Jorkiewicz v. Brake Co. It appears that in driving such a billet into the die sparks would invariably fly off, which were harmless, but that it was not customary for pieces of the metal to be sheared off and to fly about; and that upon this occasion not only was plaintiff injured by a piece of such flying metal, but that the hammersmith himself was slightly injured in a like manner. It is strongly urged that the defendant's demurrer to the evidence should have been sustained, but we are not so persuaded. The argument in support of the demurrer appears to disregard the fact that our courts adhere to the doctrine, not universally recognized, that it is the personal duty of the master to direct and control the work, and that if one servant is given power and authority to direct and control other servants, in the performance of some branch of the master's work, the latter is liable for negligence on the part of such superior servant in the exercise of the power and authority thus conferred upon him. That this doctrine is firmly established in this State will appear by reference to a few of the many authorities which might be cited in this connection. [See Moore v. Railroad, 85 Mo. 588; Schroeder v. Railroad, 108 Mo. 322, 18 S. W. 1094; Miller v. Railroad, 109 Mo. 357, 19 S. W. 58; Bane v. Irwin, 172 Mo. 306, 72 S. W. 522; Burkard v. Rope Co., 217 Mo. l. c. 482, 117 S. W. 35; English v. Rand Shoe Co., 145 Mo. App. 451, 122 S. W. 747.] Undoubtedly the evidence adduced by plaintiff sufficed to justify the submission of his case to the jury upon the theory that plaintiff and Cripps were not mere fellow-servants, but that the negligent act of the latter in causing the billet to be struck when improperly placed in the die was the act of a vice-principal, for which the master is responsible. Touching this matter Cripps' own testimony is that his authority to direct and control extended to everything that went on "around the hammer;" that he directed the hammerdriver and told the helpers what to do, and exercised Jorkiewicz v. Brake Co. general supervision over the "whole gang, " with the exception of the firemen who was under the supervision of another. And the evidence is that the superintendent's orders were for the members of this crew to follow the directions of the hammersmith who supervised this branch of the work. And the operator of the hammer says that he operated the same only upon signals or orders from the hammersmith, in accordance with his instructions from the superintendent. It is true that the dual capacity doctrine is firmly implanted in the law of this State. [See McIntyre v. Tebbets, 257 Mo. 117, 165 S. W. 757; English v. Rand Shoe Co., supra; Mertz v. Leschen & Sons Rope Co., 174 Mo. App. 94, 156 S. W. 807; and authorities referred to in these cases.] And it is also quite true that it is the character of the act, and not alone the rank of the servant, which determines the question of liability or nonliability in a case of this character. [See authorities last above cited.] But here plaintiff's case is bottomed upon a negligent act of the superior servant, committed in the performance of his duties as the alter ego of the master. According to plaintiff's evidence, strongly reinforced by that adduced by defendant, Cripps directed the work, and it was he who determined when the metal should be struck by the hammer; and although it was apparent to others (and it said to Cripps also) that the billet was improperly placed in the die, nevertheless he immediately ordered it to be struck, whereby plaintiff was injured. He alone had control over the situation, and his act in the premises is the act of the master. And though he was one of the workmen engaged in this work, and performed manual labor in prosecuting the same, as did plaintiff, the injury was occasioned by an act on his part done in the capacity of a vice-principal. In this respect the facts are unlike those presented in McIntyre v. Tebbetts, supra, where it is held that the act which occasioned the injury was the act of a fellow-servant. Jorkiewicz v. Brake Co. An instruction given for plaintiff is complained of in several particulars. It is needless, however, to prolong the opinion in order to discuss the questions thus raised. We have carefully examined the instruction and we think that appellant's criticisms of it are entirely without merit. While technically it might be improved in form, it is quite clear that it requires the jury to find the facts necessary to a recovery by plaintiff, in accordance with the theory of his case as discussed above, and that no reversible error inheres in it. A further contention is that the verdict, which was for $5000, is excessive; but in view of plaintiff's loss we would not be justified in disturbing the verdict on this ground. The judgment should be affirmed, and it is so ordered. Reynolds, P. J., and Nortoni, J., concur. ON MOTION FOR REHEARING. ALLEN, J.-It is strenuously urged that we have entirely overlooked the point made by appellant that the instruction given for plaintiff, above referred to (plaintiff's only instruction), is erroneous in respect to the measure of damages. We have not in fact overlooked this attack upon that instruction, but we deemed it unnecessary to discuss the matter. Plaintiff's said instruction tells the jury that if they find certain facts, then to find for plaintiff, "and assess his damages in such sums as you shall find will compensate him for the loss of his said eye." The petition averred, among other things pertaining to plaintiff's loss, that by reason of the loss of his eye plaintiff had been unable to work for more than four months. There was no proof, however, of loss of earnings. Appellant's contention is, that this instruction authorized a recovery for loss of earnings, with no proof to sustain the same; and that it is otherwise fatally defective in failing to limit the recovery to Jorkiewicz v. Brake Co. the proper elements of compensation which the jury were lawfuly authorized to take into consideration. Appellant relies upon a number of cases not necessary to be here cited, and particularly upon Davidson v. Transit Co., 211 Mo. 1. c. 345, 109 S. W. 583. But it is quite apparent that the giving of the instruction in this form, relative to the damages recoverable, was not reversible error. That part of the instruction was good enough in its general scope. [Browning v. Railroad, 124 Mo. 1. c. 71, et seq., 27 S. W. 644.] It did not purport to authorize a recovery for loss of earnings. And if appellant desired to have the jury instructed that no recovery could be had for loss of earnings, or to otherwise limit the recovery, it was its duty to ask a limiting instruction, which was not done. The real point here involved has been recently passed upon by the Supreme Court in King v. St. Louis, 250 Mc. 501, 157 S. W. 498, where the doctrine of the Browning case, supra, is reaffirmed, the court saying, (1. c. 5140): "Mere indefiniteness in a general instruction, when appellant stands mute and asks none, is not reversible error." The same doctrine has been still more recently approved by the Supreme Court in State ex rel. United Railways Company v. Reynolds, 257 Mo. 19, where, on certiorari to quash the judgment of this court in Nelson v. United Railways Co., 176 Mo. App. 423, 158 S. W. 446, it was held that we did not err in applying the doctrine of the Browning case where an instruction was objectionable only on the ground that it was too general in form and appellant failed to ask an instruction limiting the effect thereof so that it might not be misunderstood by the jury. The motion for rehearing is overruled. Lumber Co. v. Owen. COATSWORTH LUMBER COMPANY, Appellant, v. D. C. OWEN et al., Respondents. St. Louis Court of Appeals, January 5, 1915. 1. SPECIAL TAXBILLS: Improvement of Streets: Validity of Proceedings. A resolution passed by the council of a city of the third class, declaring it necessary to pave a street with first-class vitrified paving bricks or blocks, and to curb the same with first-class concrete curbing, according to plans, diagrams and specifications on file with the city clerk, filed by the city engineer, complies with the requirements of Sections 9254 and 9255, R. S. 1909. 2. 3. 4. An estimate of the cost of paving and curbing a street in a city of the third class, filed by the city engineer, which gives the estimated cost of paving the street, stating separately the estimated cost per square yard of the foundation, sand cushions, fillers, and brick surface, and estimates the cost of curbing at a specified sum per lineal foot, and estimates the total number of square yards of paving and lineal feet of curbing and the total cost, complies with the requirements of Sec. 9254, R. S. 1909. : : : Time for Completion of Work. An ordinance for a street improvement and the contract for the work provided that the work should be completed on or before a designated date, "unless delayed by bad weather and the council grant an extension of time on that account." The work was substantially completed before the designated date, but there were defects in it, due to the fact that the temperature at times fell below freezing point while the work was being done. After the expiration of the time limit, an ordinance was passed extending the time of completion of the work on account of bad weather. As soon thereafter as the work could be safely done, the defects were remedied under the direction of the city engineer. Held, that the special taxbills issued for the cost of the work were not void on the ground that the work was not completed within the time limit. : Cancellation: Quieting Title. Where a special taxbill for a street improvement is absolutely void for defects apparent on its face and on the face of the tax proceedings, equity will not cancel the bill as a cloud on the title to the land against which it is issued; but the rule is otherwise where the bill appears to be valid on its face and the invalidity asserted is one requiring extrinsic evidence to establish it. |