Loretta v. Columbia Can Co.

• Decision Date: 02 January 1923
• Docket Number: No. 16789.,16789.
• Citation: 246 S.W. 997
• Parties: LORETTA v. COLUMBIA CAN CO.
• Court: Missouri Court of Appeals

246 S.W. 997

LORETTA v. COLUMBIA CAN CO.

No. 16789.

Louis Court of Appeals. Missouri.

January 2, 1923.

Rehearing Denied January 30, 1923.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action by William R. Loretta against the Columbia Can Company. Judgment for plaintiff, and defendant appeals. Affirmed.

M. U. Hayden, of St. Louis, for appellant.

Earl L. Pirkey, of St. Louis, for respondent,

BRUERE, C.

Action for damages for personal injuries suffered by plaintiff while in the employ of the defendant as a pressman, occasioned, as alleged, by the negligence of the defendant. Plaintiff obtained a verdict and judgment below for $2,500, and defendant appeals.

The petition, inter alia, averred that, while plaintiff was in the discharge of the duty of his employment in and about a certain press in defendant's plant, and while his left hand was in and between parts of said machine, defendant negligently turned the power on said machine, and threw it into gear, thereby causing it to catch, crush, and injure plaintiff's left thumb. The answer is a general denial, coupled with a plea of contributory negligence, on which issue was joined by reply.

At the close of plaintiff's case the defendant requested the court to give to the jury a peremptory instruction to find for the dedefendant, which the court refused to give. The defendant offered no testimony.

Appellant's assignment of errors are: First, that the lower court erred in refusing to give the peremptory instruction; second, that the trial court erred in giving to the jury instruction No. 1, requested by plaintiff; and, third, that tie verdict is so excessive, as to indicate bias, passion, and prejudice of the jury towards defendant.

In support of the first assignment of error counsel for defendant contends that plaintiff was injured by the act of a fellow servant, and that therefore the defendant is not liable. The facts brought out at the trial necessary to an understanding of the point raised are as follows: The plaintiff, at the time of the injury, was in defenetant's employ at its manufacturing plant as a pressman. Gustave Bierman was general superintendent at said plant, and Al Plummer and Steve Amend were foremen under him. Mr. Bierman instructed plaintiff, at the time he employed him, to take orders from Mr. Amend, and also from Plummer, and to do any work either of them told him to do. The foreman, Amend, had charge of the work of cutting the tin used on the presses. He also had authority to tell the pressmen what kind of tin to use, and to instruct them how to cut same. He was not charged with any service common to other employees of defendant, wherein he was a coworker with them.

It appears that shortly prior to the accident a girl who operated the press on which plaintiff was injured reported to the foreman, Plummer, that the can covers which the press was turning out were imperfect, in that they had "notches" or "nicks" in them. Mr. Plummer directed the plaintiff to show this girl, Minnie Erb, how to operate the press. Plaintiff undertook to do this, and in operating the press noticed that the defects in the can covers were due to the fact that the sheet tin which was fed into the machine was too narrow. He thereupon reported this to the foreman, Amend, who remarked that he would look at the press in a few minutes, and instructed plaintiff to return to the press and see how the work was turned out. Plaintiff did so, and presently Amend arrived and began operating the press. The operation consisted of placing a strip of sheet tin between the two dies of the press, and then stepping on the loot pedal, which would cause the upper die to descend upon the lower, stationary die, thus cutting and forming the tin into a can cap or cover. After the cover was made, the die would immediately ascend to its original position, and, unless the foot was kept on the pedal, the machine would not repeat.

It appears from the testimony of the girl, Minnie Erb, that the foreman, Amend, operated the press in order to show her and the plaintiff what tin to use thereon, and to instruct them how to run the machine. While. Amend was operating the press the plaintiff stood close to the machine, and noticed that the, caps which were being turned out, were notched. He thereupon informed Amend of this fact, and said to him, "Wait a minute; I am going to pull a cap out to show you that every one is notching." The machine was stopped at that time, and then plaintiff put his hand into the press, for the purpose of removing one of the caps to exhibit to Amend, by way of convincing him that the tin was too narrow, when Amend started the machine, and the die descended and crushed plaintiff's thumb.

Defendant contends that, although Amend was a vice principal of defendant, yet as to the particular act of starting the machine he was acting in the capacity of a fellow servant of plaintiff. There is no doubt that the dual capacity doctrine prevails in this state; that is to say, our appellate courts have held that, where a foreman, or other representative of the master, Is charged with the performance of common duties, wherein he is a coworker with those who are under his charge, he does not represent the master as to any purely manual acts which he may do while engaged in manual labor. English v. Rand Shoe Co., 145 Mo. App. 443, 122 S. W. 747; Stephens v. Lumber Co., 110 Mc. App. 402, 80 S. W. 481; Hawk v. McLeod Lumber Co., 105 Ho. 128. 35 S. W. 1022; McIntyre v. Tebbetts, 257 Mo. 128, 165 S. W. 757. But the dual capacity rule cannot be made applicable to the present case, for the simple reason that there was no evidence that the foreman, Amend, occupied the dual capacity of vice principal and fellow servant. He was not charged with any service common to other employees under his charge, All the evidence adduced showed that all the duties assigned to him were duties as vice principal.

This case is unlike the English Case and the other cases above cited and relied on by defendant. The respective plaintiff in those cases was injured by an employee who was charged, with duties pertaining to the rule, of both foreman and fellow servant, and the act complained of was not done in the performance of the duties devolved upon said employee as foreman, but...