Raney v. Lachance

• Decision Date: 21 October 1902
• Citation: 70 S.W. 376,96 Mo.App. 479
• Parties: CHARLES RANEY, Respondent, v. JULES C. LACHANCE, Appellant
• Court: Missouri Court of Appeals

70 S.W. 376

96 Mo.App. 479

CHARLES RANEY, Respondent, v. JULES C. LACHANCE, Appellant

Court of Appeals of Missouri, St. Louis

October 21, 1902

Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.

AFFIRMED.

Judgment affirmed.

P. R Flitcraft for appellant.

(1) An employee or servant is liable in a suit brought by his master to indemnify the latter from the consequence of his negligence or misconduct. Schouler on Domestic Relations (5 Ed.), sec. 478; Green v. New River Co., 4 T. R. 589; Pritchard v. Hitchcock, 6 Man. & Gr. 165; Steinhauser v. Spraul, 127 Mo. 556. (2) And this liability exists notwithstanding the concurring negligence of another servant not made a defendant with him. Schouler on Domestic Relations (5 Ed.), sec. 478; Zulkee v Wing, 20 Wis. 408; Boyle v. Railroad, 88 Ill.App. 255; Minster v. Railway, 53 Mo.App. 279, and authorities cited. (3) A person employed to do work requiring skill or involving unusual hazard, and undertaking to do it for suitable compensation in a skillful and careful manner, is bound so to do it, and he is responsible to his employer for injury occasioned the latter by the negligent manner in which he performed the work. Schouler on Domestic Relations (5 Ed.), sec. 478, and authorities cited; Willard v. Pinard, 44 Vt. 34; Homes v. Onion, 2 C. B. N. S. 790.

Cunningham & Maurer for respondent.

(1) The court sitting as a jury was the sole judge of the credibility of the witnesses and the weight to be given to their testimony; and is not confined alone to the mere credibility of the witness but may take into consideration all the surrounding circumstances. Powell v. Railway, 59 Mo.App. 335; Lawson v. Wilson, 37 Mo.App. 636. (2) Where plaintiff's case is founded on negligence, and not on intentional injury, the burden is upon him throughout the trial to prove it. Dowell v. Guthrie, 99 Mo. 653. Evidence sufficient to show that the glass was broken by respondent is not sufficient to support a verdict, or to shift the burden of proof. Flannery v. St. Joseph, 23 Mo.App. 120. The jury must be left to determine the facts from all the evidence no matter by whom offered. Murray v. Railway, 101 Mo. 236.

BLAND, P. J. Barclay and Goode, JJ., concur.

OPINION

BLAND, P. J.

--The suit was commenced before a justice of the peace, on account, for a balance of $ 11.25 due plaintiff as wages earned while in the employ of defendant as a journeyman painter. The correctness of the account is admitted.

Defendant filed a counterclaim alleging in substance that prior to May 21, 1901, he contracted with the owner to do certain painting on the building known as No. 1008 on Pine street in the city of St. Louis; that on May 21, 1901, he directed the plaintiff, then in his employ as a journeyman painter, to proceed with other painters to do the painting contracted to be done on said building; that plaintiff and the other employees entered on the premises to perform the work and while so engaged so carelessly and negligently handled certain appliances entrusted to them and necessary to do the work, as to break a large plate-glass window in the building to the injury and damage of said building in the sum of $ 57.82, which the defendant was obliged to pay and did pay.

Plaintiff recovered judgment in the justice's court from which defendant appealed to the circuit court. On a trial anew in the circuit court the issues were submitted to the court without a jury. After hearing the evidence the court found against the defendant on his counterclaim and rendered judgment for plaintiff for the sum sued for. The defendant duly appealed.

The evidence is that the defendant had a contract with the owner to do certain painting on the building known as 1008 Pine street, city of St. Louis, and on May 21, 1901, sent plaintiff, and Sparks, Oppenheim and Vaughn, other men in his employ, to do the painting on the building, with the necessary tools and appliances for the work; that when the painters arrived at the building they proceeded to raise to the roof of the building, which is flat, outriggers for the purpose of supporting a swinging stage on the outside of the building for the painters to stand on to do the painting and to lower or raise themselves as the work required. That the outriggers were timbers four inches square and from twelve to sixteen feet long and weighed from sixty to seventy pounds each. On one end of each outrigger there was an iron band with an eye in which was hooked (after the outriggers had been secured on the roof) blocks, on which were suspended the ropes to support the swinging stage.

The outriggers were to be laid upon the roof of the building with the banded end projecting over the cornice a sufficient distance to clear the swinging stage from the building. To prevent the outriggers from tipping up, the ends resting on the roof were held in place by bags of sand. To raise the outriggers to the roof, plaintiff and Vaughn went upon the roof with a rope each. One end of each rope was let down to Sparks and Oppenheim, who securely tied each end of the outrigger with these ropes and then signaled plaintiff and Vaughn to draw on the ropes and assisted them to raise and steady the outrigger until it had passed up and beyond their reach, when plaintiff and Vaughn completed the raising of the outrigger to the roof by pulling in the ropes. Three of the outriggers had been landed on the roof in this way without accident. In raising the fourth one, after it had been securely tied at the ends and had been raised as high as Sparks and Oppenheim could reach from the ground (about seven feet) and when, according to the evidence, it was in a perfectly horizontal position and swinging out about twenty-two inches from a plateglass window in the building, the signal was given by Sparks to plaintiff and Vaughn to pull away on the ropes, one end of the outrigger shot through the window.

Sparks and Oppenheim both testified that the outrigger was in a perfectly horizontal position when they let go of it. Vaughn and plaintiff testified that when the signal was given to haul away, they pulled together evenly on the ropes in raising the outrigger. The day was a calm one and there is no cause assigned by the witnesses, or explanation given, as to the cause of the accident. Two persons who heard the crash of the glass when struck by the outrigger testified that they looked and saw one end of the outrigger on the sidewalk, but this is denied by the painters. Plaintiff quit work when the accident occurred.

It is admitted that $ 57.82 is a reasonable charge for replacing the broken glass with a whole one, and that defendant replaced it.

Defendant asked, but the court refused, the following declaration of law:

"If the court, sitting as a jury, believes and finds from the evidence that on the twenty-first day of May, 1901, the plaintiff was in the employ of the defendant as a journeyman painter, and further finds that on said twenty-first day of May the plaintiff with others in like employment was engaged in painting for the defendant a building known as No 1008 Pine street, in the city of St. Louis, Missouri; and further finds that while so...