Wall v. Rohan Boat, Boiler & Tank Co., 30367.

Citation62 S.W.2d 764
Decision Date12 August 1933
Docket NumberNo. 30367.,30367.
PartiesTHEODORE WALL, Appellant, v. PHILIP A. ROHAN BOAT, BOILER & TANK COMPANY, a Corporation.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court of City of St. Louis. Hon. James F. Green, Judge.

REVERSED AND REMANDED (with directions).

Igoe, Carroll, Higgs & Keefe for appellant.

(1) The duty of a master to see that the place of work which he furnishes his servant is reasonably safe (as far as due care will accomplish that result) is a personal duty; it is nondelegable. Bender v. Kroger Gro. & Baking Co., 310 Mo. 488, 276 S.W. 405; Propulonris v. Goebel Const. Co., 279 Mo. 358, 213 S.W. 795. (a) And the duty with respect to appliances furnished by the master is precisely the same. Warner v. Oriel Glass Co., 319 Mo. 1196, 8 S.W. (2d) 850. (b) Hence, a person employed to perform such a duty of the master toward his servant is, in respect to such performance, no fellow servant of the latter. Johnson v. Corn Products Refining Co., 319 Mo. 958, 6 S.W. (2d) 570; Dayharsh v. Railroad Co., 103 Mo. 575, 15 S.W. 555; Koerner v. St. Louis Car Co., 209 Mo. 154, 107 S.W. 486; Propulonris v. Goebel Const. Co., 279 Mo. 358, 213 S.W. 795. (c) But, where the servant has engaged to construct his own place of work and has done so in actual co-operation with fellow employees who have also so engaged, the master is not responsible to him for defective construction attributable solely to the negligence of his coparticipant in that work. Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W. (2d) 891. (2) Under the controlling evidence (which, of course, is that most favorable to plaintiff) this case is clearly not within the class last referred to because: (a) Plaintiff had neither any duty with respect to erection of the scaffold nor any part in that work. Propulonris v. Goebel Const. Co., 279 Mo. 358, 213 S.W. 795. (b) The employees who did erect it were selected by the foreman for that special work — as to which work they were not fellow servants of employees not so selected, even if generally members of the same gang. Raines v. Lumber Co., 149 Mo. App. 576, 129 S.W. 744; White v. Montgomery Ward Co., 191 Mo. App. 268, 177 S.W. 1090; Propulonris v. Goebel Const. Co., 279 Mo. 358, 213 S.W. 792. (c) The construction of the scaffold was under the control of defendant, through its vice-principal, who supervised that construction (a fact shown by defendant's as well as plaintiff's evidence). The factor last named, of itself, nullifies the fellow-servant defense. Combs v. Rountree Const. Co., 205 Mo. 367, 104 S.W. 77; Bowen v. Ry. Co., 95 Mo. 268, 8 S.W. 230; Adair v. Railroad Co., 282 Mo. 133, 220 S.W. 927; Guldner v. International Shoe Co., 293 S.W. 428. (d) Upon each of these three propositions this case is decisively distinguished from the cases relied on by the trial court. Forbes v. Dunnavant, 198 Mo. 193, 95 S.W. 934; Williams v. Ransom, 234 Mo. 55, 136 S.W. 349; Guthrie v. Gillespie. 319 Mo. 1137, 6 S.W. (2d) 886. (3) Even if the act of placing a defective bracket was the act of a fellow servant, this case would not fall under the decisions last cited 2-(d), supra: (a) In those cases the servant had negligently selected and used bad material when good was available, or had negligently put together the material used. Cases under 2-(d), supra. (b) Here, on the contrary — The unbraced bracket (which, incidentally, was an appliance, not raw material) was one of a number of similar kind, all furnished by the master, and while it appears that there were also some braced brackets provided, it does not appear that any of the latter were available at the time this bracket was used. The evidence shows that the collapse of the scaffold was due to defects inherently in the bracket and not to the manner in which it had been fastened to the tank. Compare cases cited under 2-(d), supra; Baugher v. Gamble Const. Co., 26 S.W. (2d) 950. (4) The fact (shown by plaintiff's evidence) that, before the collapse of the scaffold, the defective bracket which made it unsafe was pointed out to defendant's foreman (Owens) and by him approved, would preclude the fellow-servant defense in any event. 4 Labatt, "Master and Servant" (2 Ed.) p. 4038, sec. 1402, also p. 4476, sec. 1498; Clark v. Long, 196 S.W. 412; McNulty v. Atlas Portland Cement Co., 249 S.W. 734; Amis v. Standard Oil Co., 233 S.W. 195. (5) Defendant's requested Instruction D is erroneous both in its postulates of law and in its hypotheses of facts. It was properly refused.

William F. Fahey and Thompson, Mitchell, Thompson & Young for respondent.

(1) Where there is no evidence, except that an injury was occasioned by the act of fellow servants, the court should sustain a demurrer to the evidence in a suit by a servant against a master, and, if the court has refused such instructions, should sustain a motion for new trial on that ground. State v. Haid, 40 S.W. (2d) 611. Where there is some evidence that the injury may have been due to the negligence of the master, rather than the act of a fellow servant, the court should instruct on request to the effect that the master is not liable if the injury was due to the acts of fellow servants and, if such requested instruction has been refused, should grant a new trial on a motion based on that ground. Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W. (2d) 886. (2) Where a gang is charged with the duty of erecting a scaffold on which to do its work, and members of the gang do erect the scaffold, which occasions an injury to one of the gang, the erection of the scaffold is the act of fellow servants. Williams v. Ransom, 234 Mo. 55, 136 S.W. 349; Forbes v. Dunnavaut, 198 Mo. 193, 95 S.W. 934; Smith v. Light & Power Co., 148 Mo. App. 572, 128 S.W. 779; Steffenson v. The Roehr Co., 136 Mo. App. 225, 116 S.W. 451; Boewen v. Ry. Co., 95 Mo. 268, 8 S.W. 230. (3) Where fellow servants selected improper material for a scaffold when proper material is available, the master is not liable for resulting injuries. See cases cited above. (4) Where plaintiff, on direct examination, makes statements sufficient to take a case to the jury, but on cross-examination, makes contradictory statements, which show that the statements on direct examination must either have been untrue, or else have been based on guess or hearsay, then plaintiff is without sufficient evidence to take the case to the jury. Van Bibber v. Swift & Co., 286 Mo. 337, 228 S.W. 69. (5) Defendant's requested Instruction D was sound, both in its general statement of the law and in its details. In any event, however, the trial court was justified in granting a new trial on the ground that the instruction was refused by error of the trial court concerning the general principles therein stated, notwithstanding there may have been some incidental error. Especially where the question of incidental error was not raised below, appellant on appeal is bound by his trial theory. Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W. (2d) 891; Clark v. Long, 196 S.W. 410. (6) While the court did not expressly base the order for new trial on the giving of plaintiffs Instruction 2, a ground included in the motion for new trial, that instruction was without evidence to support it, the giving thereof was erroneous and the order for new trial should be sustained because it was given. The instruction reads in part: "If you believe from the evidence that while plaintiff was in the employ of the defendant, in September, 1922, he was required ... to be upon the scaffold mentioned in the evidence and that said scaffold was then and there maintained by the defendant for plaintiff's use (if you so find)." There was no evidence that the scaffold was in place during the period of plaintiff's employment, in September, all the evidence being that it had been up only a day or, at most, a day and a half prior to plaintiff's injury. The instruction does not at all present to the jury the points actually involved and it was substantially misleading. Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W. (2d) 14; Mo. Dig. Trial, Key No. 252; Barr v. Mo. Pac., 37 S.W. (2d) 936.

COOLEY, C.

In the Circuit Court of the City of St. Louis the plaintiff obtained a $10,000 verdict against the defendant for personal injuries sustained while in defendant's employ. The trial court sustained defendant's motion for new trial and from that order plaintiff appealed. The court sustained said motion on the ground, stated of record, that it had erred in not sustaining defendant's demurrer to the evidence, offered at the close of the case, and this because, as appears from a memorandum filed by the court, the court concluded that the negligence causing plaintiff's injury was that of a fellow servant, for which the master was not liable. That question is the only debatable one so far as concerns submissibility of the case and the only one about which there is substantial controversy. That plaintiff's injury resulted from somebody's negligence is clearly shown and practically conceded and the evidence amply justifies the finding that he himself was not negligent. We need, therefore, state only the facts necessary to an understanding of that question.

Plaintiff was a boiler maker's helper, employed by defendant along with some fifteen or twenty others, boiler makers and their helpers, caulkers, etc., in the erection of some tanks for another corporation, and was injured by the falling of a scaffold on which he worked. There were ten tanks to be erected, each fifteen feet in diameter and to be, when completed, twenty-six or twenty-seven feet high. Each tank was built up by successive "rings" of metal, each ring being composed of a number of sheets of metal. The sheets forming a ring were placed in position and first bolted together and then riveted. When a ring was completed another ring would be erected upon it. Each ring was seven feet in height except the last or top one which was to be six feet. Work progressed on all...

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4 cases
  • Wall v. Philip A. Rohan Boat, Boiler & Tank Co.
    • United States
    • United States State Supreme Court of Missouri
    • 12 Agosto 1933
    ... 62 S.W.2d 764 333 Mo. 619 Theodore Wall, Appellant, v. Philip A. Rohan Boat, Boiler & Tank Company, a Corporation No. 30367 Supreme Court of Missouri August 12, 1933 . .           Appeal. from Circuit Court of City of St. Louis; Hon. James F. Green , Judge. . .          . Reversed and remanded ( with directions ). . .          Igoe,. Carroll, Higgs & Keefe for appellant. . ......
  • Brock v. Dunne
    • United States
    • United States State Supreme Court of Missouri
    • 9 Noviembre 2021
    ...in the capacity of a vice principal in relation to other employees. See Wall v. Philip A. Rohan Boat, Boiler & Tank Co. , 333 Mo. 619, 62 S.W.2d 764, 768-69 (1933). When an employee is not acting to perform the employer's nondelegable duties – either because the employer has not assigned an......
  • Fischer v. M-K Express Co., 25920.
    • United States
    • Court of Appeal of Missouri (US)
    • 3 Febrero 1942
    ......481, 53 S.W.2d 877; Wall v. Philip A. Rohan Boat, Boiler & Tank Co., 333 ......
  • Daniels v. Luechtefeld
    • United States
    • Court of Appeal of Missouri (US)
    • 4 Noviembre 1941
    ......, and north walls were solid and the east wall had a glass window and door.         With ...W. 515, 859; Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Anderson v. Asphalt ...1033; Wall v. Philip A. Rohan Boat, Boiler & Tank Co., 333 Mo. 619, 62 S.W.2d ......
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