Oker v. Hill-O'Meara Const. Co.

• Decision Date: 06 June 1911
• Citation: 138 S.W. 84,158 Mo. App. 213
• Parties: OKER v. HILL-O'MEARA CONST. CO.
• Court: Missouri Court of Appeals

138 S.W. 84

158 Mo. A. 213

OKER v. HILL-O'MEARA CONST. CO.

St. Louis Court of Appeals. Missouri.

June 6, 1911.

1. MASTER AND SERVANT (§ 196) — FELLOW SERVANTS — WHO ARE — BUILDING OPERATIONS.

A hodcarrier assisting bricklayers in constructing a small building is a fellow servant of the carpenters, as affecting his right to recover for negligent personal injury.

2. MASTER AND SERVANT (§ 196) — "FELLOW SERVANTS."

Limited by the departmental doctrine, those are "fellow servants" who are in the employ of a common master to the end of a common undertaking and are so associated and related in the performance of the work that they can observe and influence each other's work, and report any delinquency to a correcting power.

3. MASTER AND SERVANT (§ 177) — INJURY TO HODCARRIER — NEGLIGENCE OF FELLOW SERVANT.

A building contractor is not liable for injury to a hodcarrier caused by a fellow servant's removal of a runway about 10 minutes before the accident; the contractor not being chargeable with actual or constructive notice of the defect.

Appeal from St. Louis Circuit Court; W B. Homer, Judge.

Action by Edward J. Oker against the Hill-O'Meara Construction Company. Judgment for plaintiff, and defendant appeals. Reversed.

Collins & Chappell, for appellant. Joseph G. Williams and I. A. Rollins, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

At the time of his injury, plaintiff was a hodcarrier in the employ of defendant corporation, a contractor and builder. Defendant was engaged in constructing a brick building about 40 by 60 feet in dimensions in the city of St. Louis, and plaintiff was attending the bricklayers thereon by carrying brick in a hod when he was precipitated between the joists of the building to his injury because of the tipping of a runway constructed for the use of the hodcarriers. The building had progressed to the height of one story, and the joists were laid thereon. Upon the top of the joists a walk had been constructed for the hodcarriers by means of boards nailed thereto, but one portion of the structure was about 14 inches higher than the other; that is to say, it appears the first story of a portion of the building was about 14 inches higher than the same story of the other portion. Because of this fact, a runway was constructed for the hodcarriers from the walk on the lower portion of the building to the walk constructed for them on the higher portion. This runway was constructed of a 2-inch yellow pine plank about 12 inches in width and 14 feet in length. The plank was securely nailed at either end by those who constructed the scaffold 6½ hours before plaintiff's injury, and under the center it was braced by means of a block 4 inches thick and from 6 to 10 inches wide, to which the plank was nailed as well. It appears this plank, spoken of in the evidence as the runway, was nailed to the walk on the joists of the building with twentypenny nails at each end, and likewise nailed to the block under the center thereof, and, as thus constructed, it was in every respect sound and secure for the use intended. Over this plaintiff and others passed to and fro during the day with hods filled with brick or mortar on their shoulders, and all agree that the runway was perfectly secure until 10 minutes before plaintiff's injury. Besides the hodcarriers and bricklayers, a number of carpenters in defendant's employ were likewise working on the second story of the building; the two gangs working about and in near proximity to each other. The bricklayers and hodcarriers were working under defendant's foreman, Batz, while the carpenters and their helpers were working under defendant's foreman of the carpenters, Nelson, but, as stated, all were prosecuting the duties of their employment on the second story of the building and in near proximity to each other. The two gangs under their respective foreman were disassociated in performing the functions of their respective trades, though all were engaged in the common employment of constructing the building. The carpenters were wholly unconcerned, however, with the bricklayers' walk and runway, for these were constructed by hodcarriers under the immediate supervision of their foreman, Batz. There is no complaint in the case that the runway upon which plaintiff received his injuries was not properly constructed, but the averment is that it was rendered unsafe immediately before plaintiff's injury by the act of one of defendant's carpenters in removing the block from under the center thereof. Plaintiff says he passed over the runway numerous times during the day, and to his knowledge it was entirely secure until about 15 minutes before his injury. No more than 15 minutes before he was injured he passed over it and down the ladder to the earth beneath for the purpose of filling his hod with brick. While on the ground he procured a drink of water, attended to an errand, and filled his hod—in all consuming about 15 minutes—when he returned with his hod laden with brick. Upon passing over the runway with the hod on his shoulder, though the plank seemed to be resting identically as before, it suddenly turned when he was in about the middle, and precipitated him, to his injury. It appears that, after plaintiff had passed below to fill his hod, either a carpenter or a carpenter's helper engaged at work but a few feet away tore up the runway for the purpose of appropriating the block thereunder to the use of the carpenters. This carpenter or carpenter's helper, as the case may be, removed the runway from its secure position by means of a hammer and pinch bar, took out the block which was nailed beneath the center, and turned the plank constituting the runway over as before without nailing it fast or placing another support thereunder.

Plaintiff introduced defendant's foreman, Batz, who testified for him to the effect that, though the two gangs of men were working on the same story of the building for the common master to the same end of constructing the building and in close proximity to each other, they were each under a separate foreman, and the one prosecuted the work of bricklayers and their helpers, while the other, that of the carpenters and their helpers, and that the carpenters had nothing whatever to do with the matter of scaffolding and runways for the bricklayers. For plaintiff this witness also testified that he had caused the scaffold and runway to be erected by his men about 6½ hours before plaintiff's injury, and that it was entirely secure to within 10 minutes before plaintiff's injury. The witness, defendant's foreman, passed over the runway but 10 minutes before plaintiff was injured, and observed it to be in perfect condition as originally constructed, and he did not see nor had he been advised of its disarrangement by the carpenter or the carpenter's helper until after plaintiff was injured.

The court referred the matter of defendant's liability to the jury as if plaintiff and the carpenter who negligently tore up the runway were not fellow servants, for it instructed that, if the jury found the runway was rendered dangerous and the injury occasioned by the negligent act of one of defendant's carpenters or a carpenter's helper, plaintiff was entitled to recover. Obviously the court treated plaintiff and the carpenters as being engaged in different departments of the master's service so as to render the master liable for the negligent act of the carpenter or carpenter's helper in wrongfully tearing up the runway and removing the block from under it without warning plaintiff. This was an erroneous view, for, beyond question, these men were fellow servants, even though the departmental limitation on the rule obtains in Missouri. It is true the fellow-service rule according to the full measure of its scope declared in Farwell v. R. R. Corp., 4 Metc. (Mass.) 49, 38 Am. Dec. 339, does not obtain here, and that it is subject to the doctrine known as the departmental limitation, requiring servants, in order to be declared fellows, to be such in fact, and not simply in dialectic theory. Though the departmental doctrine was severely criticised in Grattis v. K. C., etc., R. Co., 153 Mo. 380, 55 S. W. 108, 48 L. R. A. 399, 77 Am. St. Rep. 721, it is nevertheless frequently applied by our Supreme Court in proper circumstances to the end of attaining a just result as will appear by reference to the following recent cases in point: Koerner v. St. Louis Car Co., 209 Mo. 141, 107 S. W. 481, 17 L. R. A. (N. S.) 292; Lanning v. Chicago, etc., R. Co., 196 Mo. 647, 94 S. W. 491.

As limited by the departmental doctrine with us, those are fellow servants who are in the...