Rodgers v. Schiele

148 Mo. App. 53 | Mo. Ct. App. | 1910


Defendants are partners engaged in the business of bottling and selling whiskey in St. Louis. Their business involves filtering the whiskey, and the filter used by them in their works stood on a platform six feet above the floor of a room where plaintiff worked. A part of the appliance was round brass plates about •eight inches in diameter and weighing ten pounds. These were washed now and then and it was part of plaintiff’s duty to assist in washing them, which she did during half of every week. Another employee who took part in this task occasionally was Ann Hagge. The washing was done in this way: Kries Deickman, the foreman, would stand.on the platform, hand the disks or plates to plaintiff or Ann Hagge, who would wash and hand them back to Deickman and he would place them in the filter. Plaintiff was doing the washing on June 15, 1905, with the assistance of the foreman, and in the course of her task was seriously hurt. She handed a plate up to Deickman, whose attention was attracted at the instant by some girl employees sixty feet away in the room, who were laughing, chattering and gestic*56ulating to Deickman. Their behavior caused him to hesitate a moment before placing the disk in the filter; meanwhile he held it in his hand and shook it toward the girl and it dropped from his hand and struck plaintiff on the head. This action was filed for damages against defendants, the theory of recovery being they were responsible for Deickman’s carelessness because he was foreman. The girls in the room were under Deickman’s orders, he gave them directions and showed them what to do. But the testimony showed he helped regularly about the work and that it Avas part of his task to assist in washing the disks and he did so constantly. The court below directed a verdict for defendant at the close of the evidence for plaintiff, whereupon she took a non-suit Avith leave to move to set aside and that motion having been made and overruled, an appeal was taken to this court. The theory of plaintiff’s counsel is that Deickman, when the plate fell from his hand, was reproving the girls at the other end of the room for their gossip and idleness, and to emphasize an order he was giving them to attend to their business, shook his hand Avhich held the plate, thereby loosening his hold on it so it fell. On this theory it is argued he was exercising the authority of a vice-principal and representative of the defendants at the time and not acting as a felloAVservant of plaintiff. But there is no evidence he was1 ordering or reproving the girls. On the contrary, Ann Hagge, who is the only witness as to his behavior, testified he was holding the disk in his hand and as he leaned over to look around a cask at the girls, it dropped. She said the girls were “laughing and cutting up and motioning to him” and his hand was shaking in a way she indicated. When asked what he was doing with his hand, she ansAvered: “He was not doing anything with it except playing with it; hi’s hand was shaking.” The only fair inference to draw from the evidence is that Deickman was engaged at thé moment in a by-play between him and the girls at the end of the room, and *57had paused in his task to participate in it, letting the plate fall during some movement he was making in humorous response to their gestures. Because Deickman had a regular task as a co-employee with plaintiff and was engaged in the task at the time of the accident, we think- plaintiff must be denied recovery. The law of the case is clear and it is sufficient to cite an opinion expounding it and reviewing all the apposite cases in this State. [English v. Shoe Co., 145 Mo. App. 439, 122 S. W. 747.]

The judgment is affirmed.

All concur.