McCall v. B. Nugent Bros. Dry Goods Co.

• Decision Date: 31 December 1921
• Docket Number: No. 22390.,22390.
• Parties: McCALL et al. v. B. NUGENT BROS. DRY GOODS CO.
• Court: Missouri Supreme Court

236 S.W. 324

McCALL et al. v. B. NUGENT BROS. DRY GOODS CO.

No. 22390.

Supreme Court of Missouri, Division No. 2.

December 31, 1921.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by Malcolm McCall and another against B. Nugent Bros. Dry Goods Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Earl M. Pirkey and Eagleton & Habenicht, all of St. Louis, for appellants.

Kelley, Starke & Moser and Charles B. Morrow, all of St. Louis, for respondent.

WHITE, C.

The plaintiffs sue for damages on account of the death of their minor son, Malcolm McCall, caused by the alleged negligence of the defendant. On a trial in the circuit court of the city of St. Louis, after the plaintiffs had introduced their evidence, the court gave a peremptory instruction directing a verdict for the defendant. Thereupon the plaintiffs in due form appealed to this court.

Malcolm McCall, 16 years of age, was employed by the defendant as bundle boy to assist in delivering retail packages which were carried to purchasers in the city in a truck driven by a chauffeur named Brenner. Brenner was driving the truck August 16, 1919, and two boys, Malcolm McCall and Robert Smith, accompanied him to assist in delivered packages. They had some deliveries to make in Reber place, which extended east and west, with a parkway along the center.

The truck was driven west on the north side of Reber place, and Malcolm McCall got off to make a delivery on the north side. The truck then was driven west, and Smith made a delivery further down. As the truck came back eastward on the south side of the parkway McCall ran across the parkway and stood on the south side of the street, for the purpose of boarding the truck as it came along. Brenner sat on the left side of the seat; Robert Smith was sitting on the right side, but moved over to leave room for McCall to mount from the south side. As McCall attempted to board the truck he slipped and fell, so that the rear wheel of the truck ran over his body; he was killed almost instantly. Robert Smith, in describing the incident, said that as the truck approached where McCall was standing it came to a stop, and when they saw McCall start to jump on they started out in low. The truck was in motion at the time McCall attempted to board it. After running over his body the truck ran a few feet and stopped.

There was a handhold on the right-hand side of the truck to the rear of the windshield, which the boy could grasp in boarding the truck. A step or running board about 10 or 12 inches wide extended from the mud guard over the front wheel backwards about 16 or 20 inches. There was an open space between the rear end of the running board and the mud guard over the rear wheel. Smith testified that he did not see McCall at the moment he attempted to get on because he was moving over next to the chauffeur so as to make room for McCall.

Edgar Barnard, an overseer and engineer of the street department of the city of St. Louis, was at the west end of the parkway in Reber place, about 175 feet from where the boy was killed. The car passed where he stood, and he saw the boy standing on the south side of the street, saw him running, and he saw the speed of the car as it went along. The witness had been in the traffic census for the city for four years, and knew how to estimate the speed of automobile travel. When the truck was about 50 feet away from where the accident occurred it was traveling about 15 miles an hour. Witness examined the running board or step on the south side of the truck and said it was about 16 inches above the ground, about 12 inches wide and 16 inches long, and looked worn and slick; that a handhold on the south side of the truck was about 5 feet 10 inches above the ground.

Eugene Mellon, a witness for the plaintiff, testified that prior to August 16, 1919, he helped McCall in the delivery of packages. He was asked if he observed the manner in which Brenner stopped or slowed down to make deliveries. On objection the evidence was excluded, and plaintiff excepted.

Caroline Wedel, who lived at 4949 Reber place, just north of the parkway, "testified that she saw the boy running across Reber place to catch the truck. He stood just a moment, raised his hand, and took a few steps forward in order to catch it; the truck slowed down just a little bit, and as the boy raised his hand he whirled around and fell under it and the truck ran over him. The witness could not tell whether the boy got on the truck step, but he rose higher before he fell; the truck seemed to go over the boy's abdomen. It seemed to witness that the truck threw him and he fell with his head under it and his feet extending out. Witness was about 75 feet from the place of the accident. She repeated that at the time McCall attempted to board the truck it slowed down a little bit, but was running all the time. She thought that it was going faster than it should have been going to let a man get on; she saw the boy brace himself, saw him rise, then swing and fall under.

Adele Schlette was driving a wagon selling vegetables in Reber place that morning. Her wagon was stopped on the north side of Reber place at the time; she saw the truck pass her wagon at full speed; the boy delivered a parcel and the truck drove on; as it came east the boy ran across the parkway and waited for it; and, as the truck was passing, the boy in trying to reach it fell under it. At the time the truck was closest to the boy it slowed and went about as fast as a man could walk, and then started in speed. The witness then was asked if she had noticed the chauffeur on other days prior to that, as to whether he would slow down for the boys when getting on or off. This was objected to, objection sustained, exception saved. The defendant then offered to prove that for a few months prior to the time McCall was killed Brenner regularly and habitually required McCall to get off and on when the truck was in motion. Other pertinent facts will be noticed later in the opinion.

The defendant introduced no evidence, but filed demurrer to the plaintiff's evidence, which was sustained, with the result as stated.

I. The first error complained of by the appellant was the action of the court in sustaining a demurrer to their evidence. Respondent argues that the ruling was proper because the boy's death, if caused by any negligence other than his own, was caused by that of the driver of the truck, Brenner, whose position was that of fellow servant.

The appellant argues that Brenner was acting in a dual capacity; that in some respects he was the vice principal, in that he had charge and direction of the boy's movements; and that the injury was caused by negligent acts and methods of the defendant independently of any act of Brenner as a fellow servant.

On the defendant's objection several matters of evidence were excluded by the court, which, if the offers of the plaintiff were correct and the evidence had been permitted, would have tended to show negligence on the part of the defendant. This, however, cannot be considered in determining the question whether the evidence as actually introduced and submitted made out a case.

The case of McIntyre v. Tebbetts, 257 Mo. 117, 165 S. W. 757, is cited and relied upon by the respondent to sustain an action of the trial court. Before passing to the consideration of that case it is well to notice the general doctrines recognized in that case as well as in others. Where an injury to an employee occurs through the negligence of the master, combined with that of fellow servant, the master is liable for the injury thus sustained. Radtke v. Basket Co., 229 Mo. loc. cit. 15, 129 S. W. 508; Root v. K. C. S. By. Co., 195 Mo. loc. cit. 358, 359, 92 S. W. 621, 6 L. R. A. (N. S.) 212; Browning v. Railway Co., 124 Mo. loc. cit. 70, 27 S. W. 644. And this rule is applicable where an employee is injured by the negligent act of a fellow servant when acting in the capacity of vice principal. Comisky v. Urbauer-Atwood Heating Co. (App.) 219 S. W. loc. cit. 1000; State ex rel. v. Ellison, 283 Mo. 532, 223 S. W. 651. This arises from what is called the dual capacity doctrine, well recognized in this state—the doctrine that a fellow servant may act in that capacity and at the same time act in the capacity of vice principal. Fogarty v. St. Louis Transit Co., 180 Mo. loc. cit. 509, 79 S. W. 664; McIntyre v. Tebbetts, supra; Burkard v. Rope Co., 217 Mo. loc. cit. 482, 117 S. W. 35; Strother v. Milling Co., 261 Mo. loc. cit. 16, 169 S. W. 43; Morin v. Rainey (App.) 207 S. W. loc. cit. 860.

The facts upon which the case turned in McIntyre v. Tebbetts have been distinguished in the later cases of State ex rel. v. Ellison, supra. As said by this court in the McIntyre Case, it is the act which causes the injury and not the rank of the vice principal which determines whether the two employees are fellow servants. A fellow servant in some aspects of his employment may be a vice principal...