McIntyre v. Tebbetts

• Decision Date: 10 February 1914
• Parties: McINTYRE v. TEBBETTS et al.
• Court: Missouri Supreme Court

165 S.W. 757

257 Mo. 117

McINTYRE v. TEBBETTS et al.

Supreme Court of Missouri.

February 10, 1914.

Rehearing Denied April 2, 1914.

1. MASTER AND SERVANT (§ 189) —FELLOW SERVANTS—VICE PRINCIPAL.

An instruction, in an employé's action for injuries while assisting in hauling buggies by the driver suddenly starting the wagon, that, if the driver was a foreman in charge of the team and wagon, and had immediate control of plaintiff and others engaged in working about the wagon, and authority to direct plaintiff's work, then he was a vice principal of plaintiff was proper.

2. MASTER AND SERVANT (§ 287)—INJURIES— JURY QUESTION.

The question of vice principal or fellow servant is for the jury where reasonable men may arrive at different conclusions from the evidence thereon, but is for the court to determine where only one conclusion is permissible from the evidence.

3. MASTER AND SERVANT (§ 190) — FELLOW SERVANT.

The driver of a wagon which plaintiff was assisting to load and unload, whose act in suddenly starting the wagon caused plaintiff's injuries, was a fellow servant of plaintiff, though he had several hours before the accident employed plaintiff to assist him in loading and unloading the wagon.

Lamm, C. J., and Walker and Brown, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; George W. Shields, Judge.

Action by Charles McIntyre against Lewis B. Tebbetts and others. From a judgment for plaintiff, defendants appealed to the St. Louis Court of Appeals, which, by a majority of that court, reversed the judgment of the circuit court, and the case was transferred to the Supreme Court. Judgment of the circuit court reversed, and majority opinion of the Court of Appeals affirmed.

See, also, 140 Mo. App. 116, 120 S. W. 621.

Jones, Jones, Hocker & Davis, of St. Louis, for appellants. Wm. L. Igoe, of St. Louis, for respondent.

WOODSON, J.

The plaintiff brought this suit in the circuit court of the city of St. Louis against the defendants to recover $10,000 damages for personal injuries received by him through the alleged negligence of the defendants. A trial was had in the circuit court which resulted in a judgment for the plaintiff for the sum of $2,500. After moving unsuccessfully for a new trial, defendants appealed the cause to the St. Louis Court of Appeals, 140 Mo. App. 116, 120 S. W. 621. The majority opinion of that court, written by Judge Goode, reversing the judgment of the circuit court, was dissented from by Judge Nortoni, and as a result thereof the cause was transferred to this court; and upon reaching here it was assigned to division No. 2, and there shared the same fate as it did in the Court of Appeals, and because of the latter dissent the cause was transferred to court in banc. The case was again argued in banc, and after submission it fell to my lot to write the opinion of the court.

After having carefully read the record and briefs of counsel, as well as the various opinions written in the Court of Appeals and in division No. 2 of this court, I have reached the conclusion that the majority opinion written by Judge Goode in the Court of Appeals correctly declares the law, and properly applies it to the facts of the case, which, with certain additions to be added, will be adopted as the opinion of this court, which is as follows (formal parts omitted):

"Defendants are partners engaged in the manufacture of carriages. In their service was Joseph Kuhr, who was in charge of a freight wagon; his task being to drive the wagon, and manage the helpers or crew which accompanied it. The wagon was a large vehicle, weighing when unloaded 4,000 pounds, and having a bed very much wider than the usual width of wagon beds. One use of this vehicle was to haul surreys, buggies, and other vehicles in which defendant dealt from their factory or warehouse to the shipping stations of various railway companies in St. Louis for shipment elsewhere. Usually six or seven crated vehicles were loaded in the wagon by the crew who went with it, hauled to the depot, and unloaded there. Kuhr had command over employés who assisted in loading and unloading the wagon, and accompanied it from the warehouse or factory to the depot, and, besides directing these employés, he hired them. Three or four men were required to carry on the work of the wagon. A crew was not kept in regular employment; but when one was needed Kuhr would pick up and hire by the hour two or three men who were available, and in the habit of doing these odd jobs. The compensation allowed was 17½ cents an hour while they were at work. One of these men was plaintiff, and he had been hired off and on for months, sometimes by Been, a clerk in one of defendants' warehouses, but oftener by Kuhr himself. Kuhr had also employed other men when he needed them to help with the wagon, and his right to hire such help was recognized by defendants. When he had finished the job for which he had employed a crew, he would give the men their time, and they would go to the office and get their money. On the day of the accident Kuhr had to haul some vehicles from the factory to a railway depot for shipment, and, needing a relay of men to assist in the work, told plaintiff, who appears to have been waiting about the factory in the hope of a job, to hunt up another man named Tom Malloy, whom Kuhr was in the habit of using for similar work, and hurry back, as there was not much time in which to get the load into the car. Plaintiff found Malloy, and Kuhr and these two men loaded the wagon and started to the depot, or rather to the John Deere Buggy Company's warehouse or plant, through which the vehicles had to be carried to load them into the car. Their course took him in the vicinity of the shop where Been, the shipping clerk, was in charge. In the wagon was an implement known as a pinch bar, which Kuhr wished to leave at that shop, so he told plaintiff to take the bar to the shop, and meanwhile he (Kuhr) would drive across certain railway tracks at the point and wait until plaintiff returned. Plaintiff took the bar as told, and on coming back to the wagon attempted to climb in the front end, where he had been riding, and was expected to ride. Just as plaintiff planted his foot on the hub of the front wheels and rose, throwing his weight on the hub, Kuhr started the team, throwing plaintiff off the wagon on the street, and injuring him seriously. Thus runs the evidence for plaintiff. In defense it is said Kuhr was a fellow servant of plaintiff, or, if a vice principal part of the time, was a fellow servant when he started the wagon and threw plaintiff off.

"This is the charge of negligence: `Plaintiff says that on the said 29th day of January, 1907, and while in the performance of his duties as an employé of defendants, he was getting upon said wagon, and, while he was upon one of the wheels of said wagon, the said "Joe," who was then and there acting for defendants, and exercising his power to superintend, direct, and control the operation of the said wagon, negligently and carelessly caused said wagon to be drawn forward, without warning or notification to plaintiff, although the said "Joe" knew, or by the exercise of proper care might have known, that plaintiff was on the wheels of said wagon and about to climb upon said wagon. Plaintiff states that, in consequence of the negligent and careless movement of said wagon as aforesaid, he was thrown violently to the ground, and his right leg and right side bruised, and the sight of his right eye permanently destroyed, and causing him great bodily pain.'

"The court refused to direct a verdict for defendants, and refused to declare Kuhr was a fellow servant of plaintiff at the instant of the accident. At defendants' request the jury was told no presumption of negligence on the part of defendants arose from the fact of the accident, but the burden was on plaintiff to show he was injured because of defendants' negligence in starting while plaintiff was attempting to get into the wagon; that it was not negligence to start, if defendants did not, or by the exercise of ordinary care would not, have known plaintiff was attempting to get in it at the time; that, if plaintiff slipped and fell, but not as the result of any act of defendants or its agents or servants, the verdict must be for defendants. On the issues of whether or not Kuhr was a vice principal usually, and whether he was acting as vice principal or fellow servant when he drove forward just as plaintiff was stepping into the wagon, the court gave these instructions, to which defendant excepted:

"`The court instructs the jury that, if you find and believe from the evidence that Joseph Kuhr was employed by defendants, and was a foreman in charge of the team and wagon in question and the men employed on and about said wagon, and by virtue of his employment and position had immediate control and direction of plaintiff and others engaged in working on and about said wagon, and had authority to direct and control plaintiff's work, then the said Joseph Kuhr was a vice principal, and was not a fellow servant, of plaintiff.

"`The jury are instructed that, if the negligence of a foreman arises out of and is the direct result of the exercise of authority conferred upon him by the master as a foreman, the master will be liable for such negligence, but, if the negligence complained of consists of some act committed or done by him which relates to his duties as a colaborer with those under his control, and which might just as readily have happened with one of them having no such authority, their employer will not be liable. If you find and believe from the evidence that plaintiff, on or about the 29th of January, 1907, was in the employ of defendants, and that, while so employed, and while acting in the line of his duties, he was getting upon the wagon in question, and while upon one of the wheels of said wagon, said wagon was started forward by the driver, Joseph...