Boll v. Glass & Paint Co.

• Decision Date: 04 October 1928
• Docket Number: No. 27102.,27102.
• Citation: 11 S.W.2d 48
• Court: Missouri Supreme Court
• Parties: JOHN BOLL, Appellant, v. CONDIE-BRAY GLASS & PAINT COMPANY.

11 S.W.2d 48

JOHN BOLL, Appellant, v. CONDIE-BRAY GLASS & PAINT COMPANY.

No. 27102.

Supreme Court of Missouri. Division One.

October 4, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Hamilton, Judge.

AFFIRMED (As to First Count of Petition).

REVERSED AND REMANDED (As to Second Count of Petition).

Fred Berthold for appellant.

(1) In passing upon a demurrer, the evidence most favorable to plaintiff must be taken as true and the plaintiff must be allowed every reasonable inference that can be drawn therefrom. Jordan v. Railway Co., 308 Mo. 31; Lauch v. Reis, 310 Mo. 184; Vining v. Mo-La Oil Co., 312 Mo. 30; Holman v. Railroad Co., 278 S.W. (Mo. Sup.) 1000; Hutchcraft v. Laclede Gas Co., 282 S.W. (Mo. Sup.) 38. (2) A violation of the statute was negligence per se. Rooney v. Yellow Cab Co., 269 S.W. 672; Hale v. Railroad Co., 287 Mo. 499; Collins v. Camper, 272 S.W. 1053. (3) Where the employer failed to furnish sufficient help to enable employee to lift the barrel of lead from the elevator to the floor, or where the employee's injuries resulted from his attempting to exert more strength than he had, his right to recover is a question for the jury to determine. Stroud v. Doe Run Lead Co., 272 S.W. 1080. (4) The master owes to his servant the non-delegable duty of furnishing him a reasonably safe place in which to work, and the servant does not assume risks that are caused by the master's negligence. Lampe v. Am. Ry. Exp. Co., 266 S.W. 1011; Adair v. Terminal Railroad Co., 282 Mo. 133; Sneed v. Hardware Co., 242 S.W. 699; Hunter v. Busy Bee Candy Co., 271 S.W. (Mo. Sup.) 800. (5) The master is liable for a negligent order. Cissel v. Sherin, 268 S.W. 668. (6) The risk of unsafe implements and place to work is not assumed by the servant. Willborne v. Lead Co., 268 S.W. 655; Heady v. Wright Tie Co., 262 S.W. 447; Williamson v. Light & Power Co., 219 S.W. 902; Williams v. Prior, 272 Mo. 613; Jewell v. Bolt & Nut Co., 231 Mo. 200. (7) Plaintiff did not assume the risk and was not guilty of contributory negligence unless the danger was so glaring as to threaten immediate injury. Edmonson v. Hotel Statler Co., 267 S.W. (Mo. Sup.) 615: Littig v. Heating Co., 292 Mo. 241; Jewell v. Bolt & Nut Co., 231 Mo. 200; Burkard v. Rope Co., 217 Mo. 480; Campbell v. Railroad Co., 173 Mo. 173; George v. Railroad Co., 225 Mo. 364. (8) It is the master's duty to exercise a degree of care commensurate with the hazard to which plaintiff is exposed while doing the work. Fisher v. Webb-Kunze Const. Co., 263 S.W. 1025; Brown v. Plate Glass Co., 251 S.W. (Mo. Sup.) 143; Stewart v. Gas Light Co., 241 S.W. (Mo. Sup.) 911; Coontz v. Mo. Pac. Railroad Co., 121 Mo. 659; Schaub v. Railroad Co., 106 Mo. 86; Herdler v. Stove Co., 136 Mo. 15; Bender v. Grocery Co., 276 S.W. 405.

Jones, Hocker, Sullivan & Angert and Willard A. McCaleb for respondent.

(1) The court correctly ruled the defendant's instruction in the nature of a demurrer to the evidence at the close of plaintiff's case as to count one of plaintiff's petition. (a) The master is not liable to the servant for injuries resulting from overexertion. Hunter v. Busy Bee Candy Co., 307 Mo. 656; Petrilli v. Swift & Co., 260 S.W. 516; Lutgin v. Mo. Pac. Railroad Co., 294 S.W. 444; Stoker v. Wagon Co., 289 S.W. 987; Jones v. Cooperage Co., 134 Mo. App. 324; Haviland v. Ry. Co., 172 Mo. 106. (b) A negligent order, to be actionable, must be the proximate cause of the injury to the servant. 39 C.J. 484; Hunter v. Busy Bee Candy Co., 271 S.W. 803; Haviland v. Ry. Co., 172 Mo. 106; Petrilli v. Swift & Co., 260 S.W. 516; Ryan v. Lea, 249 S.W. 685. (c) A negligent assurance of safety, to be actionable, must relate to matters concerning which the master's knowledge is superior to that of the servant. The doctrine has no application to cases of overexertion, because the servant's knowledge of his own strength is superior to that of his master. Hunter v. Busy Bee Candy Co., 271 S.W. 803; 39 C.J. 831. (d) Where the servant is injured as a result of overexertion the failure of the master to furnish help is not the proximate cause of the accident. Lutgin v. Mo. Pac. Ry. Co., 294 S.W. 444; Hunter v. Busy Bee Candy Co., 271 S.W. 800. (e) The evidence did not establish any defect in the place of work. The fact that the elevator was below the floor level a distance of twelve or fourteen inches furnished merely a condition and was not the proximate cause of the injury. Petrilli v. Swift & Co., 260 S.W. 516; Ryan v. Lea, 249 S.W. 685. (2) Secs. 6817, 6819, 6827, R.S. 1919, are vague, indefinite, uncertain, unconstitutional and void and said sections violate the Fourteenth Amendment of the Constitution of the United States and Section 30, Article 3 of the Constitution of Missouri, in that they deprive respondent of its property without due process of law. (a) A statute which prescribes a rule of action must be definite and certain. State ex inf. Crow v. St. Ry. Co., 146 Mo. 155; State ex rel. Wyatt v. Ashbrook, 154 Mo. 375. (b) The statutes afford no test or rule for determining compliance therewith. Cook v. State, 59 N.E. 489; Ex parte Schmolke, 248 Pac. 244; State v. Crawford, 177 Pac. 360; Griffin v. State, 218 S.W. 494. (3) The evidence affords no standard or test to guide the jury in determining whether respondent failed to exercise ordinary care. Coin v. Lounge Co., 222 Mo. 505; Brands v. Car Co., 213 Mo. 698; Chrismer v. Telephone Co., 194 Mo. 189; Higgins v. Faming & Co., 195 Pa. St. 599; Shadford v. Railroad, 111 Mich. 390; Omaha Bottling Co. v. Theiler, 59 Neb. 257; Domers v. Marshall, 178 Mass. 9; Breig v. Railroad, 98 Mich. 222. (a) The evidence failed to show that approved and effective devices, means or methods for prevention of disease were available for use by respondent and could be obtained and used by the exercise of ordinary care, or that such devices were used by other persons in the same or similar business. Pildner v. Marble & Title Co., 239 S.W. 1095. (b) The evidence failed to show that adequate and approved respirators were available for use by respondent. (c) The evidence failed to establish that it was practical or feasible to provide the mixing machines with coverings or hoods without interfering with the practical operation thereof, or that an adequate and efficient apparatus or other device, for the purpose of drawing away from employees fumes and gases, was available or could be obtained by respondent, in the exercise of ordinary care. Conklin v. Tel. Co., 114 N.Y. Supp. 190.

GENTRY, J.

This case comes to us on appeal from the action of the circuit court in sustaining a demurrer to the evidence of appellant on both counts of his petition. The case is somewhat unusual in that appellant asked damages from respondent on two separate and distinct causes of action, each one due to alleged negligence and each resulting in personal injuries which he sustained.

In the first count, appellant alleged that respondent operated a paint manufacturing establishment in the city of St. Louis and used in connection therewith a freight elevator, and that appellant was employed by respondent as a laborer in connection with the handling of freight in said elevator, working under respondent's foreman, one Charles Nolte. Appellant alleged that he was directed by said foreman to remove from said elevator five barrels of lead, each weighing seven hundred pounds; that the floor of the elevator was some twelve or fourteen inches below the level of the first floor of the building, and that he complained to the foreman that the barrels of lead were too heavy for him to remove by himself, but that the foreman failed to furnish him with an additional helper. It was then alleged that the foreman directed appellant to remove the barrels by himself, that in trying to remove them from the elevator, relying on the superior knowledge of the foreman, appellant was ruptured, his back wrenched and his nervous system shattered. For such injuries, he asked damages in the sum of twenty thousand dollars. The answer to the first count consisted of a general denial.

Appellant offered medical evidence tending to show that he had been ruptured and that said rupture could have been brought about by an effort to lift or move a barrel of lead weighing seven hundred pounds. In testifying for himself, appellant said that there were five barrels of lead, each weighing seven hundred pounds, placed in the freight elevator in defendant's paint factory on the day of his alleged injury, and that he was directed by respondent's foreman, Nolte, to remove said barrels; that Nolte had charge of appellant and the other men who were employed by the respondent in its paint manufacturing establishment. When appellant discovered that the barrels of lead were in the elevator and that it was some twelve or fourteen inches below the level of the first floor, he complained to said foreman and asked for additional help. That the foreman replied, "Well, John, do the best you can. I ain't got nobody up here to help you. I am up here by myself and you will have to do the same and try to get along by yourself." Appellant testified that he further notified McClilligan, respondent's superintendent, and asked for additional help to remove the barrels of lead; but that the superintendent replied, "I could pick up one of those and carry it around the block. You can get them off by yourself." Appellant then did try to remove a barrel from the elevator by "seesawing" it back and forth on the elevator floor, and that he sustained the injury complained of, that he was treated at the hospital, incurred expenses, suffered as a result thereof, etc. As above stated, at the conclusion of appellant's evidence the court sustained a demurrer to the first count of his petition.

In the second count, appellant alleged that respondent was engaged in the paint manufacturing business in St. Louis, that he was employed as a laborer in connection with...