Markow v. Gross-O'Reilly Chandelier Co.

• Decision Date: 30 December 1916
• Docket Number: No. 14467.,14467.
• Citation: 190 S.W. 624
• Parties: MARKOW v. GROSS-O'REILLY CHANDELIER CO.
• Court: Missouri Court of Appeals

190 S.W. 624

MARKOW v. GROSS-O'REILLY CHANDELIER CO.

No. 14467.

St. Louis Court of Appeals. Missouri.

December 30, 1916.

Appeal from St. Louis Circuit Court, Geo. C. Hitchcock, Judge.

"Not to be officially published."

Action by Harry Markow against the Gross-O'Reilly Chandelier Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. P. McCammon, of St. Louis, and R. M. Sheppard, of Joplin, for appellant. Fauntleroy, Cullen & Hay, of St. Louis, for respondent.

ALLEN, J.

This is an action to recover damages for personal injuries suffered by plaintiff while in the employ of the defendant company as its servant, alleged to have been occasioned by the negligence of defendant. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff, and the defendant prosecutes the appeal.

On March 17, 1913, the defendant was engaged in manufacturing lighting fixtures in the city of St. Louis, where it maintained a factory or shop. Plaintiff was a "solderer and fitter" in defendant's employ, and in performing his duties used a soldering iron, the point of which was heated by an alcohol blow torch furnished by defendant. In the room in which he worked, where were a number of other workmen engaged in similar work, the defendant kept beneath a bench a can containing alcohol, from which the workmen in the room obtained alcohol from time to time for use in their blow torches. There is evidence for plaintiff that two cans were kept under the bench mentioned, one of them ordinarily being empty. Defendant's main supply of alcohol was kept in a tank in the basement of the building, under lock and key.

One Clarence Finot, a young man in defendant's employ, who acted as timekeeper and also performed certain other duties, was intrusted by defendant with control over defendant's supply of alcohol. He carried the key to the tank in the basement, and was charged with the duty of keeping on hand a supply of alcohol in a can in the room in which plaintiff worked. He testified that it was also his duty to keep such can in repair, and to keep "the alcohol out of the way of the men in their work; * * * keep it from being exposed to the heat of the men who were working there." There is considerable testimony in the record relative to the other duties performed by Finot. It appears that he acted as a messenger for defendant's general foreman in conveying and delivering to the workmen the foreman's orders, and that he bought material for the workmen to work upon, or parts to be assembled. Plaintiff testified that Finot would frequently tell him and other workmen what work was first to be done, but that he never gave plaintiff any directions as to the manner in which plaintiff should do his work; that if plaintiff wanted any "parts" he would direct Finot to bring them; that Finot "assisted" all of the men who were assembling the fixtures; and that they would frequently give directions or "orders" to him as to what was needed.

The evidence discloses that on the day above mentioned, while plaintiff was at work at his bench with his blow torch and soldering outfit, Finot came to him with the can — or one of the cans — in which alcohol was kept in the room, as above mentioned, placed this can on the bench before plaintiff, and told him to solder a tip on the spout thereof. Plaintiff's testimony is to the effect that Finot placed the can before him in a position ready for plaintiff to do the necessary work thereon without in any wise moving the can, and that he at once turned from the other work in which he was engaged and proceeded to carry out Finot's direction. The can in fact contained a quantity of alcohol, which was ignited from the heat of plaintiff's blow torch, causing the can to explode, and plaintiff was thereby severely burned and seriously injured. Finot's testimony is to the effect that when he thus placed the can before plaintiff he asked plaintiff whether or not it would explode, thus indicating that it contained alcohol; but this plaintiff denies.

The first assignment of error pertains to the action of the trial court in overruling the demurrer to the evidence interposed by the defendant. It is argued that the demurrer should have been sustained for the reason that plaintiff and Finot were fellow servants, and that consequently defendant is not liable for Finot's negligence, if any, in placing the can upon plaintiff's work bench for work to be done thereon by a blow torch when it contained alcohol. As to this it may be said that the evidence adduced, to the effect that the defendant conferred upon Finot authority to give directions to the workmen as to what work should first be done, coupled with the control given him over this can and the authority to have the same repaired when needed, would appear to be sufficient to constitute him the master's representative with respect to the doing of the particular work which he directed plaintiff to do at the time in question. "It is ruled that they are fellow servants who, under the direction and management of the master himself, or by some servant placed by the latter over them, are engaged in the prosecution of the same common work, and without any dependence upon or relation to each other except as colaborers without rank, and that he is a vice principal who is intrusted by the master with power to superintend, direct, or control the workman in his work, and that for negligence in such superintendence, direction, or control, the master is liable." See Burkard v. Rope Co., 217 Mo. loc. cit. 482, 117 S. W. 41, and authorities there cited. Though Finot and plaintiff may have been fellow servants with respect to some, or indeed many, of the duties performed by them, respectively, it appears that Finot was possessed of such apparent authority to direct or control plaintiff as to make it obligatory upon plaintiff to obey an order or direction of the character in question. And, this being true, defendant is chargeable with the negligent order or direction given plaintiff to solder a tip upon the spout of this can which, as Finot knew, contained alcohol, a "highly dangerous explosive."

The "dual capacity" doctrine is firmly implanted in our law of master and servant. See Radtke v. Basket & Box Co., 229 Mo. loc. cit....