The State ex rel. Fogel Construction Company v. Trimble

• Decision Date: 30 July 1925
• Docket Number: 25731
• Parties: THE STATE ex rel. FOGEL CONSTRUCTION COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

274 S.W. 1028

310 Mo. 248

THE STATE ex rel. FOGEL CONSTRUCTION COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

No. 25731

Supreme Court of Missouri

July 30, 1925

Opinion of Court of Appeals quashed.

Lathrop Morrow, Fox & Moore, Cyrus Crane, George J. Mersereau and Richard S. Righter for relator.

(1) The Court of Appeals failed and refused to follow controlling decisions of the Supreme Court when it decided the case below on a legal ground not alleged in the plaintiff's petition or supported by the evidence at the trial. State ex rel Natl. Newspaper Assn. v. Ellison, 176 S.W. 11; St. Louis v. Wright Con. Co., 210 Mo. 491; Williams v. Lobban, 206 Mo. 399; Overshiner v. Britton, 169 Mo. 341; Huss v. Heydt Bakery Co., 210 Mo. 44; Claflin v. Sylvester, 99 Mo. 276; Black v. Met. St. Ry. Co., 217 Mo. 672; Pointer v. Const. Co., 269 Mo. 104; Ely v. Ry. Co., 77 Mo. 34; Scrivner v. Mo. Pac. Ry. Co., 260 Mo. 421; Deschner v. River Co., 200 Mo. 310; Mirrielees v. Wabash Railroad Co., 163 Mo. 470; Smith v. Kansas City, 128 Mo. 23; Meyer Bros. Drug Co. v. Bybee, 179 Mo. 354; Meyer v. Am. Chair Co., 130 Mo. 188. (2) The Court of Appeals erroneously held, contrary to the rulings of this court, that the duty of a master to his servant to protect him from the danger of injury occasioned by the inherent character of the material with which he works is as great and is the same as the duty of the master to protect his servant against the danger of injury due to defective tools furnished by the master. Emery v. Ry Co., 246 S.W. 335; Modlagl v. Iron Co., 248 Mo. 587; Harbacek v. Fulton Iron Works, 287 Mo. 479.

Clif Langsdale for respondent.

(1) The Court of Appeals made no erroneous ruling with reference to the duty of the master to his servant in regard to furnishing him materials with which to work. (2) The Court of Appeals did not decide the case on any ground not alleged in plaintiff's petition or supported by the evidence at the trial, and did not refuse to follow any controlling decisions by the Supreme Court.

Ragland, P. J. Graves and Atwood, JJ., concur.

OPINION

RAGLAND

Relator seeks to have quashed the opinion of the Kansas City Court of Appeals in the case of J. A. Poynter v. Fogel Construction Company, lately pending before it on appeal from the Circuit Court of Jackson County, on the ground that certain of the rulings therein announced are in conflict with decisions of this court. The opinion is as follows:

"This is a suit in damages for personal injuries. Defendant is a corporation engaged in the business of constructing buildings. Plaintiff is an iron worker and at the time of the injury in question was employed by defendant.

"On January 24, 1922, defendant was engaged in erecting a building for use as a garage on Wyandotte Street between Twelfth and Thirteenth Streets in Kansas City, and plaintiff was employed in the work of constructing columns for concrete reinforcement. The process consists of the preparation of hollow wooden framework, within which is placed the requisite number of steel rods, about eight to twelve in number, being an inch more or less in diameter and sixteen feet long. These rods are fastened at regular intervals on the inside of iron bands by the use of small wire, called tie wire. When completed, the frame is a hollow pillar, cylindrical or square in shape as may be desired, having the metal frames on the inside. Into the frame thus formed, the concrete is poured and when 'set' a re-enforced concrete pillar is made. In tying the rods to the bands, or hoops, a small sized wire is used as the tie, said wire being about the size of the lead in an ordinary lead pencil, or common bailing wire, and is known and designated by the standards in use as No. 16. The record shows that wire of this size ordinarily is used for the purpose above described, and that the custom is to use annealed wire because it is more pliable and easier to use. It is purchased in rolls, or spools, and is unwrapped as needed and segments from the exposed end are cut to desired lengths.

"Plaintiff was a foreman and on the occasion of the injury was engaged with one helper, Clark by name, in the construction of one of these steel frames. The rods had been placed, and it became necessary to tie them to the iron bands by means of the wire as above described. Plaintiff stepped to the bale, or spool, of wire near him on the floor, and with a pair of pliers cut off a piece about four feet in length. The petition charges that one of the loose ends of said wire recoiled and struck plaintiff in the eye, causing the injury for which damages are sought. Three charges of negligence are alleged in the petition, to-wit, (1) that defendant failed to furnish plaintiff with reasonably safe appliances and materials, in that it furnished him wire much harder and stiffer, and having a greater recoiling strength than the wire ordinarily used for such purpose; (2) that defendant failed to warn plaintiff of the dangerous quality of said wire; (3) that defendant negligently ordered and directed plaintiff to cut said wire without warning him of the qualities of said wire.

"The answer is a general denial with pleas of contributory negligence and assumed risk.

"With the issues thus made the cause went to trial to a jury. At the close of plaintiff's evidence defendant asked an instruction in the nature of a demurrer which the court marked 'given,' whereupon plaintiff took an involuntary nonsuit with leave. Motion to set aside the nonsuit was overruled and plaintiff has appealed.

"The only question for our consideration on this review is whether the testimony introduced by plaintiff was sufficiently substantial to warrant its submission to the jury. As applied to the first charge of negligence plaintiff's testimony shows that the wire furnished was not annealed and therefore it had a tendency to recoil; that it was of the size customarily used for the purpose to which it was applied, viz., No. 16 wire; that it had been used by other workmen for the same purpose and that one-fourth to one-half of the same roll had been so used without accident or damage to anyone. Plaintiff's evidence was to the effect that even annealed wire sometimes will recoil slightly when cut, but not to the extent it did in this instance; that such occurrences are rare and such accidents as befell plaintiff likewise are rare.

"The testimony further shows that defendant had been warned of the condition of the wire as to its stiffness and rigidity, and that it was not suited for the purposes for which it was being used. One Clark, who was plaintiff's helper and working with him at the time of the injury, testified that he, with another workman, had been using the identical wire in question previous to the occurrence, and that he had told the foreman, Armstead, 'That wire was too stiff to use; it wouldn't hold the ties right, and it was very springy and we should have to double it at times which took more time and it didn't work right, altogether too stiff to use.' (Italics ours).

"From the testimony of this witness and of that of plaintiff himself, it must be concluded that the wire in question was not such as commonly was used for the purpose to which it then was being applied; that the general foreman had been told that the wire was too stiff. This was sufficient notice to put defendant on inquiry as to the quality of the wire, and the situation could have been met by an inspection and action on the part of defendant. Plaintiff testified that the wire in question was not such as ordinarily was used for such purpose; that it had a tendency to recoil, or spring back when cut, and that the foreman Armstead knew this condition of the wire, and did not warn plaintiff. The evidence shows the wire was No. 16, black in color and not annealed. In all appearance it was similar to the annealed wire commonly used for that purpose.

"The rule is that in considering the question as to whether or not a demurrer should have been sustained, the appellate court must treat plaintiff's evidence as true and give him the benefit of all reasonable inferences which may be drawn therefrom. We think plaintiff's testimony sufficiently supports the first allegation of negligence to warrant the submission to the jury of the questions of defendant's negligence.

"The rule is well settled that the master is required to look for defects, while the servant is bound only to discover what is apparent to an ordinarily careful and prudent person. In ...