253 S.W. 984 (Mo. 1923), Diehl v. A. P. Green Fire Brick Company

Citation:253 S.W. 984, 299 Mo. 641
Opinion Judge:DAVID E. BLAIR, J.
Party Name:AUGUST DIEHL, by HENRY DIEHL, His Next Friend, v. A. P. GREEN FIRE BRICK COMPANY, Appellant
Attorney:R. D. Rodgers and P. H. Cullen for appellant. Baker & Baker for respondent.
Case Date:July 14, 1923
Court:Supreme Court of Missouri
 
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Page 984

253 S.W. 984 (Mo. 1923)

299 Mo. 641

AUGUST DIEHL, by HENRY DIEHL, His Next Friend,

v.

A. P. GREEN FIRE BRICK COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 14, 1923

Appeal from Callaway Circuit Court. -- Hon. David H. Harris, Judge.

Reversed and remanded.

R. D. Rodgers and P. H. Cullen for appellant.

(1) The court erred in not directing a verdict for defendant. State ex rel. Lusk v. Ellison, 196 S.W. 1088; Washburn v. Laclede Gas Light Co., 223 S.W. 725. (2) The court erred in allowing plaintiff to recover on a cause of action not embodied in his petition. Beck v. Ferrara, 19 Mo. 30; Link v. Vaughn, 17 Mo. 585; Duncan v. Fisher, 18 Mo. 403; Robinson v. Rice, 20 Mo. 229; Huston v. Forsythe Scale Works, 56 Mo. 416; Fyerman v. Cemetery Assn., 61 Mo. 489; Ensworthy v. Barton, 60 Mo. 511; Harris v. Railroad, 37 Mo. 307; McManamee v. Railroad, 135 Mo. 440; Waldhier v. Railroad, 71 Mo. 514; Clements v. Yates, 69 Mo. 623; Hite v. Street Railway, 130 Mo. 132. (3) Plaintiff's instruction numbered 1 submits the case to the jury on the theory of intentional injury and not negligence, and is therefore erroneous. Reed v. State, 106 N.W. 649; Ramey v. Met. Ry. Co., 157 Mo. 447; Holiverson v. Railroad, 157 Mo. 216; Drolshagen v. Railroad, 186 Mo. 258. (4) Instruction numbered 4 was erroneous, because it assumed disputed facts, and is not based on the evidence. Weddle v. Water Co., 230 S.W. 386. (5) The court erred in giving the instruction placing the burden upon defendant to prove that the servant causing the injury was not in the employ of defendant. Bragg v. Railway Co., 192 Mo. 351; Griffith v. Con. Gas Co., 235 S.W. 83; Kamnishi v. Iron Works, 167 Mo. 470; Brunswick v. Ins. Co., 278 Mo. 154; 2 Encyc. Evi. 808; Downs v. Horton, 230 S.W. 103. (6) The court erred in instructing the jury that the burden was upon the defendant to prove that Reed was an independent contractor. Cases supra. (7) The court erred in permitting the expert medical witness to invade the province of the jury and testify to the ultimate facts which the jury were sworn to decide. Glasgow v. Railroad, 191 Mo. 365; Caslanie v. Railroad, 249 Mo. 192; Jackman v. Railroad, 187 S.W. 786. (8) The court erred in permitting the plaintiff to prove that the defendant owned or operated the shaft in question by having witness testify to the name by which the shaft was generally known and its repute and the understanding of third parties. (9) The court erred in refusing the instructions offered by defendant advising the jury that the furnishing of money by the defendant to Reed, did not destroy Reed's relation to defendant as an independent contractor. (10) The court erred in refusing plaintiff's instructions as to intervening cause and hypothecating the theory that plaintiff's mother gave the cap to the boy and by example and suggestion led him to apply fire to it and explode it. (11) The court erred in advising the jury that the act nearest in time could not be a proximate cause and in failing to fully define proximate cause after using said words in instruction numbered 1.

Baker & Baker for respondent.

(1) The court did not err in submitting the case to the jury. (a) Independent contractor or employee. Knoche v. Pratt, 194 Mo.App. 300; MacGrath v. St. Louis, 115 Mo. 191; Kipp v. Oyster, 133 Mo.App. 711; Porter v. Wilkins Estate Co., 201 Mo.App. 27; Flori v. Dolph, 192 S.W. 949; Cochran v. Rice, 26 S.D. 393; Barclay v. Puget Sound Lumber Co., 48 Wash. 241. (b) Negligence. City of Lubbock v. Bagwell, 206 S.W. 371; Eckart v. Kiel, 123 Minn. 114; Wells v. Gallagher, 144 Ala. 363; Clark v. E. J. Dupont, 94 Kan. 268; Cinn. Ry. Co. v. Padgett, 158 Ky. 301; Miller v. Chandler, 168 Ky. 606; Barnett v. Cliffride Mills, 167 N.C. 576; Forester v. Rogers, 247 Pa. 54; Crab v. Wilkins, 59 Wash. 302; Mathis v. Granger Brick & Tile Co., 85 Wash. 639; Sandeen v. Tschiver, 205 F. 252. (c) Intervening or proximate cause. Loveless v. Cunard Mining Co., 201 S.W. 375; Washburn v. Laclede Gas & Light Co., 202 Mo.App. 102; Powell v. Walter, 195 Mo.App. 150; Fleddermann v. Transit Co., 134 Mo.App. 199; Krehmeyer v. Transit Co., 220 Mo. 639. (2) Plaintiff did not recover upon an action not embodied in his petition, neither did plaintiff's instruction number one submit the case to the jury on the theory of intentional injury. (3) Plaintiff's instruction numbered four on the subject of independent contractor is a correct declaration of the law. Knoche v. Pratt, 194 Mo.App. 300. (4) If the court had given an instruction placing the burden upon the defendant to prove that the servant causing the injury was not in the employ of the defendant, it would have been error, but respondent contends that no such instruction was given. And the construction and interpretation put upon the instruction on this point by the appellant in his argument is not the correct interpretation or construction. (5) The court correctly instructed the jury that the burden was upon the defendant to prove that Reed was an independent contractor. (6) Respondent contends that under the peculiar facts of this case there was no prejudicial error committed by the court in admission of the testimony of Dr. McCubbin. There was no contention in the trial court as to either the cause or the extent of plaintiff's injury, and no contention on the part of the appellant that plaintiff's condition at the time of the trial was caused by any agency other than the injury complained of. And, even though there might have been error in the admission of the testimony complained of, this cause should not be reversed on that ground. Errors not affecting substantial rights will not authorize a reversal. Secs. 1276, 1513, R. S. 1919; White v. Cordwell Stone Co., 213 S.W. 518; Cross v. Gould, 131 Mo.App. 585; Freeland v. Williamson, 220 Mo. 217; Mann v. Doerr, 222 Mo. 1, 15; Berry v. Railway, 214 Mo. 593. (7) There was no error in proving by witness William Custard the name by which plant was known. 29 Cyc. 971; Meinert v. Smow, 27 P. 677; Hinchcliffe v. Koontz, 121 Ind. 422. (8) The instruction given on part of the plaintiff defining proximate cause was correct. Cases under "(c)" supra. (9) Errors not affecting substantial rights will not authorize a reversal. Secs. 1276, 1513, R. S. 1919; Cass v. Insurance Co., 188 Mo. 1; Hamilton v. Crow, 175 Mo. 634.

OPINION

Page 985

[299 Mo. 648] DAVID E. BLAIR, J.

-- The action was for damages for personal injuries. Jury trial resulted in a verdict for plaintiff for $ 10,000, and defendant has appealed from the judgment rendered thereon.

The petition alleged that on and prior to May 28, 1920, the defendant was engaged in the business of sinking a shaft and mining clay at said shaft and that, in sinking and mining said shaft, defendant used dynamite and caps; that plaintiff and his brother had been in the habit of carrying to said shaft the meals for their father, who worked at said shaft, which custom was well known to defendant, its agents and servants, and that defendant and its servants knew or could have known that, in bringing such meals to their father, plaintiff and his brother traveled along and across the right-of-way of the Chicago & Alton Railway Company adjacent to the shaft; that on the aforesaid day, or a day or two previous thereto, defendant or its agents, servants and employees carelessly and negligently threw dynamite caps, a high and dangerous explosive, along such right-of-way and at a point upon said right-of-way where the defendant, its agents and servants or employees knew or could have known that the plaintiff and his brother were likely to pass and likely to see or be attracted to said dynamite caps; that on said 28th day of May, 1920, plaintiff and his brother took their father's breakfast to him at the shaft of defendant and, in returning home by their usual and customary route across the right-of-way of said railroad, were attracted by and picked up said dynamite caps, and that plaintiff and his brother carried said dynamite caps home and thereafter, while playing with the same, one of the dynamite caps exploded and plaintiff was seriously injured thereby. Said petition then set out in detail the injuries alleged to have been received by plaintiff, which said injuries he alleges to have been very serious and of a permanent character and prayed judgment in the sum of $ 30,000.

The answer of defendant denied that it was engaged in sinking a shaft as alleged in the petition or that it used [299 Mo. 649] dynamite or caps thereat through its agents, servants or employees. Such answer further alleged in substance that the clay mining operations at said shaft were being carried on by one...

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