Mitchell v. Polar Wave Ice & Fuel Co.
| Decision Date | 04 January 1921 |
| Citation | 227 S.W. 266,206 Mo.App. 271 |
| Parties | G. W. MITCHELL, Respondent, v. POLAR WAVE ICE & FUEL COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Thomas C. Hennings, Judge.
AFFIRMED.
Judgment affirmed.
Holland Rutledge & Lashly for appellant.
(1) The lower court erred in refusing to give the peremptory instruction offered by appellant at the close of all the testimony. (a) Where, as in this case, the testimony shows that the master has placed the servant in complete control of a plant, and has delegated to him the duty of seeing that the same is kept in reasonably safe condition, such servant cannot recover for injuries sustained as a result of failure on his part to see that such plant is kept in such condition. 3 Labatt on Master & Servant, p. 1200; Britt v Crebo, 199 S.W. 154; Sheilton v. Kirksville Light & Power Co., 258 Mo. 534; Kleine v. Freunds Sons Shoe & Clothing Co., 91 Mo.App. 102; Denker v. Wolff Milling Co., 135 Mo.App. 340; Bradley v. Tea & Coffee Co., 213 Mo. 320; Knorpp v. Wagner, 195 Mo. 637. (b) Where a superior servant, is injured by the negligence of an inferior servant, he cannot recover therefor against his master. Minster v. Citizens Ry. Co., 53 Mo.App. 276; Evans v. Railroad, 62 Mo. 49; Gorham v. K. C. R. Co., 113 Mo. 408; Adair v. K C. Terminal Ry. Co., 220 S.W. 920; Chicago & N.W. R. Co., 117 Ill. 376; Sible v. Wells Bros. Co., 148 Ill.App. 109; Moore v. Jones, 15 Tex. 391; Gulf C. & S. Tr. Co. v. Howard, 97 Tex. 513; Linck v. L. & N. R. Co., 107 Ky. 370; Edmonson v. Ky. C R. Co., 105 Ky. 479; Illinois Central Railroad v. Braslow, 94 Ill.App. 206; Lane v. Cent. Iowa R. Co., 69 Iowa 443; Brunswick & W. R. Co. v. Smith, 97 Ga. 777; Birmingham Furnace & Mfg. Co. v. Gorse, 97 Ala. 220; Atlantic Coast Line Railroad v. Ryland, 50 Fla. 190 (2) (a) The lower court erred in refusing to give the peremptory instruction offered by appellant (defendant below) and refused by the court. While the respondent (plaintiff below) in his petition alleged other grounds of negligence than that covered under heading supra; such other grounds were abandoned by plaintiff at the trial because no instruction was asked by him in reference thereto. Masterson v. Transit Co., 204 Mo. 519; Johnson v. Railroad, 259 Mo. 551; Keele v. Railroad, 258 Mo. 62. (b) Moreover, even if this were not the case, the testimony showed that respondent had been placed in complete control of the plant in question and owed the duty to appellant of maintaining same in reasonably safe condition. See authorities cited under heading supra. (c) Moreover, there was no evidence in the case showing, or tending to show, any negligence on the part of appellant in reference to exits or condition of the floor. (d) Moreover, appellant was not an insurer and was under no obligation to provide against hazards that could arise only through the negligence of others. Brewing Assn. v. Talbot, 141 Mo. 647; Goodrich v. Railroad, 152 Mo. 222; Meifert v. Sand Co., 124 Mo.App. 491. (3) The court erred in giving instruction No. 1 at the instance of respondent. This instruction is erroneous because it violates the following principles of law: (a) Where a servant is placed by his master and is charged with the duty of keeping the plant in reasonably safe condition, he cannot recover for failure on his part to perform said duty. See authorities cited under heading (a) and (b) supra. (b) Where a superior servant is injured by the negligence of an inferior servant, he cannot recover from the master for such negligence of an inferior servant. See authorities under heading (b) supra. (4) The court erred in giving instruction No. 2 at the instance of plaintiff. (a) Said instruction is erroneous because it is broader than the pleadings and allows recovery for any negligence of the master, although respondent has limited himself by definite specifications of negligence. (b) Because said instruction overlooks the following principles of law: where a master places a servant in complete control of the plant and imposes upon him the duty of keeping same in reasonably safe condition, such servant cannot recover of the master for such injuries for failure on his part to discharge said duty. See authorities cited under heading 1 (a), supra. Where a servant is injured by the negligence of an inferior servant he cannot recover from the master. See authorities cited under heading 1 (b), supra. (5) The court erred in giving instruction 9 at the instance of plaintiff. Said instruction is erroneous because it places the burden of proof upon appellant instead of upon plaintiff to establish the negative of a proposition the affirmative of which has to be established by respondent. (6) The court erred in not giving instruction D at the instance of appellant. Said instruction properly stated the law and should have been given for the following reasons: (a) Where a master places a servant in full control of a plant and charges him with the duty of keeping same in reasonably safe condition the servant cannot recover against the master for failure to discharge said duty. See authorities cited under heading 1 (a), supra. (b) Where a superior servant is injured by the negligence of an inferior servant he cannot recover therefor against the master. See authorities cited under heading 1 (b), supra. (7) The court erred in refusing to give instruction E at the instance of appellant. Said instruction correctly stated the law and should have been given for the following reasons: (a) Where a master places a servant in full control of a plant and charges him with the duty of keeping same in reasonably safe condition the servant cannot recover against the master for failure to discharge said duty. See authorities cited under heading 1 (a), supra. (b) Where a superior servant is injured by the negligence of an inferior servant he cannot recover therefor against the master. See authorities cited under heading 1 (b), supra. (8) The court erred in refusing to give instructions B and C at the instance of appellant for the reasons mentioned under heading 1, 2, 6, and 7, supra.
Albert E. Hausman for respondent.
(1) The duty of the master to furnish suitable appliances and keep them in repair is a continuing non-delegable duty. Dutzi v. Geisel, 23 Mo.App. 676; Moore v. Wabash, 85 Mo. Sup. 588; 3 Labatt, Master and Servant (2 Ed), p. 2688; O'Neil v. Young, 58 Mo.App. 628; Huth v. Dohle, 76 Mo.App. 671; Pauck v. St. Louis Dressed Beef Co., 159 Mo. 467; Rodney v. St. L. S.W. Ry. Company, 127 Mo. 676; Zellars v. Mo. Water and Light Co., 92 Mo.App. 107, 124. (2) The servant to whom the duty of inspection or repair is delegated, whether he be of high or low degree becomes the master's alter ego and as to that duty he is not a fellow servant with any other employee. Zellars v. Mo. Water and Light Co., 92 Mo., App. 107, 124; Lewis v. Railroad, 59 Mo. 495; Harper v. Indianapolis & St. L. R. R., 47 Mo. 567; 4 Labatt (2 Ed), sec. 1496; Dutzi v. Geisel, 23 Mo.App. 683. (3) The duty to inspect or to keep in repair is owing by the master to a foreman or super-intendent, just as it is to any other employee, unless that duty has been exclusively delegated by the master to such foreman or superintendent. Nichols v. Crystal Plate Glass Co. , 126 Mo. 55; Daniels v. Goeke, 191 Mo.App. 1; Attix v. Minnesota Sandstone Co., 85 Minn. 142, 146; Oak Leaf Mill Co. v. Smith, 135 S.W. 333, 334; Viou v. Brooks, 99 Minn. 97; Hill v. Pacific, Etc., 22 Cal.App. 802-803; 3 Labatt, Master & Servant (2 Ed), page 2392, note 2. (4) A superior servant may recover for injuries caused by the negligence of an inferior servant to whom the master has delegated a non-delegable duty. Nichols v. Crystal Plate Glass Co., 126 Mo. 55; Coontz v. Railroad, 121 Mo. 652 and 656. (5) Where a non-delegable duty has been delegated to two servants to be performed by either, one injured by the negligent conduct of the other with respect to that duty, may recover. Zellars v. Mo. Water & Light Co., 92 Mo., App. 107; Merritt v. Great Northern R. R., 81 Minn. 496. (6) The primary duty of inspection of the boilers and the repair thereof was delegated by the master to the day operating engineer and the night operating engineer; it was not delegated to plaintiff. (5) The duty to inspect and repair rests primarily upon the master; if he has delegated that duty to the injured servant it is a matter of defense for him to prove. Hence, plaintiff's instruction No. 9 is correct. Denker v. Wolff Milling Co., 35 Mo.App. 340. (8) Whether defendant had delegated its primary duty of inspection and repair of the boilers to plaintiff was an issue of fact, which was submitted to the jury under proper instructions and by it decided adversely to defendant. That finding is conclusive here. Coontz v. Railroad, 121 Mo. 652, 656; Nicholds v. Plate Glass Co., 126 Mo. 66. (9) Defendant contends that plaintiff cannot recover because he had failed to perform a duty delegated to him. Plaintiff and defendant submitted to the jury the question whether defendant had delegated that duty to plaintiff or to the operating engineers, and the jury found that defendant had delegated it to the operating engineers. That finding is conclusive here. Nichols v. Crystal Plate Glass Co., 126 Mo. 55; Adair v. Terminal, 220 S.W. 920. (10) If a vice-principal is injured because of dangerous conditions which it was his duty to provide against, there can be no recovery; but this is on the ground of contributory negligence. 3 Labatt, Master & Servant (2 Ed.), par. 899, page 2393; Woelflen v. Lewiston-Clarkston Co., 49 Wash. 405, 95 P. 493.
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