Deiner v. Sutermeister

• Decision Date: 06 July 1915
• Docket Number: No. 17331.,17331.
• Parties: DEINER v. SUTERMEISTER et al.
• Court: Missouri Supreme Court

178 S.W. 757

266 Mo. 505

DEINER v. SUTERMEISTER et al.

No. 17331.

Supreme Court of Missouri, Division No. 2.

July 6, 1915.

Rehearing Denied July 17, 1915.

Appeal from Circuit Court, Jackson County; Jos. A. Guthrie, Judge.

Action by Karl Deiner against Charles O. Sutermeister and another, partners, as the A. Sutermeister Stone Company. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Plaintiff sued defendants in the Jackson circuit court for personal injuries alleged to have been sustained by him while in defendants' employment, and recovered judgment for $10,000. Defendants, after the usual motions, have appealed.

Defendants are partners engaged in business under the firm name of A. Sutermeister Stone Company, and were engaged, at the time of the happening of the casualty on which this action is bottomed, in furnishing and putting in place the cut stone on a building in Kansas City which was being constructed by Flanagan Bros. Plaintiff, a young man about 24 years old, was in the employ of defendants as a common laborer, and at the immediate moment of the casualty was engaged in raising stone coping to the roof of said building by means of a hoist and in setting this stone in place upon the fire walls of the building. Two other men were employed in this work with plaintiff, namely, one Fischer, who seems to have been in charge of the work for defendants, and a negro by the name of Giles. The hoist which was being used belonged to Flanagan Bros., who had leased it temporarily to defendants to be used by the latter in lifting the stone from the ground to the roof of said building. For the use of this hoist and the engine which operated it, and for the services of the engineer who ran the engine, defendants paid Flanagan Bros. $1 per hour. This hoist consisted, it seems, of two rectangular shaped wooden platforms which ran up and down in a wooden framework and were raised and lowered by cables which ran over pulleys, which pulleys were operated by a steam engine, called, in the vernacular of the trade, a "hoisting engine."

After the work of hoisting this stone had proceeded for some several hours, it became necessary to lift to the roof by means of this hoist an irregularly shaped stone, slightly shorter than the others and not long enough to lean against the cage so as to prevent it from falling. Thereupon Fischer, who, as stated, was in charge of this work, asked in the presence of Giles and plaintiff, "Wouldn't it be wise for one of you fellows to go along with this stone?" At once, before Giles replied, plaintiff, without responding to the question except by his action, stepped upon the platform of the hoist and immediately thereafter the engine began to lift the hoist with plaintiff thereon. While the hoist was in motion and some considerable distance up, it suddenly broke and fell to the ground, carrying plaintiff with it. By this fall plaintiff received a severe laceration of the scalp and other injuries to his head, which some of the medical witnesses in the case diagnose as a fracture of the skull. He was taken up unconscious and removed to the emergency hospital, whence after temporary treatment he was sent to the city hospital where he remained for a period of nine weeks and was discharged, apparently cured. After his discharge from the hospital he obtained light employment in one of the packing houses for some months, when he suddenly developed insanity, which necessitated his confinement in a sanitarium, where he yet was when the trial was had.

At a time left dark in the record, but, as is conceded, before plaintiff became insane, he filed this suit for damages against defendants. Subsequently, and after the suit had been pending for some time, an amended petition was filed herein, wherein plaintiff's insanity was set forth as one of the results of the injuries which he had suffered and for which damages were asked. In brief, this amended petition alleged that defendants had borrowed or rented the hoist from Flanagan Bros., and that one, said Fischer, defendants' foreman, had directed plaintiff to go upon the platform of the hoist and steady and support the stone which was being lifted by it, and that as said hoist was being lifted the timbers which supported it broke and the hoist and platform fell and hurt plaintiff. The specific negligence complained of in the petition was: (a) An allegation of common-law negligence, for that defendants negligently required plaintiff to go upon a hoist which they knew, or which they might have known by the exercise of ordinary care, was defective in that the timbers therein were old and rotten and knotty and of insufficient size and not strong enough to sustain both the stone and plaintiff; (b) that the hoist which broke was a structure within the purview of section 7843, R. S. 1909, and that it was not secured as said section supra requires, so as to insure plaintiff against the falling thereof; and (c) that an ordinance of Kansas City requires elevators to be inspected and approved by the city elevator inspector, and that this ordinance had been violated, in that no inspection of the hoist had ever been made. Defendants moved to strike from the petition the allegations of statutory negligence and of violation of the ordinance, which motion was by the court overruled. Defendants thereupon filed an answer which consisted of: (1) A general denial; (2) a plea of contributory negligence; (3) a plea that the injury alleged was caused by a fellow servant; and (4) the defense of assumption of risk. Upon the trial plaintiff abandoned his allegations of common-law negligence and violation of the ordinance, and elected to go to the jury solely upon the alleged violation of the statute supra.

The chief, if not the only, controversy of fact in the case was as to the cause of the insanity, from which appellants admit in their brief plaintiff was suffering. Much expert testimony was offered pro and con. It was strenuously contended by plaintiff's counsel that his insanity was due to a depression whereby the bony parts of the skill pressed upon the brain, which depressions, it was claimed, was superinduced by the fracture of plaintiff's skull in his fall with the hoist. Toward the question of whether this depression, and therefore the insanity of plaintiff, was congenital or inflicted by the fall he concededly sustained most of the testimony in the case was directed.

At the close both of plaintiff's case and of all the testimony in the case defendants offered demurrers to the evidence, which were by the court overruled.

If other facts shall be necessary, we shall add them in the opinion when we come to discuss the points mooted.

Pierre R. Porter and Cyrus Crane, both of Kansas City, for appellants. Ernest A. Scholer and Gage, Ladd & &nail, all of Kansas City, for respondent.

FARIS, P. J. (after stating the facts as above).

I. Passing over for the present the alleged unconstitutionality of sec don 7843, R. S. 1909, for that it was not timely raised, we find three alleged errors lodged in the case: (a) That defendant may not maintain a suit in his own name without a guardian or next friend, though begun while he was sane, when the gist of the case is damages for insanity superinduced by the negligent infliction of the hurt alleged; (b) that the facts here do not bring the case within the purview of section 7843, supra; and (c) that it was error to allow the medical experts to express an opinion as to the causal connection between the injury and the insanity of plaintiff.

It is fundamental that an insane person under guardianship cannot sue (i.e., begin a suit) in his own name. Neither, we opine, should an insane person be allowed to bring an action, though not under guardianship, when, as here, the very gravamen of the case is the assessment of damages for a condition of insanity which plaintiff not only concedes, but urges. In such case a demurrer would lie, we think. But these suggested conditions do not cover this case. Here the plaintiff is not under guardianship. When he brought this suit he was not insane. Pending the suit he became insane and thereupon by an amended petition he set up, in augmentation of damages, the fact of insanity. When the suit was filed he was sui juris. This question has been ruled adversely to the contentions of defendant. Allen v. Ranson, 44 Mo. 263, 100 Am. Dec. 282; Koenig v. Union Depot Ry. Co., 194 Mo. loc. cit. 571, 92 S. W. 497. It is true, as defendant urges, that in both the cases supra the fact of insanity was not the gist of the case, but merely incidental. In short, here the suit is for damages for injuries, negligently inflicted, which it is alleged, brought about the in" sanity of plaintiff. But why should there be a distinction made? The guardianship of plaintiff would affect but two aspects of the case: (1) Matter of costs which is already covered and provided for by the order of the court permitting plaintiff to sue herein as a poor person; and (2) the disposal of the proceeds of the litigation, should there be any, in such wise as to protect both the insane plaintiff and the defendants. These conditions and none others are to be met here, and they were likewise present and confronting this court in the two cases cited supra. So, since the conditions which might vex are the same precisely, the applicatory principles should be similar, and no reason can be observed for changing the ruling. We follow Koenig v. Union Depot Ry. Co., supra, and disallow this contention.

II. As above forecasted, we do not consider the suggested constitutional invalidity of section 7843, R. S. 1909, formerly section 19 of "An act relating to manufacturing, mechanical, mercantile and other establishments and places, and the employment, safety, health and work hours of employés" (Laws 1891, p. 159 et seq.) for the reason that such unconstitutionality was not raised by defendants anywhere in the case until they...