McIntyre v. Tebbetts
120 S.W. 621
Mo. Ct. App.
1909
Check Treatment

Lead Opinion

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 vice-*124principal. 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 *125Edge 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 *126the 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 tern-*127porary 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.





Dissenting Opinion

DISSECTING OPINION.

NORTONI, J.

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-*128tacb prima facie against defendant for the reason it resulted from an act of the foreman, vice-principal, while exercising the authority of his master. Now can the mere fact that the foreman himself performed the manual act of driving the team and moving the wagon forward which resulted in injury to the plaintiff, instead of ordering another to do so, change the situation with respect to the rights of the injured party? The Day-harsh case presents a situation much like the one here involved. There, Dayharsh was directed by Mr. Stephens to enter a cinder pit beneath the railroad track and remove the cinders therefrom. It is true the statement of facts accompanying the report of that case is not clear on the question; nevertheless it appears from the opinion that while Dayharsh was thus engaged in the pit, the foreman, Stephens, assumed charge of a locomo-time engine, and by his own hand, propelled it forward over the cinder pit and injured Dayharsh. The Supreme Court affirmed liability in that case against the defendant railroad company on the ground that Stephens, the foreman, was vice-principal when he performed the manual act of performing the duties of engineer in moving the locomotive forward. In expressing its views of the case, the Supreme Court said as follows:

“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 *129between 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*130thority of the master to move the wagon, it is entirely immaterial whether he exercised that authority in moving the wagon forward by driving the team with the lines in his own hands or whether he ordered one of those working with him to do so. Such is the doctrine of the Dayharsh case most certainly. I am of the opinion that the foreman was acting in the capacity of vice-principal at the time he was driving the wagon forward even though otherwise the act was one of- ordinary service, and that he was not at the time a fellow-servant of the plaintiff. I therefore most respectfully dissent from the opinion of the court.

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.