Warner v. Oriel Glass Co.

• Citation: 8 S.W.2d 846,319 Mo. 1196
• Decision Date: 18 May 1928
• Docket Number: 26750
• Parties: Florence Warner v. Oriel Glass Company, Appellant
• Court: United States State Supreme Court of Missouri

8 S.W.2d 846

319 Mo. 1196

Florence Warner v. Oriel Glass Company, Appellant

No. 26750

Supreme Court of Missouri

May 18, 1928

Motion for Rehearing Overruled July 3, 1928.

Appeal from Circuit Court of City of St. Louis; Hon. George E Mix, Judge.

Affirmed.

Jones Hocker, Sullivan & Angert and Willard A McCaleb for appellant.

(1) The amended petition does not state a cause of action. (a) Failure to state a cause of action fails to give the trial court jurisdiction, and this question may be raised at any stage of the case. Chandler v. Ry. Co., 251 Mo. 592; Swift v. Fire Ins. Co., 217 S.W. 1006; Greer v. Railroad, 173 Mo.App. 276. (b) The facts alleged in the amended petition do not afford a basis for a finding of actionable negligence. Steffin v. Mayer, 96 Mo. 420; Lyman v. Dale, 262 Mo. 353. (2) The court erred in failing to give and read to the jury the appellant's instructions in the nature of demurrers to the evidence. (a) The evidence was wholly insufficient to warrant a finding that the mules were vicious, or were given to any dangerous habits or traits, or that appellant had any knowledge of vicious propensities on the part of the mules. Ballmeyer v. Mill & Elevator Co., 206 S.W. 917; Cowan v. Brick Co., 222 S.W. 924; Lyman v. Dale, 262 Mo. 360; Packston v. City of New York, 116 N.Y.S. 741; McFadden v. Standard Oil Co., 148 N.Y.S. 957; Robback v. Pelican Ice Co., 76 So. 160; Keenan v. William Lloyd Co., 84 A. 694; O'Connell v. Mooney, 66 N.Y.S. 486; Smith v. Lumber Company, 128 P. 546; Milby & Dow Coal Co. v. Balla, 104 S.W. 860; McGovern v. Fitzpatrick, 131 N.Y.S. 1048; Armington v. Providence Ice Co., 82 A. 263; Pittston v. McNulty, 14 A. 387. (3) The court erred in overruling the objections of appellant's counsel to certain questions propounded to Belleville, one of the witnesses who testified on behalf of appellant, which questions sought to inject the insurance issue into the case. Robbins v. Olson-Schmitt Const. Co., 215 S.W. 779; Erne v. Rubinstein, 72 Mo.App. 343; State v. Aurentz, 263 S.W. 180; Harper v. Railroad Co., 47 Mo. 581; McFadin v. Catron, 120 Mo. 252, l. c. 264; Wojtylak v. Coal Co., 188 Mo. 260; State v. Nave, 283 Mo. 39.

Mark D. Eagleton and Hensley, Allen & Marsalek for respondent.

(1) The claim that the petition fails to state a cause of action is without merit. (a) Objection to the sufficiency of the petition, first raised on appeal, is not looked upon with favor, and will not be considered unless the petition wholly fails to state a cause of action. Ehrlich v. Mittelberg, 299 Mo. 284; Ice Co. v. Kuhlmann, 238 Mo. 685; Rutledge v. Swinney, 261 Mo. 140. (b) The petition must be liberally construed, and no objection thereto can be considered which does not affect the substantial rights of the defendant. Secs. 1257, 1276, 1513, R. S. 1919. (c) Plaintiff was required to state the facts constituting her cause of action plainly and concisely, without repetition, and it was necessary that she plead only the substantive facts, and not the evidence. Secs. 1220, 1239, 1244, R. S. 1919. (d) It was not necessary that her petition negative the defenses of contributory negligence and assumption of risk. Eaton v. Wallace, 287 S.W. 614; Martin v. Ray Co. Coal Co., 288 Mo. 241; Young v. Iron Co., 103 Mo. 324; Fisher v. Lead Co., 156 Mo. 479. (2) The demurrer to the evidence was properly overruled. (a) In passing upon a demurrer to the evidence, it is the duty of the court to accept as true all evidence in favor of the plaintiff, and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom; and the court cannot draw inferences in favor of defendant to counterbalance or overthrow inferences in favor of plaintiff. Troll v. Drayage Co., 254 Mo. 332; Buesching v. Gaslight Co., 73 Mo. 219; Knapp v. Hanley, 108 Mo.App. 360. (b) The court should sustain the demurrer only when the evidence and inferences to be drawn therefrom, considered in the light of the foregoing rule, are so strongly against the plaintiff as to leave no room for reasonable minds to differ. Scherer v. Bryant, 273 Mo. 602; Gratiot v. Railroad, 116 Mo. 466; Steffens v. Fisher, 161 Mo.App. 393. (c) Plaintiff introduced substantial evidence to show that her husband's death was caused by negligence of defendant. The verdict of the jury in plaintiff's favor is conclusive as to the facts. Gilbert v. Ry. Co. (Mo. App.), 226 S.W. 263. (d) Plaintiff's right to recover in this case is not dependent upon pleading or proof that the mules in question were vicious, in that they were possessed of a wicked disposition to injure mankind. The case is governed by the familiar rule which imposes upon the master the duty to provide for the use of his servant appliances and instruments proper, safe and suitable for the purposes for which they are furnished, and this rule includes animate as well as inanimate instrumentalities. McCready v. Stepp, 104 Mo.App. 343; Stutzke v. Ice Co., 156 Mo.App. 11; Cowan v. Brick Co., 222 S.W. 926; Williams v. Pevely Dairy Co. (Mo. App.), 285 S.W. 150; Nooney v. Express Co., 208 F. 275; Central Lumber Co. v. Porter (Miss.), 103 So. 506; Fuel Co. v. White, 228 Ill. 187; Hammond v. Johnson, 38 Neb. 244; Miller v. Blood, 217 N.Y. 517. (e) Defendant is liable upon the additional ground that its negligence in furnishing an unsafe team caused the wagon, which was the working place of her husband, to be an unsafe and dangerous place. State ex rel. Dairy Co. v. Daues (Mo.), 289 S.W. 835; Brann v. Brick Co., 288 S.W. 941; Lampe v. Brewing Assn., 204 Mo.App. 373; Stewart v. Gas Co. (Mo.), 241 S.W. 909. (f) Warner did not and, under the rule in effect in this jurisdiction, could not assume the risk arising from the negligence of his employer in furnishing an unsafe and dangerous team, even though he was aware of their dangerous proclivity; nor was he, under the circumstances, guilty of contributory negligence as a matter of law. Lampe v. Brewing Assn., 288 S.W. 941; Stewart v. Gas Co., 204 Mo.App. 373; Williams v. Pryor, 272 Mo. 613; Curtis v. McNair, 173 Mo. 270; George v. Railroad, 225 Mo. 411.

OPINION

Graves, P. J.

The deceased husband of plaintiff was in the employ of the defendant, when he met with the occurrence which occasioned his death. The pertinent alleged negligence is thus stated in the petition:

"Plaintiff further states that at all times herein mentioned, on and prior to the 4th day of October, 1922, she was the lawful wife of Joseph Warner, who died in the city of St. Louis, Missouri, on the said 4th day of October, 1922, as hereinafter more particularly described, and that plaintiff now is the surviving widow of said Joseph Warner, deceased, and institutes and prosecutes this suit as such within six months after his death aforesaid.

"Plaintiff further states that on or about the 23rd day of September, 1922, the said Joseph Warner was in the employ of the defendant, and while engaged in his duties as such for the defendant, he received serious injuries, which later resulted in his death on the said 4th day of October, 1922, which said injuries and death directly proximately resulted from negligence on the part of said defendant in this, to-wit:

"1. That said defendant did negligently and carelessly fail and omit to exercise ordinary care to furnish said deceased, Joseph Warner, with a reasonably safe team of mules, which he was required to drive and to which was attached a wagon on which said Joseph Warner was required to stand while unloading and loading said wagon, in that said mules had a habit of starting without warning or notice and did, on the occasion in question, start without warning or notice, while plaintiff's deceased husband, Joseph Warner, was on said wagon in the act of performing his duty, by means of which the team started forward and the said Joseph Warner was caused to be thrown from said wagon and seriously injured, as a result of which he died as aforesaid.

"2. That said defendant knew, or by the exercise of ordinary care on its part could have known, of the habit of said mules of starting as aforesaid, and of the danger, incident to their starting as aforesaid, in time, by the exercise of ordinary care, to have furnished the said Joseph Warner, deceased, with a reasonably safe team with which to prosecute his work as aforesaid."

A third allegation of negligence was withdrawn from the jury at the request of defendant and hence is not of interest now. The petition upon which the case was tried was an amended petition, and from it we get the foregoing charges of negligence. The answer was a simple general denial.

The appellant's statement of the pleadings substantially accords with the above, except it is added, "The reply was conventional." There was, in fact, no reply, and such is not shown by the record. The answer being a mere general denial there was no need for a reply. We state, supra, that the third ground of negligence was withdrawn from the jury at request of defendant. The exact facts are that by an offered instruction the defendant asked for such withdrawal, but this instruction, as asked, was refused, but was slightly modified, and given as modified. The slight modification helps the instruction in defendant's favor. Thus this alleged ground of negligence went out of the case. The sufficiency of the petition (which was an amended petition) was not challenged by demurrer. Upon trial before the jury the plaintiff had a verdict for $ 10,000, and upon this verdict judgment was entered in her behalf. From such judgment the defendant appealed. The assignments of error, in this court, are but three and are thus stated:

"1. Respondent's amended petition does not state facts sufficient to constitute a cause of action.

"2. The court erred in refusing to give app...