GRAVES, C. J.
Certiorari to Springfield Court of Appeals. Allen, an employé of the Quercus Lumber Company (the relator in this proceeding), sued such company for damages, grounding the action upon negligence. The case of Allen v. Quercus Lumber Co. has been twice before the Springfield Court of Appeals. The first opinion, which reversed a judgment for plaintiff, is found in 190 Mo. App. 399, 177 S. W. 753. The second opinion, the one brought up by our writ, is found in 190 S. W. 86. We mention both opinions because the latter refers to the former for a statement of the facts as to how the plaintiff was injured. Respondents urge that the first opinion is not before us, but the reference thereto in the second opinion both in law and in fact makes it a part of the second opinion. At the very outset the second opinion says:
"This case is here on a second appeal; the former opinion being reported in 190 Mo. App. 399, 177 S. W. 753, to which we refer for a statement of the facts as to how the plaintiff was injured. On retrial plaintiff recovered a judgment for $3,250, and the defendant appeals, alleging a multitude of errors.
"It will be seen by reading our former opinion that there were but two questions considered and ruled on, as follows: First, the judgment was reversed and the cause remanded because of error in an instruction in that it failed to furnish a proper guide to the jury on the issue of negligence. That question is out of the present appeal. Second, whether the order of Bebee, the timber inspector, was an order of the defendant, and, if it were a negligent order, whether the defendant would be guilty of negligence. This question is again raised by appellant, and our former ruling is vigorously assailed."
It is thus seen that the Springfield Court of Appeals has by apt reference incorporated
in its second opinion the first opinion. The second would be unintelligible without a reading of the first therewith. So that in gathering the facts ruled by the Court of Appeals we shall draw from both opinions. Going to the first opinion (190 Mo. App. 399, 177 S. W. 753) for a statement of the facts as to how the plaintiff was injured, we find:
"The petition in this case alleges that the defendant is a corporation operating a sawmill near Poplar Bluff, Mo., and that on August 13, 1914, plaintiff was a common laborer in its employ; that the defendant in the operation of its plant maintained a platform on which it placed timbers which had been sawed for bridge purposes, from which platform it loaded such timbers onto railroad cars which stood on a switch alongside the platform; that the timbers were finished in the mill and then conveyed by servants of the defendant on a tramway that also ran along the platform, on the opposite side from which the railroad switch stood; that this tramway or tramways was seven or eight feet above the platform; that skids or runners were laid on top of the platform, and were greased so that the timbers to be loaded into railroad cars could be shoved or skidded over to the side of the platform where such cars stood; that these runners were situated about seven feet and nine inches apart, and not only ran over the first platform, but also extended at an angle up to the tram track, which stood some seven feet above the platform. The timbers that were brought out from the mill to be dumped onto the platform were of various lengths, from twelve to eighteen feet, and were from ten to eighteen inches through, and were of considerable weight. It is alleged that such timbers were dumped over on the inclined skids indiscriminately, and that when the platform was filled up they continued dumping the timbers until they lay upon the inclined portion of the skids to the tramway; that there were a number of these skid runners; and that when several of them were filled up the timbers being of various lengths and sizes would overlap and interlace with timbers which were dumped over on an adjoining set of skids. It is alleged that on August 13, 1914, when said platform and several of the inclined skids were filled with timbers, the plaintiff was set to work taking such timbers from the platform and loading them into the railroad cars; that after taking all from the flat portion of the platform, plaintiff in the discharge of his employment was taking the timbers which remained on the inclined portion of the skids, and that in doing so he loosened a timber which was holding up a number of others on this incline, and that as the timbers came down he stepped back into a vacant space between an adjoining pair of skids in order that he might get out of the way of the timbers coming down; that the timber which he had loosened, in descending, caught in that pile on the adjoining skids under which plaintiff was standing, and brought it also down on plaintiff, thereby crushing his leg and injuring him severely. The amount asked by plaintiff is $7,500. The acts of negligence alleged were that the defendant carelessly and negligently built, maintained, and used such skids constructed so closely together that they were insufficient and improper to perform the functions required of them; further, that the defendant negligently placed such timbers of various lengths indiscriminately on such skids, resulting in their interlacing when being taken down, and that from such negligent piling of the timbers the place at which plaintiff was set to work was rendered unsafe; also that, knowing of the condition above described, defendant ordered the plaintiff to loosen said timbers, and that as the result of such negligent order he was injured.
"The defendant answered by a general denial and by a special plea of contributory negligence charging that plaintiff was careless, negligent and unskillful in pulling or attempting to pull the timbers down, and that plaintiff saw and well knew the conditions of the place by reason of an accident which is ordinarily incidental to such line of employment."
Upon the question of the negligent order given by one Bebee, instead of the foreman of the defendant, who had charge of men loading the car, the first opinion thus states the facts:
"While the plaintiff charged three grounds of negligence, the record shows that the one on which plaintiff sought a recovery was that he was negligently ordered to loosen the timber which resulted in his injury. In this respect it is shown that the foreman of the defendant called plaintiff with several colaborers to come and begin loading the car. The timber had been sold to the St. Louis & San Francisco Railroad Company, and its timber inspector, one Bebee, was there for the purpose of inspecting the timber as it was placed in the car. Before he would permit them to load it into the car he would inspect each piece and either accept or reject it. Some time after the loading was started and before plaintiff was injured the defendant's foreman went away and was not present at the time the injury occurred. The plaintiff testified that defendant's foreman in charge of this gang of workmen who were loading the timbers, when he left the platform, told the men that he would leave Bebee, the railroad company's inspector, in charge of the loading of the car, and that Bebee ordered the plaintiff to loosen the timber that came down and caused the injury. Over the objection of the defendant the court permitted plaintiff to testify that Bebee was left in charge of the loading of the car, and that he ordered and directed plaintiff to loosen the timber. However, as hereinbefore shown, an instruction was given directing the jury to give no consideration whatever to such evidence, thereby eliminating all the testimony with reference to a negligent order as there was nothing else in the record to which such instruction could refer.
"For reasons hereinafter stated this judgment must be reversed, and the cause remanded, and in view of the fact that there may be another trial, we deem it necessary to pass upon the correctness of the trial court's instruction eliminating the evidence relative to the order given by Bebee.
"All the evidence shows that McCan, the foreman, called the men and set them to work loading this car; he being the foreman and vice principal of the defendant. For some reason not disclosed he left the work, and, as before stated, told the workmen that Bebee would have charge of the loading. Under this state of facts we believe the defendant is responsible for any negligent order that Bebee gave, on the principle of respondeat superior. McCan, the foreman, had authority and was acting within the scope of his employment in ordering and overseeing the car loaded. Plaintiff, as a workman, was placed there to obey McCan's orders in that particular. We hold that it was within the apparent scope of McCan's employment, and that he had the implied and incidental power as the foreman, whose business it was to see that the car was loaded, to designate some one to act as `straw boss' or substitute for him during his temporary absence. It would be unreasonable to suppose that a master would send out a gang of men under a foreman, and would require the latter to stop the work and delay its progress during such times as his duties for the master might call him away from the immediate vicinity of the workmen. We are not viewing the question
from the standpoint of the authority of an agent to control, nor are we viewing it from a relation complained of by Bebee as against the defendant, but are viewing it from the common...
