Greenan v. Emerson Elec. Mfg. Co.

• Decision Date: 03 December 1945
• Docket Number: 39499
• Parties: Francis X. Greenan v. Emerson Electric Manufacturing Company, Appellant
• Court: Missouri Supreme Court

191 S.W.2d 646

354 Mo. 781

Francis X. Greenan v. Emerson Electric Manufacturing Company, Appellant

No. 39499

Supreme Court of Missouri

December 3, 1945

Rehearing Denied January 7, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Affirmed.

Orville Richardson and Jones, Hocker, Gladney & Grand for appellant.

(1) The court erred in overruling defendant's motions for a directed verdict, because plaintiff's "average annual earnings" within the meaning of the Workmen's Compensation Act did not exceed $ 3600, so that his only remedy for his injuries was under that Act. R.S. 1939, secs 3691, 3695, 3710. (2) The facts being undisputed and disclosed by plaintiff's own evidence, the question may be ruled as a matter of law. McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149. (3) For the purpose of determining whether plaintiff's "average annual earnings" within the meaning of Section 3695 exceeded $ 3600, resort must be made to Section 3710. Mossman v. Chicago & Southern Air Lines, 153 S.W.2d 799. (4) Section 3710 (a) cannot be used in computing the "average annual earnings" because plaintiff's grade of employment as defined in Section 3710 (b) changed on February 28, 1944 when he was transferred from working on the slip ring and hanger assemblies of lower Sperry turrets in the electrical sub-assembly department to working in the final assembly of Martin turrets in the final assembly department. Therefore, he worked less than a year in that grade of employment in which he was injured. R.S. 1939, secs 3710 (a) and (b); Sayles v. K.C. Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046; Mossman v Chicago & Southern Air Lines, 153 S.W.2d 799. (5) There may be a change of or difference in grade of employment either with or without a difference in the dignity of the office, the value of the position, the name, number and location of the department, the kind or character of the work, the regularity and permanency of the work, the manner and amount of pay, the availability of work, etc. Cases cited supra; Werner v. Pioneer Cooperage Co., 155 S.W.2d 319; Lamker v. Schiller, 136 S.W.2d 371; Biswell v. St. Louis-S.F. Ry. Co., 49 S.W.2d 203. (6) The mere fact that Mr. Greenan continued to work as a lead man in both departments is of no importance since a relative position of authority has nothing to do with the character, type or grade of work or employment. Sayles v. K.C. Structural Steel Co., supra; Richardson v. Consolidated Products Co., 183 S.W.2d 393. (7) Nor is it important that his hourly rate of pay remained the same. The value of his work to his employer has no bearing on whether the kind or grade of work either remained the same or changed. Buckley v. Elmira Coal Co., 104 S.W.2d 724; Lamker v. Schiller, 166 S.W.2d 246; Richardson v. Consolidated Products Co., 183 S.W.2d 393. (8) There was a change in plaintiff's grade of employment on February 28, 1944, because he was transferred to a department different in name, number, location, character or kind of work performed, amount of hours worked and total wages which could be earned. Plaintiff himself admitted that the new work was of "an entirely different kind." (9) Since Section 3710 (a) is inapplicable resort must then be made to Section 3710 (c). Undisputed documentary evidence offered by defendant showed that the average earnings of eight other lead men in final assembly work at this plant for the year before plaintiff's injury were less than $ 3600. Therefore, this action was barred by the Compensation Act. R.S. 1939, secs. 3691, 3695, 3710 (c). (10) Though excluded, the evidence offered was documentary and can be considered by this court. Adair v. K.C. Terminal R. Co., 282 Mo. 133, 220 S.W. 920. (11) If for any reason the average annual earnings are not determinable under Section 3710 (c), nevertheless plaintiff was barred by a computation under the next applicable Section 3710 (d). His average daily wage during the time he worked in the final assembly department was $ 11.47, which when multiplied by the maximum of 300 made his average annual earnings less than $ 3600. R.S. 1939, secs. 3691, 3695, 3710 (d). (12) There was sufficient evidence that defendant operated 300 or more days a year, and, in any event, plaintiff cannot complain of the use of the maximum multiple, 300. Jackson v. Curtiss-Wright Airplane Co., 334 Mo. 805, 68 S.W.2d 715. (13) The court erred in excluding evidence offered by the defendant of the earnings of other lead men in the final assembly department during the year before plaintiff was injured. Cases cited supra; R.S. 1939, secs. 3691, 3695, 3710 (c). (14) Plaintiff abandoned the unproven charges of negligence in furnishing an unsafe tool, and in failing to warn him so that the only issue under this assignment is the submissibility of the alleged negligence in making his place of work unsafe. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91. (15) Non-liability under the fellow servant rule begins where liability for non-delegable duties ends. Although it is a special application of the doctrine of assumption of risk, the fellow servants doctrine is not an affirmative defense but is merely another way of stating the limits of employer liability and is admissible under a general denial. It is firmly established in Missouri. Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W.2d 886; State ex rel. Kroger Grocer & Baking Co. v. Haid, 323 Mo. 9, 18 S.W.2d 478. (16) Plaintiff's pleaded and submitted theory that the negligence of Wurtz in improperly fastening the hoist to the turret thereby created an unsafe place for plaintiff to work and breached a non-delegable duty owed by defendant to plaintiff is an open fallacy, confusing distinctly different duties, founded on artificial reasoning and if applied would utterly destroy the fellow servant rule and extend employer liability to all acts of all fellow servants irrespective of the character of work being performed. Johnson v. Corn Products Refining Co., 319 Mo. 958, 6 S.W.2d 568; Southern Ind. Ry. Co. v. Harrell, 166 Ind. 89, 68 N.E. 262; 4 Labatt's Master and Servant (2 Ed.), p. 4540. (17) Defendant would not be liable unless it either caused the hoist to be attached by a vice-principal, or knew or could have known of the negligent act of Wurtz in time to prevent the accident. None of these facts were proven. Bello v. Stuever, 44 S.W.2d 619. (18) Having furnished plaintiff with a reasonably safe hoist and place in which to operate it and competent fellow workmen to assist him, defendant is not liable for the negligence of Wurtz, which may have rendered the appliance or plaintiff's place of work unsafe. Under tests hereafter set out, Wurtz was not performing a non-delegable duty of defendant to plaintiff when he fastened the hoist to the turret. 3 Labatt, sec. 903, p. 2398; 4 Labatt, sec. 1515, pp. 4540, 4541. (19) The hoist had a portable character and its attachment to any one turret was not a permanent part of the place in which plaintiff worked. 4 Labatt, sec. 1515, p. 4541; 39 C.J. 601. (20) The negligent act of Wurtz was merely incidental to the performance of the work, a mere operative detail delegable by the defendant. It was concerned with the work of operation as distinguished from the work of construction, preparation and preservation. 4 Labatt, sec. 1516, p. 4542; 39 C.J., pp. 598, 600; 35 Am. Jur. 784; Johnson v. Corn Products Refining Co., 319 Mo. 958, 6 S.W.2d 568. (21) The negligent act of Wurtz created a mere transitory peril, a risk from short-lived causes. The knowledge of Wurtz, a mere co-servant of plaintiff, was not chargeable to defendant. 4 Labatt, sec. 1517, p. 4546; 3 Labatt, sec. 1051, p. 2769; 39 C.J. 606; 35 Am. Jur. 785-786. (22) The attachment and detachment of the hoist to turrets was a constantly changing detail of the work and was delegable to employees. 4 Labatt, sec. 1518, p. 4546; 39 C.J., pp. 606, 609. (23) The negligent act of Wurtz was not committed while performing any duty owed by the defendant to the plaintiff, but arose through the doing of the labor Wurtz and plaintiff were performing in common. 39 C.J. 398; Wuellner v. Crescent Planing Mill, 303 Mo. 38, 259 S.W. 764; State ex rel. Kroger Grocery & Baking Co. v. Haid, 323 Mo. 9, 18 S.W.2d 478; Kemmler v. City of Richmond Heights, 114 S.W.2d 994. (24) The defendant cannot be held liable for injuries to plaintiff caused by the manner in which a fellow employee used the hoist. 4 Labatt, sec. 1520, p. 4551; 39 C.J. 606-608, 618-621; 35 Am. Jur. 786. (25) In addition to the above general rules which are applied to the facts of this case in our argument, there are a number of cases ruling similar fact situations in favor of the defendant. These cases are not mentioned in the argument but are briefed in the Appendix. We cite the Missouri cases only here. Van Bibber v. Swift & Co., 286 Mo. 317, 228 S.W. 69; Grattis v. K.C. & P.G.R. Co., 153 Mo. 380, 55 S.W. 108; Shinners v. Mullins, 136 Mo.App. 298, 117 S.W. 91; Jackson v. Lincoln Mining Co., 106 Mo.App. 441, 80 S.W. 727; Lukamiski v. American Steel Foundries, 162 Mo.App. 631, 142 S.W. 1093; Bradley v. James H. Forbes Tea & Coffee Co., 213 Mo. 320, 111 S.W. 919; Dickerson v. Jenkins, 128 S.W. 280; Steffen v. Mayer, 96 Mo. 420, 9 S.W. 630; Ryan v. McCully, 123 Mo. 636, 27 S.W. 533. (26) The court erred in giving plaintiff's Instruction 1. It improperly bound the defendant to answer for the negligence of plaintiff's fellow servant in improperly attaching the hoist to the turret. (27) It charged defendant with negligence in rendering plaintiff's place of work dangerous without requiring the jury to find that defendant had actual or constructive notice of the negligent act of Wurtz. Schneider v. Pevely Dairy Co., 328 Mo. 301, 40 S.W.2d 647. ...