31 S.W. 957 (Mo. 1895), Seckinger v. Philibert & Johanning Manufacturing Company

Citation:31 S.W. 957, 129 Mo. 590
Opinion Judge:Burgess, J.
Party Name:Seckinger, Administratrix, v. Philibert & Johanning Manufacturing Company, Appellant
Attorney:C. P. & J. D. Johnson for appellant. L. Frank Ottofy for respondent.
Judge Panel:Burgess, J. Sherwood and Gantt, JJ., concur. Sherwood and Gantt, JJ., concur.
Case Date:July 02, 1895
Court:Supreme Court of Missouri
 
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Page 957

31 S.W. 957 (Mo. 1895)

129 Mo. 590

Seckinger, Administratrix,

v.

Philibert & Johanning Manufacturing Company, Appellant

Supreme Court of Missouri, Second Division

July 2, 1895

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon, Judge.

Affirmed.

C. P. & J. D. Johnson for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action against defendants, for the reasons, viz.: First. Because recovery is sought on the ground of the defective condition of the gauge and set screws, while the petition does not allege such a defect, nor does it state any fact tending to show that the injuries to plaintiff were caused by the condition of the gauge and set screws, whatever that condition may have been. Waldheier v. Railroad, 71 Mo. 514; Harrison v. Railroad, 74 Mo. 369; Field v. Railroad, 76 Mo. 614; State v. Martin, 77 Mo. 676; Cook v. Putnam, 70 Mo. 668. Second. Because the petition avers that the injuries to plaintiff were occasioned by the negligence of a fellow servant of plaintiff, while there is no valid allegation of negligence on the part of defendant. (a) The master is not liable to his servant for damages occasioned by the negligence of a fellow servant in the course of their common employment. Whittaker's Smith on Neg., p. 139; Marshall v. Shricker, 63 Mo. 308; Murray v. Railroad, 98 Mo. 573; Steffen v. Mayor, 96 Mo. 420. (b) And prima facie all servants of a common master employed in the same service are fellow servants. McGowan v. Railroad, 61 Mo. 528; Blessing v. Railroad, 77 Mo. 410. (c) As, according te the allegation of the petition, the negligence of defendant would not have caused the injury but for the intervening negligence of the man Osburg, the defendant is not liable. Carter v. Towne, 103 Mass. 407; Hofnagle v. Railroad, 55 N.Y. 608; Parker v. Cohoes, 10 Hun, 531. (2) The verdict and judgment are contrary to the evidence, in that it is admitted by the petition, and is also established by the uncontradicted evidence for defendant, that the injuries to the plaintiff were occasioned by the negligence of the man Osburg, plaintiff's fellow servant; while the other evidence fails to show that the defendant's negligence, or the supposed defective condition of the gauge and set screws on the saw machine concurred in or caused the said injuries. In other words, it does not appear that the alleged defect in the set screw was the proximate cause of the injuries to plaintiff. See authorities cited supra; Ray, Negligence of Imposed Duties, p. 669; 1 Sutherland, Damages, p. 56; 1 Sedgwick, Dam. [8 Ed.], sec. 142, p. 201; 1 Shearman & Redfield, Neg. [4 Ed.], secs. 25-6-8-9; Hudson v. Railroad, 101 Mo. 13; O'Brian v. Western, etc., 101 Mo. 188; Hoag v. Railroad, 85 Pa. St. 293; Francis v. Railroad, 5 Mo.App. 7. (8) The trial court erred in permitting Dr. Mordacai Yarnell to testify, over defendant's objection, as an expert on behalf of plaintiff, to the effect that the blow could have caused the condition he found plaintiff's lung in at the time he treated him, without the witness having shown his qualifications as, and after he had stated that he was not an expert on lung trouble.

L. Frank Ottofy for respondent.

(1) The petition stated a cause of action and was sufficient; a general allegation of negligence is good after verdict. Dougherty v. Railroad, 81 Mo. 325. (2) First. A party will not be permitted to try the case on one theory below and invoke another on appeal. Nance v. Metcalf, 19 Mo.App. 183; Corn v. City, 19 Mo.App. 573; Wright v. Sanderson, 29 Mo.App. 534; Schlicker v. Gordon, 19 Mo.App. 479; Randolph v. Frick, 57 Mo.App. 401. Second. As shown by the evidence and instructions upon which the cause was tried. Fell v. Co., 23 Mo.App. 216. Third. A defense or point can not be raised for the first time in the appellate court. St. Louis, etc., Co. v. Bagnell, 76 Mo. 554; Claflin v. Sylvester, 99 Mo. 276; Bender v. Matney, 122 Mo. 244. (3) The disease of pulmonary consumption was the proximate cause of the blow, it created a soil for the growth of the bacilli and predisposed him to the disease; without the creation of this soil, bacilli, an invisible germ in the air, to which all are exposed, would not have propagated. Where injury produces an enfeebled condition which incapacitates the injured man from resisting the inroads of disease, or creates a condition which makes it probable that he would take a disease, such disease is the proximate cause of the injury Railroad v. Buck (1884), 96 Ind. 346; Railroad v. Kemp, 61 Md. 74; Beauchamp v. Min. Co., 50 Mich. 163; Dickson v. Hollister (1888), 123 Pa. St. 421; Railroad v. Leslie, 57 Tex. 83; Lapleine v. Railroad, 40 La. Ann. 661; Quackenbush v. Railroad, 73 Iowa 458; Railroad v. Hecht, 115 Ind. 443; Hanlon v. Railroad, 104 Mo. 381; Ehrgott v. Mayor, 96 N.Y. 264. (4) The court did not err in its rulings on the instructions or the evidence.

Burgess, J. Sherwood and Gantt, JJ., concur.

OPINION

Page 958

[129 Mo. 594] Burgess, J.

An action for damages for personal injuries sustained by plaintiff while in the service of defendant as a moulder hand in defendant's planing mill. Plaintiff recovered a judgment for the sum of $ 5,000 from which defendant appealed.

While no objection was made to the petition before or at the trial, or by motion in arrest, numerous objections as to its sufficiency are made for the first time in this court. It will, therefore, be set out in full. Omitting the formal parts it is as follows:

"Plaintiff states that defendant is and was at the time hereinafter stated a corporation organized and doing business under and by virtue of the laws of the state of Missouri.

"Plaintiff states that about the month of July, 1891, and for a long time prior thereto, he was employed by defendant as a cutter in its planing mill and engaged in the operation of a moulding machine upon which it was his duty to prepare lumber; that in close proximity to his machine and his post of duty was situated a rip-sawing machine which had a movable table thereon supplied with adjustable screws used for the purpose of raising and lowering the same as required by different classes of work; that it also had a gauge thereon which was properly regulated by set screws; that the said saw was propelled by steam power by means of a belt and pulley which were connected with [129 Mo. 595] a shaft; that about the middle of said July, 1891, while plaintiff was so engaged at his machine and in the line of his duty, he was, owing to the negligence and carelessness of the said defendant, struck on the chest by a piece of lumber which was thrown upon him with great force from the said circular rip-sawing machine and inflicted upon him painful internal injuries and disabled him from the performance of his usual labor; that he has, by...

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