Berkbigler v. Scott County Milling Co.

• Citation: 275 S.W. 599
• Decision Date: 13 August 1925
• Docket Number: No. 3827.,3827.
• Parties: BERKBIGLER v. SCOTT COUNTY MILLING CO.
• Court: Court of Appeal of Missouri (US)

275 S.W. 599

BERKBIGLER v. SCOTT COUNTY MILLING CO.

No. 3827.

Springfield Court of Appeals. Missouri.

August 13, 1925.

Rehearing Denied September 16, 1925.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Action by Lottie Berkbigler against the Scott County Milling Company. From a judgment for plaintiff, the defendant appeals. Affirmed.

Bailey & Bailey, of Sikeston, for appellant. W. L. Proffer, of Chaffee, and B. Hugh

BAILEY, J.

Plaintiff brings suit under section 4217, Revised Statute of Missouri 1919, for the death of her husband, Leo Berkbigler, which occurred January 20, 1924, while he was in the employ of defendant at its mill at Oran, Mo. The cause was first tried during the regular August term, 1924, of the circuit court of Scott county, resulting in a verdict for plaintiff. Defendant, on motion, was granted a new trial, which was had during the November term, 1924, of said court, and resulted in a verdict and judgment for plaintiff in the sum of $6,500, from which defendant appeals.

The petition states plaintiff is the widow of Leo Berkbigler, deceased; that he left surviving him three minor children ranging in ages from two to seven years; that plaintiff brings this suit, as said widow, within six months after the death of her said husband; that defendant corporation operates a flour mill at Oran, Mo.; that her deceased husband was on January 20, 1924, employed as a fireman in defendant's mill, his duties requiring him to keep fire in the boilers and regulate the water supply for furnishing steam in said boilers, under direction of defendant's foreman; that the duties of deceased further required him to climb to the top of the boilers of said plant to a height of 15 feet by means of a temporary ladder leaning against the side of said boilers; "that it was necessary, as a part of his duties, to cross over from the top of said boilers to the wall of the building for a space of to wit, 8 feet, and then go along the wall of said building for, to wit, 10 feet (italics ours) to get to the point where he could reach a faucet or wheel which it was necessary to turn to shut the water out of one boiler and turn it into the other, and, which defendant required deceased to do before quitting work each day; that the floor of said building around said boilers, and over which deceased had to walk at a height of 15 feet was concrete; that the means offered and provided for deceased to cross from the boilers to the wall and along the wall for the distance of to wit, 18 feet, was a 2-inch iron rod or pipe which plaintiff's deceased husband was compelled in the discharge of his duties to walk, by holding to a large pipe overhead; that, at the time herein referred to, defendant was not operating said mill, but required said fireman, deceased, to keep fires in the boilers and regulate the water supply as aforesaid to keep the pipes and machinery from freezing."

The petition then charges that plaintiff's deceased husband in the discharge of his duties, "attempted to cross over from said boiler to the wall of said building for the purpose of shutting off the water from one boiler and turning it into the other, as instructed by defendant; and while walking said 2-inch pipe at a height of about 15 feet fell to the floor, by reason of the dangerous and unsafe footing he was required to use, and struck the concrete floor, his head first hitting a concrete step, and which bursted and peeled the scalp entirely off of one side of his head, and otherwise severely wounding and injuring the said Leo Berkbigler, plaintiff's deceased husband."

It is then alleged that the death of Leo Berkbigler was caused by defendant's negligence "in failing and neglecting to provide and furnish a reasonably safe place for its employee, Leo Berkbigler, to work, and in negligently and carelessly failing to provide suitable banisters and sufficient light, and in failing to provide safe machinery, implements, and tools for said employee to perform the duties required of him by defendant; that the 2-inch iron pipe, provided for deceased to walk across a space of to wit, 18 feet and 15 feet above the concrete floor, to discharge his duties, in turning the water from one boiler to the other, was dangerous and unsafe and negligently and carelessly provided by defendant, and which dangerous place and dangerous machinery and tools said deceased was compelled to use in the discharge of his duties under the orders and directions of defendant, its manager and agent, and while using due care and caution for his own safety in the discharge of his duties, by reason of the negligence of defendant in failing and neglecting to provide a safe place and safe tools and machinery for said employee to work, he was killed."

The answer after a general denial, sets up pleas of contributory negligence and assumption of risk. The trial court refused a peremptory instruction at the close of the case directing a verdict in defendant's favor, which refusal is assigned as error.

Defendant's counsel have ably argued and briefed two reasons in support of this assignment, namely: (1) That no proof was offered to show suit was filed within six months after the death of plaintiff's husband; (2) that no proof was offered to show deceased fell from the place alleged in the petition, or because of the specific negligence charged in the petition.

The first point above raised is bottomed on the proposition that this is a purely statutory action under section 4217, Revised Statute of Missouri 1919, which section gives to the widow the right to sue within six months after the death of her husband; thereafter, the right of action ends, so far as she is concerned, and passes to the miner children of deceased, provided any survive.

The statute here to be construed has been on the books, with some changes, since 1855. Its history may be gleaned by perusal of the able opinion by Commissioner Railey in the case of Freie v. Railroad, 283 Mo. 457, 222 S. W. 824, 13 A. L. R. 204. There are many cases involving questions similar to the one here, but none, to our minds, decisive of the particular point now raised. The leading case is Barker v. R. R., 91 Mo. 86, 14 S. W. 280, in which a widow sued for the death of her husband, under this statute, within one year, but after the expiration of six months. Failure to allege and prove there were no minor children of deceased, was held to be fatal to the judgment, the court holding that—

"In statutory actions of this sort, the party suing must bring himself strictly within the statutory requirements, necessary to confer the right, and this must appear in his petition; otherwise, it shows no cause of action."

In an action by children of a decedent, brought on their behalf by the widow to recover for the death of their father under this section, a petition filed more than six months, but less than one year after the death of the father, which failed to allege either that the deceased left no widow or that she failed to file suit within six months, is defective. Smith v. Allee, 211 Mo. App. 82, 245 S. W. 1117.

A widow, suing for the death of her husband, alleged in her petition that the suit was brought within one year of the nonsuit, which she suffered in her former action. The failure to allege that the former action was brought within six months from the date of the death of plaintiff's husband was held to be reversible error. Sheets v. Railroad, 152 Mo. App. 377, 133 S. W. 124. "

The first two cases above mentioned are cited by defendant as decisive of this case. We do not believe the position well taken. In the first place, plaintiff's petition alleges...