State ex rel. Badami v. Gaertner

• Decision Date: 19 January 1982
• Docket Number: No. 42415,No. 1,1,42415
• Citation: 630 S.W.2d 175
• Parties: STATE of Missouri ex rel. Frank BADAMI and Charles Lang, Relators, v. The Hon. Carl R. GAERTNER, Judge of Divisionof the Circuit Court of the City of St. Louis, State of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 175

630 S.W.2d 175

STATE of Missouri ex rel. Frank BADAMI and Charles Lang, Relators, v. The Hon. Carl R. GAERTNER, Judge of Division No. 1 of the Circuit Court of the City of St. Louis, State of Missouri, Respondent.

No. 42415.

Missouri Court of Appeals, Eastern District, En Banc.

Jan. 19, 1982.

Motion for Rehearing or to Transfer to Supreme Court Denied

Feb. 19, 1982. Application to Transfer Denied

March 16, 1982.

Kohn, Shands, Elbert, Gianoulakis & Giljum by Thomas J. Frawley, St. Louis, for relators.

Frank B. Green, St. Louis, for respondent.

SATZ, Judge.

Relators sought our writ of prohibition to prevent respondent from proceeding further in the underlying lawsuit, Lott v. Badami and Lang. In division, we issued our preliminary writ and, subsequently, made that writ permanent. Respondent's motion for rehearing was granted and, after briefing and oral argument, we again make the writ absolute. In so doing, we adopt, without quotation marks, those portions of the divisional opinion which reflect our present consensus.

In the Lott case, plaintiff seeks to recover against defendants for severe injuries sustained during his employment by Mid-America Fiber Company. Plaintiff's hand was injured when drawn into a shredding machine and he was required to undergo surgical amputation of three fingers. Defendant Badami is the corporate president of Mid-America; defendant Lang is the production manager of the company. Plaintiff received benefits under the workmen's compensation law, Chapter 287 RSMo 1978. In the underlying suit, plaintiff seeks to recover from defendants for negligence from their alleged failure to equip the shredding machine with certain safety devices which would have prevented plaintiff's injury. It was alleged that Mid-America had delegated to each of the defendants the duty of providing their 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 further alleged that defendants "knew or in the exercise of ordinary care could have known" of the danger of the shredding machine and the absence of adequate safety devices thereon. Defendants moved to dismiss the petition for failure to state a claim and for lack of jurisdiction over the subject matter. The latter motion was based upon immunity under the workmen's compensation law. The respondent Judge indicated his intention to overrule the motions and stayed the effect of that order to allow relators to seek a writ of prohibition. As previously indicated, we issued our preliminary writ to prevent respondent from exercising jurisdiction. Thereafter both parties filed affidavits and respondent filed exhibits. These documents are not a part of the record in the court below and are ordered stricken. State ex rel. Terry v. Holtkamp, 330 Mo. 608, 51 S.W.2d 13, 16 (banc 1932).

The question we are confronted with is whether a supervisory employee, including a corporate officer, may be held personally liable for injuries sustained by a fellow employee covered by workmen's compensation where the injuries occur because of the supervisor's failure to perform the duty, assigned to him by the employer, to provide the fellow employee a reasonably safe place to work. The question has never been decided in this state and has been answered in differing ways in other states.

Section 287.120 RSMo 1978 provides in pertinent part:

"1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person ...

2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee ... at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter."

Section 287.150 RSMo 1978 provides that "(w)here a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee ... against such third person...."

It is accepted in this state that a co-employee, or fellow servant or foreman is a "third person" within the meaning of Sec. 287.150 and that he may be sued by an injured co-employee for his negligence resulting in the compensable injury. Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913 (banc 1950); Gardner v. Stout, 342 Mo. 1206, 119 S.W.2d 790 (1938); Lamar v. Ford Motor Co., 409 S.W.2d 100 (Mo.1966); Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497 (1931). "Employee" includes executive officers of corporations. Sec. 287.020 RSMo 1978. Neither party here questions these principles of law. The question is how far do they reach?

Before examining the law of foreign jurisdictions, we believe it important to look to the state of the law when the Workmen's Compensation Act was enacted in Missouri in 1926. Prior to that the employer was not liable for injuries caused to an employee by the negligent acts of a "fellow servant." Bender v. Kroger Grocery & Baking Co., 310 Mo. 488, 276 S.W. 405, 406 (1925). Perhaps to obviate the harshness of such a rule, it was recognized that a co-employee may function in a dual capacity-as a fellow servant or as a "vice-principal" for the master. In the latter position his negligence was not that of a fellow servant but rather was the negligence of the master himself. Additionally, the courts held that the duty of the master to provide a reasonably safe place to work for the employee was a non-delegable duty. Bender v. Kroger Grocery & Baking Co., supra, (2). When, therefore, the master utilized an employee to perform this non-delegable duty that employee was not functioning as a fellow servant but as the master himself. Upon failure of that employee to perform the duty, liability attached to the master for injuries to third parties or other employees. Mitchell v. Polar Wave Ice & Fuel Co., 206 Mo.App. 271, 227 S.W. 266 (1921); White v. Montgomery Ward & Co., 191 Mo.App. 268, 177 S.W. 1089 (1915); Zellars v. Missouri Water & Light Co., 92 Mo.App. 107 (1902).

Parallel to this principle was the principle that an agent was liable to third persons, including co-employees, only for his misfeasance but not for his nonfeasance. See McGinnis v. Chicago R.I. & P.Ry.Co., 200 Mo. 347, 98 S.W. 590, 592 (1906); Jewell v. Kansas City Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703, 711 (1910). This principle was based on the premise that tort liability for breach of contractual obligations should be restricted to those in privity with the promisor. See Harriman v. Stowe, 57 Mo. 93, 98 (1874). Since no privity existed between the agent and the third person, the agent's failure to perform a contractual duty owed to his principal, i.e., his nonfeasance, would result in the agent's being liable only to his principal. Id. at 98; see Carson v. Quinn, 127 Mo.App. 525, 105 S.W. 1088, 1090-91 (1907). In Missouri, our courts clearly recognized this distinction between an agent's nonfeasance and his misfeasance. See Hamm v. Chicago, B. & Q.R.Co., 211 Mo.App. 460, 245 S.W. 1109, 1113 (1922); McCarver v. St. Joseph Lead Co., 216 Mo.App. 370, 268 S.W. 687, 690 (1925). Although, application of this distinction was imprecise at times, misfeasance was found only after the agent had "entered upon" the performance of his duty, e.g., Orcutt v. Century Bldg., Co., 201 Mo. 424, 99 S.W. 1062, 1067 (1906) and mere passive acceptance of the duty was not the beginning of performance; rather, an agent "entered upon" the performance of his duty only after he had committed an affirmative act in furtherance of that duty. See McCarver v. St. Joseph Lead Co., 216 Mo.App. 370, 268 S.W. 687 (1925); see also Jewell v. Kansas City Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703 (1910). But see, State ex rel. Hancock v. Falkenhainer, 316 Mo. 651, 291 S.W. 466, 468 (banc 1927) (defendant's failure to warn of intention to start machinery was misfeasance).

Thus, under the law as it existed at the time of the enactment of our workmen's compensation law, the duty to provide a safe place to work was upon the employer, not the employee. An employee chosen to implement this duty owed his duty to the employer and he incurred no personal liability for failure to fulfill his duty to provide a reasonably safe place for employees to work.

Arguably, this nonfeasance-misfeasance distinction permitted the primary wrongdoer to escape liability merely because his negligence was passive. Under criticism, the distinction was blurred and, perhaps, effectively eliminated by our courts as a viable concept in agency and tort law. See, e.g., Giles v. Moundridge Milling Co., 351 Mo. 568, 173 S.W.2d 745, 751-752 (1943); Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752, 757-759 (1936). The distinction apparently was rejected by the Restatement (Second) of Agency, see Restatement (Second) of Agency § 354; ¹ see also §§ 350-359, and, although, acknowledged, was criticized by the Restatement (Second) of Torts. See Restatement (Second) of Torts § 323. ² This blurring and elimination of the distinction developed in agency and tort law independent of our compensation legislation. Our question here is whether we should fix our compensation legislation with this independently developed conceptual change.

In Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497 (1931), we first recognized the liability of a co-employee to a fellow employee as a "third person" under the workmen's compensation law. In so doing, we applied the principles of law first noted and explicitly stated: "Now...