Melcher v. Handelman

• Decision Date: 06 February 1923
• Docket Number: No. 17456.,17456.
• Citation: 249 S.W. 152
• Parties: MELCHER v. HANDELMAN.
• Court: Missouri Court of Appeals

249 S.W. 152

MELCHER v. HANDELMAN.

No. 17456.

St. Louis Court of Appeals. Missouri.

February 6, 1923.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Emma MeIcher against Julius Handelman, doing business as the Improved Sponging Company. `From a judgment for defendant and an order denying a new trial, plaintiff appeals. Affirmed.

Hudson & Hudson, of St. Louis, for appellant.

Meyer Blocher, Greensfelder & Grand, and Albert L. Schmidt, of St. Louis, for respondent,

BRUERE, C.

Tort for injuries alleged to have been caused to the plaintiff through the alleged negligence of the servant of defendant.

The trial resulted in a verdict and judgment for the defendant, and the plaintiff, after an unsuccessful motion for a new trial, brings the case to this court by an appeal.

The evidence controlling the case is brief. It appears that plaintiff, at the time of her alleged injury, was an employé of the Shapiro & Handelman Garment Company, located at 1016 Washington avenue, in the city of St. Louis, and that the defendant was in the sponging business, located at 1007 High street in said city, and had in his employ, in the capacity of an auto truck driver, a man named Brown.

It further appears that on the day of the occurrence Shapiro and Handelman requested the defendant to sponge some cloth for them, and Brown was instructed by defendant to call for ft. In pursuance to said instruction Brown drove defendant's auto truck in front of the building in which Shapiro and Handelman were located, then walked to the fourth floor of said building, and there informed Mike Yedlin, shipping clerk for Shapiro and Handelman, of his mission. It was Yedlin's duty to place the goods called for by Brown on a hand truck and take them to the street. In pursuance to this duty he asked Brown to help him put the goods on a hand truck, which request was complied with by Brown. This hand truck belonged to Shapiro and Handelman. After 16 to 18 bolts of cloth were placed on the hand truck Yedlin proceeded to take them to the street, and, finding the truck was too heavy for one man to handle, requested Brown to help him push the truck. Thereupon Brown stationed himself at the rear of the truck and pushed it while Yedlin moved it forward towards the elevator.

Describing the situation from this time until the time of the alleged injury to plaintiff, Mr. Yedlin, a witness for the plaintiff, testified that he had charge and control of the truck and ordered it pushed forward; that in taking it to the elevator it was necessary to turn it from one side to the other, and that he directed its course, and that Brown pushed it as he directed; that when the truck reached the table where plaintiff was employed he ordered Brown to stop, not push it, and that he (Yedlin) then stopped the truck and got to one side in order to hold the goods from falling off; that after stepping aside to let the truck go through an aisle he told Brown to go ahead with it, which he did; and that then the truck struck a table besides which plaintiff was standing, and shoved it against her, thereby causing the alleged injury.

The evidence further tends to show that Brown, after the goods were piled on the truck, signed the defendant's name to a receipt for them.

The facts as above stated are uncontradicted except by the statement, made by the plaintiff while testifying in her own behalf, that Brown alone had hold of the truck.

The one question necessary for determination here is whether Brown was the servant of the defendant, while engaged in pushing the truck at the time of the alleged injury, so as to make defendant liable for his negligence.

It is elementary that, in order to make the master liable for an injury caused by his servant's negligence, the servant must have done the act in the course of his employment. The fact that the servant to whose wrongful or negligent act an injury may be traced was at the time in the general employment of the master does not make the master liable except for acts done for the master. A servant who is in the general employment of one person may nevertheless be the servant of another in a particular transaction, even though the work done in...