Graczak v. St. Louis

• Decision Date: 21 April 1947
• Docket Number: No. 39958.,39958.
• Citation: 202 S.W.2d 775
• Parties: FRED GRACZAK v. THE CITY OF ST. LOUIS, a Municipal Corporation, Appellant.
• Court: Missouri Supreme Court

202 S.W.2d 775

FRED GRACZAK v. THE CITY OF ST. LOUIS, a Municipal Corporation, Appellant.

No. 39958.

Supreme Court of Missouri.

Division Two, April 21, 1947.

Motion for Rehearing or to Transfer to Banc Overruled, June 9, 1947.

Appeal from Circuit Court of City of St. Louis. — Hon. Joseph J. Ward, Judge.

REVERSED.

George L. Stemmler, City Counselor, Harry R. Stocker, Associate City Counselor, and Kenneth W. Grattendick, Assistant City Counselor, for appellant.

(1) Under the law of this state, except as modified by statute in specific types of employment, a master is not liable to his servant for injuries caused by the negligent act of a fellow-servant, and a servant so injured has the burden of proving the absence of the fellow-servant relationship. Richardson v. Mesker, 171 Mo. 666, 72 S.W. 506; Burge v. American Car & Foundry Co., 274 S.W. 842; English v. Roberts, Johnson & Rand Shoe Co., 145 Mo. App. 439, 122 S.W. 747; State ex rel. Kroger v. Haid, 323 Mo. 9, 18 S.W. (2d) 478; Parker v. Nelson Grain & Milling Co., 330 Mo. 95, 48 S.W. (2d) 906; Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W. (2d) 886; 35 Am. Jur. 760, sec. 334.

Everett Hullverson for respondent; Orville Richardson of counsel.

(1) Defendant had a continuing, non-delegable duty to furnish plaintiff with a safe working place and keep it safe. Defendant's cases are distinguishable because they involve situations where no rules or customs were proven. The case at bar presents an exception to the fellow servant doctrine, itself an exception to the rule of respondeat superior. Gettys v. American Car & Foundry Co., 322 Mo. 787, 16 S.W. (2d) 85; Carter v. Wolff, 296 S.W. 187; Bright v. St. L. Vitrified & Fire Brick Co., 201 S.W. 641; Cook v. Atlas Portland Cement Co., 214 Mo. App. 596, 263 S.W. 1027; Bequette v. Pittsburgh Plate Glass Co., 200 Mo. App. 523, 207 S.W. 852; Bentley v. American Car & Foundry Co., 13 S.W. (2d) 562; Knight v. American Mfg. Co., 264 S.W. 89; Wiley v. Central Coal & Coke Co., 250 S.W. 619; Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S.W. 481; Snyder v. American Car & Foundry Co., 322 Mo. 147, 14 S.W. (2d) 603; Bender v. Kroger G. & B. Co., 310 Mo. 448, 276 S.W. 405; Johnson v. American Car & Foundry Co., 259 S.W. 442; Strother v. K.C. Milling Co., 261 Mo. 1, 169 S.W. 43; Johnson v. Waverly Brick & Coal Co., 276 Mo. 42, 205 S.W. 615; Enloe v. American Car & Foundry Co., 240 Mo. 443, 144 S.W. 852; Landcaster v. Natl. Enameling & Stamping Co., 1 S.W. (2d) 238; Chulick v. American Car & Foundry Co., 199 S.W. 437; Lewis v. Wabash R. Co., 142 Mo. App. 585, 121 S.W. 1090; Kettlehake v. American Car & Foundry Co., 171 Mo. App. 528, 153 S.W. 552; Hjelm v. Western Granite Contracting Co., 94 Minn. 169, 102 N.W. 384; Fitzgerald v. International Flax Twine Co., 104 Minn. 138, 116 N.W. 475; Anderson v. Pittsburgh Coal Co., 108 Minn. 455, 122 N.W. 794; Averson v. Boston Coal, Dock & Warf Co., 128 Minn. 178, 150 N.W. 810; Ondis' Adm'x. v. Great Atl. & Pac. Tea Co., 82 N.J.L. 511, 81 Atl. 856; Cook v. Camp Mfg. Co., 183 N.C. 48, 110 S.E. 608, 610, s.c. 182 N.C. 205, 108 S.E. 730; Maness v. Clinchfield Coal Corp., 128 Tenn. 143, 162 S.W. 1105; Murray v. Houston Car Wheel & Machine Co., 222 S.W. 219; 35 Am. Jur. 782; 39 C.J. 634; 4 Labatt, Master & Servant (2d Ed.), p. 4487. (2) In any event, the fellow servant doctrine should be repudiated as no longer the public policy and common law of Missouri. It was never an integral part of the common law. The reasons of expediency, convenience and public policy by which it was engrafted upon the common law as an exception to the ancient rule of respondeat superior are either no longer valid or have been proven false. 4 Labatt, Master & Servant (2d Ed.), 4024-4034.

BOHLING, C.

The City of St. Louis appeals from a judgment of $13,000 in favor of Fred Graczak for personal injuries sustained while in defendant's employ. Defendant contends the fellow servant rule precludes recovery; that plaintiff was contributorily negligent as a matter of law; that plaintiff's main instruction was erroneous, and that the damages are excessive.

Plaintiff, a blacksmith, and Frank Boubek, his helper, had worked together for over three years as employees of defendant in its blacksmith shop at the Baden pumping station. They were fully qualified men. They had been punching holes in each end of some iron links (28 inches long, 3/8 th inches thick and 2-¾th inches wide) to be used on movable water screens at the Missouri river. A steam hammer and a die were used. The hammer was a large heavy machine, with a heavy anvil resting on a base, and a hammer above, capable of striking a 2-foot or longer blow with terrific force, "like a shot out of a cannon." It was operated by two levers at the side of the machine, which controlled the length and force of the blow. The die box was about 8 inches square, weighed about 60 pounds, had a slot or guide for the punch, and an arm or template on which the link would be placed to insert it in the die box. There was evidence that in addition to oral signals, signals would be given by the hand and head in doing the work; the holding out the right hand signaled a stop or halt, while a nod of the head was the signal for the hammer to punch the hole. Boubek would dip the steel punch, about 4-½ inches long and 7/8 th of an inch in diameter, in white lead and oil and then work it up and down in the die box to prepare it, including the part that would be beneath the link after it was inserted in the die box. The white lead preserved the tool, aided in cutting the hole cleanly and without burrs on the underside, and thus was used about every tenth punch and whenever the die was changed. Boubek, after preparing the punch and die box with white lead and resting the punch on the link and inserting it in the guide, would take his position at the levers at the side of the machine. Plaintiff would hold the box and link in proper place by the die box arm, using both hands and standing in front of the hammer. The two men would be facing in each other's direction and, say, 3 feet apart. Upon plaintiff's signal, Boubek would operate the levers and the hammer would drive the punch through the link and drop it and the punched out slug into the die box.

On the afternoon of August 30, 1944, plaintiff and Boubek had only a few more links to finish their work on something over 300 links. A new die box was on the anvil under the hammer, and the punch had been inserted. The men were at their stations. Plaintiff noticed there was no white lead on the punch. He testified he said: "Halt, we have got to put some white lead on this thing here," and put out his right hand, signaling a halt. Plaintiff reached in with his left hand to take the plunger out when the hammer came down upon his hand, injuring it. Plaintiff testified Boubek could see everything that was going on. Boubek testified that, in his usual position at the levers, he could not see plaintiff's left hand; that he did not hear or see any signal given by plaintiff; that he took a practice swing to get his distance with the hammer, which, according to the record and as stated in plaintiff's brief, was unusual, and thus caused plaintiff's injury. The blow did not punch a hole in the link.

Plaintiff's trial theory was that defendant breached its nondelegable duty to provide plaintiff with a reasonably safe place to work in that Boubek's failure to heed and to give customary signals and warnings was defendant's negligence. He says, should he be in error, that the "fellow servant rule" should be repudiated as contrary to the existing public policy of the State of Missouri.

[1] Defendant, invoking the "fellow servant rule," contends Boubek's negligence was merely incidental to the work itself, an operative detail, and had no direct relation to the safety of the place of work.

The case was tried upon the theory the men were fellow servants. See Livengood v. Joplin-Galena Cons. L. & Z. Co., 179 Mo. 229, 237. 77 S.W. 1077, 1079 (1). There is no dispute with respect to the nondelegable duty resting upon employers to furnish employees with a safe place to work, including safe and suitable tools, machinery and appliances, and maintaining them so. Employers are not insurers of the safety of employees. Liability springs not from dangers attending the work or from the fact of injury, but from negligence chargeable to the employer. So far as material to the instant case the fellow servant rule may be stated to absolve an employer from liability to an employee for injuries occasioned by the negligence, as distinguished from the incompetence, of another employee engaged in a common task except in those instances wherein the negligence relates to some nondelegable duty of the employer. 35 Am. Jur. p. 760, Secs. 334, 339; 39 C.J. p. 537, Sec. 644; 2 Restatement, Agency, Sec. 474 et seq. Greenan v. Emerson Elec. Mfg. Co., 354 Mo. 781, 195, 191 S.W. (2d) 646, 650 [4].

"` ... In other words, the rule that the master is bound to see that the environment in which a servant performs his duties is kept in a reasonably safe condition is not applicable where that environment becomes unsafe solely through the default of that servant himself, or of his fellow employees.'" Kelso v. W.A. Ross Const. Co., 337 Mo. 202, 218, 85 S.W. 2d 527, 535, quoting 3 Labatt's Master & Servant, Sec. 903.

"... the master, while, responsible for intrinsic defects in the instrumentalities, which would not have existed if the servants intrusted with the functions of supplying or maintaining them had exercised proper care, cannot be held liable for injuries caused by the manner in which the servants use those instrumentalities for the performance of their work... . Or, in other words, where an appliance is reasonably safe to operate, and its, operation necessarily rests upon the care, intelligence and fidelity of the fellow servants of the person injured, the master will not be held responsible...