Baugher v. Gamble Const. Co.

• Decision Date: 07 April 1930
• Docket Number: 28429
• Citation: 26 S.W.2d 946,324 Mo. 1233
• Parties: George A. Baugher v. Gamble Construction Company, Appellant
• Court: Missouri Supreme Court

26 S.W.2d 946

324 Mo. 1233

George A. Baugher v. Gamble Construction Company, Appellant

No. 28429

Supreme Court of Missouri

April 7, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Henry A Hamilton, Judge.

Affirmed.

W E. Moser and Hensley, Allen & Marsalek for appellant.

(1) The amended petition wholly fails to state a cause of action, and the demurrer thereto should have been sustained. (a) As a general rule, no presumption of negligence on the part of the employer arises from the mere fact of injury to an employee. The burden is on the employee to set forth in his petition the alleged negligent act or omission to which he attributes his injury. Removich v. Const. Co., 264 Mo. 43; Klebe v. Distilling Co., 207 Mo. 480. (b) The amended petition does not allege facts sufficient to take the case out of the foregoing rule; it does not allege that the scaffold or structure, upon which plaintiff was working, was furnished or provided by defendant. On the contrary, it merely states that plaintiff was assisting in the erection of a building or structure used in connection with the construction of the Field House, and while thus engaged was working on a scaffold or structure used in the erection of said building, and that while thus engaged the said scaffold or structure sagged, causing him to fall. These all gations are not sufficient to invoke the res ipsa loquitur doctrine in plaintiff's favor. The rule applies under the scaffolding statute, only when the scaffold is furnished by the employer as a completed instrumentality. Forbes v Dunnavant, 198 Mo. 193; Williams v. Ransom, 234 Mo. 55; Meyer v. Rlty. & Inv. Co. (Mo.), 292 S.W. 17; Prapuolenis v. Const. Co., 279 Mo. 358; Guthrie v. Gillespie (Mo.), 6 S.W.2d 892. (c) The above rulings are in line with the general rule which requires the servant's petition in a res ipsa loquitur case, to plead the surrounding facts concerning the unusual event resulting in plaintiff's injury, that the instrumentality involved was under the master's control, and that the plaintiff is unable to show what produced the unusual occurrence. Sabol v. Cooperage Co., 313 Mo. 527; Meade v. Water Co. (Mo.), 300 S.W. 515; Ash v. Ptg. Co. (Mo.), 199 S.W. 994. (d) The allegation that the sagging of the scaffold occurred through negligence on the part of the defendant, states no fact, but a mere legal conclusion, which cannot be considered in determining the sufficiency of the petition. Kramer v. Power Co., 311 Mo. 369; Maniaci v. Express Co., 266 Mo. 633; Sec. 1220, R. S. 1919. (e) A petition which wholly fails to state a cause of action may be attacked at any stage of the proceedings. The point is not waived by defendant's answer. Swift v. Ins. Co., 279 Mo. 612; Stonemets v. Head, 248 Mo. 252; Storage Co. v. Kuhlmann, 238 Mo. 702; Paving Co. v. Investment Co., 309 Mo. 661; State ex rel. v. Trimble, 315 Mo. 166. (2) Defendant's motion to make the petition more definite and certain should have been sustained. Kramer v. Power Co., 311 Mo. 369, State ex rel. Hopkins v. Daues (Mo.), 6 S.W.2d 893. (3) The court erred in overruling defendant's demurrer to the evidence, and in submitted the case to the jury. (a) Because the petition wholly fails to state a cause of action. Authorities, supra. (b) Because the evidence shows without dispute that the board on which plaintiff stood, and the ledger beams on which it rested, were placed and fastened by plaintiff or his fellow-servants. No one besides these men had anything to do with this work. Under these circumstances, plaintiff had no right of recovery under the scaffolding statute. Forbes v. Dunnavant, supra; Williams v. Ransom, supra; Meyer v. Investment Co., supra; Guthrie v. Gillespie, supra. (c) There was no showing that defendant was guilty of negligence with respect to the character of wire used, or that the wire was not reasonably safe for the purposes for which it was furnished, if properly used. State ex rel. Const. Co. v. Trimble, 310 Mo. 248; Lowe v. Railroad, 265 Mo. 587, 165 Mo.App. 524; Chrismer v. Telephone Co., 194 Mo. 189; Anderson v. Box Co., 103 Mo.App. 382; Shohoney v. Ry. Co., 223 Mo. 677; Harris v. Railroad, 146 Mo.App. 524; Van Biber v. Swift & Co., 286 Mo. 317. (d) There was no evidence that the alleged sagging of the 4x4 timber was caused by a stretching of the wire. Kane v. Railway, 251 Mo. 13; Van Biber v. Swift & Co., supra; Goransson v. Mfg. Co., 186 Mo. 307; Strother v. Railroad, 188 S.W. 1105; Plefka v. Knapp, Stout & Co., 145 Mo. 318. (e) The claim that the accident was due to the character of the wire used is a mere theory, unsupported by any substantial evidence or by any reasonable inference from the record. Kane v. Railroad, 251 Mo. 13; Sexton v. Railway, 245 Mo. 254; Byrne v. Byrne (Mo.), 181 S.W. 393; Sayre v. Trustees, 192 Mo. 128.

Mark D. Eagleton and William L. Mason for respondent.

(1) Judged by the rules applicable to it at any stage of the proceedings in this case the petition was sufficient. It is not reasonably subject to the criticism that it failed to allege that the defendant furnished the scaffold in question. It alleges that the defendant was engaged in the construction of the field house; that plaintiff was in the employ of the defendant, assisting in the erection of that building; that while thus engaged, he was working upon a scaffold used in the erection of that building and, while he was so working, the scaffold sagged and, as a result thereof, he was thrown and injured, "all of which occurred through negligence and carelessness on the part of said defendant." By reasonable and even necessary intendment this amounts to a charge that defendant furnished the scaffold for use in the construction of the building and that, while plaintiff was working on the scaffold, it gave way as a result of the negligence of the defendant and that, as a result thereof, plaintiff was injured. Prapuolenis v. Construction Co., 279 Mo. 358; Limbaugh v. Lunch Co., 258 S.W. 453; Nagel v. Railway, 75 Mo. 660; Schneider v. Railroad, 75 Mo. 295; Crane v. Ry. Co., 87 Mo. 593; Weaver v. Harlan, 48 Mo.App. 323; MacMurray etc. Iron Co. v. St. Louis, 138 Mo. 608. (2) The defendant, after its demurrer and motion to make more definite and certain were overruled, answered and went to trial on the merits, and there was a verdict and judgment for the plaintiff. The petition, on the question of its sufficiency, therefore, stands in this court upon the same basis as if no objection had ever been made to it. In this situation the only objection that could be available to the defendant is that the petition wholly fails to state facts sufficient to constitute a cause of action after indulging every reasonable intendment in its favor or that the subject-matter thereof is not within the jurisdiction of the court. Hamilton v. Standard Oil Co. (Mo.), 19 S.W.2d 679; Hanson v. Neal, 215 Mo. 256; Wyler v. Ratican, 150 Mo.App. 478. (3) Defendant's motion to make more definite and certain was waived for the additional reason that, while the action of the court in overruling it is set forth in the bill of exceptions, no mention thereof is made in the motion for new trial. Syz v. Milk Wagon Drivers Union, 18 S.W.2d 441. (4) The petition in this case is based upon the violation by the defendant of a statute of Missouri, Sec. 6802, R. S. 1919. That statute provides: "All scaffolds . . . used in or for the erection . . . of any kind of building shall be well and safely supported . . . and so secured as to insure the safety of persons working thereon." Plaintiff's petition was properly adjudged sufficient, because it sets forth, in apt terms, and almost in the exact language of the statute, the statutory duty imposed upon the defendant and the injury to plaintiff due to a violation of that duty. Prapuolenis v. Construction Co., 279 Mo. 358; Burt v. Nichols, 264 Mo. 18; Stafford v. Adams, 113 Mo.App. 721; Stewart v. Ferguson, 164 N.Y. 553; Steel & Masonry Co. v. Reilly, 210 F. 437; Most v. Construction Co., 199 Mo.App. 336. (5) Even where a case does not rest upon a violation of a statutory duty, in the absence of objection or after verdict and judgment, a general allegation of negligence is sufficient. Cramer v. Kansas City etc. Co., 279 S.W. 43; Collinsworth v. Zinc & Chemical Co., 260 Mo. 703; Conrad v. De Montcourt, 138 Mo. 311; Schneider v. Railroad, 75 Mo. 295; Nagel v. Railway, 75 Mo. 660; Le May v. Railroad, 105 Mo. 362; Morgan v. Mulhall, 214 Mo. 451; State ex rel. v. Daues, 6 S.W.2d 898. (6) The demurrer to the evidence should have been overruled because plaintiff's evidence showed that the defendant furnished the scaffold for the erection of this building, and that, while plaintiff was standing on the scaffold doing his ordinary work and while the scaffold was subject to no unusual strain, it gave way, causing plaintiff to fall and be injured. Plaintiff further testified that he himself had nothing whatever to do with the erection of the scaffold in question. Prapuolenis v. Construction Co., 279 Mo. 358; Most v. Construction Co., 199 Mo.App. 336; Williams v. Ransom, 234 Mo. 78. (7) Inasmuch as the plaintiff had nothing to do with the construction of the particular scaffold which fell, the fact that plaintiff, on cross-examination, testified that the collar or extension ledger which supported the scaffold was placed in position by Mathews, his fellow carpenter, and the fact that Doudy, the helper, one of defendant's witnesses, testified that he placed in position the board on which plaintiff was standing when the scaffold gave way, does not amount to a showing that the fall of the scaffold was due to negligence of a fellow-servant of the plaintiff. In the first place, Mathews, the fellow-carpenter, and Doudy, the helper, were not fellow-servants with the...