Noland v. Morris & Co.

• Decision Date: 26 June 1922
• Docket Number: No. 14422.,14422.
• Citation: 248 S.W. 627,212 Mo. App. 1
• Court: Missouri Court of Appeals
• Parties: NOLAND v. MORRIS &. CO.

248 S.W. 627

212 Mo. App. 1

NOLAND v. MORRIS &. CO.

No. 14422.

Kansas City Court of Appeals. Missouri.

June 26, 1922.

Rehearing Denied July 10, 1922.

Certiorari Denied by Supreme Court August 28, 1922.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Action by Jasper E. Noland against Morris & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

Warner, Dean, Langworthy, Thomson & Borders, of Kansas City, for appellant.

Elon Levis and Atwood, `Wickersham & Hill, all of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, in an action for damages resulting from an assault made upon him by defendant's employee, recovered judgment in the sum of ppm, and defendant appealed.

No attack is made upuon the petition now, and none was made, save an oral objection to the introduction of any evidence thereunder; and it appears to be tacitly understood by counsel on both sides that, so far as the pleadings are concerned, they presented the case on two issues, namely: (1) Whether the assault was committed by defendant's employee in so doing within the scope of his employment, thereby rendering defendant liable under the doctrine of "respondeat superior"; and (2) whether the defendant negligently kept and maintained in its business the assaulting employee, known by defendant to be of vicious and dangerous propensities, subject to violent outbursts, and likely to commit an assault at any time. However, during the trial, the second issue above mentioned was withdrawn from the consideration of the jury, and the case was submitted only upon the first issue hereinabove stated.

Defendant, operator of a large meat-packing plant, was having a new building erected in its yards. Plaintiff, a white man about 35 years of age, had a motor delivery truck, and, with the assistance of a man named Ford, was engaged in delivering building material in the defendant's yard. He drove into the northwest corner of the yard with a load of 30 sacks of cement and 50 slabs of fire clay, and, after stopping at the receiving office near the north end of the yard, obtained a receipt for the material he was delivering, and was directed to take his load to the south part of the yard and put the material where it was wanted.

The building being erected was in the southern part of the yard, near the east side thereof. Some railroad switch tracks, running approximately north and south through the yards, lay a short distance west of this building, and between them and the building was a pile of brick. West of this brick, and about 2 feet distant therefrom, a plank runway 12 inches wide ran north and south, over which employe*es transported brick in wheelbarrows past the brick pile south to the hoist at the side and pear the south end of the building.

Plaintiff's truck could not cross the switch tracks, and, after receiving directions to take his load to the south part of the yard, he drove south along the west side of said tracks until he was about opposite the hoist, where he was directed by the foreman, Sturgis, to put the cement near the hoist and then to put the slabs by the brick pile. After unloading the cement and placing it close to the hoist, which required plaintiff and his helper to carry the sacks across the tracks to the hoist, plaintiff backed his truck some 30 or 40 feet north along the west side of the switch tracks until he was opposite the brick pile. The fire-clay slabs, were each 3 inches thick, 12 inches wide, 24 inches long, and weighed nearly 100 pounds.

Plaintiff's helper, Ford, remained on the truck and handed the slabs to plaintiff, and he carried them across the switch tracks, to and over the plank runway, and piled them in the 2-foot space between the runway and the brick pile where he had been told to put them. After having carried over quite a number of these slabs, he noticed, on his was across with a slab, that one of the piles he had made was leaning over toward the runway as if it were going to fall. After laying down the slab he was carrying, he began rearranging the pile that was threatening to fall, and in doing this he was standing between the runway and the slabs, with his back to and "right up against" the runway. A wheelbarrow loaded with brick being pushed south along the runway could not get by plaintiff unless he moved, and he says he could not have gotten out of the way unless he got back across over to the west side of the runway. While plaintiff was thus on the ground between the east edge of the runway and brick, engaged in straightening the leaning pile, a negro by the name of Thompson, pushing a wheelbarrow loaded with brick, came south along the runway, and reached a point close to where plaintiff stood with his back to and against the runway. Plaintiff had not seen him before, was not acquainted, with him, and nothing had theretofore passed between them.

According to plaintiff's testimony, the negro said, "Let me get by." Plaintiff, without looking around, but continuing to straighten the pile, replied, "I will in a minute." The negro said, "I want to get by with this load of brick." Plaintiff replied "Well, I will get out of the way, now, when I get this stuff piled up, so they will stand there." To this, the negro replied in a loud voice, "By God, I want you to get out of my way; I want to get by here." The foreman, Sturgis, who was standing near the concrete mixer east of the brick pile and a few feet distant from the negro, said to him, "Go on by with the load of brick; get it upon the cage there." The negro again said to plaintiff, "I want by here." And the foreman said, "If he don't let you get by, knock him out of the way—if he don't get out of the way, mock him out of the way." Thereupon the negro said, "By God, if you don't get out of, the way, I will knock you out of the way," and, seizing a brick, struck plaintiff on the left side of the head, felling him to the ground unconscious.

Ford, plaintiff's assistant, was, as stated, in the truck, which was about 15 to 18 feet away from and west of the point where plaintiff fell. He was a witness for plaintiff, and testified that the negro with the wheelbarrow "pulled up there," and plaintiff seemed to be in the way, and the negro Thompson stopped the wheelbarrow. The first this witness noticed or remembered being said was that, just before the negro struck plaintiff, the foreman said to the negro, "If he don't get out of the way, knock him out of the way." Whereupon the negro picked up a brick, and plaintiff "raised up and said, `I don't like no negro to talk to me that way,'" and the negro struck plaintiff with the brick, felling him to the earth.

Ford further testified that, just as quick as he could, he jumped out of the truck and ran to plaintiff to pick him up; that the foreman also hurriedly ran to plaintiff as fast as he could, and exclaimed, as soon as he got there, and while the two were picking plaintiff up, but before they had completely done so:

"I oughtn't to have said anything to that nigger; he is a bad nigger. We had to take him off the ice gang; he is a bad nigger."

Ford testified that this remark was made just as soon as the two could get to plaintiff to pick him up. He further testified that when the foreman told the negro to go on by with the wheelbarrow he (the foreman) was standing near the concrete mixer, at a point east and north of the brick pile, with a part of the pile between him and plaintiff, looking at the negro, who was a little north of plaintiff. The pile of brick was about 4 or 5 feet high, and longer than it was high; Ford not being able to say how long it was. Plaintiff, however, said it was 10 or 12 feet long, and the foreman, defendant's witness, said it was 10 feet in length.

After Ford and the foreman, Sturgis, picked plaintiff up, they took him to the company doctor, and, while doing this, the negro, Thompson, disappeared and has never been seen since. He never returned to draw his pay for the money due him.

Plaintiff's skull was factured by the blow. At the hospital a part of the skull was removed, leaving a place about the size of a dollar without any bone covering over it. This place is soft and tender. If plaintiff rubs over it or draws a comb across, there is a roaring sound. He cannot sleep with that side of his head down. When he stoops suddenly there is a feeling as of something rolling forward and striking, and when he strains or lifts there is a pulling sensation across this place. For some `time after the injury there was a numbness on the right side of his body, and at the time of the trial, nearly two years after the injury, he was suffering headaches and shooting pains in the place where the skull was removed.

The defendant introduced the evidence of two witnesses, who testified relative to the assault—Sturgis, the foreman, and a colored man by the name of Williams.

According to Sturgis' testimony the plaintiff was taking cement from his truck across the runway to the place where he was to store it, and, upon reaching the runway, found in his way the negro Thompson, wheeling a barrowload of brick to the hoist, and said to him, "Get out of my road, you black son of a ____"; that Thompson went on with his wheelbarrow, delivered his load of brick, and returning, asked plaintiff, "Who are you calling a son of a ____?" to which plaintiff replied "You, you black son of a ____," and, going to his truck, got an iron bar about 3 feet long, and was coming toward the negro Thompson when the latter struck him with the brick; that he (Sturgis) was not over 12 feet away, and ran to the negro, who was picking up another brick, and preventing him from doing further damage by seizing his wrists; that he started around toward them when he heard the argument between them, and went on in a hurry.

The colored man Williams testified to practically the same words between the men before the assault, but he says that plaintiff was at" or near the front end of his...