Allen v. Quercus Lumber Co.

• Decision Date: 29 June 1914
• Docket Number: No. 1191.,1191.
• Parties: ALLEN v. QUERCUS LUMBER CO.
• Court: Missouri Court of Appeals

168 S.W. 794

182 Mo. A. 280

ALLEN v. QUERCUS LUMBER CO.

No. 1191.

Springfield Court of Appeals. Missouri.

June 29, 1914.

1. MASTER AND SERVANT (§ 176) — INJURIES TO SERVANT — LIABILITY OF MASTER.

While a master who retains an habitually incompetent servant is liable for injuries from the servant's negligence, he is not liable for an injury where the incompetent servant was not negligent.

2. TRIAL (§ 251) — INSTRUCTIONS — CONFORMITY TO PLEADINGS.

The instructions must follow the theory advanced by the pleadings, and so an injured servant who pleads one cause of injury cannot recover upon another.

3. MASTER AND SERVANT (§ 279) — INJURIES TO SERVANT — ACTIONS — EVIDENCE — SUFFICIENCY.

In a personal injury action by a servant hurt in loading logs, evidence held insufficient to show that his injuries were the result of the negligence of an incompetent fellow servant.

4. APPEAL AND ERROR (§ 1175) — DETERMINATION — REVERSAL.

Where, on the first appeal by the master in a personal injury action by the servant, the case was remanded to give the servant an opportunity to show negligence, the court not being certain that all of the facts were developed, it will upon the second appeal by the master from a judgment for the servant, where the evidence disclosed no liability on his part, be reversed without remand.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by David P. Allen against the Quercus Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed.

M. U. Hayden, of St. Louis, and Sheppard & Green, of Poplar Bluff, for appellant. David W. Hill, of Poplar Bluff, for respondent.

FARRINGTON, J.

This case is here on the second appeal, the plaintiff having first recovered a judgment for $2,000 which was reversed and the cause remanded as shown by the opinion of this court reported in 171 Mo. App. 492, 157 S. W. 661. On retrial the plaintiff recovered a judgment for $1,500, and defendant brings its appeal.

The case was tried both times on an amended petition, which is as follows:

"Plaintiff states that the defendant now is, and was at all the times hereinafter mentioned, a business corporation, duly organized and existing under and by virtue of the laws of the state of Missouri, engaged in the manufacture of lumber at its plant adjacent to the city of Poplar Bluff, in said county. Plaintiff further states that on the 28th day of June, 1911, while the plaintiff, as a common laborer, was in the employ of the defendant, the defendant, its officers and agents, well knowing, or by the exercise of ordinary care could have known, that Walter Foister was inexperienced, unskillful, habitually careless, and incompetent to operate an engine and derrick then used by the defendant in lifting logs from place to place in defendant's lumber yard at its plant aforesaid, carelessly and negligently at and prior to the date last aforesaid employed and retained in its employ the said Walter Foister (a fellow servant of plaintiff) to operate said engine and derrick, and, as a result of the carelessness and negligence of the defendant, its officers and agents, in employing and retaining in its employ said Walter Foister, for the purpose of operating said engine and derrick, after the defendant, its officers and agents, knew, or by the exercise of ordinary care could have known, that said Walter Foister was inexperienced, unskillful, habitually careless, and incompetent to operate said engine and derrick with reasonable safety to plaintiff and other employés of the defendant working near and around said derrick, and as a result of the inexperience, unskillfulness, habitual carelessness, and incompetency of the said Walter Foister on the date last aforesaid, while lifting a log from a railroad car to defendant's lumber yard, by means of said derrick and engines then being operated by said Walter Foister, said log was then and there unskillfully and carelessly caused and permitted by said operator of said engine and derrick, Walter Foister, to suddenly and violently strike plaintiff, knocking him down upon other timbers, and then to fall upon his back, head, and limbs and drag entirely over, along, and across his body, thereby permanently wounding and bruising plaintiff's back, lungs, chest, hips, back portion of the head, and crushing his skull in the forehead, severing the temporal artery on the left side of his forehead, whereby plaintiff was permanently disfigured and permanently disabled from earning his daily wages, which, at the date of his injuries, amounted to $1.75 per day, and as a result of all of said injuries plaintiff has suffered and will hereafter suffer great physical pain and mental anguish, all to his damage in the sum of $10,000. Wherefore plaintiff prays judgment against the defendant for the sum of $10,000, his damages aforesaid, with all costs of this suit."

The defendant answered by a general denial, a plea of contributory negligence, and a further averment that the injuries were suffered as a direct result of conditions which were ordinary incidental risks to the work in which plaintiff was engaged, which new matter was put in issue by a general denial in the reply.

The facts developed at this trial are so similar to those proven in the first trial that the statement contained in the opinion of Sturgis, J. (171 Mo. App. loc. cit. 497-500, 157 S. W. 661), will suffice to show the situation on this appeal, and we will in the opinion mention casually only the additional facts deemed material to a decision of the questions before us.

At the close of plaintiff's case an instruction in the nature of a demurrer to the evidence was offered by the defendant and...