*1 APPEAL REPORTS, MISSOURI Co. and Foster. Lead sup- Georgia supra, do not stated that the cases and it is port also relies Russell case. Defendant Tyler 27. 12 Ohio of Black v. S. case respects with out of line some to be But this case seems weight authority, great learned annotator p. says L. 335: his note 28 A. case, R., of this Tyler in Black “The decision v. W. decisions.” out of line the other
Ohio seems concluding his defendant, counsel for Learned language: following argument, printed use of makes is one case that this submitted “In conclusion suffering pangs plaintiff, perhaps of con- in which disloyalty through his act of remorse science and judgment poor in un- ingratitude, as well his business position quitting ceremoniously champion in order to a lucrative forty- 'for subordinates the demand oyer wages any grievance or week, four-hour without disloyalty by capitalize now seeks treatment, voluntarily gratuity incompleted of- of an enforcement employers.” by his fered language explains fully than more think this
We precise refusal reasons use defendant’s we can pay ' plaintiff receive. he should amount which instructions, appears error to be no There fairly the Commissioner tried. Therefore, case the recommends that judgment affirmed. be foregoing opinion PER CURIAM:—The Nipper, judgment opinion adopted the court. as the is C., J., accordingly Allen, affirmed. P. court is of the circuit concur. and Daues, JJ., Becker Respondent, v. ST. JOSEPH McCARVER, ROSIE Appellants.* FOSTER, and R. LEAD COMPANY February 3, Opinion Appeals. Filed Court of St. Louis Inspect: Duty Inspection: of Servant SERVANT: MASTER AND delegates tbe Liability. the servant master Master’s Wben Cye., p. Servant, *(1) Master and Foster.
McCarver v. Co. delegated inspection, can- the servant to whom this injuries which would to conditions not recover for received due such made have been had been discovered if *2 servant. Inspect: Duty Superintendent Evi- to
2. -: -: of Servant or Question Jury. by to recover dence: for wife the In an action the by by being damages a struck caused for the death of her husband prying mine, falling a he was of a while slab of rock from the roof superin- mine under direction of the small rock from roof the question tendent, mine the it was as to whose to the ways, being the both there was evidence an issue roof jury. properly issue to the court submitted that trial Inspect Superintendent Negligence: Duty to Roof -: -: 3. Safety. Ordinary Required Absent to Care for Miner’s Mine: Use inspec- delegated make his own of a miner to on a the duty, ego superintendent’s tion, mas- of the as the alter the it was ordinary discovering ter, in the of the dan- care extent exercise to every miner, ger that reason- the to see he ordered into which safety part, precaution, taken. to insure on able Superintendent’s Negligence in -: -: -: 4. -r: Inspecting Ques- Pry Ordering Without Roof: to Down Rock Miner by Jury. death of a miner struck In an action for the tion for the mine, question falling of the the from the roof rock a slab of ordering negligent superintendent in defendant’s whether inspection roof, pry without rock from a small down miner jury. question condition, held a for roof’s as to the Knowledge Superintendent Presumptions: -:-:-: Superior Attending to he Presumed Work Perils Mine of by large slab a miner struck a for the death Miner. In an action mine, presumed falling in of a it will be roof from the of rock superintendent plaintiff, who had ordered the of the favor knowledge perils attend- roof had of the such under work miner to superior miner. that of the _: Prying Rock from Roof of Miner Mine: -: -: Assuming Superintendent taken Reasonable had Pre- Warranted superin- having Safety. directed A miner for caution mine un- from the roof of the pry loose rock small tendent right proceed direction, had the superintendent’s der every superintendent had reasonable taken assumption reasonably safe was in whether roof precaution determine performance work. condition Cyc., Servant, 1470; (3) p. Cyc., & Servant, Master (2) & Master Servant, 1470; (5) Cyc., p. Servant, Master & (4) & p. Master Cyc., p. Servant, p. Master Cyc., MISSOURI McCarver v. Co. and Foster. Negli- Assumption Arising Master’s
7. -: out of of Bisks: Bisks gence: employment Not Assumed. A servant his contract may chargeable assumption obviated be not by of risks which precaution master’s on the the exercise of reasonable care part; out of the he never assumes risk arises of the master. Obeying Negligence: Negligent Order Unless -: Miner Not falling Danger from Imminent. rock A miner a slab of struck working, order of a mine in which he was under the roof of order, obeying negligent superintendent, such mine’s glaring danger doing imminent and so so he incurred unless obeyed reasonably prudent man would have careful and no
order. Ordering Negligence Superintendent's Miner -: -:9. Bendering Misfeasance, Nonfeasance, Not Unsafe Boof: Under Work superintendent negligently Personally a mine him Liable.. Where by making roof, when work under unsafe a miner to ordered large that a he could have discovered careful *3 fall, likely was mis- to his and was loose of rock slab personally nonfeasance, feasance, he liable. for which was and not Cyc., 1225; (8) Servant, Cyc., p. Servant, & 26 Master (7) 26 & Master Cyc., p. Servant, (9) 1544. p. 1273; 26 & Master County.— Court of St. Francois Appeal the Circuit from Judge. II. Huck, Peter Hon.
Affirmed. appellants. and C. J. Stanton Bennich,
E.W. (1) to both erred defendants over- The court separate joint ruling and the both the demurrer de- at the close of all the evi- defendants murrers filed delegate right (a) Defendants had dence. stope inspecting the back 2385 'McCarver the taking the loose rock therein. of the mine and dowiy Knorpp Livengood 229; Zinc 179 Mo. v. Co., Lead & v. Bradley Tea & Coffee 213 Wagner, 637; Co., v. 195 Mo. Mining 359; 243 Mo. Shelton v. Co., v. 320; Trainer 373 1924. v. Co. MeCarver (b)
Light, Ice 258 Mo. 167 S. W. Co., & Power falling injury incident to back a risk from Since employment, the risk of his MeCarver assumed character Livengood injury his death. v. Lead caused Knorpp Wagner, 195 Mo. 229; 637; &Zinc Bradley 179 Mo. Co., Trainer 213 Mo. Co., Tea & Coffee Mining 199 Britt v. S. W. Crebo, Co., neglect (c) whom had been MeCarver, dele- stope gated inspecting the back taking to make a therein, the loose rock correct loose rock, to the extent of the con- examination as Livengood tributory negligence. v. Lead Zinc Co., Mining Mo. 359; Ander- Co., Trainer v. .178 Mitchell Co., son v. & Const. S. W. Granite (d) S. W. 266. & Fuel 206 Mo. Ice Foster had made no knew that MeCarver against light his the back other than and that flash to take down the rock con- his order MeCarver loose warning safety, but a not assurance of stituted Knorpp likely fall at time. to' rock was loose Snyder Mining Wagner, 195 Mo. (ek Packing App. 618. Henson v. 593;W. superintent authority of Foster MeCarver’s complied with did contract was see his change under contract. Mc- the status MeCarver Lofty Const. Co., Louis, Grath S. St. to both The court erred defendants plaintiff, (a) giving It No. 1 for the as- instruction to leave the MeCarver was ordered sumes employed go regularly mine which was *4 regularly engaged, place when not where inspect undisputed that it was evidence is stope in the entire loose rock take down the back and .predicated upon not An instruction which 2385. is Independence, City Riley 258 evidence is erroneous. v. Wellmeyer Transit Co., v. 198 1022; Mo. 167 S. W. permits only negligence (b) Mo. The 527. against nonfeasance, for jury is find defendant Foster plaintiff. Harriman personally liable he is not 216 374 MISSOUEI and Foster.
McCarver v. Lead Co. Spraul, '541; v. 127 Mo. Mo. v. Stowe, 93; 57 Steinhauser Eailroad, Mo. Hamm v. McGinnis v. 200- Eailroad, (3) Young, App. 628. 245 58 S. W. O’Neil v. Mo. giving instruc- The court erred as to both defendants incorrectly plaintiff, (a) states tion It 2 for the No. question determining guide jury rule to contributory given negligence. instruc- in this The rule jury. Brad- tion ley not is the o'nefor the for court and Lime Co., Bennett 138 Mo: Eailroad, App. (4) defendant Mo. as to court erred The joint in arrest overruling Foster motion defendants’ petition judgment not state does for the reason Foster, (a) The against a cause of action defendant petition, alleged set out personally to the liable nonfeasance, for which he is plaintiff. 93;Mo. Steinhauser Harriman Stowe, Spraul, Mo. Eailroad, 127 Mo. 541; McGinnis Young, 1109; O’Neil 347; Hamm v. 245 S. W. Eailroad, respondents. Marsaleh for & StahlKutli (1) determining offered whether the demurrer sustained at evidence should have the close plain- accept appeal, evidence in will court, every therefrom inference reasonable favor, tiff’s ruling support plaintiff’s case, tending true. Tft upon not draw the demurrer the court will inferences overthrow to countervail or fact in defendants’ favor plaintiff. Hall in favor of v. Coal Coke inferences App. Knoche v. Pratt, Buesching Maginnis Eailroad, Mo. 219. cannot be Gas. demurrer sus- room tained the evidence is to leave no unless such as intelligence to differ on an essen- men of reasonable in the case. Fischer, tial issue Steffens v. labor primarily
maintain it safe condition rests up- rely servant entitled master, *5 375 1924. McCarver v. Co. and Foster. presumption duty performed. that has been this Baking Minter
Stratton
237 W.
Co.,
Gidinsky,
179
W.,
Co.,
228
1078-9;
Coal
Goode v.
App.
App.
Mo.
207; Gambino
Co.,
v. Coal
Foundry
Gerard v. Coal
Mo.
Clark v.
Co., 207
owed
(3)
duty
Co.,
McCarver v. Lead ordering injury by into him causes the servant’s *6 position discovered peril have master could of which 194 Mining Oo., Fleming giving before the order. v. App. City, App. 125 Mo. v. Mo. Kansas 212-214; Smith Sup.), 189 (Mo. Independence Highfill City of 150; v. (6) Co., Medley Mining'; 207 W. v. 801; S. W. assumption-of-risk doc- Appellants’ contention taken. recovery plaintiff’s well precludes not trine negligence in upon Liability in case bottomed this danger, position ordering of into a deceased by making a danger appellants have discovered could inspection. not servant does careful negligence arising of such assume the from risk House v. Wendler master under the law this State. Mo. Furnishing Co., v. Ice 180 536; 165 Mo. Boten Co., Kielty App. App. Bradley 177; v. 167 Mo. 96; Co., Coal Rope App. 63; 121 Mo. Burkard v. Co., Construction App. Huskey Boiler Mo. 479; Co., 217 Mo. Co., (7) properly 377. jury Plaintiff’s instruction No. told they guilty plaintiff not find could compli- obeying order unless McCarver’s Foster’s subjected glaring and ance with the order him to danger. Corby Co., 417; Tel. imminent Rope cited; Burkard v. 217 Mo. cases Conroy Fogus Railroad, 35; v. Iron 62 Mo. Wks., Thompson Negligence, sec. App'. Carter 107 Mo. St. Baldwin, Nash v. Joseph negli- 238 S. Foster’s gent nonfeasance, mis- order to McCarver but personally feasance, Foster was liable. Order- dang;er positive, a workman into a ais although may affirmative act, it contain an element neglect, or far nonfeasance,.in so involves failure giving before the command. Lottman B-arnett, Harriman v. Stowe, Huskey Carson v. Quinn, Boiler supra. Léad Co. and. Foster. brings BRUERE, C. Plaintiff action to recover this damages for the death her caused husband, alleged negligence employee R. defendant and its judgment S. Poster. Plaintiff a verdict and obtained appeal. for five below thousand dollars, and defendants allegations support petition, material of which evidence was introduced at the trial and jury, which the case was submitted to the are that on the day April, 28th 1922,the H. deceased, Oliver McCarver, employed by the defendant at mine as a its lead employed and while driller, thus directed de- through superintendent, its R. fendant, Poster, regular place to leave his take *7 small rock from roof the or of of the back one rooms of place said a mine, at other in than the which said employed; regularly Oliver H. McCarver that was said composed roof was of or rock, rotten insecure by ordinary fact said knew, defendants or the of exercise care could known; have that in the then said there was large, roof a rock extensive slab was of loose and likely fall; back of said room was un- supported pillars by props; or that IT. said Oliver Mc- compliance in Carver, said order undertook re- piece move said of he small and that rock, while so engaged large, heavy injured upon said slab fell him day August, and that he died on the 21st of as a injuries. result said petition injury
The further avers that the and death directly of the deceased was caused respects, following defendants to-wit: “That the defendant Poster then and there, a peremptory negligently plaintiff’s manner, ordered hus- immediately band to take loose rock down said small although by making said room, said a reason- defendant, inspection ably careful roof said room, could large have discovered that said slab was loose likely dangerous said to fall, condition; and was in a negligently reasonably Poster failed to make a careful 216 MISSOURI and Foster. V. Lead Co. negligently inspection roof and failed to sound of said plaintiff’s perform ordering husband to before the same in said room.” said work Joseph defendant, St. of the Com- answer assumption plea
pany, general a denial, of the áis plea injury sustained a further risk and negligence directly of his own result was the deceased contributing respects: following thereto, failing ordinary exercise care to In make “First. por- of the back careful a employed he was mine which ascertain tion of the rock therein. the loose the extent of upon pile placing himself of rock “Second. attempt- directly rock loose which he underneath gadding rock loose to take said down, might upon have stood one of himself when edge of said cars at the loose rock mine defendant’s position might from that rock have under secure' rock.” loose taken down said joined pe- R. issue on
The defendant, general filing denial. tition case whole defendants re- the close At jury give peremptory quested to the in- court defendants, which the for the court re- to find struction give. fused go assigned to the here refusal errors peremptory give instruction,
trial court to *8 requested by plaintiff, giving 1 and of instructions overruling motion in defendants’ arrest of judgment. by are: the evidence The de- facts disclosed
The Joseph employed by defendant, St. Lead ceased was In Company, mine as a driller. at lead its addition “contractor,” he was a driller with work as his Joseph Company, and as such was St. defendant, day employed consisted three dril- shift, eight Foster defendant lers and shovelers. was highest superintendent man in author- mine captain. ity the mine Mr. Duemler was mine. at the OCTOBER.
McCarver v. Lead Co. and Foster. There also a shift who told the men.what to do boss, and where to and who work, directed the contractors put where to the men they to work and what should do. day operat-
On the the accident the deceased was his drill said the defendant mine, when accompanied superintendent, captain the mine mine E. H. came Duemler, into the on an mine tour. large lights Mr. Foster and Mr. Duemler carried carbide lights larger with reflectors their hands. These were light lights and threw more than the small the miners caps. light wore their the aid of Mr. With his Foster (which twenty noticed the roof of the mine about high) feet a small was loose. rock which The rock was pile directly previously above a rock that had night shot down shift. At the where the loose rock was no work had discovered been done for days Upon two three before the accident. discov- ering approached the loose rock Mr. Foster the deceased, operating twenty-five away, who was a drill about feet stop drilling and ordered him to and take down rock. said appears objected, stating It that the deceased first whereupon working there one under it, was no Foster again right stop directed the “to then deceased anything the loose before he did take rock down else.” pointed piece Foster out to the deceased the said small by throwing compliance light of rock on it. with got Foster’s took a bar and order, deceased pile pry began said of rock and down the loose rock engaged large which Foster had so while indicated, loose slab of behind him and formed which was rock, injuring of ously him fell mine, back, across his so seri- August that he died prop- evidence show that usual and tended to examining
er method of of a order mine, the roof safely ascertain whether it can be worked under, tapping sounding or and that dan- hammer, gerous upon the condition slab that fell deceased *9 MISSOURI and Foster. v. Lead Co. inspection. of this method
could have been discovered that without contradiction, showed, evidence inspection the roof of the make an Foster did not Mr. of the loose before the extent mine, rock, to determine piece directing to take down the small the deceased loose rock. part consisted of the defendant
The evidence on the testimony He R. tes- of the of the defendant injury, time of tified that at the his was deceased, the employ addition driller, the defendant as of the Joseph defendant, St. thereto a “contractor” was Company, get of the in that mine out ore injured; contractor re- where he was duties slope, quired keep him or back of the roof employed, portion in a safe of the mine which he was taking inspection and which entailed condition, of any down. be taken that needed to loose rock the deceased with to the evidence, as duties respect making roof or back of slope keeping in a the same safe con- mine adduced There was evidence was in conflict. dition, tended duty of a contractor, that it was show inspect place except working McCarver was, place drilling, it was not the where he was inspect duty or back roof of the deceased to injured. place'where slope in the mine at tended to show introduced which also Evidence injury McCarver’s caused fell and rock which it no and that was lead, slate rock which contained practice take down such rock, not to at said mine expense up prop post it to avoid but for the setters to breaking up hauling of the mine. it out assigned, support contended; it is error the first roof of that it was McCarver’s first, injured, that his he was at the where mine, maintenance bar to breach of that constitutes the risk assumed of this that McCarver action; second, injury death. caused his *10 Co. and Foster. McCarver Lead acknowledge Touching the the first we contention, hy counsel that when of for invoked, defendants, rule law inspec- delegates duty the master to servant the duty delegated cannot servant to whom this tion, injuries due to conditions which recover for received inspection if an had would have heen discovered by in this under the facts made such servant. However, de- rule of invoked will we do not think that the law case, recovery of law. evi- feat this case matter inspection duty of was dence is not conclusive that the delegated question as to whose to McCarver. The upon an issue to the mine roof was was ways, the trial therefore, there evidence both and, was jury. properly to the court submitted that issue Coming the defendant Pos- contention, to the second Joseph Lead St. defendant, ter was intrusted authority superintend, Company, to direct with the performance the work in control McCarver injured. engaged Ab- time he was which he was at the delegated duty McCarver make sent a on ego duty, inspection, the alter it was Poster’s his own ordinary Company, Joseph exercise Lead St. dang’er discovering into extent of care in every reasonable to see he ordered McCarver, safety To precaution, part, taken. insure was perform Poster, ac- incumbent this it was inspected cording have adduced, to the evidence sounding hammer, the same mine, roof of the in order to determine under which he
whether such roof, in a safe work, was directed McCarver performance which Mc- condition Carver ordered to do. inspection, would care, reasonable made with
Such an particularly condition of hazardous disclosed the have large the roof said then said that there roof, injure likely to fall slab of which was rock, prying which Poster rock the small while he was shows con- adverse him remove. had ordered clusively Neither did made. no such MISSOURI
MeCarver
Co.
evidence
the hazardous
MeCarver knew of
show
roof,
attendant
condition of the
risk. Under
question
he deter-
it was
evidence adduced
fact,
jury,
giving
the order
Ihe
mined
whether
superintend
part of
amounted to
on the
said
Mining
[Mount
Co.,
ent.
Western
&
Coal
Fleming
Min
c.
603, l.
ing
W.
What
610,
S.
Cheer
Snyder
186 W.
Co.,
S.
&
Mining
Fuel
Media
Mitchell v. Ice
206 S.
Co.,
Swearingen
Min-
227 W.
Medley
Parker-
Again presumed that Foster had bewill knowledge perils attending ordered he of the prevail presumption must MeCarver do, this plaintiff. Having Foster favor of the directed pry from rock the roof of down the small loose assump- right proceed had the on the mine, MeCarver every precaution tion that taken reasonable Foster had reasonably safe such roof to determine whether performance un- said condition for the work. implied qualified order of Foster was tantamount to an safe assurance that roof rely right [Bane on said MeCarver assurance. had 522; 72 306, 172 Mo. S. W. & Irwin, Clark v. Iron Foundry Mo. 450, 577; 234 c. Co., 436, l. 137 S. W. 421, App. 417, Barnard v. Co., Brick 189 Mo. l. c. S. 176 Kavanaugh, Keegan 1108; 232; 62 Mo. c. W. l. 230, p. 4 & sec. Servant, 3940; Labatt on Master 2 1364, Cooley p. on Torts, 1135.] holding view our evidence shows giving the order negligence, under the detailed circumstances
amounted to the contention that MeCarver injury the risk of the assumed death caused his cannot be maintained. The servant contract employment chargeable assumption is not with the may risks be obviated the exercise of reason- precaution part; care able on the master’s 383 Co. McCarver negligence out risk arises
never assumes
Mining Co.,
&
[Mount
Western Coal
the master.
603,
Webb-
943; Fisher
294
242 S. W.
613,
Mo.
l. c.
Huskey
Heine
1022;
263 S.
Co.,
Kunze Const.
W.
Safety
S. W.
Co.,
370,
Boiler
Light
549,
c.
& Power
l.
544,
Williamson v.
Pryor,
c.
219 S.
l.
613,
W.
Williams
George Railroad,
364,
200 W.
l.
Johnson v. Brick
407,
c.
S. W.
& Coal
F.
l.
Charlton
c.
53,
v. St. L.
Coming objec- to the second of error the requested by plaintiff, is tion to instruction No. assumption predicated evidence undisputed that the the mine roof delegated assumption to McCarver. Inasmuch as said objection to said unwarranted, instruction is with- merit. out assignment giving
The next
of error relates to tbe
requested by
plaintiff.
of instruction No.
This
properly
of the evidence in
instruction,
view
this case,
compliance
jury
told
that McCarver’s
with Foster’s
any,
if
not constitute
would
order,
on the
jury
obeying
unless the
McCarver
found
that in
danger
said order
incurred
so
imminent
*12
glaring
prudent
that no
careful and
man
obeyed
any.
have
if
order,
would
said
in
conformity
Said instruction is
substantial
following
in
laid down
the
doctrine
the
decisions of our
[Corby
Telephone
Supreme
Court.
417,
231 Mo.
Explosives
132 W.
Evans
442,
l. c.
S.
General
c.
364, l. 381,
Rope
Burkard l.
466,
481,
c.
117 S.
Co., 217
W. 35; Conroy Swearingen
Iron
Works,
Vulcan
Mining
l. c.
524,
537,
S. W.
Wendler
People’s
Furnishing Co.,
House
McCarver v. Lead assignment, is Addressing the last it to ourselves overruling in defendant’s erred that the court contended judgment the the for reason that of motion in arrest against defend- petition cause action state a of not does urged support said contention it In is ant petition, in set out Foster, the personally he to for which is liable nonfeasance, is plaintiff. the between mere nonfeasance
The distinction applied liability servant’s misfeasance, persons, considered 7 Labatt’s Master third is page\7974, at the author said: think where “We Servant, refers to omission on the term nonfeasance perform duty part agent a which he owes relationship principal existing be- virtue of but whenever on tween omission them, agent perform duty failure to consists his which persons, persons, then, he to third as to such third owes for amounts to misfeasance his omission responsible.” which he (cid:127) Again page agent said: said author “If perform he certain for acts undertakes another upon performance, to enter such refuses or fails it is begins performance nonfeasance, if once but he doing or so, such omits acts, fails to do certain whereby person done, have acts which should a third injured, is not but nonfeasance, a misfeasance. may something the omission Misfeasance involve to do agent ought engaged done; to be which as where an performance undertaking of his some- omits to do thing it is his to do under circumstances, degree exercise when he does not as, care regard rights requires.” due others actually instant case entered performance doing principal, of his to' duties and, diligence use reasonable so care failed performance duties, of his that he directed pry the small loose rock in the mine roof of the *13 Light
Bridge
v. Blec.
Co.
& Power Co.
particularly
ascertaining-
condi
without
hazardous
although
tion
have
of said roof,
this condition could
ordinary
tapping*
discovered
method
roof
a hammer.
set
petition,
out
mis
was not nonfeasance, but
plain
personally
for
feasance,
which he is
liable to the
[Carson
tiff.
Quinn,
524,
105 S.
Century Bldg.
424, l. 447,
Orcutt v.
c.
Corporation,
449; Baird v. Flour Mills
432, l. c. 437, 438;
c.
Harriman v.
l.
Stowe,
99; Lottman
Mechem
Barnett,
It follows that affirmed. should be The Commissioner so recommends. opinion
PER CURIAM:—The isC., of Brüeke, adopted opinion judgment of the court. accordingly circuit court of county St. Francois Nipper, Danes, affirmed. J., P. Beclcer and JJ., concur.
ST. & ST. LOUIS CHARLES BRIDGE COMPANY,
Corporation, Appellant, v. UNION ELECTRIC Corporation, LIGHT & POWER Res COMPANY, pondent.* Appeals. Opinion January 3,
St. Louis Court of Filed Indemnity CONTRACTS: Contract: Construction: Mutual and Inter- Injured dependent Liability. Clauses: pro- Workman: Notice: A bridge company aof contract vision between a electric power company, light maintaining spans the latter above superstructure bridge, carrying high uninsulated wires dangerous voltage electricity, whereby com- electric agreed indemnify pany bridge company against liability by any injuries existence, person, sustained reason of the con- 'operation bridge, struction or the wires on said and a further Indemnity, J., *(1) 31 C. section A.—25
216 M.