Perlin v. Waters-Pierce Oil Co.

• Decision Date: 07 April 1914
• Citation: 165 S.W. 816,182 Mo.App. 727
• Parties: DAVID PERLIN, Appellant, v. WATERS-PIERCE OIL COMPANY, Respondent
• Court: Missouri Court of Appeals

165 S.W. 816

182 Mo.App. 727

DAVID PERLIN, Appellant, v. WATERS-PIERCE OIL COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

April 7, 1914

Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

James M. Rollins and Joseph Reilly for appellant.

J. D Johnson and Loomis C. Johnson for respondent.

OPINION

PER CURIAM.

--Plaintiff prosecutes this appeal from a judgment of the court sustaining a general demurrer to his petition.

Omitting caption and signatures, the petition, in full, is as follows:

"PLAINTIFF'S AMENDED PETITION.

"Comes now the plaintiff, and by leave of court first had and obtained, files this, his amended petition.

"Plaintiff states that the defendant herein is and was at all times hereinafter mentioned, a corporation duly organized and existing under the laws of the State of Missouri, and that said corporation was in the business of buying, selling and transporting oils in St. Louis, Missouri.

Plaintiff for his cause of action states that on or about the 14th day of December, 1909, he was in the employ of the defendant as a driver of a team of horses, attached to a wagon, provided with a tank, and used in the delivery of oil to the customers of the defendant in the city of St. Louis; that plaintiff in the capacity of driver as aforesaid was under the authority and supervision of the foreman of the defendant; and that said foreman had authority to order and direct plaintiff in the manner of performing his duties; and that plaintiff relied on said foreman to give him instructions for his labor.

"Plaintiff further states that on the morning of the 14th day of December, 1909, aforesaid, before starting on his route for the delivery of oil, he informed the foreman of the defendant, that one of the horses which plaintiff was to drive that day was of a stubborn and balky disposition, and had balked on previous trips; that defendant's foreman thereupon gave to plaintiff a bottle containing turpentine and ordered plaintiff that if the horse again should balk and refuse to go forward, to apply some of said liquid to the anus of said horse; that later on said day when plaintiff was endeavoring to go on with his duties delivering oil, the horse balked and refused to go forward; that plaintiff, then ignorant of the effects turpentine would have, applied some of the turpentine to the anus of the...