Anderson v. Lusk

• Decision Date: 11 March 1918
• Docket Number: No. 1987.,1987.
• Citation: 202 S.W. 304
• Parties: ANDERSON v. LUSK et al.
• Court: Missouri Court of Appeals

202 S.W. 304

ANDERSON v. LUSK et al.

No. 1987.

Springfield Court of Appeals. Missouri.

March 11, 1918.

Rehearing Denied April 13, 1918.

Appeal from Circuit Court, Polk County; Chas. H. Skinker, Judge.

Action by Frank Anderson against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendants appeal. Affirmed.

W. F. Evans, of St. Louis, John H. Lucas and William Lucas, both of Kansas City, and W. W. Wood, of Humansville, for appellants. Hamlin, Collins & Hamlin, of Springfield, for respondent.

BRADLEY, J.

Plaintiff recovered for personal injuries, and defendants appealed. Plaintiff had been working for the defendants, or the company, about three years in the capacity of helper to a boiler maker. In May, 1916, at the 'Frisco shops, in Springfield, Mo., plaintiff was helper to one Nahan, and they were engaged in putting plugs or "sunflowers" in a front flue sheet of a boiler. When more water space is needed in a boiler, the number of flues is reduced according to the amount of additional water space desired. Thirty-two flues had been removed from a boiler about 60 inches in diameter, and the boiler maker and plaintiff were engaged in plugging up the holes in the sheet from which the flues had been removed. They had plugged 31, and plaintiff alleges that he received injury while plugging the last one. The front flue sheet is an iron sheet about one-half inch thick in the front end of the boiler through which the ends of the flues are passed, and rolled out to make them steam tight. A plug or "sunflower" is two and three-sixteenths inches in diameter, and three-fourths of an inch in length; that is, the plugs that were being put in this flue sheet were of the dimensions given. The flue hole in which the plug was inserted when tapped out—that is, when the threads were cut in the flue sheet—was two and two-sixteenths inches in diameter. This tapping out is done by taking a die two and two-sixteenths inches in diameter, and cutting threads in the flue sheet circumscribing the hole. These threads are cut in the flue sheet, and correspondingly on the plug, a sufficient depth to be steam tight when the plug is inserted. The plug has a shoulder, and a square head, and may be partly inserted or fitted with a wrench. When the wrench alone will not suffice to satisfy the judgment of the boiler maker that the plug is steam tight, the wrench, held by the boiler maker, is placed over the head of the plug, and so adjusted that the helper, plaintiff, with an iron bar three or four feet long for a pry, and the use of one of the flue holes or flue as a support, could further tighten the plug by using the leverage thus improvised against or upon the wrench. Plaintiff was standing up as much so as the average man in height could stand in a boiler five feet in diameter, and was prying upon the wrench, and thus further tightening the plug under the directions of Nahan. Plaintiff had turned the plug a few times with the pry, Nahan, the while, holding the wrench in place, and watching the progress of the plug. After the last turn, before the one when plaintiff was injured, Nahan thought another turn necessary, and told plaintiff to give it another turn. Plaintiff adjusted his pry, and applied his strength, when the threads, cut in the flue sheet, stripped, thus releasing the plug, and plaintiff fell in such manner as to double his head back almost to his knees, resulting in the injuries of which he complains.

Immediately after, the fall plaintiff says that he was blind for about half an hour and sweated profusely. However, he worked the balance of that day, the incident happening about 3 o'clock in the afternoon, and also worked some on succeeding days for the space of ten days or two weeks, but says that all the while he suffered much pain in the region of the injury. His condition getting worse, plaintiff went to the hospital for treatment, and his trouble was diagnosed as appendicitis. An operation proved that he did not have appendicitis, and the appendix was not removed; but the operation disclosed a large unnatural mass lying upon the large bowel, and the appendix, while itself normal, was in an abnormal position, because of this mass. An abscess resulted from plaintiff's trouble, and serious consequences followed. The. chief surgeon who performed the operation and other physicians on behalf of defendants testified that plaintiff's condition was of tubercular origin, and not due to an injury; while, on the other hand, experts who made special test found no evidence of tuberculosis. One physician testified that a piece of the spicule of a lower vertebra was broken off and "loose in there," and that was the cause of plaintiff's condition in his judgment. There was medical evidence to the effect that a condition which plaintiff was in at the time of trial might be brought about by a strain or fall such as plaintiff received.

Plaintiff makes two distinct charges of negligence: (1) That he was caused to fall on. account of the flue sheet being old, worn, rusty, and weak to such an extent that the threads would not hold; (2) that the threads were too shallow in the flue sheet. The answer is a general denial, assumption of risk, and contributory negligence. Appellants' make assignments of error in substance as follows: (1) Failure to sustain oral objection to the introduction of evidence on the ground that the petition does not state facts' sufficient to constitute a cause of action; (2) admission of evidence; (3) error predicated, upon plaintiff's instruction; (4) failure to sustain defendant's demurrer at the close of plaintiff's case, and to give peremptory instruction at the close of the whole case.

On the Petition. Appellants challenge the petition in their brief on the ground that it declares upon the relation of master and servant, and fails to show any neglect of duty on the part of the master, and affirmatively shows assumption of risk and contributory negligence on the part of plaintiff. At the trial its sufficiency was challenged only by oral objection to the introduction of evidence. While necessary allegations do not follow in logical sequence, yet, when the petition is taken as a whole, we think it sufficient, considering the manner in which its sufficiency is challenged. A petition which states a cause of action, though imperfectly, informally, or inartistically, is good against a general objection that it does not state a cause of action. Thompson et al. v. Stearns et al., 197 Mo. App. 344, 195 S. W. 43; Lynch v. Railroad, 111 Mo. 601, 19 S. W. 1114; Spurlock v. Railroad, 93 Mo. 530, 6 S. W. 349; Gustin v. Concordia Fire Ins. Co., 164 Mo. 172, 64 S. W. 178; Maughiman et al. v. National Ben Franklin Fire Ins. Co., 196 Mo. App. 367, 194 S. W. 893. Where before trial no objection is made to the sufficiency of the petition except a general one, as was in the case at bar, after verdict the petition will be given the same favorable construction as if no objection had been made until after trial. W. T. Rawleigh Co. v. Grigg et al., 191 S. W. 1019. A petition, though defectively drawn, is good after verdict. All defects and irregularities, except that the petition wholly fails to state a cause of action, are cured by verdict. Shimmin v. C. & S. Mining Co., 187 S. W. 76; Coy v. Landers, 146 Mo. App. 413, 125 S. W. 789; Seckinger v. Mfg. Co., 129 Mo. 590, 31 S. W. 957; White v. Railroad, 202 Mo. 539, 101 S. W. 14.

On the Admission of Evidence. The only evidence pointed out in appellant's brief, the competency of which is challenged, is what Nahan said when plaintiff fell, "I was afraid of that." Appellants construe this to have been offered as an admission on the part of their agent, Nahan, that he suspected that the threads might strip with another turn. Appellants cite no authority supporting their contention that the admission of this evidence was error. We think it competent, not on the theory that it was an admission by the agent of negligence on the part of the principal, but on the theory that it was a part of the act or transaction, a part of the res gestæ. Indeed, the fury might infer from this expression that the foreman suspected that the threads might not stand another turn, and that notwithstanding this apprehension he gave the order for another turn. This expression, "I was afraid of that," was evidence tending to prove that defendants, through their foreman, had not exercised ordinary care to see that the threads in the flue sheet were cut to a reasonably sufficient depth. The expression is evidence of the foreman's own misgivings about the matter, and, while not an admission or confession of negligence, it was a part of the act, or, to be more accurate, failure to act, on the part of the foreman when he apprehended unfavorable results from another turn. We think this expression clearly a part of the res gestæ and competent. Parr " v. Ins. Co., 178 Mo. App. loc. cit. 161, 165 S. W. 1152; Atkinson v. American School of Osteopathy, 240 Mo. 338, 144 S. W. 816.

On Instructions. Appellants challenge plaintiff's instruction on the measure of damages. Plaintiff's general instruction and on measure of damages were embodied in one instruction. After setting out the necessary facts which the jury were required to find before they could return a verdict for plaintiff, the instruction concluded:

"Then you will find the issues in this case for the plaintiff and assess his damages in whatever sum you may see proper, not exceeding the amount sued for, to wit, $7,500, if you find for him."

The part in italics is the part challenged. Defendants say that this amounted to a roving commission, under which the jury were...