Louis Screw Company, no question is raised respecting these matters.
The evidence shows that as appellant's master mechanic Mongrain had under him a number of departments compromising defendant's north plant, or rolling mill. One English, Mongrain's immediate superior, was appellant's superintendent at the north plant, and next in authority above him was one Burgess, appellant's general manager. Mongrain testified that his duties, in general, were to repair machinery and try to keep the north plant in running order. English testified that Mongrain's duties, "in a general way," were "to take care of the machinery and keep it in running order, and to assist in new constructions and so forth--mechanical work."
On the day of plaintiff's injury two small castings, used upon a machine constituting a part of the equipment of the south plant, had been sent from the latter plant to the north plant to be repaired. The work of making such repairs was under Mongrain's supervision; but after any piece of machinery from the south plant had been repaired in the north plant it was usually turned over to the "storekeeper" of the latter plant to be delivered by him to some one sent from the south plant to receive it. Upon the occasion in question, at about five o'clock that afternoon, one Hollerman, foreman of the south plant, telephoned to Mongrain inquiring whether the repairs upon these castings had been completed. Mongrain told him that the castings would be ready within a few minutes; whereupon Hollerman said that he would send a boy for them. Mongrain thereupon said that it would not be necessary to send for them as he was going home soon and would take the castings to the south plant on his way home. It appears that Mongrain lived on north Grand Avenue and that to go home he would proceed south on Broadway, as far as Clarence Avenue, and that consequently to take these castings to that plant would require a deviation from his route of only about one block east from Broadway. He owned an automobile which, it appears, he had purchased in August of that year. He used this automobile in going to and from his work, used it whenever he was called out to the north plant at night to make repairs, as occasionally happened, and also used it at times in making trips to the south plant when his work required him to go there for any purpose. And he testified that he had used the machine, "once or twice" to deliver and call for castings upon which appellant had had machine work done outside of its plants.
It appears that Mongrain was allowed considerable discretion with respect to his movements and the performance of his duties. English testified that Mongrain was accustomed to go to the south plant whenever he desired--"whenever the occasion might demand to Mr. Mongrain's notion;" that if Mongrain desired to go from the north plant to the south plant he sometimes asked permission and sometimes did not; that he "used his own pleasure."
It was shown in evidence, however, that appellant had provided facilities for transporting articles from one plant to another; that heavy articles were taken in trucks, and that ordinarily light articles, such as these castings, were carried by messenger boys.
The evidence shows that on the afternoon in question Mongrain, a few minutes before "quitting time," viz., 5:40 P M., put these castings into his automobile, which was then standing in the street near the north plant, and drove south upon Broadway, turning east upon Clarence Avenue, to the point of the collision near the south plant. After striking plaintiff's wagon, and finding that plaintiff was injured, Mongrain went into the south plant where he procured assistance and delivered the casings. It is said that the collision occurred about two or three...
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