Malone v. Morton

• Decision Date: 31 October 1884
• Citation: 84 Mo. 436
• Parties: MALONE v. MORTON, Appellant.
• Court: Missouri Supreme Court

84 Mo. 436

MALONE

v.MORTON, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Pettis Circuit Court.--HON. J. P. STROTHER, Judge.

AFFIRMED.

E. J. Smith for appellant.

(1) There is no liability on defendant here, because he was simply the agent of Liebke & Schrage, and did not conceal that fact. Indeed made it known at the first proper opportunity. The action should be against the principals. Morgan v. Bowman, 22 Mo. 538; Harriman v. Stowe, 57 Mo. 93; Buis v. Cook, 60 Mo. 391. It is seen there is no charge or evidence of misfeasance on part of defendant here. He is only charged with nonfeasance. When that is so, the principal and not the agent is liable. (2) The facts here show contributory negligence, and therefore plaintiff cannot recover. Baltimore & O. R. R. Co. v. Stricker, 51 Md. 47; Kelley v. Silver Spring Co., 12 R. I. 112; Walton v. Harrison Wire Co., St. Louis Court of Appeals; Syllabus in p. i, Addenda to Central Law Journal Nov. 2, 1883.

U. F. Short and W. S. Shirk for respondent.

(1) The fact of appellant's agency for Liebke & Schrage was not known to respondent when he entered into appellant's employment, nor until after the injury happened, and appellant cannot shield himself from responsibility by showing he was agent for some one else. Hence the court committed no error in excluding testimony as to the character and extent of appellant's agency, nor in refusing his sixth and seventh instructions. (2) Respondent never suspected the insufficiency of the chain which caused the injury. The only complaint made of it prior to the accident was by Wells, a fellowservant. Then appellant quieted all apprehension of danger by saying from his observation of former tests that the chain was sufficiently strong. Respondent had never worked with such machinery before and had not an equal opportunity of knowing the danger, and could not be presumed to have incurred the risk voluntarily. Cooley on Torts, p. 553, sec. 2. McGowan v. St. Louis and Iron Mountain R. R. Co., 61 Mo. 528; Thompson on Negligence, vol. 2, p. 974, sec. 5. (3) The question of contributory negligence upon the part of respondent was fairly submitted to the jury under the instructions, and was doubtless considered by them in finding their verdict.

DEARMOND, C.

James Malone sued James Morton before a justice of the peace for one hundred and fifty dollars, for injuries to his arm, received from the breaking of a chain while engaged for Morton in transferring heavy logs from one railroad car to another, at Sedalia. Defendant answered, and on trial by a jury plaintiff recovered the amount sued for. An appeal being taken to the circuit court defendant withdrew his answer (of the contents of which we know nothing), and a second jury awarded plaintiff the full amount for which he sued, one hundred and fifty dollars. The evidence was that defendant was acting as the agent of Liebke & Schrage of St. Louis, but that nothing was said about defendant's being an agent, and plaintiff knew nothing of the fact of agency, until after the injury complained of occurred. The evidence further tended to prove that plaintiff knew nothing about such work, or about the character or strength of the appliances and machinery necessary or proper for such operations. That on the day plaintiff began to work for defendant, the day preceding the accident, one Wells, a fellow-servant, suggested that he thought the chain (from the breaking of which the accident happened) too weak. That McLaughlin, another servant, the “boss” in defendant's absence, said there were other chains and ropes on the fence by his house, which was four or five rods away, which they could get and use. That defendant then said he had loaded larger logs with that chain, and it was sufficient. There the subject dropped, and the chain was continued in...