McIntyre v. Tebbetts

OPINION. GOODE, J. (after stating the facts). — Kuhr was foreman of the wagon crew and the other members were under his authority. The wagon was, so to speak, a detached place of operation where part of defendants’ business was carried on under Kuhr’s control. He was empowered to employ men for his crew, regulate their work and let them go at his pleasure. Those facts were presented in the first instruction, and the jury were told if they found them to exist, Kuhr was a vice-principal and not a fellow-servant of the plaintiff. The court did not err in this ruling. [Miller v. Railroad, 109 Mo. 357; Russ v. Railroad, 112 Mo. 49; Edge v. Electric Ry. Co., 206 Mo. 471.] We will say all the instructions strike us as accurate and fair, and if the case should have gone to the jury on the questions of whether Knhr was a vice-principal or fellow-servant, and in which capacity he was acting at the moment of the accident, the issues were well presented. The main part of Kuhr’s task was to drive. the wagon and team. He did this as well as control the hauling and give orders to the men. Hence he discharged two-fold functions, and the principal inquiry is whether the entire evidence proved he was acting as a common member of the wagon crew at the instant he drove forward and caused plaintiff’s hurt, or as vice124 principal. Counsel for defendant insist the evidence shows, beyond inference to the contrary, the starting of the wagon was an act incident to his ordinary duties as driver, and in no sense an exercise of his authority as foreman. The leading opinion in this State on what is denominated the dual capacity doctrine, is Fogarty v. Transfer Co., 180 Mo. 490, wherein it appeared the driver of a freight wagon had been injured by the neg--ligent act of a foreman. Many of the facts were like those we have here, but one distinguishing circumstance appeared. Said foreman took the lines from Fogarty and undertook to back the wagon himself; thereby assuming, by virtue of the authority vested in him as foreman, to supersede the regular driver in the performance of a task the foreman had not been performing before, and in the course of which he hurt the driver. In the case at bar, when Kuhr started the team forward and hurt plaintiff, he simply continued to drive; for, properly considered, he was driving while he held the lines as the wagon and team stood waiting for plaintiff. It is plain the careless act of the foreman in the Fogarty case wears more the appearance of an exercise of mastery than does Kuhr’s as the opinion shows (loc. cit. 512); and hence it does not folloAv the capacity in which Kuhr acted was for the jury, merely because the Supreme Court held the question of capacity was for the jury in the Fogarty case. In Bien v. Transit Co., 108 Mo. App. 899, this court approved the submission of a like question on the authority of the Fogarty opinion, and it is-charged now by counsel for the defendant, that in doing so we misled the court below in the present case into submitting to the jury what was really a court matter. The facts of the Bien case regarding the magnitude and complication of the affairs controlled by the foreman who figured therein are so unlike those before us as to put that authority out of point; but we seize the opportunity to call counsel’s attention to the fact that the Supreme Court in Holweg v. Tel. Co., 195 Mo. 449, and [125] Edge v. Railroad, 206 Mo. 471, 492, approved and quoted from the opinion in the Bien ease. Counsel say we misconceived the import of the Fogarty case in holding it was applicable to an accident that had happened in this State, because the Supreme Court held the question was a jury one in obedience to the law of Illinois where the Fogarty accident happened. This contention is unsound. The Supreme Court showed in the Fogarty opinion (loc. cit. 511) the law of Illinois and the law of Missouri, as regards when the issue of vice-principal or fellow-servant is for jury or court, are not different. The courts of Missouri and Illinois hold alike on this matter, and that the question is for the jury when the facts are in dispute or reasonable men may come to different conclusions from them, and is for the court when the evidence will permit but one conclusion. Norton v. Nadebok, 190 Ill. loc. cit. 599. What we have said supra is more by way of answer to the attack of counsel on the opinion in the Bien case than in decision of this one. Some of' the early Missouri opinions either explicitly or implicitly refused to determine the master’s liability for an injury to an employee by a co-employee, upon the theory that a superior servant or foreman might do two-fold duties, and the master be liable for his carelessness while engaged in the performance of one class of duties, because the superior servant was then exercising the master’s authority, and not be answerable in the other class when he was performing duties com--mon to him and the injured servant. [Hutson v. Railroad, 50 Mo. App. 300; Hughlett v. Lumber Co., 53 Mo. App. 87; Dayharsh v. Railroad, 103 Mo. 570; Russ v. Railroad, 112 Mo. 45.] We will not examine the facts and doctrine of those cases, because the dual service theory is established as the law of the State by the recent decisions. [Fogarty v. Transfer Co., supra.] Lawyers disagree in their opinions about the soundness of that doctrine, but if it is to be a rule of decision, the facts of the present case invoke it with peculiar force. Unlike [126] the foreman in the Bien case, Knhr was charged with the regular performance of common duties, wherein he was a co-worker with the wagon crew. The rule is more acceptable in such a case than where the foreman or vice-principal was not charged with any service common to other employees, but of his own volition undertook an act of common service and in performing it hurt a workman. Long reflection has failed to reveal how Ruhr’s act of driving forward involved an exercise of authority. It seems to us to have been beyond doubt an act of common service which was done in the course of his ordinary task. We cannot imagine a case wherein a person, who is both foreman and common employee, could do an act more clearly pertaining to the latter capacity rather than foremanship, than was Ruhr’s starting the team. The causal act of Ruhr Avas Avithin the description in Bane v. Irwin, 172 Mo. 306, 317, of what is a fellow-servant’s act though done by one aaAio is foreman, too-. “We agree with counsel for defendant, ‘It is the act and not the rank of the vice-principal which determines whether two employees are felloAV-servants.’ In this case the acts of Gibbs were the acts of the master. It is true that, according to the evidence, Gibbs at times did the work of a servant in loading and firing the shots, and had the injury occurred while he was performing a servant’s duty, he and plaintiff would have been fellow-servants; but it is clear that the negligence in this case was the negligent order to plaintiff to return to the dangerous place and fire the remaining shot and the injury was the consequent result of that order, and not the negligent loading and tamping of the shot. While Gibbs acted in a dual capacity, the injury here resulted from the order in making which he represented the master.” We are cited to Holweg v. Tel. Co., 195 Mo. 166, as an authority for plaintiff. In that case the foreman of a department caused an injury to a fellow employee by making the place where the latter Avorked unsafe during the tern127 porary absence of tbe regular operator of tbe machine. Tbe foreman attempted to operate the machine, left a block of wood on the table and this block was the cause of the injury. Said case may rest on the ground that the master’s non-delegable duty to use ordinary care to furnish the servant a safe place to work was broken. The Dayharsh case was distinguished on the same ground in the Fogarty opinion which examines and discriminates the various Missouri decisions. The judgment is reversed. Reynolds, P. J., concurs; Nortoni, J., dissents and requests the case to be certified to the Supreme Court as in conflict with Dayharsh v. Railroad, 103 Mo. 570. It is so ordered.