Gormly v. Works

• Decision Date: 31 January 1876
• Citation: 61 Mo. 492
• Parties: FRANK GORMLY, Appellant, v. VULCAN IRON WORKS, Respondent.
• Court: Missouri Supreme Court

61 Mo. 492

FRANK GORMLY, Appellant,

v.VULCAN IRON WORKS, Respondent.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Thos. B. Childress, for Appellant, cited Shearm. & Redf. Negl., §§ 102, 104; Brothers vs. Cartter, 52 Mo., 372; Harper vs. Indianapolis & St. L. R. R. Co., 47 Mo., 567; Wright vs. New York Cent. R. R. Co., 28 Barb., 80; Walker vs. Bolling, 22 Ala. St. Rep., 294; Norton vs. Ittner, 56 Mo., 351; Lewis vs. St. L. & I. M. R. R. Co., 59 Mo., 507-508.

Cline, Jamison & Day, for Respondent, cited McDermot vs. Pacific R. R., 30 Mo., 115; Rohback vs. Pacific R. R., 43 Mo., 192; Farwell vs. B. & W. R. R., 4 Met., 49; Morgan vs. The Vale of Neath Railw. Co., 5 Best & S., 570; 33 L. J. Q. B., 260, affirmed in the Ex. Ch. L. R., 1st Q. B., 145; 35 L. J. Q. B., 23.

WAGNER, Judge, delivered the opinion of the court.

The plaintiff brought his action against the defendant, a corporation, to recover damages for injuries which he received whilst in its employment. The injury was received from the bursting of one of the hot ovens or furnaces, and that was caused by the alleged wrongful action of one Withrow who was the general superintendent, in carelessly ordering the fire to be applied in a manner which was sure to produce an explosion. The plaintiff's testimony tended to show that Withrow had for a long time been the superintendent of the works and furnaces in question, and was the only person who exercised any active control over their running and operation; he giving all the orders as to what was to be done, and how done, and employing and discharging the laborers, of whom plaintiff was one. In all things he seems to have acted in the position of master.

At the conclusion of the plaintiff's evidence, the court, upon the request of the defendant, gave an instruction that the plaintiff could not recover. Upon the giving of this instruction, the plaintiff took a non-suit with leave to move to set the same aside, and the court having refused to set the non-suit aside, plaintiff appealed.

The only argument advanced in support of the ruling of the court is, that plaintiff was a fellow-servant with Withrow, and therefore is precluded from maintaining this action. It is hardly necessary to repeat what has been so often adjudged, that where injuries to servants or laborers happen through the negligence or misconduct of a fellow-servant, no action therefor will lie against the master, unless the fellow-servant is not possessed of ordinary skill and capacity in the business entrusted to him, and, unless his employment is attributable to the want of ordinary care on the part of the master. But can this rule be made applicable in the present case? From the plaintiff's evidence it appears that Withrow was the general and sole superintendent; that he exercised a supervision over the entire work and gave directions for carrying it on in all its details. The laborers were hired and discharged by him, and acted under his immediate authority. He was thus the direct agent of the principal, and what was done by him was done by the principal. He was invested with authority to act instead of his master, and the servants were bound to obey him, and his acts were therefore the acts of his superior. He was not a co-servant or co-laborer within the meaning of those terms, but he was the authorized mouthpiece, executive officer and interpreter of the will of his immediate principal. (Harper vs. I. & St. L. R. R. Co., 47 Mo., 567; Lewis vs. St. L. & I. R. R. Co., 59 Mo., 495.)

In the case of Brothers vs. Cartter, (52 Mo., 372) the action was brought to recover damages for an injury received in falling from a bridge which the defendants were constructing, and which, it was alleged, happened in consequence of insufficient material furnished by defendants. They did not personally have charge of the work, and what they knew of its character and conditions was from being about it occasionally during its progress. The duties of purchasing and...