Stanislaus v. Parmalee Industries, Inc.

• Decision Date: 24 March 1987
• Docket Number: No. WD,WD
• Citation: 729 S.W.2d 543
• Parties: Marlin A. STANISLAUS, Appellant, v. PARMALEE INDUSTRIES, INC., et al., Respondents. 38569.
• Court: Missouri Court of Appeals

Page 543

729 S.W.2d 543

Marlin A. STANISLAUS, Appellant, v. PARMALEE INDUSTRIES, INC., et al., Respondents.

No. WD 38569.

Missouri Court of Appeals,

Western District.

March 24, 1987.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

April 28, 1987.

Application to Transfer Denied

June 16, 1987.

William D. Adkins and Steven L. Hobson of counsel, Liberty, for appellant.

Lyman Field, of counsel; Field, Gentry, Benjamin and Robertson, Kansas City, for respondents.

Before PRITCHARD, P.J., and MANFORD and BERREY, JJ.

PRITCHARD, Presiding Judge.

Appellant was working on the assembly line for Allis-Chalmers Corporation when, on June 27, 1979, a flying object struck his safety glasses, which shattered, and a shard lodged in his left eye, causing injury and permanent vision impairment. The original suit for negligence by appellant included Allis-Chalmers, but the trial court sustained a motion for summary judgment for it upon the ground that appellant's exclusive remedy was under Chapter 287, RSMo 1978, the Workers' Compensation Act. That judgment was not appealed.

Then appellant filed his first amended petition against Parmalee Industries, Inc., the manufacturer of his safety glasses, and its chief engineer; U.S. Safety Services Company, the seller of the glasses; and Leo J. Rush, Allis-Chalmers' Safety Service Manager and also appellant's co-employee. Settlement was effected by all defendants except Rush. He filed a verified motion to dismiss for failure to state a claim upon which relief could be granted, which was sustained by the trial court.

Appellant's amended petition first makes "Allegations Common to All Counts", and as relevant to Rush: 3. Defendant LEO RUSH, at all relevant times herein, was an individual residing in Blue Springs, Jackson County, Missouri and was employed as Safety Service Manager by the plaintiff's employer, Allis Chalmers Corp. and was in control of furnishing and procuring safety glasses for plaintiff and co-employees for their use while working on the Allis Chalmers Corp. assembly line. * * * 6. * * * While working on the Allis Chalmers Corp. assembly line, the left safety glass lense worn by plaintiff, as aforementioned, was struck by an object which caused the safety glass to shatter sending sharp fragments of glass into plaintiff's left eye, causing severe and permanent injury and blindness, as hereinafter more fully set forth. The breakage was caused and permitted by flaws and inadequacies in the glasses."

Specific allegations as to Rush are set out in Count IV:

"FIRST: Defendant RUSH purchased safety glasses, including those which injured plaintiff, with glass lenses when he knew or should have known that said lenses were more dangerous and likely to cause injury and damage to the users thereof, including the plaintiff then were [when there were?] better quality and more modern lenses of plastic.

"SECOND: He negligently and carelessly failed to warn or instruct the plaintiff and others like plaintiff and to deliver with them any warnings provided by manufacturers or others for safety glasses advising that safety glasses, even though denominated and advertised as such, were breakable and the load and breakage factors thereof could be readily exceeded causing eye injury or blindness. Such failure of warning and passing along of warnings was negligently and carelessly suffered and permitted by defendant RUSH when by ordinary care he knew or should have known that his negligent act and omission would cause injury or blindness.

"THIRD: Defendant RUSH, even though it was within his job description and employment obligation to do so, negligently failed to inspect the glasses provided to the plaintiff and others and failed to inquire into and determine that reasonable quality control tests had been performed thereon with the result that defendant RUSH negligently delivered not only inadequate but also flawed and defective glasses to the plaintiff STANISLAUS.

"FOURTH: Defendant RUSH failed to conduct classes or give instruction to the wearers of such glasses as to their limitations and give detailed information thereof instead, permitting users within the Allis Chalmers plant, including plaintiff STANISLAUS, to believe that their eyes were thereby protected from all forces operating within the plant when such protections were not actually afforded by the glasses that he negligently provided.

"FIFTH: Defendant RUSH failed to perform his duties as safety service manager for Allis Chalmers Corp. which included providing safe, sound, and adequate and otherwise unflawed instrumentalities including safety glasses."

The question here is whether the pleadings allege any negligent act of misfeasance, i.e., an affirmative act above and beyond mere nonfeasance, i.e., a failure to act, of Rush arising out of his duties and obligations owed by him as Safety Service Manager to his employer, Allis-Chalmers.

In the prohibition case of State ex rel. Badami and Lang v. Gaertner, 630 S.W.2d 175 (Mo.App.1982), the question was first considered in this state. In the underlying case there, Lott sought to sue the corporate president and the production manager of Lott's employer, Mid-America Fiber Company, for injuries to his hand when it was drawn into a shredding machine. It was alleged that Mid-America had delegated to each defendant the duty to provide fellow employees with a reasonably safe place to work, and that each of the defendants were thereby responsible for the detection, correction and prevention of work practices and working conditions which would render the plant not reasonably safe for workmen. It was also alleged that defendants knew or could have known of the danger of the shredding machine and the absence of adequate safety devices thereon. The Badami court traced the history of the development of the "misfeasance-nonfeasance" concepts of co-employee negligence, and noted the holding in Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497 (1931), recognizing the liability of a co-employee to a fellow employee as a "third person" under the workmen's compensation law; that at common law one servant is liable to another for his own misfeasance, there being nothing in the Compensation Act which disturbs that common law relationship--an employee becomes liable to a fellow employee when he breaches a common law duty owed to the fellow employee independent of any master-servant or agent-principal relation. The court reviewed cases from other states rejecting those which hold that the immunity granted to the employer under the workmen's compensation law also applies to employees whose negligence caused the injury regardless of the nature of that negligence. At page 179, the court cited the Wisconsin decisions which hold that a corporate officer or supervisory employee performs in a dual capacity, having ...