Summary
In Gens v. Wagner Electric Mfg. Co., 31 S.W.2d 785, 787[1] (Mo. 1930), the court considered a case in which an employee was knocked from her chair when another employee pushed or tilted her chair.
Summary of this case from Vallejo v. Osco Drug, Inc.Opinion
October 14, 1930.
1. NEGLIGENCE: Tilting Employee's Chair: Wanton Act of Another Employee. There being no evidence that the greasy and dirty condition of the floor, created by plaintiff, a woman of mature years and experience, in the performance of her work, in any way contributed to her injury, the manufacturer is not liable in damages for the personal injuries she received when another employee roughly pushed and tilted the tall and slender chair, provided by defendant, on which she sat while eating lunch, causing her to fall to the floor and her hip to be broken, the wanton act of the employee in tilting the chair being entirely outside the scope of his employment and being the sole cause of her injury.
2. NEGLIGENCE: Retention of Dangerous Employee: Imputed Knowledge of Character. Conceding that the retention by the employer of an employee of known dangerous character is negligence and that knowledge of his character is to be imputed to his employer from his repeated and habitual rough and dangerous acts, the principle has no application where the injuries to a co-employee were caused solely by acts of such employee which were entirely outside the nature and scope of his employment.
3. ____: ____: ____: Ratification. Where the injuries to plaintiff were caused by the rough and unlawful acts of a co-employee, in pushing and tilting the high and slender chair on which she sat while eating her lunch in defendant's factory, causing her to fall, being acts clearly outside the nature and scope of his employment, there was no ratification of such acts by defendant, where there is no evidence that the co-employee ever before pulled, tilted or shook the chair in which another employee was seated, or that his particular acts which caused plaintiff's injuries were done with the knowledge or in the presence of any of his superiors.
4. ____: Rough Act of Employee. The master is not liable for an injury to an employee occasioned solely by the sportive acts and horseplay of another employee not within the scope and course of his employment.
Appeal from St. Louis County Circuit Court. — Hon. John W. McElhinney, Judge.
AFFIRMED.
Jos. C. McAtee and Claude C. Findly for appellant.
(1) The demurrer should have been overruled. Obermeyer v. Logeman, 120 Mo. App. 59, 229 Mo. 96. (2) Where concurring negligence is shown, either or both tortfeasors are liable. Newcomb v. Railroad Co., 169 Mo. 422, 182 Mo. 687; Bragg v. Railroad Co., 192 Mo. 359; Harrison v. Light Co., 195 Mo. 623; Vogelsang v. St. Louis, 139 Mo. 127; Berry v. Railroad, 214 Mo. 598. (3) Where injury is due to playfulness or any act of a fellow employee, not in line of his employment, if this is not the sole cause of the injury, and plaintiff was in the exercise of ordinary care, she is entitled to recover. Bassett v. St. Joseph, 53 Mo. 290; Carterville v. Cook, 129 Ill. 152. (4) Repeated acts of negligence or habitual carelessness are evidence of negligence, warranting a submission to the jury. Tucker v. Telephone Co., 132 Mo. App. 418; Isaacs v. Smith, 275 S.W. 558. (5) Where it is shown that the co-employee is a person of dangerous character and he was retained by the employer with knowledge thereof, it accords with principle to permit the injured employee to recover. 18 R.C.L. 810, sec. 264; Lamb v. Littman, 128 N.C. 361; 53 L.R.A. 852; Railroad Co. v. Day, 34 L.R.A. (N.S.) 111; 26 Cyc. 159. (6) Knowingly and wantonly retaining a careless and brutal employee, after knowledge of his habits brought home to the company, or to a superintending agent, and injury therefrom, may, and ought to, render the company amenable to the severest rule of damages. Cleghorn v. Railroad, 56 N.Y. 44; Perkins v. Railroad, 55 Mo. 202. (7) Knowledge of careless habits are to be imputed to defendant. McDermott v. Railroad, 87 Mo. 285. (8) Even if it appears that the unlawful act of the employee was in no proper sense incident to the servant's employment, yet the plaintiff is entitled to recover if there was a ratification by the master. 4 LeBatt's Master and Servant, sec. 1466; Richard v. Mfg. Co., 8 A.L.R. 1429. (9) The relationship and consequent duty continued during the noon hour. Ellsworth v. Metheny, 51 L.R.A. 389.
A.E.L. Gardner and Charles A. Houts for respondents.
(1) The act of Summerlad in pulling the chair from under Miss Gens was an act outside the scope of his employment, at a time when he was not performing any of the duties of his employment, and the defendants are not liable for the consequence thereof. Wolff v. Terminal Railroad, 282 Mo. 563; Snyder v. Railroad, 60 Mo. 413; Maniaci v. Express Co., 266 Mo. 643. (2) Summerlad's act in pulling the chair from under Miss Gens was a thoughtless joke or prank, for which the defendants are not liable. Smith v. Telegraph Co., 232 S.W. 482; Phillips v. Telegraph Co., 270 Mo. 676. (3) It was an act committed while both Summerlad and Miss Gens were off duty, and for such an act the defendants are not liable. Evans v. Automobile Co., 121 Mo. 277; Garretzen v. Duenckel, 50 Mo. 104; Harrington v. Mfg. Co., 240 Mass. 170; 13 C.J. 1296. (4) Neither could plaintiff recover against the defendants because of the "greasy" condition of the floor, because: (a) The petition does not charge that the "greasy" condition of the floor contributed to causing the chair to slip from under the plaintiff. (b) There is no evidence that the chair was caused in part to slip by reason of the greasy condition of the floor. (c) If the floor became greasy it was through the act of plaintiff in throwing the strippings on the floor, as to which act there was no evidence that it was done at the direction of her superiors. She could not recover because the work she was doing created the greasy condition. 39 C.J. 710, 711; Brown v. Conners, 149 Wis. 403; Vernon Cotton Oil Co. v. Catron, 137 S.W. 404; Riley v. Neptune, 181 Ind. 228. (d) The practice of throwing the stripping on the floor and the consequent greasy condition of the floor were known to plaintiff for a year and a half prior to her injury and the risk if any, was assumed by her. (5) The plaintiff, by continuing for a year and a half at the work she was engaged in doing at the time of her injury, with full knowledge of the condition of the floor, which condition was created by her, assumed whatever risk there was of injury resulting from that condition. Marlowe v. Kilgen, 252 S.W. 424; Hailacek v. Iron Works, 229 S.W. 803; Chrismer v. Telephone Co., 194 Mo. 189; Haviland v. Railroad, 172 Mo. 106; Bradley v. Railroad, 138 Mo. 293; Beasley v. Transfer Co., 148 Mo. 413; Winkler v. St. Louis etc. Co., 137 Mo. 394; Wulfert v. Murch Bros., 232 S.W. 243; Jones v. Cooperage Co., 134 Mo. App. 324. (6) The plaintiff's injury, received under the unusual circumstances in evidence, was one which the defendants, in the exercise of ordinary care, could not have anticipated, and in such a case the defendants cannot he said to have been negligent. Zasemowich v. Am. Mfg. Co., 213 S.W. 799; State ex rel. v. Allen, 291 Mo. 214; State ex rel. v. Ellison, 271 Mo. 463; Fuchs v. St. Louis, 167 Mo. 620; Majors v. Ozark Co., 205 Mo. App. 342; Wagner v. Railroad, 209 Mo. App. 127; Luehrmann v. Gas Light Co., 127 Mo. App. 213; Brubaker v. Electric Light Co., 130 Mo. App. 439; Hoepper v. Hotel Co., 142 Mo. 388.
Wagner Electric Manufacturing Company, a corporation, and Wagner Electric Corporation were sued by Emma Gens for damages in the sum of $36.577.94 on account of personal injuries alleged to have been sustained by her through their negligence. Defendants' answer was a general denial. At the close of plaintiff's case the court gave an instruction in the nature of a demurrer to the evidence. Plaintiff thereupon took an involuntary nonsuit with leave to move to set the same aside. Such a motion was filed and overruled, and plaintiff has perfected her appeal to this court.
Plaintiff's petition charged that on or about the 21st of March, 1922, she was employed in repairing and rewinding armatures for defendants, and while so employed at defendants' factory at her usual place of work and at the place provided by defendants for plaintiff and other employees to eat lunch and spend lunch time, and just prior to the blowing of a whistle calling plaintiff to resume her work, while sitting at her work bench and on the chair provided by defendants, the defendants "through and by Arthur Summerlad, a person employed at said time and for some time prior and subsequent thereto by defendants, in the same department and room as the plaintiff, caught hold of shoved, pulled, jerked, hit and shook the chair in which plaintiff was sitting on, causing said chair to slide, topple and fall over and from under plaintiff, causing plaintiff to be precipitated and thrown violently to the floor of said room, by which she suffered and sustained injuries as hereinafter specified." The specifications of negligence were that "Summerlad was incompetent, negligently and habitually careless and continually guilty of horseplay and roughness in play towards the ones in contact with him in his work and in said room provided by defendants," and was an improper and dangerous person to be placed in contact and association with other employees and particularly plaintiff, of which characteristics defendants knew or by the exercise of ordinary care could have known; that defendants "failed and neglected to provide, formulate, publish and bring to the notice of their employees rules and regulations covering the conduct and behavior of employees towards one another at the place of eating and during the rest period provided by the said defendants to their employees, when by the exercise of ordinary care, such rules and regulations could have been provided, formulated, published and brought to the notice of their employees, and particularly to said Arthur Summerlad, in time to have prevented the accident complained of herein;" that "defendants were negligent, in that defendants furnished plaintiff with a chair or stool to sit upon which was a dangerous and unfit chair, in that said chair was a great deal higher than the average, usual and customary chair, with long, spindle narrow legs with a narrow span at the base, and was such a chair as was liable to topple or fall over when said chair was pulled, jerked or hit by anyone; that as a result thereof, when said chair was hit while plaintiff was sitting thereon, by said Arthur Summerlad, the same was caused to topple over and fall over and slide, thereby causing plaintiff to fall to the floor and causing her to be injured:" that defendants required plaintiff to eat in the room where she was working, but failed to provide a safe and suitable place in which to spend her lunch time of thirty minutes "in that the room where she was required to eat was a repair room in which oil and grease were used and the said oil and grease fell upon and was collected upon the floor, making the same slippery and unsafe and causing the portable chairs used by employees at lunch and work time to be liable to slip and topple over, and that as a result of said negligent failure of defendants to furnish plaintiff with a reasonably safe place in which to eat her dinner and spend her lunch time of thirty minutes, she was placed in a position of danger, and when said Arthur Summerlad caught hold of, shoved, pulled, jerked, hit and shook the chair on which she was sitting, the same was caused to slip and slide over, causing her to be precipitated to the floor and injured as hereinafter stated." The injuries alleged and proved were serious and probably permanent.
From plaintiff's evidence it appears that she was twenty-eight years old at the time this case was tried in June, 1927; that she had worked for the Wagner Electric Manufacturing Company for about six years prior to the accident, and had been engaged in stripping, rewinding and repairing armatures for about a year and a half; that she was the only girl engaged in winding and unwinding armatures; that the room in which she worked was about eighty by sixty feet, and contained about one hundred and fifty employees; that her work required her to sit in front of a bench on a small iron chair the legs of which curved out at the bottom; that as she stripped pieces off the armature they fell on the floor leaving a dirty, greasy condition; that the floor was swept in the evening or before the next morning; that she and the other employees were required to eat their lunch in this work-room; that on the day of the accident she was sitting on this chair with her feet resting on a shelf between the chair and the floor; that she was through eating and was reading and was through with that because it was time to go to work; that "it was right near the whistle; near time to go to work." She testified: "I was sitting there with my feet almost even on the chair, about to turn around to go to work, and I felt something pull my — grab hold of my chair — the best I can remember it, grab hold of my chair; and that is all I remember of going down; it slid from the back of me. . . . It slid from under me; slid back. I went down in front of it. . . . I went down with my feet hanging in the shelf." She further testified that "maybe every other day once or twice, or once or twice a week" Summerlad would poke the girls in the side causing them to jump and scream loud enough to be heard over the room, and that these things had occurred while division superintendent Mayer and foremen Kritchell and Schnur were in the room.
An employee, Jacobs, testified: "About noon time I was on my way back to the department, about 12:29, just a minute or two before the whistle blew, and Miss Gens was sitting at her bench, having completed her lunch, sitting on this chair that she usually sat on; and the chair was tilted or pushed by Mr. Summerlad, and the chair slipped, and Miss Gens went down." He also testified that he had previously seen Summerlad poke female employees "with the index finger on their shoulders or ribs" until they would jump and scream loud enough to be heard five to ten feet, and that this had occurred a dozen times or so, sometimes when the foremen were in the room.
Another employee, Baird, testified as to the accident as follows: "I was standing about ten feet from her, looking directly at her. The whistle blew for — the factory whistle blew for the employees to resume work; and in the department is a horn, a Klaxon horn, or similar, that blows; and when that blowed, of course, all the employees in the department arose. There is quite a little hubbub then to resume their different places to go to work. Summerlad sprang upon the bench immediately behind Miss Gens, on his hands and knees, and reached over and took her chair and gave it two or three shakes (indicating) and let go of it; and the position that she was sitting in, she just slid down off the front of the chair, the chair pushed back from her, and hit the floor."
An employee named Welter, testifying as to Summerlad's conduct prior to the accident, said that he had seen him grab a girl right in the department during working hours and "she hollered so loud you could hear her all over the floor." He said this occurred some times when foremen Kritchell and Schnur were in the room. He also testified that on the day Miss Gens was hurt "the floor was dirty and greasy."
Appellant insists that defendant's demurrer to the evidence should have been overruled, citing Obermeyer v. Logeman Chair Co., 229 Mo. 97, 129 S.W. 209. In that case the Acts Outside proof was that plaintiff, a fourteen-year-old boy, Employment. was employed on a freight elevator alleged to have been defectively constructed and maintained, in that two sides thereof were not protected with gates or guards, that between the sides so left open and the walls of the shaft was a space of several inches, and that from each floor there extended a strip or sill of wood several inches in width and reaching to the sides of the elevator so exposed. As the elevator ascended from the first floor another boy working with and standing in front of plaintiff stepped back on plaintiff's toes causing him to throw his foot back so that his heel was caught between the elevator and the projecting strip at the third floor and crushed. Plaintiff, in that case, was in no way responsible for the alleged defective condition of the elevator and the opinion comments upon the standard of care required of one of his tender years. In the instant case there was an absolute failure of proof that "oil and grease were used and the said oil and grease was collected upon the floor," as alleged in the petition. The proof was that in stripping armatures plaintiff dropped strips on the floor leaving it in a dirty, greasy condition, but there is no evidence that even this condition, which plaintiff, a woman of mature years and experience, created and permitted to continue without complaint, in any way contributed to her injury. There is no showing that the tilted chair slid away from plaintiff because of the dirty and greasy condition of the floor or that it would not have done so if such condition had not existed. The proximate and sole cause of plaintiff's fall, as far as the record goes, was Summerlad's movement of the chair, which action was entirely outside the scope of his employment. The facts appearing in the respective cases easily differentiate them.
Appellant's second and third points proceed on the assumption that Summerlad's act was not the sole cause of the injury. The evidence, as already indicated, does not warrant this assumption and these points are without merit.
Appellant's fourth, fifth, sixth and seventh points are to the effect that repeated acts of negligence and habitual carelessness are evidence of negligence, that when a coemployee of Known known dangerous character is retained the injured Dangerous employee should recover, and that knowledge of Employee. careless habits are to be imputed to defendants. Assuming without holding that these propositions as stated are sound, yet they are without application, because it plainly appears from the evidence that the act of Summerlad which caused plaintiff's injury was entirely outside of the nature and scope of his employment. The authorities cited are cases where those who caused the injuries were acting within the scope and course of the master's employment.
In stating their eighth point counsel for appellant say: "Even if it appears that the unlawful act of the employee was in no proper sense incident to the servant's employment, Ratification. yet the plaintiff is entitled to recover if there was a ratification by the master." There is no evidence that Summerlad ever before pulled, tilted or shook the chair in which another employee was seated, or that the particular act here complained of was done with the knowledge or in the presence of any of his superiors, or that defendants ever ratified his act.
Appellant finally urges that "the relationship and consequent duty continued during the noon hour," citing Ellsworth v. Metheney. 104 F. 119, 51 L.R.A. 389. In that case it Guarding was held that the proprietor of a coal mine, who Employee. places a dangerous electric wire along a passageway which the miners are accustomed to use during the noon hour with the knowledge of and without objection by the proprietor, is charged with the duty to properly guard and protect the wire or give notice of the danger. The bare statement of this holding shows its inapplicability to the facts in the instant case.
The apparent seriousness of plaintiff's injuries has impelled us to examine this record with more than ordinary care. However, the doctrine that is clearly applicable and decisive of the case is thus stated in 39 Corpus Juris, page 546 (n. 68): "The master is not liable for an injury occasioned by sportive acts or horseplay not in the scope and course of the employment."
The judgment is affirmed. All concur.