State ex rel. Duvall v. Ellison
| Decision Date | 12 July 1920 |
| Citation | 223 S.W. 651,283 Mo. 532 |
| Parties | STATE ex rel. WM. F. DUVALL v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals |
| Court | Missouri Supreme Court |
Writ quashed.
W. O Jackson and D. C. Chastain for relator.
(1) One who is a foreman and authorized to direct the work of a servant who is injured is a fellow servant as to acts not involving the exercise of his authority as foreman, and in doing an act which is the work of a co-laborer with the injured servant, negligently, thereby causing the injury does not render the master liable. McIntyre v Tebbetts, 257 Mo. 157; Fogarty v. St. Louis Transfer Co., 180 Mo. 490; Stephens v. Lumber Co., 110 Mo.App. 405. (2) The work in which plaintiff's son and others and Blough, the alleged "straw boss," were engaged was the clearing of stumps from a tract of ground by boring holes under stumps, preparing dynamite shots to be placed in these holes, placing and discharging the dynamite by which the stumps were blown out, in which the persons thus engaged were fellow-servants. Relyea v. Ry., 112 Mo 86; Hawk v. McLead L. Co., 166 Mo. 128; Strottman v. Ry. Co., 211 Mo. 227; Stocks v. Transit Co., 106 Mo.App. 129; Henson v. Pascola Stave Co., 151 Mo.App. 234; Livengood v. Lead & Zinc Co., 179 Mo. 229. (3) Under a well-established rule in this State, it is not necessary, in order that two persons be fellow-servants, that they be engaged in the same kind of work, but they are fellow-servants if they are engaged in the general enterprise in which they are all engaged. Murray v. Ry. Co., 98 Mo. 573; Higgins v. Mo. Pac. Ry., 104 Mo. 419; Schaub v. Ry. Co., 106 Mo. 74.
Swearingen & Finnell, Volney McFadden and W. H. Hallett for respondents.
(1) The decision of the Kansas City Court of Appeals is not in conflict with any decision of this court. (a) The trial court erred in sustaining the demurrer to the evidence at the close of plaintiff's case and in directing a verdict for defendant. In determining whether the record discloses substantial evidence to prove the cause of action, the court is required to make every inference of fact in favor of the party offering the evidence which the jury might in any degree of propriety have inferred in his favor, and is not at liberty to make inferences of fact in favor of the defendant to countervail or overthrow either presumptions of law or inferences of fact in favor of the plaintiff, as that would be usurping the province of the jury. Clark v. Long, 196 S.W. 409; Trebbe v. American Steel Foundries, 185 S.W. 179; Behncke v. Clay Mining Co., 189 Mo.App. 639; Campbell v. Ry. Co., 175 Mo. 161; Hollweg v. Bell Tel. Co., 195 Mo. 149. (b) A demurrer to plaintiff's evidence concedes the truth of such evidence. Moloney v. United Rys., 183 Mo.App. 292. (c) In determining whether or not a verdict should be directed for defendant, plaintiff's evidence should be viewed in the light most favorable to him. Moore v. United Rys. Co., 185 Mo.App. 184; Dorrity v. Railroad, 188 Mo.App. 365; Kennish v. Sanford & Ray, 193 Mo.App. 368; Pfeiffer v. Supreme Tribe, 191 Mo.App. 38. (d) The duty of the master to use ordinary care to furnish his servant a reasonably safe place to work is a primary duty; one that he cannot delegate to any servant so as to escape liability for a negligent exercise thereof. Combs v. Cons. Co., 205 Mo. 367; Clark v. Foundries Co., 234 Mo. 436; Clark v. Long, 196 S.W. 409; Dayharsh v. Ry. Co., 103 Mo. 570; Miller v. Mo. Pac. Ry., 109 Mo. 357; White v. Montgomery Ward & Co., 191 Mo App. 268; Hollweg v. Bell Tel. Co., 195 Mo. 149; Jewell v. Sturges, 245 Mo. 720; Donohue v. Kansas City, 136 Mo. 670; Herdler v. Buck Stove Co., 136 Mo. 16; Stobile v. McMahon, 190 S.W. 652; Koerner v. St. Louis Car Co., 209 Mo. 141; Hahn v. Mo. Pac. Ry. Co., 92 Mo. 440. (e) It is the personal duty of the master to direct and control the work, and if one of his servants is given power and authority to direct and control other servants in a performance of some branch of the master's work, the latter is liable for negligence on the part of such superior servant in the exercise of the power and authority thus conferred upon him. Jorkiewicz v. Brake Co., 186 Mo.App. 539; Burkard v. Rope Co., 217 Mo. 466; Strother v. Milling Co., 261 Mo. 1; Dowling v. Allen, 74 Mo. 13; Gale v. Mill Co., 159 Mo.App. 639; White v. Montgomery Ward, 191 Mo.App. 271. (f) In cases of negligence, liability does not hinge on whether, by the exercise of reasonable prudence, the very injury complained of ought to have been foreseen. The party charged may be liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission. Corby v. Tel. Co., 231 Mo. 417; Buckner v. Stock Yards Co., 221 Mo. 700; Benton v. St. Louis, 248 Mo. 98; Zimmerman v. Pryor, 190 S.W. 26. (g) A foreman having under him laborers bound to obey his orders, is, as to them, a vice-principal to their employer, and not their fellow-servant, and this although another may be general foreman of the entire establishment, with authority over him. Dowling v. Allen & Co., 74 Mo. 13; Combs v. Cons. Co., 205 Mo. 367; Stobile v. McMahon, 190 S.W. 652; Bane v. Irwin, 172 Mo. 306; Mertz v. Rope Co., 174 Mo.App. 107; Jorkiewicz v. Brake Co., 186 Mo.App. 534. (h) A "straw-boss," or one acting in the place of the regular foreman at the request of the latter, represents the master in directing and controlling the work. Barrett v. M., K. & T. Ry. Co., 138 Mo.App. 135; Mertz v. Rope Co., 174 Mo.App. 94; Gale v. Mill Co., 159 Mo.App. 639; Warren v. Railroad, 113 Mo.App. 498; Bien v. Transit Co., 108 Mo.App. 399. The decision of the Kansas City Court of Appeals is in harmony with the ruling decisions of this court. Batesel v. American Zinc Co., 207 S.W. 742.
OPINION
In Banc
Certiorari.
Certiorari to the Kansas City Court of Appeals to quash its record in Gibbs v. Duvall, 201 S.W. 605, alleged to contravene our ruling in McIntyre v. Tebbetts, 257 Mo. 117, 165 S.W. 757. In the original case the plaintiff, Lydia Gibbs, a widow, sued the defendant Duvall for the loss of services of her minor son and for expenses incident thereto on account of personal injuries inflicted upon him through the alleged negligence of the defendant. At the close of plaintiff's direct presentation of the case the trial court sustained a demurrer to the evidence. Upon an appeal to the Kansas City Court of Appeals the lower court's ruling was reversed and the case remanded for a new trial.
The facts as found by the Court of Appeals are that Duvall, the defendant in the original suit, owned a large tract of land near the town of Butler. Twelve or more laborers had been employed by him to remove stumps from the land with which much of it was covered. Plaintiff Gibbs's son, a boy 16 years of age, was one of these employees. The work was in charge of a general manager named Howard. The manner of the removal of the stumps was by boring auger holes in them, placing in each a stick of dynamite, in which was inserted a detonating cap attached to a fuse. By igniting the latter the dynamite was exploded and the stump blown out of the ground. The plaintiff's son had been employed in this work for several weeks before the accident which resulted in his injury. One Bert Blough, who, in the absence of Howard, directed the work, told the Gibbs boy early on the morning of December 20th, to go down to the stump patch and get his auger, warm it up and go to work. In obedience to the order the boy went to the field where he and the men had been removing stumps the day before and got his auger. The weather was cold, below freezing, and it was necessary to warm the augers to prevent them from breaking before commencing work. Some of the men had preceded the boy to the field and had built a fire. He took his auger there to warm it. A few moments after he began to warm the auger, some boxes of dynamite and fuse and caps were brought and placed near the fire. All of the employees present were told by Blough to bring their augers to the fire and warm them. They obeyed. Blough, who can be said to have ordered the dynamite brought to the place where the boy was warming his auger, then sat down upon an unopened case of dynamite and, directing one of the men to cut the fuse into four-foot lengths, began the work of priming each fuse with a cap and inserting the fuses thus capped into the sticks of dynamite taken from the open cases near by. The work thus being done was in dangerous proximity to a quantity of fuse and dynamite and was near the fire where the men were warming the augers. When a fuse had been capped and attached to a stick Blough laid it on the ground at his side. Although there was a supply of caps at his feet, as a further demonstration of Blough's general supervision he sent one of the hands for an additional supply. It was not yet daylight and the only light Blough had for the priming operation was that from the fire and perhaps a lantern which he seems to have had.
The caps were like the old percussion caps formerly used upon muzzle-loading guns, except that they were of the diameter of an ordinary lead pencil and were about an inch and a half in length. The closed end, like the old percussion caps, had therein a small quantity of a high explosive which, when set off by the burning of the fuse, exploded the stick of dynamite into which the cap end of the fuse had been inserted. The cap was fastened to the fuse by slipping it over the same, or putting the end of the fuse inside of the cap and against the closed end, and then with a pair of pliers crimping or compressing the open end of the cap to the...
To continue reading
Request your trial