Jorkiewicz v. American Brake Co.
172 S.W. 441
Mo. Ct. App.
1915
Check Treatment

Lead Opinion

ALLEN, J.

— This is an action for damages for personal injuries sustained by plaintiff while in the erUploy of the defendant corporation as its servant. There was a verdict and judgment for plaintiff, and the defendant appealed.

Plaintiff, at the time of his injury, was working as a member of a crew of five men, known as the “hammer crew,” in defendant’s factory. He was assisting in the making of crank-shafts, which was done by placing a heated billet of metal in a die and causing it to be struck a number of blows by a steam hammer, and was injured by a piece of such heated metal, which was sheared off by the die when the hammer descended, and which flew into his right eye, destroying the sight thereof and requiring its removal.

One Cripps, called the hammersmith, had immediate supervision over the other men engaged with him in doing the work in question. There were the *538“heater,” who heated the billets at the furnace, plaintiff and one Thomas, who were the hammersmith’s helpers, and a yonth named Reinhart, who operated the steam hammer.

Upon the occasion in question one of these billets of metal, which it seems was some twenty-six inches long, averaging perhaps four or five inches in diameter, had been heated nearly to white heat by the heater at the furnace. It was to be placed vertically in the die, and, when in proper position, was to be driven into the latter by the hammer. Plaintiff’s evidence is that Cripps, who directed the operation, took hold of the billet at the furnace with a pair of tongs, and that plaintiff and Thomas assisted him in lifting it to the die by placing an iron bar beneath the tongs; that under the direction of Cripps it was placed in the die, but was not placed straight, or squarely in position, therein; that Cripps then handed plaintiff and Thomas the tongs, and that they, under Cripps’ direction, were attempting, without success, to turn the billet, which was tight in the die, when Cripps told them to take the tongs off and directed young Reinhart to let the hammer descend.

Such is the testimony of plaintiff and other witnesses. And plaintiff testified that he made an effort to tell Cripps that the billet was not in proper position to be struck by the hammer, but did not have time to do so.

While it appears that the upper part of the die, which had what is termed a “toe,” was larger than the lower part thereof, and that the metal was hastily drawn over toward this “toe” by a “fuller rod,” and that the metal necessarily extended somewhat above the die before being struck by the hammer, plaintiff’s evidence tended very strongly to show that the failure to properly place the billet in position caused the upper part of the metal thereof to lap over the die and be sheared off by the latter when the hammer descended. *539It appears that in driving such a hillet into the die sparks would invariably fly off, which were harmless, but that it was not customary for pieces of the metal to be sheared off and to fly about; and that upon this occasion not only was plaintiff injured by a piece of such flying metal, but that the hammersmith himself was slightly injured in a like manner.

It is strongly urged that the defendant’s-demurrer to the evidence should have been sustained, but we are not so persuaded. The argument in support of the demurrer appears to disregard the fact that-our courts adhere to the doctrine, not universally recognized, that it is the personal duty of the master to direct and control the work, and that if one servant is given power and authority to direct and control other servants, in the performance of some branch of the master’s work, the latter is liable for negligence on the part of such superior servant in the exercise of the power and authority thus conferred upon him. That this doctrine is firmly established in this State will appear by reference to a few of the many authorities which might be cited in this connection. [See Moore v. Railroad, 85 Mo. 588; Schroeder v. Railroad, 108 Mo. 322, 18 S. W. 1094; Miller v. Railroad, 109 Mo. 357, 19 S. W. 58; Bane v. Irwin, 172 Mo. 306, 72 S. W. 522; Burkard v. Rope Co., 217 Mo. l. c. 482, 117 S. W. 35; English v. Rand Shoe Co., 145 Mo. App. 451, 122 S. W. 747.]

Undoubtedly the evidence adduced by plaintiff sufficed to justify the submission of his case to the jury upon the theory that plaintiff and Cripps were not mere fellow-servants, but that the negligent act of the latter in causing the billet to be struck when improperly placed in the die was the act of a vice-principal, for which the master is responsible. Touching this matter Cripps’ own testimony is that his authority to direct and control extended to everything that went on “around the hammer;” that he directed the hammer-driver and told the helpers what to do; and exercised *540general supervision over the “whole gang,” with the exception of the firemen who was under the supervision of another. And the evidence is that the superintendent’s orders were for the members of this crew to follow the directions of the hammersmith who supervised this branch of the work. And the operator of the hammer says that he operated the same only upon signals or orders from the hammersmith, in accordance with his instructions from the superintendent.

It is true that the dual capacity doctrine is .firmly implanted in the law of this State. [See McIntyre v. Tebbets, 257 Mo. 117, 165 S. W. 757; English v. Rand Shoe Co., supra; Mertz v. Leschen & Sons Rope Co., 174 Mo. App. 94, 156 S. W. 807; and authorities referred to in these cases.] And it is also quite true that it is the character of the act, and not alone the rank of the servant, which determines the question of liability or nonliability in a case of this character. [See authorities last above cited.] But here plaintiff’s case is bottomed upon a negligent act of the superior servant, committed in the performance of his duties as the alter ego of the master. According to plaintiff’s evidence, strongly reinforced by that adduced by defendant, Cripps directed the work, and it was he who determined when the metal should be struck by the hammer; and although it was apparent to others (and it said to Cripps also) that the billet was improperly- placed in the die, nevertheless he immediately ordered it to be struck, whereby plaintiff was injured. He alone had control over the situation, and his act in the premises is the act of the master. And though he was one of the workmen engaged in this work, and performed manual labor in prosecuting the same, as did plaintiff, the injury was occasioned by an act on his part done in the capacity of a vice-principal. In this respect the facts are unlike those presented in McIntyre v. Tebbetts, supra, where it is held that the act which occasioned the injury was the act of a fellow-servant.

*541An instruction given for plaintiff is complained of in several particulars. It is needless, however, to prolong the opinion in order to discuss the questions thus raised. We have carefully examined the instruction and we think that appellant’s criticisms of it are entirely without merit. While technically- it might be improved in form, it is quite clear that it requires the jury to find the facts necessary to a recovery by plaintiff, in accordance with the theory of his case as discussed above, and that no reversible error inheres in it.

A further contention is that the verdict, which was for $5000, is excessive; but in view of plaintiff’s loss-we would not be justified in disturbing the verdict on this ground.

The judgment should be affirmed, and it is so ordered.

Reynolds, P. J., and Nortoni, J., concur.



Rehearing

ON MOTION FOE EEHEAEINGr.

ALLEN, J.

— It is strenuously urged that we have entirely overlooked the point made by appellant that the instruction given for plaintiff, above referred to (plaintiff’s only instruction), is erroneous in respect to the measure of damages. We have not in fact overlooked this attack upon that instruction, but we deemed it unnecessary to discuss the matter.

Plaintiff’s said instruction tells the jury that if they find certain facts, then to find for plaintiff, ‘ ‘ and assess his damages in such sums as you shall find will compensate him for the loss of his said eye.” The petition averred, among other things pertaining to plaintiff’s loss, that by reason of the loss of his eye plaintiff had been unable to work for more than four months. There was no proof, however, of loss of earnings.' Appellant’s contention is, that this instruction authorized a recovery for loss of earnings, with no proof to sustain the same; and that it is otherwise fatally defective in failing to limit the recovery to *542the proper elements of compensation which the jury were lawfuly authorized to take into consideration. Appellant relies upon a number of cases not necessary to be here cited, and particularly upon Davidson v. Transit Co., 211 Mo. l. c. 345, 109 S. W. 583. But it is quite apparent that the giving of the instruction in this form, relative'to the damages recoverable, was not reversible error. That part of the instruction was good enough in its general scope. [Browning v. Railroad, 124 Mo. l. c. 71, et seq., 27 S. W. 644.] It did not purport to authorize a recovery for loss of earnings. And if appellant desired to have the jury instructed that no recovery could be had for loss of earnings, or to otherwise limit the recovery, it was its duty to ask a limiting instruction, which was not done.

The real point here involved has been recently passed upon by the Supreme Court in King v. St. Louis, 250 Mo. 501, 157 S. W. 498, where the doctrine of the Browning case, supra, is reaffirmed, the court saying, (1. c. 5140): “Mere indefiniteness in a general instruction, when appellant stands mute and asks none, is not reversible error.” The same doctrine has been still more recently approved by the Supreme Court in State ex rel. United Railways Company v. Reynolds, 257 Mo. 19, where, on certiorari to quash the judgment of this court in Nelson v. United Railways Co., 176 Mo. App. 423, 158 S. W. 446, it was held that we did not err in applying the doctrine of the Browning case where an instruction was objectionable only on the ground that it was too general in form and appellant failed to ask an instruction limiting the effect thereof so that it might not be misrinderstood by the jury.

The motion for rehearing is overruled.