Summary
In Michely v. Mississippi Valley Structural Steel Co., 221 Mo. App. 205, 299 S.W. 830, the St. Louis Court of Appeals said: "____ if the servant who causes the injury is free from liability therefor, liability cannot attach to the master, for his liability, if any, must be predicated upon the negligent act of his employee.
Summary of this case from Stevens v. Oberman Mfg. Co.Opinion
Opinion filed December 6, 1927.
Master and Servant — Servant Injured — Negligence — Action Based on Act of Foreman — Joint Defendants — Discharge of Foreman Discharges Master. In an action by an employee for damages for personal injuries against a company and its foreman jointly, based on the alleged negligent act of the foreman in giving directions causing a large steel column to be lowered on plaintiff's foot, a verdict in favor of the defendant foreman discharged the company, as where the servant who causes the injury is free from liability therefor, liability cannot attach to the master, for his liability, if any, must be predicated upon the negligent act of his employee.
Appeal from the Circuit Court of the City of St. Louis. — Hon. Robert W. Hall, Judge.
REVERSED.
Jones, Hocker, Sullivan Angert for appellant.
(1) The demurrer of the defendant Mississippi Valley Structural Steel Company should have been sustained, because: (a) The order by Doerner, if given, to move the column to the west was not a negligent order. The defendant Mississippi Valley Structural Steel Company was not negligent. (b) The court declared as a matter of law at the close of the plaintiff's case, that defendant Doerner was not negligent, and at the close of all the evidence directed a verdict in favor of Doerner, and the verdict of the jury was in his favor. The case was tried on the theory that Doerner was the foreman and the plaintiff was injured through a negligent order of his. Mississippi Valley Structural Steel Company could only be liable through Doerner's negligence. There was no case against the employer to be submitted to the jury. (c) Plaintiff was guilty of contributory negligence as a matter of law in placing his foot on the tie directly under a column that weighed five tons, at which time the column was only seven inches above the tie and they were in the act of lowering the column onto the ties. (2) The negligence alleged against both Doerner and the corporate defendant, on which the case was submitted to the jury, was misfeasance on the part of Doerner, if established, for which he would be liable. State ex rel. Hancock v. Falkenhainer et al., Circuit Judges, 291 S.W. 466; McCanver v. Lead Co. Foster, 216 Mo. App. 370; Steinhauser v. Spraul, 114 Mo. 551; Jewel v. Bolt Nut Co., 231 Mo. 206. (3) The court having directed a verdict in favor of Doerner, should also have directed a verdict in favor of the corporate defendant. Doerner was acquitted of negligence and that act automatically acquitted the corporate defendant. McGinnis v. C.R.I. P. Ry. Co., 200 Mo. 347; Lindman v. Kansas City, 308 Mo. 161; No. 9 L.R.A. (N.S.), page 880 — Note; L.R.A. 1917E, page 1029. (4) Plaintiff's instruction No. 2 given by the court undertook to define preponderance of the evidence and concluded by directing a verdict for plaintiff if the jury found that the evidence preponderated in plaintiff's favor. This instruction was erroneous and misleading. (5) Plaintiff's instruction No. 4 given by the court directed a verdict in plaintiff's favor if the jury found that Doerner gave plaintiff a negligent order to move the column to the west. The instruction is broader than the pleading and did not require the jury to find that Doerner knew, or by the exercise of ordinary care could have known that plaintiff's foot was in danger of being caught. This instruction was clearly erroneous. (6) On plaintiff's evidence the court should have given the corporate defendant's instruction E on contributory negligence. Either party is entitled to the benefit of evidence introduced by the other as fully as though introduced by that party. Hedges v. Metropolitan Street Ry. Co., 125 Mo. App. 583; Beane v. City of St. Joe Investment Co., 211 Mo. App. 200; MacGuire v. St. Louis Transit Co., 103 Mo. App. 459. (7) The court erred in refusing to give defendant's instruction F, which required the jury to find by a preponderance of the evidence that Arthur Doerner directed the plaintiff to move the column, and that Arthur Doerner knew, or by the exercise of ordinary care, could have known, that plaintiff was in danger of being caught, and that Arthur Doerner in so doing was negligent. (8) The court erred in refusing to give defendant's instruction G, which required the jury to find that Arthur Doerner failed to exercise that degree of care and caution that an ordinarily careful and prudent person would have exercised under the same or similar circumstances before they could find a verdict against defendant Mississippi Valley Structural Steel Company. (9) The court erred in refusing to give defendant's instruction H. (10) The court erred in refusing to give defendant's instruction I. (11) Plaintiff lost three toes of the left foot. He incurred no medical expense and lost five months in wages. The result obtained was good and plaintiff's evidence showed that he had a good serviceable foot. The verdict of five thousand dollars ($5000) is excessive. (12) When plaintiff submitted his case to the jury by instruction on assignment of negligence No. 1, he thereby abandoned assignments of negligence Nos. 2 and 3. Schroeder v. Wells, 276 S.W. 60; Dietzman v. Screw Company, 300 Mo. 196; Evans v. Southern Wheel Co., 273 S.W. 749; Snyder v. Western Union Tel. Co., 277 S.W. 362; Gehbauer v. J. Hahn Bakery Co., 285 S.W. 170.
Douglass Inman for respondent.
(1) The court did not err in overruling the demurrer of defendant for, under the law and the evidence in this case, plaintiff made a case for the jury on the issue as to whether it was negligence on the part of the defendant's foreman in directing or ordering plaintiff to move the large iron column off the timber instead of moving the column with the crane. Porter v. Mo. Pac. R. Co., 267 S.W. 964; McCauley v. Brewing Co., 254 S.W. 868; Swick v. Bridge Iron Co., 232 S.W. 241; Henson v. Stove Co., 190 Mo. App. 474; Wilson v. Johnson Son, 242 S.W. 150. (2) Plaintiff was not guilty of contributory negligence in obeying the order of his foreman while working under the immediate eye of the foreman in carrying out the order. 18 R.C.L. 701, sec. 185; Doody v. Woolen Mills, 274 S.W. 692; McCarver v. St. Joseph Lead Co., 268 S.W. 687; Kame v. Railroad, 254 Mo. 175, 197 (3). (3) The action of the trial court in sustaining the demurrer of defendant Doerner at the close of plaintiff's case did not thereby discharge this defendant, but if it had then this defendant waived the discharge because: (a) It failed to stand on its demurrer or to ask for a verdict "non obstante veredicto," and went ahead and put in its evidence on the merits of the case, and thereby contested plaintiff's right to recover on the merits; it then sought a discharge on the merits and not on a question of law, and this court will hear the case only on the theory on which it was tried below, that is, whether this defendant was guilty of negligence that proximately caused the injury to plaintiff. Geninazza v. Storage Co., 252 S.W. 417; Polski v. City of St. Louis, 264 Mo. 458; Whitfield v. Union Elec. Co., 271 S.W. 52. (b) The defendant in its motion for a new trial failed to call to the trial court's attention the law which it now claims discharged it when the court sustained the demurrer of the defendant Doerner, therefore, this error, if error, cannot be reviewed by this court. Polski v. City, 264 Mo. 458; Whitfield v. Union Elec. Co., 271 S.W. 52; Daggett v. American Car Foundry Co., 285 S.W. 855. (c) The action of the trial court in sustaining the demurrer of Doerner at the close of plaintiff's case did not discharge this defendant, for there is nothing in the record to show on what ground or theory the court sustained the demurrer. Polski v. City, 264 Mo. 458. (4) Instruction No. 2 given at the request of the plaintiff properly declares the law on the question of burden of proof and preponderance of the evidence, and it has been approved in many cases, one at least by this court — Thurman v. Wells, 251 S.W. 75. Plaintiff's instruction No. 4 properly declares the law and First. It was not necessary that the instruction require "the jury to find from the evidence that Doerner knew, or by the exercise of ordinary care could have known that plaintiff's foot was in a position of danger" because. (a) It was not necessary that Doerner should anticipate that this precise injury should happen; all that was necessary is that he should anticipate some injury might happen. McElroy v. Steel Erection Co., 269 S.W. 934; Kidd v. Railroad, 274 S.W. 1079. (b) Doerner was a vice-principal and was present directing the work when he gave the order, and it was his duty to know that some injury might happen to plaintiff if plaintiff attempted to move the column instead of moving it with the crane. Kame v. Railroad, 254 S.W. 175; Quinlan v. American Car Fdry. Co., 225 S.W. 440; Stuva v. American Car Fdry. Co., 270 S.W. 145. Second. Instruction No. 4 is criticized because it directs a verdict if the negligent order "directly contributed to cause plaintiff's injuries," but this is not error. Evans v. Klusmeyer, 301 Mo. 362; Riska v. Railroad, 180 Mo. 195. Third. Instruction No. 4, which tells the jury to find for plaintiff if the negligence "directly contributed to cause plaintiff to be injured," is criticized because defendant says there is no other act of negligence pleaded which it is claimed contributed with the negligent order. This is not necessary under the law. Peppers v. Railroad, 295 S.W. 707; Harrison v. Electric Light Co., 195 Mo. 606; Guthrie v. Railroad, 279 S.W. 210. (5) Defendant's instruction E was properly refused by the court for — (a) If it be conceded it was technically correct as abstract law, yet it was so worded as to be confusing and misleading, instead of aiding the jury, and it is not error to refuse such an instruction. Bolin v. Frisco, 282 S.W. 141; Peppers v. Frisco, 295 S.W. 759; Fisher v. Pullman Co., 212 Mo. App. 280. (b) This instruction is erroneous because it deals in generalities, assumes as facts what are not facts, is ambiguous and misleading, and instead of clarifying the issues confuses them, and should not have been given. See authorities under (a) above; Head v. Lumber Co., 281 S.W. 441. (c) Contributory negligence is not a defense to what plaintiff did at the direction of defendant in its presence, and especially when he would not and could not have been injured by anything plaintiff did, but for the concurring negligent act of the foreman in directing the craneman to lower the column. Kame v. Railroad, 254 Mo. 175. (7, 8, 9, 10) The defendant under the above points alleged error in refusing its instructions F, G, H and I, but as the brief and argument fails to distinctly specify the error it claims is in these instructions, under the rules of this court, these assignments of error may be dismissed for failure to point out the error in them. Beckwith v. City, 212 Mo. App. 488; Anderson v. Herrick, 268 S.W. 711; Scale Co. v. Reams, 258 S.W. 451; Wearen v. Woodson, 268 S.W. 648; Evans v. Cotton Oil Co., 178 S.W. 286; Martin v. Corporation, 247 S.W. 465. Also most of these were on contributory negligence, which is not a defense under the evidence in this case, and, if a good defense, improperly declare the law under the facts in the case. (11) The damages awarded by the jury are not excessive for the injuries sustained. (12) We concur with the defendant in its view that where a plaintiff submits certain assignments of negligence to the jury in instructions and omits others that those not submitted are treated as withdrawn.
Plaintiff's action is for damages for personal injuries sustained whilst in the employ of the defendant, Mississippi Valley Structural Steel Company, the other defendant being Arthur Doerner, the foreman of the Steel Company under whom plaintiff was working at the time he met with his injuries. A directed verdict for the defendant Doerner, and a verdict in favor of plaintiff and against the defendant, Mississippi Valley Structural Steel Company for $5000 resulted, and the defendant, Steel Company, in due course appeals. Plaintiff did not appeal from the verdict and resulting judgment in favor of defendant Doerner.
During the pendency of the case here on appeal the death of plaintiff was suggested, and the cause revived in the name of Louise Michely, duly appointed and qualified administratrix of the estate of said Nicholas Michely, deceased.
The defendant conducted a large steel plant where it made and assembled structural steel, and when hurt plaintiff was engaged as a helper in assembling a large steel column, about forty feet long, which weighed five tons. The column was made of four flat pieces which had been bolted together so as to hold the four sides together, and when thus assembled by plaintiff it was the duty of his foreman, defendant Arthur Doerner, to have it moved to a place in defendant's plant where it would be riveted by other employees. It was moved by means of a crane which ran on an overhead track. This crane was in charge of an operator who sat in a cage above the track, some thirty feet high. The crane picked up the column and moved it over some fifty or sixty feet, and then let it down to about waist high over three timbers laying on the ground, which were about ten or twelve feet apart. After the column had thus been lowered and stopped about waist high, it was about seven or eight inches from the top of said east timber, with the east end of the column in such a position that if the column was lowered it would rest on said east timber. Plaintiff testified that while the column was thus hanging stationary about waist high, his foreman, defendant Doerner, who was standing at the west end of the column, gave plaintiff (who was at the east end of the column) a signal to move that end of the column over so it would miss the east timber when lowered. Doerner, the foreman, denies giving such signal.
Plaintiff testified that, in obedience to this signal from the foreman, he took hold of the column to push it over so it would miss the timber, and in order to give him more power he placed his foot on top of the east timber and was in the act of shoving the column from over the timber, as he was ordered to do, when the foreman gave a signal to the craneman to lower the column, and it was lowered on plaintiff's foot, resulting in severe injury thereto.
Though plaintiff's petition sets up three assignments of negligence, he submitted his case solely upon the following assignment:
"That the defendant, Arthur Doerner, in charge of the work where plaintiff was working, negligently directed plaintiff to move the iron column, as aforesaid, at a time when he knew, or by the exercise of ordinary care could have known, that there was danger of plaintiff being injured by the column as aforesaid, thereby causing plaintiff's injuries."
The Mississippi Valley Structural Steel Company, defendant below, here on appeal urges that since by plaintiff's action it, as master, and defendant, Doerner, its servant, are jointly sued for the alleged negligence of Doerner, the servant, and the verdict and resulting judgment was in favor of said servant, but against it, the defendant master, such verdict and judgment against it are inconsistent, erroneous and unauthorized and should be reversed.
An examination of the record discloses that at the close of plaintiff's case, at the request of the defendant Doerner, the court gave the following instruction:
"Now at the close of plaintiff's case, the court instructs the jury that under the law and the evidence, plaintiff is not entitled to recover and your verdict must be for the defendant, Arthur Doerner," but that an identical instruction offered at the close of plaintiff's case and again at the close of the entire case on behalf of the Mississippi Valley Structural Steel Company was refused.
It is to be noted that in the motion for new trial filed by defendant, Mississippi Valley Structural Steel Company, among other grounds set out in support thereof, were the following:
"The verdict is contrary to the law.
"The court erred in overruling defendant's instruction in the nature of a demurrer to the evidence offered at the close of the whole case.
"The court, having directed a verdict in favor of the codefendant, Arthur Doerner, therefore erred in refusing to direct a verdict in favor of defendant, Mississippi Valley Structural Steel Company."
We rule that the error complained of here on appeal is set out in said motion for new trial of the defendant, Steel Company, in such manner as properly to bring the point here for our review.
We have set out above the sole assignment of negligence upon which plaintiff submitted his case to the jury, and a brief statement of facts, from which it readily appears that plaintiff's case, from the negligence pleaded and the proof made, seeks to hold the defendant Steel Company upon the principle of respondeat superior, wherein the master is held liable for the misfeasance or negligent performance of a duty of its servant. If defendant, Steel Company, is liable at all under the pleadings and evidence, it is liable by reason of the negligence of its servant, defendant Doerner, and not otherwise. But the jury returned a directed verdict in favor of the defendant, Doerner, but against the defendant Steel Company in the sum of $5000. This will not do, for if the servant who causes the injury is free from liability therefor, liability cannot attach to the master, for his liability, if any, must be predicated upon the negligent act of his employee. This rule of law is so well established that the reasons therefor no longer need be reiterated. See McGinnis v. Ry. Co., 200 Mo. 347, 98 S.W. 590, wherein the rule is fully discussed. See, also, Lindman v. Kansas City, 308 Mo. 161, 271 S.W. 516, a recent opinion by our Supreme Court, en Banc, in which the rule as laid down in the McGinnis case is approved.
From the foregoing conclusion it follows that the judgment should be reversed and it is so ordered. Daues, P.J., and Nipper, J., concur.
Reporter's Note; Writ of Certiorari in above case denied by the Supreme Court, February 4, 1928.