McCauley v. Anheuser-Busch Brewing Ass'n

*648 JAMES T. BLAIR, Jv — This is an action for personal injuries suffered by respondent while employed by appellant. A previous action was begun and, after a time, dismissed. Thereafter this action was instituted. Appellant was engaged in the manufacture and sale of beer. In organizing its sales and distribution force in Kansas City it divided that city into districts. In the central or down-town district Henry Schultz was placed in full charge. H!e solicited orders, made sales, directed deliveries and made the collections. He was responsible for the money collected and was under bond. *649 He received a small salary. Mlost of Ms compensation was derived from commissions. He had been so engaged for thirty-five years. The evidence tends to show that respondent worked as Schultz’s helper in the business of delivering beer; thaf he had so worked for eighteen months; during that time Schultz had given all the orders and had directed respondent, and respondent, so- Schultz testifies, worked under Ms instructions. Schultz says he employed respondent, but that he did not have power to discharge him; that, if occasion arose, he would complain to the union and they would consider it. He says respondent was subject to his orders; that respondent did not know what to do — “he was- a helper, that was all;” that he, Schultz,, “had charge of the wagon” and' was ‘ ‘ responsible. ’ ’ Schultz solicited and took all orders, kept the order book and controlled the time and manner of loading and delivering beer. On the day respondent was hurt he and Schultz were delivering beer to the Mercer Hotel, a customer in Schultz’s district. TMs hotel was eqMpped with an elévator which .Schultz had used on previous occasions to lower beer into the basement. The authorized operator was the hotel porter, but Schultz testifies it was the habit when delivering beer that “we generally always go down and work the thing ourselves — that is, I. did. ’ ’ Schultz desired to see prospective customers on the route, and told respondent to drive to the hotel and then wait for Mm. This, respondent did. When Schultz, arrived the porter was not at hand, and Schultz said he would run the elevator. He went into the basement for that purpose. The elevator moved in a sort of shaft which extended from the sidewalk level down to or near the basement floor. Its range of movement was probably about six feet. It was kept in position by uprights, called guides-, which extended upward on each side from the basement floor. The platform was about five feet square and carried on each side a curved iron support, wMch helped sustain the doors which covered the opening' in the sidewalk at the top- of the shaft when the elevator was down, and *650 which raised these doors as the elevator moved upward. The platform rested upon and was fastened to an iron post or rod called a plunger which fitted into a pipe at the bottom of the shaft. The elevator was operated by * city water pressure. The water was admitted and escaped through valves. These were controlled by a wheel. When the wheel was turned to the left a valve was opened and the water was admitted below the plunger and the pressure (180 lbs.) slowly thrust upward the plunger and the elevator platform 'fixed upon its upper end. Turned to the right the valve of entrance for the water was. closed and another valve was opened which permitted the water to waste at such rate that the elevator descended slowly. When the wheel was turned to a neutral point both valves were closed, the yater was neither admitted nor permitted to escape, and the elevator remained stationary, sustained 'by. the water beneáth the plunger. There was. evidence that the elevator and appliances were in good condition and that the water could not escape to ah appreciable extent from beneath the plunger unless the wheel was so turned that the valve which let it out was opened. There was other evidence that the elevator was in such condition that a little water escaped without the valve being opened. The evidence tends to show that if this testimony is true anyone operating the elevator would see the escaping water, and in any event the rate of escape would be very slow. On the occasion in question Schultz went into the basement, turned the wheel so as to admit the water below the plunger, and the elevator platform was raised to the sidewalk level. Ais it came up the doors in the sidewalk were raised. After the platform reached the sidewalk level respondent placed thirteen cases of beer upon it, and Schultz, lowered it, together with respondent, into the basement. The two then removed the beer from the elevator. Respondent walked up the stairway to the street level and Schultz raised the elevator1 in the usual way, except that he kept the entrance valve open and *651 admitted water until the platform was.- raised to- a position about a foot above the sidewalk level. The evidence tends to show Schultz then began to work with the wheel in an ende'avor to lower the elevator to the plane of 'the sidewalk, biit was unable to do so, though, he had previously accomplished in that way a like purpose when the elevator was two or three inches too high. In the meantime respondent had placed three cases, of beer upon the platform and was about to put on a fourth when Schultz told him not to put on any more; that the elevator was above the walk and would not come down. Schultz was trying to get it down; respondent could hear him working with it. The elevator did not descend and Schultz told respondent to shake it. Respondent did so without result, and Schultz told him to shake it hard. Respondent then took hold of one of the arches with both hands and with one foot upon the edge of the platform shook the elevator as ordered. The trouble was .that the elevator had gone high enough to get above the tops of the guides and was hanging there. When respondent shook it hard as Schultz directed, it slipped back between the guides and dropped suddenly to a point about four feet below the sidewalk level. It is a necessary inference th,at between the time that the elevator stopped on its upward course and the time when it dropped when, it was shaken back to its position between the guides, the water which supported the plunger, and had raised the elevator to the point it had reached, had escaped from' beneath the plunger to such an extent that the plunger found no supporting column of water upon which \to rest until it dropped suddenly fo the point four feet below the sidewalk level. As the elevator went down suddenly respondent was drawn head first into the shaft, and the sidewalk doors fell upon and held his -legs. Schultz ran the elevator up and then down and then repeated this operation, when the hotel porter, aroused by the noise, emerged, pushed Schultz, aside, took the wheel and quickly extricated respondent. Respondent had never operated the elevator and knew nothing of its manner *652 of operation or what agency was employed in its operation. The details of respondent’s injuries need not be set.out, since it is not claimed the damages allowed are excessive. I. It is contended that Schultz and respondent were fellow-servants and there can be no recovery for that reason. It is conceded that Schultz “had authority over” respondent in some respects, but it is insisted that their relation was that of fellow* servants with respect to the act in the performance of which respondent was injured. “All are' fellow-servants who are eng*aged in the prosecution of the same common work leaving [having?] no dependence upon or relation to each other, except as co-laborers without rank, under the direction and management of the master himself, or of some servant placed by the master over them.” [Moore v. Ry. Co., 85 Mo. l. c. 594.] Schultz had charge of all the business in the central district and was empowered to direct the activities of., his helper. For thirty-five years he had done so. He says the helper “didn’t know what to do.” He directed the time, place and manner of deliveries; he chose the elevator as a method of delivery. He operated it himself as he had theretofore done. Respondent knew nothing about the construction or operation of the elevator. After Schultz had taken charge of it and directed its use in lowering the beer into the basement, he managed to get it into a dangerous condition. After he had done this he twice ordered (Stephens v. Railroad, 86 Mo. 221) respondent to shake the elevator. Compliance with this order resulted in the injury respondent received. Schultz testifies to his authority, to give the orders as to all activities. The evidence justified a finding against the contention appellant makes. The point is made clear by the discussion in McIntyre v. Tebbetts, 257 Mo. 117, and the decisions therein cited. Fogarty v. Transfer Co., 180 Mo. 490, is one of these last, and both it and the Tebbetts Case approve a rule which includes territory *653 well beyond that occupied by tbe facts of this case. [Burkard v. Rope Co., 217 Mo. l. c. 482; McCall v. Dry Goods Co., 236 S. W. l. c. 326, 327; Loretta v. Columbia Can Co., 246 S. W. l. c. 998, 999 (Certiorari denied this term), and cases cited; Stapleton v. Hummel Mfg. Co., 202 S. W. 370.] It is true, as in cases relied upon by appellant, that one engag’ed with others as a fellow-servant cannot bind the master by a mere arroga,tion of authority to give orders concerning acts of fellow-service; but that is not this case. II. It is argued that (1) there is no evidence that the order given by Schultz was negligently given; and (2) there is no evidence tending to show why the elevator dropped. Consider these in inverse order. (a) The evidence tends to show the elevator was in good working order and could not drop unless the water had been allowed to escape from beneath the plunger by the opening of the waste valve. SchuJtz knew how the elevator was operated. He had attempted to lower it by turning the wheel and letting the water waste, This is at least fairly, if not conclusively, inferable from the fact that by working with the elevator he had discovered that it would not descend in response to its usual operation. It was not until after he made this discovery that he ordered respondent to shake the elevator. The evidence requires a finding that the elevator fell because the water had escaped from beneath the plunger and certainly justifies a finding that Schultz had opened the valve and allowed it to escape in his effort to lower the elevator. *654 *653 (b). If Schultz had let the water out he knew that when the elevator was shaken back on in response to his order it would fall until the bottom of the plunger reached the top of the column of water beneath it. This is what was to be expected, according to the testimony of the engineer and obviously accords with plainest rea *654 son, and is what did happen. Since Schultz ^ ^ water ont he knew it was out and a fall of the platform was. inevitable when it was shaken back on the guides. To say he did not know this is to say he did not know that the -law of gravitation worked in the Mercer Hotel basement. It is argued that appellant cannot be held for “something which had never happened before and which Schultz had no reason to expect would happen then.” Holt v. Railway, 84 Mo. App. 1. c. 448, is cited. The rule there announced, and quoted by counsel, is: “ That which never happened before, and which in its character is such as not to naturally occur to prudent men to guard -against its happening at all, cannot, when in the -course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency.” That rule is inapplicable to this case. Here there was presented the simple situation that Schultz ordered respondent to shake the elevator off the supports, which at the- moment were holding it up, after he had so dealt with the appliance that the result of the act he ordered must necessarily be that the elevator would fall. That the situation has not previously existed cannot excuse Schultz from a duty to know that a heavy platform, such as that in this case, will not remain poised in the air after all supports of every kind have been removed from beneath, it. III. It is argued that Schultz and respondent had equal knowledge concerning the elevator and that, therefore, respondent assumed the risk. Schultz knew how the elevator was operated and how to operate it. Respondent knew nothing about it. The assumption of fact upon which the argument is based is incorrect and the argument falls with it. IV. It is urged there were errors in giving and refusing instructions. *655 l.i It is said instruction numbered one authorizes a verdict without requiring a finding that the order given respondent was negligently given. The instruction requires the jury, before finding for respondent to 'find numerous facts, among others that in using and handling the elevator Schultz was in charge of the work and that plaintiff received his orders from Schultz and was required to obey him “in the doing of said work,’’ and that at the time “the platform of the elevator was projecting above the sidewalk and in a condition or position so that it Lad to- be shaken or forced into position before it would descend by the usual method, and if you further find from the evidence that said elevator could have been controlled and held in position and kept from dropping by the said Schultz while it was being shaken or forced into position, and if you further find from the evidence that if said elevator was caused or allowed to drop while it was being shaken into position and that it was reasonably likely to cause the plaintiff to fall or be thrown into the elevator and injured, and if you further believe and find from the evidence that the said Schultz knew,.’ or by the exercihe of ordinary care could have known of such facts, conditions and dangers," if they existed, and if you further find from the evidence that the said Schultz ordered the plaintiff to shake said elevator into position and that the plaintiff obeyed said order and shook said elevator for such purpose and in the manner referred to in the evidence; and if you further find from the evidence that the said Schultz caused or allowed said elevator to suddenly drop while the plaintiff was obeying said order, if such be the facts, and that the plaintiff was thereby caused to fall or be thrown into said elevator and to be injured, if he was, and if you further find that in so causing or allowing said elevator to be dropped at said tipie, if he did, the said Schultz was guilty of negligencq, as negligence is elsewhere defined by. these instructions, then you will *656 find for the plaintiff under this instruction, unless you further find from the evidence that the plaintiff assumed the risk or was guilty of contributory negligence as set forth in the other instructions.” The facts required by the quoted part of the instruction to be found before a verdict for respondent was returned are, if found, such as to show that Schultz ordered, respondent to perform an act which, in the circumstances, he knew or ought to have known was likely to result in injury to respondent. The facts predicated do not merely justify an inference of negligence. If found they conclusively show negligence in the giving of the order. In such circumstances it is not important that the jury was not tasked to determine as a fact a tiling that facts they were required to find before returning their verdict showed to be true as a matter of law. A recognition of this principle is found in cases cited by appellant on this point. 2. It is insisted that instruction numbered one ‘ ‘ authorized a recovery and wholly ignored the fellow-servant issue.” This overlooks the opening sentence of the instruction which required, before a verdict for respondent could be returned, a ñnding that Schultz and respondent were in appellant's employ and in the performance of their duties for it and that “in using and handling the elevator in question at the time referred to in the evidence, if you find such to be the facts, the said Henry Schultz was in the performance of his duties for the defendant, and if you further find from the evidence that the said Henry Schultz was in charge of said work and of the plaintiff and that plaintiff received his orders from and was required to obey the said Henry Schultz in the doing of said work, and if you further believe and find from the evidence that at said time the platform of the elévator,” etc. This is succeeded by that part of the instruction already quoted. It is clear from, this first part of the instruction, as well as that which follows it, that a finding of authority and its exercise with respect to *657 the very business in hand at the time of injury was required as a condition precedent to a verdict for respondent. 3. Appellant’is refused instruction numbered 5 dealt with contributory negligence. The subject was fairly covered by other instructions given for appellant. Besides, it is ope~]. to th~e construction that it authorized a verdict against respondent if the jury found he was guilty of any negligence whatsoever, however slight. 4. Instruction numbered 12 asked by appellant was modified by the insertion of the words which are enclosed in parentheses. “If the jury from the evidence believe and find that .any certain and specific injuries complained of by plaintiff were sustained by him as. a direct result of the actual operation and movement of the elevator by Schultz, and that Schultz and plaintiff were at the time of said occurrence fellow-employees of defendant (that is, neither had ahy authority or control over the acts of the other) and were engaged in a common task and undertaking of running and operating said elevator to effect and accomplish a delivery of beer, then as to such specific injuries, if any, so sustained, if so, plaintiff cannot recover in this case and you.should allow him no damages on account thereof in your verdict. ’ ’ Appellant contends the words added by the court made Schultz’s rank and not the nature of the act the test and told the jury “that the mere possession of authority by Schultz over the plaintiff, without regard to the nature' of such authority, or the exercise thereof, made defendant responsible for all of .Schultz’s acts in the common service of'these two servants.” It is also' argued that the modification converted the instruction so it meant that the “mere possession of authority or control of Schultz over plaintiff and the mere right to exercise it was sufficient in and of itself to justify a re *658 covery on account of such injuries, regardless of the fact whether Schultz was exercising such power and authority, and regardless of the character and nature of the act in which the two were engaged and which it is claimed caused plaintiff’s injury.” The instruction does not, in itself, authorize a finding for respondent under any circumstances. It tells the jury that if they find certain facts respondent “cannot recover in this case and you should allow him no damages. ’ ’ Appellant will hardly deny that if the jury found all the facts predicated, even on its own construction of the instruction, a verdict for it would have been justified. There was no error in giving the modified instruction. The real contention must be that appellant was entitled to have Instruction 12 given in the form requested and that the modification so changed it as to make it less advantageous than the instruction as asked and less so than the law allowed. Considefed from this point of view, appellant cannot complain of any uncertainty or error introduced by the language used in the instruction as it framed it in the first place. That request was an invitation the court' received from appellant, and the court’s acceptance of it furnishes no ground for complaint now. The clause added by the court did pot change the instruction in such way as to affect the rule it laid down before the change. Unmodified it applied to the very time and act of operating the elevator at the moment when respondent was injured. If it had not done so, it would have been erroneous. It is explicitly made to do so by its language. The clause added is purelyvan explanatory clause. It is even introduced by the frequently used “that is.” The sole function of the clause is to explain the words “fellow-employees.” It is a qualifier of those words and takes its place in the sentence, in grammatical sense, as a part of them. It, consequently, bears the same relation to time, place and circumstances as do the words it qualifies. Whether these are sufficiently limited in these respects is not a question since their *659 limitations are those recommended by appellant’s request. It may be said that they seem to be accurate enough. The authority and control mentioned in the added clause is authority and control as between the identical fellow-employees mentioned just preceding" and as of the exact time, place and circumstance described in the instruction,'both as it was asked by appellant and as given by the court. The contention made cannot be sustained. 5. Refused instruction numbered 13 told the jury that there could be no recovery for1 “any defect in the elevator mentioned in evidence, either because of the way it was constructed or because of its. mechanism and appliances, or for the absence or lack, if any, of safety dethereon.” There was neither allegation nor evidence of any defect in the elevator because of its manner of construction, or because of its mechanism or appliances. Nor is there any allegation or evidence that the elevator was or was not provided with safety devices. The reference to defects “because of its mechanism <pr appliances” is not clear, but does not fairly seem to refer to defective mechanism or appliances but rather to structural defects. In any event, the instruction tendered issues* not in the case in pleading or evidence, and the court was justified in refusing it. Y. .There was evidence that at times the packing around the plunger became loose and a little leakage would result. Schultz said he had called O’Rourk’s attention to the fact that there was waste; that 0 ’Rourk knew the elevator sometime would go “up- and down, you know” when not being operated. These movements were sliglit, the record indicates. It is argued it was error to admit this testimony because there was no- allegation in the petition that respondent’s injuries resulted from these things. Now, the evidence also shows- that if water wasted by reason of loose packing it was a thing easy, if not necessary, for one operating the elevator to discover. Schultz denies that he let *660 the water out by use of the wheel. There was only one other way for it-to g'et out — by leakage of the kind described. The evidence objected to was competent to show that though it could be possible Schultz did not open the waste valve-, yet the water escaped in a way observed by Schultz at the time and because of conditions- of which he had previous notice. There was no effort to secure a verdict because the elevator leaked or was out of condition. The case rested upon the negligence of Schultz in what he did after the water had run out for some reason and left the plunger unsupported. The important facts are thát it had run out, in one way or the other, and that Schultz knew it when he ordered respondent to shake the- elevator hard. The suggestion that the elevator had not fallen before is. discussed in another paragraph. The elevator had not previously been run off the guides by Schultz so that it would not come down in response to the wheel. The fact that the pipe was known to Schultz to have leaked theretofore was notice to him; and, if it is to- be believed that he did not let the water out, then he-, in the exercise of ordinary care, must have seen it leaking and must have known the result which would, follow^ — an unsupported elevator, s.o -far as water support was concerned. The objection made cannot be sustained. VI. Certain testimony tending to show curvature of the spine was offered.. It is insisted the petition furnishes no basis for- this evidence and that it comes within the rule in Hall v. Coal & Coke Co., 260 Mo. l. c. 371, and like decisions. This objection was. not made at the time the evidence was adduced. The questions which elicited it were direct and the ans!w”er's responsive. The motion to- --strike ,out was made at a later time in the examination of the witness. The trial court cannot be convicted of error on -this showing. Resides, the petition alleged, among other things concerning injuries, that respondent suffered a “mashing and 'bruising of the head, . . . *661 chest, back, hips and legs; . . . bruising, wrenching, straining and injuring the muscles, ligaments, tissues and nerves of . . . back, -hips and legs; wrenching, twisting and shocking the plaintiff’s spine, spinal column and nervous ligaments, and tissues thereof.” These allega■tions are sufficiently broad to cover the evidence in question. The testimony as to the break in the pelvic arch was competent, if not as a basis of recovery, to explain the shortening of respondent’s leg — to show what operated to render him a cripple as charged. VII. The point is made that the case was not properly for trial because an application to sue as a poor person and a subsequently filed motion for costs had not been disposed of,.and that it was error to proceed with the trial. Three rules relating to the matter of assignments of causes, motions fdr costs, the making of applications for continuance and agreements of counsel appear in the record. When this matter was presented to the trial court he stated explicitly that under the rules the application came too late and that the rule so provided with respect to the sort of application then being considered. He did not confine himself to the rules which appear here. The ruling is not'shown to- be erroneous. Other questions are .suggested, but are ruled in what has been said. The judgment is affirmed. Woodson and Ragland, JJ., concur; Graves, J., dubitemte.