Miller v. FW Woolworth Company

328 S.W.2d 684, 1959 Mo. LEXIS 665

• Court: Supreme Court of Missouri
• Decided: November 9, 1959
• Docket: 46031
• Status: Published

Opinions

LEEDY, Judge.

We adopt with some modification portions of the divisional opinion in this case, which opinion recites that it similarly adopted portons of an earlier one prepared in, but rejected by, the division (I). Quotation marks are omitted.

The action is one for damages for personal injuries sustained by plaintiff, an employee of defendant F. W. Woolworth Company, on account of the alleged negligence of said defendant company and its manager, defendant Richard M. Bates, in failing to provide plaintiff a reasonably safe place in which to work. Verdict and judgment were for plaintiff for $12,500, but the court sustained the separate after-trial motions of the defendants for judgment in accordance with their prior motions for a directed verdict. The alternative motions for a new trial were' overruled. Plaintiff has appealed from the final judgment entered in favor of defendants.

While the plaintiff’s petition purported to state a claim for relief based upon the alleged negligence of defendants in failing to furnish plaintiff with a reasonably safe place in which to work, the petition further charged that, “ * * * defendants, wholly neglecting and disregarding their duty in that behalf, did furnish her with an unsafe place to work in that the counter over which plaintiff had to work was so high from the floor and so wide that plaintiff was compelled to unreasonably stretch and extend herself in performing her duties * * resulting in the injuries complained .of; and that “* * * defendants assured her that said place was entirely safe and that she could work there with safety and without risk of personal injury or harm, and ordered her to continue her said work * *

Plaintiff’s evidence tended to show that plaintiff, a saleslady forty-six years old, became an employee at defendants’ store on Olive Street in St. Louis in 1949. She was assigned the duties of a “salesgirl behind the counter” at the greeting card counter in the store. It was her duty to wait on customers and to keep the counter filled. At that time, the greeting card counter was flat on top, like a table, with glass partitions separating the various classes of cards on display. There were openings or aisles at both ends of the counter permitting a salesgirl to move in and out to and -from the aisle'back of the counter.

In the spring of 1950, a rack with tiers of glass sections for the display of cards was installed on the top of the counter. The rack was so constructed as to slant or slope up from the front of the counter toward the back, enabling customers, who passed along the aisle in front, to “see the cards better.” The height of the rack varied from counter level at the front to four feet three inches high (above the floor) at the back. The counter was some fifteen feet in length and approximately three feet in width. There was one opening through the card rack on the top of the counter. The opening was occupied by a cash register, which was set with its back or high portion to the front of the counter, and it faced back so that sales could be registered from behind the counter. The top portion of the cash register was higher than the top of the card rack and the register effectively occupied the opening through the card rack. Plaintiff was about five feet two inches in height — five feet three, or five feet three and one-half inches in shoes. Plaintiff testified that when the installation was altered in 1950, defendant-manager advised her that she would be “built a platform in the back to raise you up also.”

In making sales when standing behind the counter — “Well, usually the customer would ask me (plaintiff) where the sympathy cards were, this, that or the other, and I would point out and show them where they were and then they would pick several up and choose from them and hand them to me and ask me how much they were and give me the money and I would reach for the card, reach for the money, put it in a bag and hand it back, and the change.” Plaintiff was not expressly directed to stand behind the counter in waiting on the customers; and she could and occasionally did makes sales at the ends of the counter; but when “T was so busy I couldn’t run around, I had to stay in back * * * ”; moreover, the cash register was set in the rear of the counter and, normally, the salesgirl stood behind the counter. Plaintiff’s immediate superior testified that “the proper way to do” was to stand behind the counter all of the time and to wait on customers from behind the counter, and “the register is back there.” She said that plaintiff “had to stand behind that counter.”

In making a sale from behind the counter, the salesgirl raised her shoulder and extended her right arm “about halfway” across the counter, a foot and a half over the counter. Plaintiff usually rested the underside of her upper arm on the top of the display .rack with palm of the hand turned upwardly. She sometimes used her left arm. There were “anyhow two hundred” sales consummated in the course of the day, or thirty to eighty dollars worth of five and ten cent cards. The time consumed in consummating a sale probably was a few seconds. (Plaintiff testified that she guessed she rested her arm on the top of the counter for two seconds in making a sale.)

Four or five months after the counter was altered, plaintiff felt strain and pain when reaching over the counter. She informed her immediate supervisor of the difficulty. (The supervisor, who was the same height as plaintiff, had frequently relieved plaintiff during the lunch hour and had sold cards at the counter. She “could feel strain reaching over the counter.”) The supervisor in turn, two or three times, informed defendant-manager that plaintiff was having “difficulty back at that counter” and suggested that a little platform be built “back there that would raise us up [so] we wouldn’t have so much trouble reaching over the counter,” but the manager said “he didn’t think we needed it.” The manager also told plaintiff, “I don’t think you will need a platform.”

Plaintiff continued in defendants’ employ until March 27, 1953, but prior to that time her right arm had begun getting sorer and sorer, her fingers numb, and then the numbness affected her neck and shoulder. She consulted and was treated by physicians who testified she was suffering from “traumatic neuritis,” or neuropathy, a degeneration of the nerves caused by trauma, or by “a constant doing the same thing over a period of time,” resulting in inflammation of the nerves and the degeneration mentioned. They were of the opinion such condition was due to the continual trauma experienced in the strain of the awkward movement of the arm and shoulder in her occupation as a saleslady reaching over the counter in defendants’ store. The condition of her arm has been getting worse rather than better since leaving the store, and the condition appears to be permanent. Use of the arm causes pain.

There was no evidence tending to show that the counter as altered was in itself inherently dangerous, and it was not plaintiff's theory and it is not now contended that any specific defect was shown in the construction of the installation or in the materials used in the construction thereof such as one would suppose would constitute a hazard of injury. There was no showing that the card display rack and counter, considered apart from their setting, were materially different in design or construction from the counters with display racks generally installed in stores.

Plaintiff’s principal instruction in submitting her case submitted a finding as follows: “ * * * if you find from the evidence:

“(1) That plaintiff became an employee of defendant, F. W. Woolworth Company on the 18th day of April, 1948 and worked continuously for said defendant as a saleslady in said defendant’s store mentioned in the evidence from said date until the 26th day of March 1953; and

“(2) That during said time Richard M. Bates was the manager of said store and had authority from the said F. W. Woolworth Company to direct, instruct and supervise the work and working conditions of the employees therein, and in particular of said plaintiff; and

“(3) That plaintiff was put to work under such circumstances that she was required, in the performance of the duties imposed upon her by her said employment, to reach repeatedly over and across the sloping top of a three-foot-wide counter, the rear of which was 51 inches above the floor, and in so doing to stretch her right arm and shoulder, thus and thereby causing injury thereto; and

“(4) That said defendants knew, or in the exercise of ordinary care, should have known that said condition existed and was not reasonably safe and was likely to cause plaintiff to sustain injury by reason of the repeated stretching of her arm and shoulder, and that said defendants were informed and advised that said situation existed; and

“(5) That the said defendants failed to exercise ordinary care and prudence to remedy said condition and to furnish plaintiff a safe place in which to work, and that in so failing said defendants were negligent ; and

“(6) That as a direct and proximate result of such negligence plaintiff was caused to sustain injury, and that at all times herein mentioned plaintiff exercised ordinary care for her own safety, then if you find such facts to be true, you are instructed that plaintiff is entitled to recover from defendants and your verdict should be in favor of plaintiff.”

Appellant assigns error on the action of the court in sustaining the after-trial motions of the defendants and entering the judgment for defendants. Appellant insists that, on a favorable view of all the evidence and the reasonable favorable inferences arising therefrom, the plaintiff made a submissible case for the jury. She also says that the defendants owed her a nondelegable duty to furnish her a reasonably safe place in which to work; that she was not guilty of contributory negligence as a matter of law; that her claim was not covered by the Workmen’s Compensation Law, Section 287.010 et seq. RSMo 1949, V.A.M.S., or the occupational disease sections thereof; and that assumption of risk is no defense in the instant case, since an employee never assumes the risk of the employer’s negligence. Appellant cites numerous cases where the duty of the employer to furnish the employee with a reasonably safe place to work was considered and ruled. She relies particularly on McDaniel v. Kerr, 364 Mo. 1, 258 S.W.2d 629; Williamson v. Union Electric Light & Power Co., 281 Mo. 544, 219 S.W. 902; Row v. Cape Girardeau Foundry Co., Mo.App., 141 S.W.2d 113, and other cases.

The divisional opinion held that the evidence clearly showed that plaintiff’s injuries did not result from any failure of the defendants to furnish a reasonably safe place to work, thus rendering the cases last cited and the safe place to work doctrine inapplicable to the facts here in judgment, and with this holding we are in complete accord. The divisional opinion then proceeded on the premise that the factual situation developed by evidence which came in without objection brought the trial within the purview of RSMo 1949, § 509.500, V.A.M.S., (Trial of issues not raised by the pleadings — failure to amend pleadings to conform to evidence not to affect result of trial of those issues), and examined the law with reference to such factual situation, and held plaintiff had made a submissible case based upon a violation of defendants’ common-law duty to exercise ordinary care with reference to the method adopted and employed for the transaction of defendants’ business. We do not pause to determine whether this, as contended in respondents’ supplemental brief en banc, amounts to permitting appellant’s cause to be determined here on a theory different from that on which it was tried in the circuit court. For present purposes, the propriety of adjudicating the case on the negligent work method theory will be assumed, so we continue with the divisional opinion’s discussion of the principles applicable thereto:

“It is the duty of the master not only to exercise ordinary care to furnish the servant a reasonably safe place to work and reasonably safe appliances with which to perform the work, but to likewise exercise ordinary care with respect to the means and methods employed- in performing the work, with reference to the danger to be reasonably anticipated. It is the duty of the master to see that the servant is not subjected to hazards and risks which, as an ordinarily prudent person, he must know maybe avoided-by the exercise of reasonable precautions on his part. It is true that the master is not an insurer of the servant’s safety, and, within the limits of reasonable care, is at liberty to conduct his business in his own way, nor is he bound to furnish the best or safest appliances or instrumentalities, or adopt the best and safest methods for doing the work, but it is his duty to exercise ordinary care to see that those furnished or adopted are reasonably safe. * * * The duty which the law casts upon the master is to use all reasonable precautions which ordinary prudence would dictate, under the circumstances, to avoid subjecting the servant to risk of injury.” Wilborn v. Desloge Consolidated Lead Co., Mo.App., 268 S.W. 655, 657.

As to the duty to select safe methods of work, see Williams v. Terminal R. Ass’n of St. Louis, 339 Mo. 594, 98 S.W.2d 651, 655-656; Kelso v. W. A. Ross Const. Co, 337 Mo. 202, 85 S.W.2d 527, 535; Schaum v. Southwestern Bell Telephone Co, 336 Mo. 228, 78 S.W.2d 439, 445; Sustar v. Bambrick Bros. Const. Co, 179 Mo.App. 495, 513, 162 S.W. 730; 56 C.J.S. Master and Servant § 260, p. 1013. Further, “the test of a master’s liability is not whether or not there is a better or less dangerous way, but whether or not the method employed was reasonably safe, and whether or not the master was negligent in ordering and directing the plaintiff to perform the work in the manner in which he was ordered and directed to perform it.” Welty v. S. H. Kress & Co., 221 Mo.App. 1089, 295 S.W. 501, 503; Luff v. Independence Foundry Co., Mo.App., 204 S.W. 596; Orth v. General Const. Co., Mo.App., 272 S.W. 1076, 1078. The master’s duty in the respects mentioned cannot be delegated so as to relieve the employer of liability for negligence with reference thereto. English v. Roberts, Johnson & Rand Shoe Co., 145 Mo.App. 439, 451, 122 S.W. 747; 56 C.J.S. Master and Servant § 266, p. 103L So much for the divisional opinion.

Plaintiff’s work was of the very simplest character imaginable — that of a sales clerk selling greeting cards at retail. As stated, there was no showing that the card display-rack or counter were materially different in design or construction from counters with display racks generally installed in stores, and this is graphically illustrated by the photograph of the counter and rack in question as located in the portion of the store in which plaintiff worked.

That a master is not required to adopt any particular method of conducting his business, but is required to adopt usual and customary methods employed by ordinarily prudent persons in like work under similar circumstances, is illustrated by such cases as Schaum v. Southwestern Bell Telephone Co., supra, and the cases cited therein, which we regard as controlling under the facts of this case.

In Schaum, the court said (336 Mo. loc. cit. 235 and 78 S.W.2d loc. cit. 442): “Likewise, the duty to provide safe methods of doing the work in which employees are engaged does not require the best methods or protective devices which might be devised, but only reasonably safe methods. ‘The test is what is found to be reasonably safe by usage and is commonly and ordinarily used in other similar places, occupations, and businesses.’ Pevesdorf v. Union Electric Light & Power Co., 333 Mo. 1155, 64 S.W.2d 939, 948, and cases cited; Knott v. Missouri Boiler & Sheet Iron Works, 299 Mo. 613, 253 S.W. 749, and cases cited; Williams v. St. Joseph Artesian Ice & Cold Storage Co., Mo.Sup., 214 S.W. 385; Spindler v. American Express Co., Mo.Sup., 232 S.W. 690; Coin v. John H. Talge Lounge Co., 222 Mo. 488, 121 S.W. 1, 5, 25 L.R.A.,N.S., 1179, 17 Ann.Cas. 888; see also, O’Brien & Co. v. Shelton’s Adm’r, 246 Ky. 537, 55 S.W.2d 352; see discussion of authorities in note 68 A.L.R. 1417.”

The court then cited approvingly the following from Coin v. John H. Talge Lounge Co., 222 Mo. 488, 506, 121 S.W. 1, 5, 25 L.R.A..N.S., 1179, 17 Ann.Cas. 888: “‘In regard to the style of the implement or nature of the mode of performance of any work, “reasonably safe” means safe according to the usages and habits and ordinary risks of the business. Absolute safety is unattainable, and employers are not insurers. They are liable for consequences not of danger, but of negligence, and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by the law to a higher degree of skill than a fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and, however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way commonly adopted by those in the same business is a negligent way for which liability shall be imposed.’ ”

In Schaum, as here, liability turned on the question of whether defendant had failed to provide a reasonably safe method of work, the proof there having also eliminated from consideration the charge of failure to furnish a reasonably safe place of work and that unsafe instrumentalities had been furnished. There the telephone company’s employee had sustained an eye injury while removing the brick sides of a manhole, and the crucial question was whether the protection of goggles was required in order to make safe the work in which plaintiff was engaged. The court said: “Did the standard of care of ordinarily reasonable and prudent persons place upon his employer the affirmative duty of furnishing such a protective device for such work? How could respondent prove that it did except by showing that the ordinary usage of other employers was to provide goggles in that kind of woik? There is no evidence in this record on that subject. * * * The charge is that ordering respondent to work in the manhole without providing him goggles was negligence. That could only be negligence if it violated the standard of ordinary care. It could only violate the standard of ordinary care if the usage of average reasonable and prudent employers, in doing the same kind of work under similar circumstances, wa? to provide goggles, unless it was work so inherently dangerous that injury would be reasonably anticipated as the result of working without them. * * * Saying that there is no legal duty to provide goggles means that it is reasonably safe to conduct the work without them; or in other words, safe according to the usages and habits of average reasonable and prudent employers, because there is neither evidence that they use them in such work under similar circumstances, nor that the work was so inherently dangerous that we can say, without evidence of such usage, that injury would be reasonably anticipated as a result of working without them. Upon respondent’s showing, we must say that he has failed to show that the telephone company carried on the work of enlarging the manhole in a manner which was not reasonably safe merely because it did not provide him with goggles.” (Italics supplied.)

The case of Cool v. Curtis-Wright, Inc., 362 Pa. 60, 66 A.2d 287, 289, is somewhat analogous to this case both on the facts and the law. There a workman sued to recover damages for an impairment of hearing allegedly resulting from the failure of defendant to reduce and minimize metallic noises incident to its business of manufacturing airplane propellers. The statute under which the action was brought required that all industrial establishments be “so constructed equipped, arranged, operated, and conducted as to provide reasonable and adequate protection for the life, limb, health, safety, and morals of all persons employed therein.” 43 P.S. § 25-2. The statute was held to be merely declaratory of the common-law duty to furnish a reasonably safe place to work. In holding that minimizing of noise to safeguard the hearing of employees was not required under the facts of that case, and in denying recovery, the Supreme Court of Pennsylvania, applying the same principles announced in the foregoing Missouri cases, said: “ ‘Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger but of negligence, and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed.’ [Titus v. [Bradford, B. & K.] Railroad Company, 136 Pa. 618, 626, 20 A. 517, 518, 20 Am.St.Rep. 944.] * * * Here it is not averred that any of the specific acts of alleged negligence constitutes a departure from ordinary usage in the business in which appellee was engaged. No case has been cited by appellant arising either in this jurisdiction or elsewhere as authority for extending the range of the common law doctrine to include a duty to minimize noise, and an independent exhaustive research has disclosed no such case. This absence of precedent is significant in determining the scope of the common law rule and confirms the conclusion that the common law standard can not with propriety be so extended. To hold otherwise would amount to judicial legislation out of harmony with the practical considerations that always heretofore have been held to govern in this class of cases.”

These considerations are applicable and controlling in the case at bar, there being no proof whatever that the work method adopted by defendants in reference to plaintiff’s employment was any other or different than the ordinary usage of other employers with respect to sales personnel engaged in like or similar work; nor was plaintiff’s work of an inherently dangerous nature, and hence not bringing the case within the doctrine that in such cases injury would be reasonably anticipated as a result of such work. Moreover, as pointed out in the dissenting opinion in division, if defendants had had two employees whose duties were to sell cards, one unusually short in stature and the other unusually tall, the defendants would not be required to have two card counters, one designed for the employee of short stature and the other for the one that happened to be tall. The dissenting opinion, with which we agree, concludes, “Such a requirement would be unreasonable and would impose an undue burden on industry.”

The judgment is affirmed.

HYDE, WESTHUES, EAGER and STORCKMAN, JJ., concur. DALTON, J., dissents in separate opinion filed. HOLLINGSWORTH, C. J., dissents and concurs in separate dissenting opinion of DALTON, J.