Mouso v. A. N. Kellogg Newspaper Co.
| Decision Date | 26 July 1894 |
| Docket Number | 8784 |
| Citation | 59 N.W. 941,58 Minn. 406 |
| Parties | Charles J. Mouso v. A. N. Kellogg Newspaper Co |
| Court | Minnesota Supreme Court |
Submitted on briefs July 10, 1894
Appeal by plaintiff, Charles J. Mouso, from an order of the District Court of Hennepin County, Chas. B. Elliott, J., made February 21, 1894, denying his motion for a new trial.
The defendant, A. N. Kellogg Newspaper Company, a corporation was on September 6, 1893, a tenant and in possession of the sixth story of the Edison building, No. 417 Hennepin avenue in Minneapolis, using it in the business of printing "patent insides" for country newspapers and sending them out by express. Plaintiff was in the employment of the Great Northern Express Company and went up the elevator as usual that day at two o'clock in the afternoon to get packages of these "insides" for shipment to the country. When he had obtained his packages and had receipted for them and stood encumbered with them at the elevator door ready to descend, the circumstances narrated in the opinion occurred. He brought this action to recover damages. When all his evidence was given the court on motion of defendant ordered the jury to return a verdict for defendant. Plaintiff excepted, moved for a new trial, but was refused and he appeals.
Order affirmed.
Larrabee & Gammons, for appellant.
Defendant's shipping clerk was at the time he called out to plaintiff engaged in serving his master, or in other words the act of which we complain was done in the execution of defendant's business. Morier v. St. Paul M. & M. Ry Co., 31 Minn. 351. It was a question of fact for the jury to determine on the evidence whether he was acting within the scope of his employment. Haluptzok v. Great Northern Ry. Co., 55 Minn. 446; Potulni v Saunders, 37 Minn. 517; Ellegard v. Ackland, 43 Minn. 352; Mulvehill v. Bates, 31 Minn. 364; Gunderson v. Northwestern Elevator Co., 47 Minn. 161; Osborne v. McMasters, 40 Minn. 103; Brazil v. Peterson, 44 Minn. 212.
Charles P. Brown, for respondent.
The elevator was exclusively owned and operated by the owner of the building, for the benefit of the numerous tenants of the building and of the persons doing business with them. Defendant had no control of the elevator or of its approaches or authority or right to interfere with it. Giles who opened the elevator door was a typecaster and had no other business to attend to for defendant. The shipping clerk merely delivered the packages to plaintiff and took a receipt for them after which he had nothing further to do with the goods or with plaintiff. Whether or not plaintiff requested Giles to open the door is uncertain, Giles testifying that such request was made, and plaintiff denying it.
A master is not responsible for any act or omission of his servants which is not connected with the business in which they serve him, and which does not happen in the course of their employment. Morier v. St. Paul, M. & M. Ry. Co., 31 Minn. 351; Tarbox v. Missouri Pac. Ry. Co., 32 Mo.App. 378.
The evidence conclusively shows that whatever injury plaintiff received was occasioned solely by his own carelessness.
Gilfillan, C. J. Buck, J., absent, sick, took no part. Canty, J., dissenting.
Action for an injury sustained in falling down an elevator shaft. The defendant occupied, as tenant, the sixth story of a ten or twelve story building. For the use of tenants, and those having business with them, there was a freight elevator extending up through the several stories. Its shaft was inclosed, but had, on defendant's story, a door fastened on the inside, or elevator side, which the man in charge of the elevator opened when it stopped at that story, and closed and fastened when it left that story, going up or down. The elevator and the door were in the control of the owner of the building, the defendant having no more control of them than any one else. Any one desiring the elevator to come to or stop at that floor gave a signal by touching a bell.
Plaintiff was in the employment of an express company which did the carrying for defendant, and he received and receipted for its packages at its room, and took them down by means of the elevator. As soon as he receipted for them, they were entirely in his control, and the defendant and its servants exercised no control over them,...
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