Thomas v. American Sash & Door Co.
| Decision Date | 11 February 1929 |
| Docket Number | 26379 |
| Citation | 14 S.W.2d 1,321 Mo. 1024 |
| Parties | Herman P. Thomas, Appellant, v. American Sash & Door Company |
| Court | Missouri Supreme Court |
Rehearing Overruled February 11, 1929.
Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.
Reversed and remanded.
J C. Stanton C. R. Leslie and Hogsett & Boyle for appellant.
The circuit court erred in sustaining the defendant's demurrer to plaintiff's evidence. (1) Barnickel's negligence was clearly established, and is conceded by the respondent. (2) Barnickel was a vice-principal, with authority from defendant to give plaintiff orders as to all phases of plaintiff's work. Johnson v. American Car & Foundry Co. (Mo.), 259 S.W. 442, 444; State ex rel. Duvall v. Ellison, 283 Mo. 541; Freese v. Rogers-Schmitt Wire & Iron Co., 274 S.W. 779; McCall v. Dry Goods Co. (Mo.), 236 S.W. 326; Morin v. Rainey, 207 S.W. 860; Comiskey v. Heating Co., 219 S.W. 999; Bradshaw v. Standard Oil Co., 199 Mo.App. 688. The mere fact that Barnickel did not wear the nominal title of "foreman" is unimportant. He had authority to control plaintiff and was a vice-principal, regardless of his title. Freese v. Iron Co. (Mo.), 274 S.W. 778; Dayharsh v. Ry. Co., 103 Mo. 575; Miller v. Railroad, 109 Mo. 356; Comiskey v. Heating Co., 219 S.W. 999. (3) The non-delegable duties of the master to furnish a safe place and to give warning of danger devolved upon Barnickel, and fell within the scope of his authority as vice-principal. When once Barnickel's status as vice-principal was established, then Barnickel as a matter of law became charged with the duty to exercise ordinary care for plaintiff's safety. Johnson v. American Car Co. (Mo.), 259 S.W. 444; Freese v. Rogers-Schmitt Wire & Iron Co. (Mo.), 274 S.W. 779; Dayharsh v. Ry. Co., 103 Mo. 576; Cook v. Cement Co., 214 Mo.App. 607; State ex rel. Duvall v. Ellison, 283 Mo. 532; Strother v. Milling Co., 261 Mo. 16; McCall v. Dry Goods Co. (Mo.), 236 S.W. 326; McCauley v. Brewing Assn., 254 S.W. 870; Fogarty v. Transfer Co., 180 Mo. 512; Funk v. Iron Works Co., 277 S.W. 570; Morin v. Rainey, 207 S.W. 860; Acebedo v. Foundry Co., 291 S.W. 505; House v. Car Co., 270 S.W. 137; Comiskey v. Heating Co., 219 S.W. 999; Bradshaw v. Oil Co., 199 Mo.App. 688; Gibbs v. Duvall, 201 S.W. 606; Bennett v. Hood, 296 S.W. 1028; Bien v. Transit Co., 108 Mo.App. 412; Hancox v. Craddock, 229 S.W. 271; Mertz v. Rope Co., 174 Mo.App. 94. Barnickel's authority over plaintiff was not confined to "coordinating their work," but was general in its scope. Barnickel did in fact have authority to give plaintiff orders "respecting the oiling of the saw." But plaintiff's case does not depend on the question whether Barnickel had such authority, because certainly the general foreman, Kimes, had such authority and did give plaintiff such orders; and Barnickel's status as vice-principal would not be destroyed by his alleged lack of authority to give orders of that particular kind. (4) Barnickel's negligence was a breach of his duty as vice-principal to exercise ordinary care to keep plaintiff's place of work reasonably safe. Johnson v. American Car Co. (Mo.), 259 S.W. 442; Bender v. Kroger Grocery Co., 276 S.W. 407; Dayharsh v. Railway Co., 103 Mo. 575; State ex rel. Duvall v. Ellison, 283 Mo. 532; Strother v. Milling Co., 261 Mo. 16; Freese v. Wire Co. (Mo.), 274 S.W. 779; Dreesen v. Nat. Building Material Co., 5 S.W.2d 1; Morin v. Rainey, 207 S.W. 858; Acebedo v. American Car Co., 291 S.W. 505; Cook v. Cement Co., 214 Mo.App. 596; House v. Car Co., 270 S.W. 135; Comiskey v. Heating Co., 219 S.W. 1000; Bradshaw v. Standard Oil Co., 199 Mo.App. 688; McCall v. Dry Goods Co., 236 S.W. 326; McCauley v. Brewing Assn., 254 S.W. 870; Gibbs v. Duvall, 201 S.W. 606; Bennett v. Hood, 296 S.W. 1028; Bien v. Transit Co., 108 Mo.App. 412; Hancox v. Craddock, 229 S.W. 271; Mertz v. Rope Co., 174 Mo.App. 94. (5) Barnickel's negligence was also a breach of his duty, as vice-principal, to warn plaintiff of danger. State ex rel. Duvall v. Ellison, 283 Mo. 545; Morin v. Rainey, 207 S.W. 861; Mertz v. Rope Co., 174 Mo.App. 94; Cook v. Cement Co., 214 Mo.App. 607; Landcaster v. Stamping Co., 1 S.W.2d 240; Simmons v. Bakery Co., 6 S.W.2d 1023. (6) Barnickel's act in starting the machinery was incidental to his duties as vice-principal; because it was only by reason of Barnickel being a vice-principal that he had any right to interfere with plaintiff's saw. Fogarty v. Transfer Co., 180 Mo. 512; Strother v. Milling Co., 261 Mo. 16; Johnson v. American Car. Co., 259 S.W. 442; Bien v. Transit Co., 108 Mo.App. 399; Edge v. Railway, 206 Mo. 471; Hollweg v. Tel. Co., 195 Mo. 149; Russ v. Railway, 112 Mo. 45; Doss v. Railway, 135 Mo.App. 643. (7) The divisional opinion is unsupported by any authority. No case in Missouri has ever held it not to be within the scope of the authority of a conceded vice-principal to keep the place of work of inferior servants reasonably safe. The divisional opinion stands alone in so holding.
A. L. Berger and Morrison, Nugent, Wylder & Berger for respondent; Homer H. Berger, H. L. Hassler and Delos C. Johns of counsel.
The court committed no error in sustaining defendant's demurrer to plaintiff's evidence at the close of plaintiff's case. (1) No negligence or liability of the defendant can be predicated upon the general standing order of foreman Kimes to oil the saw twice daily. Such order was not negligent and was not the proximate cause of the injury. 39 C. J. 483, sec. 597; English v. Shoe Co., 145 Mo.App. 439; Kalinski v. Coal Co., 263 Ill. 257; 4 Labatt's Master & Servant (2 Ed.) sec. 1361, p. 3919, and Sec. 1362, p. 3924; King v. Coal Co., 158 Ill.App. 351; Linderman Box Co. v. Thompson, 127 Ill.App. 134; Stephens v. Lumber Co., 110 Mo.App. 398. (2) Barnickel was not a foreman, superior servant or vice-principal, so as to charge defendant for Barnickel's act injuring the plaintiff. No duties of the master were delegated to or assumed by Barnickel, and the act of Barnickel which injured the plaintiff was not committed in performing some duty the master owed to the servant, but in doing an act of fellow-service. (a) Barnickel did not have authority to give plaintiff instruction as to all phases of plaintiff's work. Boston v. Kroger Co., 7 S.W.2d 1006; Burge v. American Car Co., 274 S.W. 842. (b) No duty devolved upon Barnickel to furnish plaintiff a safe place to work or to give warning of danger. No such duty was delegated to him or fell within the scope of his authority. 39 C. J. 593, sec. 712; Beresford v. Coal Co., 124 Iowa 34; Wuellner v. Planing Mill Co., 303 Mo. 38; Hawk v. Lumber Co., 166 Mo. 121; English v. Rand Shoe Co., 145 Mo.App. 439; Kinser v. Paint Co., 249 S.W. 447; Fink v. Iron Works, 311 Mo. 77; Rodgers v. Schiele, 148 Mo.App. 53; Morin v. Rainey, 207 S.W. 858; Stephens v. Lumber Co., 110 Mo.App. 398; Clark v. Wheelock, 293 S.W. 456; Chrismer v. Bell Tel. Co., 194 Mo. 212; Ring v. Mo. Pac. Ry. Co., 112 Mo. 231; Nugent v. Milling Co., 131 Mo. 256; Brady v. Railroad, 206 Mo. 527; Hearow v. Lumber Co., 206 Mo.App. 468; Hawk v. Lumber Co., 166 Mo. 121. (c) Barnickel's act in starting plaintiff's rip-saw was not incidental to any duty as a vice-principal, but was incidental to their common employment as fellow-servants. (3) There is no jury question in this case, where the necessary facts for determining the question of common employment are undisputed; the question is simply for the court. Marshall v. Schrickler, 63 Mo. 311; Bradley v. Tea Co., 213 Mo. 320; Roe v. United Rys. Co., 211 Mo.App. 526; McIntyre v. Tebbetts, 257 Mo. 117; Hawk v. McLeod, 166 Mo. 121; Shaw v. Bambrick-Bates Cons. Co., 102 Mo.App. 666; Wuellner v. Planing Mill Co., 303 Mo. 38; Radtke v. Basket & Box Co., 229 Mo. 24; Ryan v. Christian Board of Publication, 199 S.W. 1031; Boston v. Kroger Co., 7 S.W.2d 1006.
This case comes to me upon reassignment after a rehearing in the Court en Banc. It is an action for personal injuries brought by a servant against a master. The trial court sustained a demurrer to the evidence, and after the usual procedure the plaintiff appealed.
The defendant operated a plant for the manufacture of woodwork in Kansas City. In this plant there are a number of rip-saws operated by belting and pulleys. Plaintiff was a laborer employed by defendant to operate one of these saws. His right arm was torn off by the starting of the saw, through the alleged negligence of one Nick Barnickel, another employee, who prematurely turned on the power and started the saw without warning while the plaintiff was in the act of oiling the same as a part of his necessary duties in complying with the orders of the general foreman and of Barnickel. The negligence of the latter was conceded by the defendant when the case was heard in Division One of this court as is disclosed by the record.
The saw in question was known as number 1 rip-saw. It was about two feet from the east wall of the work-room. The saw was on a steel table, about four feet square and three feet high. Power was transmitted to the saw by belting and pulleys from an overhead shaft. The saw itself, that is the cutting disk was circular in shape and operated in a slot in the surface of the steel table, and was set in motion or stopped by throwing a near-by lever extending down from the ceiling. The saw was attached to a steel shaft which ran east and west under the surface of the table, through three bearings. These bearings had to be oiled. In order to oil two of them it was necessary to reach through the belting on the east side of the saw. At such times the saw would be stopped and the belting would be motionless. It was plaintiff's duty to do this...
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