140 Mo. App. 116 | Mo. Ct. App. | 1909
Lead Opinion
OPINION.
(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 vice-
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
The judgment is reversed.
It is so ordered.
Dissenting Opinion
DISSECTING OPINION.
The dual capacity doctrine is one which presents more or less difficulty in its practical application, and it is therefore important that the question presented for decision in this case should be determined and defined with precision by the court of last resort. I am unable to agree with the opinion of the court in this instance for the reason that it seems to me to be in conflict with the principle announced in Dayharsh v. Han. & St. Jos. Ry. Co., 103 Mo. 570. The foreman in this case represented the master in and about the institution in his charge. This institution, it is true, was nothing more nor less than a large wagon. Nevertheless this wagon, together with complete authority thereabout, was given into the foreman’s charge by his employer. His authority included the right to employ and discharge those who aided him as well as direct their movements and the movements of the wagon and team in his charge. On this state of facts, there can be no doubt that had this foreman directed another employee to drive the team and move the wagon forward at the particular time in question — that is, while pTaintiff was in the act of mounting the same — and thus entailed the injury, liability for plaintiff’s hurt would thereby at-
“It was undoubtedly within the scope of Mr. Stephens’ authority, as 'night hostler’ or 'boss’ to direct where the engine and tender, that struck plaintiff, should be placed, and how and when they should be moved over the tracks. In giving directions to that end and seeing to their execution, we think he was performing the master’s part, and as such was the representative of the latter and not a mere fellow-servant of the plaintiff. If he had expressly directed the engine to be moved down by another upon the plaintiff, in the manner described in the evidence for the latter, the defendant would have been responsible for the act, and we are unable to perceive any logical of reasonable distinction*129 between so directing it and bis performing such negligent act himself, in the circumstances here shown. It was one which fell within his authority as the master’s representative to direct, and it can make no difference in principle whether he did it personally or by another
It seems to me the principle of that case should control the disposition of this one. The Dayharsh case is precisely in point, as I understand it.
It may be said, too, that in the later case of Ross v. Wabash, etc., Ry. Co., 112 Mo. 45, wherein the Supreme Court was dealing with the matter of a section foreman of a railroad, who had poAver to employ and discharge men under him and control their Avork and movements, the same doctrine was affirmed. In that case the court declared such foreman to be a vice-principal and said that his negligent acts done in the performance of duties that devolved upon him as foreman, were the negligent acts of the defendant, for which it was liable. The court there affirmed liability on the manual act of the section foreman performed in his authority as foreman and not in respect of an order given to another in virtue of his authority. The principles of those cases, it seems to me are recognized and reaffirmed in the more recent case of Holweg v. Bell Tel. Co., 195 Mo. 149. Noav in the cases referred to, in each instance the act performed by the for.eman and upon which liability Avas affirmed, notwithstanding the fellow-servant argument presented, was a manual act performed by the foreman as such, and in this respect, I believe those cases to be strictly in. point here. It Avill be observed in this case that the foreman having charge of this Avagon had complete charge and control of the Avagon as an institution and of the men who Avorked thereAvith. Besides having authority to employ, discharge and direct the laborers thereabout, he and he alone was possessed of authority to move the wagon from place to place. It seems to me that as he alone was possessed of the au
I deem the judgment of the court to be in conflict with the case of Dayharsh v. Han. & St. J. Ry. Co., 103 Mo. 570 and other cases herein referred to and therefore ask that the cause be certified to the Supreme Court for final determination, in accordance with the constitutional mandate.