Berry v. Majestic Milling Co.

• Decision Date: 10 June 1924
• Docket Number: No. 24048.,24048.
• Citation: 263 S.W. 406,304 Mo. 292
• Parties: BERRY v. MAJESTIC MILLING CO.
• Court: Missouri Supreme Court

263 S.W. 406

304 Mo. 292

BERRY v. MAJESTIC MILLING CO.

No. 24048.

Supreme Court of Missouri, Division No. 1.

June 10, 1924.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge

Action by Benjamin R. Berry, by Laura A. Berry, next friend, against the Majestic Milling Company. The Court of Appeals reversed a judgment for plaintiff (240 S. W. 829), and the cause is certified to this court. Judgment of Circuit Court reversed.

Allen & Allen, of Springfield, and John L. McNett, of St. Louis, for appellant.

I. V. McPherson and J. A. Potter, both of Aurora, for respondent.

SMALL, C.

Appeal from the circuit court of Stone county. Personal injury case. Plaintiff, a boy 15 years of age, on November 23, 1916, was employed by defendant in its corn meal mill at Aurora, Lawrence county, Mo., and the fingers of his right hand were caught between the rollers in said mill and injured to such an extent that amputation was necessary. At the May term, 1917, he filed suit against defendant to recover damages for said injury and as grounds therefor alleged: First, that plaintiff's employment by defendant, he being under 16 years of age, was a crime prohibited and made unlawful by the laws of Missouri and was negligence on defendant's part, which caused his injury, and for which he prayed judgment in the sum of $10,000. "For another and further cause of action" the petition stated that plaintiff was employed to run one of defendant's corn mills, and that such work required skill and mature judgment and was dangerous when performed by one without skill and mature judgment; that plaintiff at all times was unskilled and inexperienced, was but 15 years of age, and on account of his youth and inexperience was ignorant of the dangers of such work as he was employed and required to do which defendant knew or might have known by the exercise of due care; that under such circumstances it was defendant's duty to warn plaintiff of the dangers of such work and to instruct him as to the proper manner of performing same, so as to enable him to avoid injury, but defendant negligently failed to warn or instruct plaintiff and required and permitted plaintiff at all times to operate such machinery without such warning or instruction whereby, in the course of his employment on November 23, 1916, plaintiff's right hand was caught between the rolls of such machinery and his fingers so injured as to require amputation, by which he was damaged in the sum of $10,000, for which he prayed judgment.

The answer was a general denial and contributory negligence as to both counts of the petition and a further plea to the first count that an act of the Legislature approved April 7, 1911 (Laws 1911, p. 132), making it unlawful to employ children under the age of 16 years in such employment as plaintiff was employed in by defendant, was unconstitutional for the reason that it violated section 28 of article 4 of the Constitution of Missouri, in that said act contained more than one subject and that the purposes thereof were not clearly expressed, in the title.

After all the evidence was heard, plaintiff voluntarily dismissed the second count in his petition, and under the evidence and instructions the jury found a verdict for plaintiff for $5,000 on the first count, from which defendant appealed to this court. The cause was heard here by division 2, and in its opinion we held said act of the Legislature void because its subject-matter was not clearly expressed in its title, and reversed the case outright without remanding it. 284 Mo. 182, 223 S. W. 738. Thereupon plaintiff brought this suit against defendant and for the same injuries, on December 9, 1920, and in his petition set up the same facts contained in the second count in his petition in the prior suit and prayed for the same judgment.

To the petition in this case, defendant for answer, besides a general denial and contributory negligence, pleaded the reversal of the former judgment without remanding the cause by this court as res adjudicate. At the trial the record in the former cause, including the entry showing its dismissal as to the second count of the petition and our opinion and mandate, were put in evidence by the plaintiff. Both sides also introduced testimony as to the merits of the case.

Plaintiff's evidence:

Plaintiff testified he was born in 1901, and in 1916 was employed by defendant; that he received a message to go down to defendant's mill, which he did, and saw Mr. Jester, the foreman. Jester asked how old he was and he told him 14 years. Jester then told him, "Well, I will take you down, and you can help Lonnie (Jester's son) make meal." They then went down where Lonnie was in the corn mill, and Jester told him to help Lonnie make meal and showed him how to take the sacks off the spout and off the scales. He started at $10 per week and was raised to $12 before the week was up. He worked three weeks. Lonnie and he were the only ones who worked in the corn mill. In the corn mill were two sets of rollers on one floor, the middle floor. They use steam power to run the corn mill. He was in the eighth grade at school and had not done much of anything before that. Had never been in this mill before. Had no experience with mill machinery. Mr. Jester came in the corn mill two or three times a day. 3e had no certain time. He came in when he had a chance—sometimes not more than once a day and some days not at all. He would stay just a minute. He swept and "we" oiled the machinery and started it and threw sacks off and unchoked the spouts when they choked. Once Jester asked them to paint the roof, and "we" helped load flour into the cars on the track. "We" did whatever they needed us to do when short of hands; unloaded coal, worked in elevator once or twice, sacked and weighed chops. Jester saw him examining the meal. He had often seen Lonnie examine the meal. Jester never said anything when he saw him oiling the machinery, examining the meal, or unchoking the machinery. Never gave him any instructions or directions about the work. "Never forbid to do anything, only once. Lonnie was `monkeying' with the set screw that set the rolls. Jester came in and said us boys had better not do that and said he would set it. These screws are on the sides of the rolls." He did not know just how they worked. He never undertook to set these screws. When he was injured, a spout had just choked up, and they got it unchoked and turned the corn into the first rolls and started to let it run again. He then went around to the roll and put his hand in to get a handful of meal and was feeling of it. "Lonnie hollered and said to take off a few sacks and catch up; if we did not, it would choke up again," and "I threw my hand back when he hollered and started to him and caught my fingers." "Q. How did you get to this place where you caught the meal? A. There was a little door in the top of the lid. It is three or four inches wide and the length of the roll. * * * When Lonnie called me, Z had my hand on the edge of the box and looked at it, and 4 just threw my hand back like that and turned it down and started to him and felt my fingers catch. I did not move my body when it caught. I turned my head when he called. I could not see him. He was out of sight. I was examining this meal to see if it was fine or coarse. 0 0 * I turned the corn in before I examined the meal. The corn was feeding into the mill again. While 1 was fooling around just a minute or two, 1 went where the roll was. After my fingers were caught, Donnie shut the power off. Jester and another man came." They took the belt off, backed up the rolls, and took his hand out. Afterwards the doctor took four fingers off. He suffered considerable pain and still feels pain in those fingers. Does not sleep well. Still suffers pain in his hand. Hand is still tender. Jester sometimes helped in unchoking. Jester set the rolls—saw him once or twice. "When you opened the door to the corn mill you could not see anything for the meal." He never opened the door and looked in there when it was not running.

Cross-examination: He was 15 just before he was injured. Last time he was measured he was 5 feet 11 inches tall. Weighed 162 pounds about a month ago. Does not know what he weighed when hurt. Lonnie and Jester told him what to do when he first went to work. They showed him how to take off these sacks and put them on the truck and take them to the warehouse some 80 feet away. That was all that was ever told him about making meal. One time he said to clean the oil off the pulleys. That was when the mill was stopped. He (Jester) never told him to do anything else. "That is all he ever told me to do or asked me to do." He weighed 148 pounds when he first went there to get this job from Mr. Jester. It was in the afternoon about 4 o'clock when he got his hand in the roll. "I went around to rest a little and to see this roll and if the meal was being ground fine enough." If the meal was not fine or coarse enough, he never set the rolls. The rolls were inclosed in a wooden box and you cannot see them. Did not know how far the rolls were below the meal that he caught hold of. There were pulleys in the side of the box that turned the rolls. "I saw these rolls going in the pulley box and revolving around in there; did not know how they worked. I knew that the meal was falling down there and knew it (the rolls) had something to do with grinding it finer. * * * I knew that whatever was in there ground this meal." He knew the rolls were in there that ground up this cornmeal. That is true. He had testified before that he knew if he had thought about it that, if anything got in there close enough, it would grind that too. That is correct. He examined the meal where it came out above the rolls to see if it was too fine or too coarse, but he did not know how to adjust the rolls. He had seen Jester do that. Jester never told him to feel the meal to see if it was too...