Oganaso v. Mellow

• Decision Date: 21 April 1947
• Docket Number: 40102
• Citation: 201 S.W.2d 365,356 Mo. 228
• Parties: Mike Oganaso v. William T. Mellow, R. Wesley Mellow, George E. Mellow, Carrie M. Kinsey and Louise B. McDowell, CoPartners, doing business under the name Liberty Foundry Company, Appellants
• Court: Missouri Supreme Court

201 S.W.2d 365

356 Mo. 228

Mike Oganaso v. William T. Mellow, R. Wesley Mellow, George E. Mellow, Carrie M. Kinsey and Louise B. McDowell, CoPartners, doing business under the name Liberty Foundry Company, Appellants

No. 40102

Supreme Court of Missouri

April 21, 1947

Appeal from Circuit Court of City of St. Louis; Hon. C. B Williams, Judge.

Reversed and remanded (with directions).

J Porter Henry and Green, Henry & Evans for appellants.

(1) Master is liable for the negligence of his servant only while acting within the scope of his authority. Wolf v Terminal Railroad Co., 282 Mo. 559; Milton v. Railroad, 193 Mo. 46; Milazzo v. Kansas City Gas Co., 180 S.W.2d 1; Anderson v. Nagle, 259 S.W. 858, 214 Mo.App. 134. (2) The negligent act for which the master is sought to be held must pertain to the duties or purposes for which the servant is employed. Snyder v. Railroad, 60 Mo. l.c. 419; Walker v. Railroad, 121 Mo. l.c. 584; Noland v. Morris, 248 S.W. 627, 212 Mo.App. 1; Milton v. Railroad, 193 Mo. 46; Shelby v. Railroad, 125 S.W. 1189; Moore v. Jefferson City L. Co., 146 S.W. 825, 163 Mo.App. 266; Thurston v. Kansas City Terminal, 168 S.W. 236; Marshall v. United Railroad, 184 S.W. 159. (3) Before the servant's act can be brought within the scope of his employment because of being directed to do an act by some agent of the master, the agent must be shown to be acting within the scope of his authority in giving the direction. Oatman v. Railroad, 304 Mo. 38; Sherman v. Railroad, 72 Mo. 62; Hall v. Railroad, 219 Mo. 553; Hartman v. Muehlbach, 64 Mo.App. 565; Melcher v. Handleman, 249 S.W. 152. (4) Where the servant is acting for some purpose of his own, such as using his own car to go to work, the master is not liable -- the relationship itself is suspended. LaBatt on Master & Servant, sec. 2286; Smith v. Fine, 351 Mo. 1179; Pesot v. Yanda, 344 Mo. 338; Calhoun v. Mining Co., 209 S.W. 318, 202 Mo.App. 564; Wolf v. Railroad, 282 Mo. 559; Halsey v. Metz, 93 S.W.2d 41; Priest v. Woolworth, 62 S.W.2d 926; Evans v. A.L. Dyke Co., 121 Mo.App. 266, 101 S.W. 1132; Healey v. Wrought Iron Range Co., 143 S.W. 549; Brown v. Jarvis Co., 166 Mass. 75; Seaboyer v. Davies, 244 Mass. 122; Reame v. Newcomb, 124 Mich. 137. (5) The burden of showing scope of employment is upon plaintiff. Drolshagen v. Union Depot, 186 Mo. 258; Yeager v. Smith, 338 Mo. 140.

Hay & Flanagan, S.D. Flanagan and E. D. Franey for respondent.

(1) Where an invitee is performing work for an invitor on the latter's premises which is for the benefit of invitor or for their mutual benefit, the defendant owes plaintiff the same care that invitor owed his own employees. Brody v. Cudahy Packing Co., 127 S.W.2d 7, 233 Mo.App. 973; Hutchison v. Richmond Safety Gate, 152 S.W. 52, 247 Mo. 71; Howard v. S.C. Sacks, Inc., 76 S.W.2d 460; Burch v. C.C.C. St. L.R.R., 40 S.W.2d l.c. 688, 328 Mo. 59; Jewell v. Sturges, 151 S.W. 966, 245 Mo. 720; 39 C.J., 1563, p. 1346; 52 C.J. 2172, p. 620. (2) It is the duty of the invitor to warn invitee of all possible danger and to take ordinary care to prevent injury to invitee. Gilliland v. Bondurant, 59 S.W.2d 679, 332 Mo. 881; Cummings v. Union Quarry Const. Co., 87 S.W.2d 1039, 231 Mo.App. 1224; Kellog v. H.D. Lee Merc. Co., 160 S.W.2d 838, 236 Mo.App. 699; Bankhead v. First Natl. Bank, 137 S.W.2d 594. (3) It makes no difference who owned the automobile that injured plaintiff if it was used in the performance of a duty which the driver owed the employer, or in the execution of some purpose incidental to his duties as an employee. Guitor v. Wheeler, 36 S.W.2d 325; Tutie v. Kennedy, 272 S.W. 117; Schmitt v. American Press, 42 S.W.2d 969; Curic v. Nelson, 64 P.2d 1153. (4) The person who had the right to control the servant is liable as master for the servant's negligence. O'Brien v. Rindskopf, 70 S.W.2d 1085, 334 Mo. 1233; Trout v. C., R.I. & P. Ry., 39 S.W.2d 424. (5) Plaintiff need not show that the party ordering the employee to move the automobile which struck plaintiff had the absolute authority to do so; he need only show that he had the apparent authority to give the order. Daugherty v. Spark Iron Co., 175 S.W.2d 45; Trout v. C., R.I. & P. Ry., 39 S.W.2d 424; James v. Muehlbach, 34 Mo.App. 512. (6) The master is liable for every wrongful act of a servant committed in the course of his service and for the master's benefit. Wolfersberger v. Miller, 39 S.W.2d 758, 327 Mo. 1150. (7) Defendant is liable for the negligence of an employee performing a duty of the defendant even if those ordering him to perform the duty exceeded their authority and even if it was not an act for which he was regularly employed. Marion Steam Shovel Co. v. Bertino, 82 F.2d 945; Gibson v. Ducker & Sons, 170 Mo.App. 135, 155 S.W. 462. (8) Relation of master and servant is prima facie established by showing that alleged agent was performing labor for employer at time of injury. Margulis v. Natl. Enameling & Stamping Co., 23 S.W.2d 1049, 324 Mo. 420; 39 C.J. 1590, p. 1361; Orris v. Tolerton, 201 Iowa 1344, 207 N.W. 365; Manion v. Waybright, 86 P.2d 181; Tutie v. Kennedy, 272 S.W. 118. (9) Defendants would have been liable for the negligence of Piva in moving the automobile even if plaintiff had requested him to do so because he merely requested something to be done which it was defendant's duty to do. Howard v. Sacks, 76 S.W.2d 460. (10) Defendants cannot raise the question of the sufficiency of the evidence to make a case for plaintiff because their motion to dismiss failed to state with particularity the grounds therefor. Civil Code of Missouri, Sec. 60, Laws 1943, p. 374.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action for $ 25,000 for personal injuries sustained by plaintiff while engaged as an independent contractor in tuck pointing the brick wall of a foundry building belonging to defendants, partners, and used by them in their business of molding metals. The jury returned a verdict for defendants; but the trial court sustained a motion for a new trial, and defendants have appealed.

The motion for a new trial was sustained on the ground instructions given at defendants' request were erroneous. Defendants-appellants contend the trial court erred in sustaining the motion on that ground; and they further contend the trial court should have sustained their motion for a directed verdict, which motion was presented at the conclusion of all of the evidence. Errors of the instructions are immaterial upon appeal, if the plaintiff's case should not have been submitted to the jury. Bootee v. Kansas City Public Service Co., 353 Mo. 716, 183 S.W.2d 892. In view of our ruling, infra, upon the question of the submissibility of plaintiff's case, it will be unnecessary to consider the contentions of the parties relating to instructions.

At the outset we were met with a contention of plaintiff-respondent that the motion for a directed verdict was insufficient in that it failed to state with particularity the grounds therefor. The motion was as follows, "Now at the close of the whole case defendants ask the Court to direct a verdict in favor of defendants." Plaintiff-respondent urges Section 60 of the Civil Code of Missouri, Laws of Missouri 1943, p. 374, is applicable. The section provides, in part, that an application to the court for an order shall be by motion, which, unless made during a hearing or trial, shall be made in writing, "shall state with particularity the grounds therefor, and shall set forth the relief or order sought." Section 60, supra, governs applications for orders of court made prior to hearing or trial, and is not applicable to a motion for a directed verdict, which motion now is provided (in lieu of the former demurrer to the evidence and in lieu of the request for peremptory instructions) by Section 112, Civil Code of Missouri, Laws of Missouri 1943, p. 387. Prior to the adoption of the Civil Code of Missouri, the office of the demurrer to the evidence (and the request for a peremptory instruction in the nature of a demurrer to the evidence) was quite generally understood, and held to be a challenge of the sufficiency of the evidence to make a submissible case for the jury. It was then unnecessary to state what particular element or elements, essential under the principles of law applicable to the case, to support which it was contended the evidence was insufficient. For a discussion of the duty of the trial judge upon a request for a peremptory instruction, now a motion for a directed verdict, see Hardin v. Illinois Cent. R. Co., 334 Mo. 1169, 70 S.W.2d 1075. Now, since the adoption of the Civil Code of Missouri, we hold a motion for a directed verdict is insufficient save and except the movant "makes known to the court . . . his grounds therefor" in compliance with Section 122, Civil Code of Missouri, Laws of Missouri 1943, p. 389, either in the motion or orally into the record of the trial court. Of course, we are not unacquainted with a commendable practice of trial courts in affording counsel opportunity to be heard orally, when the motion for a directed verdict has been made and before the cause is submitted to the jury, upon the question of the sufficiency of the evidence to make out a submissible case. In the instant action, however, as will be seen infra, defendants' contention the plaintiff failed to make out a case for the jury has merit, and we have deemed it proper to consider the question under the provisions of Supreme Court Rule No. 3.27.

Defendants' foundry is located along the west side of Reilly Street in St. Louis. The foundry has separate departments, or shops. The building housing defendants' Shop No. 4 is situate at the south end of the plant, and the east wall of the building is coextensive with the west line...