Bright v. Sammons

• Decision Date: 16 June 1919
• Docket Number: No. 13235.,13235.
• Parties: BRIGHT v. SAMMONS.
• Court: Missouri Court of Appeals

214 S.W. 425

BRIGHT v. SAMMONS.

No. 13235.

Kansas City Court of Appeals. Missouri.

June 16, 1919.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by Wilbur F. Bright against V. K. Sammons. From judgment for plaintiff, defendant appeals. Affirmed.

Darius A. Brown, of Kansas City, for appellant.

T. J. Madden and William T. Alford, both of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff, a boy between 14 and 15 years of age, was employed in the planing mill department of defendant's furniture factory. While engaged in cleaning and oiling the blades and machinery of the planer, the machinery was suddenly caused to start in motion and the fingers of plaintiff's right hand were badly crushed, cut, and severed, practically causing the loss of his hand.

He brought this suit under the statute forbidding minors under 16 to oil or clean machinery (section 1726b, as added by Session Acts 1911, p. 136), and recovered judgment for $7,500.

The planing department was on the first floor, where boards were planed and prepared for use in making furniture. The planers were double-headers; that is, arranged so that, by means of knives working above and below the table, the two sides of a board could be planed at once. Plaintiff was an off-bearer, or carried the boards, after they emerged from the machine, to their proper place. The planer was operated by means of a belt running over a wheel or pulley and extending from the machine up to two other pulleys on the power shaft. One of these was a "dead" pulley on which the belt rested when the planer was to remain at rest, the other being the "live" pulley onto which the belt was shifted when it was desired to start the machine.

Plaintiff's evidence amply tends to show: That he was employed by defendant's foreman about six weeks before the injury occurred; that, after plaintiff had been there a while, the foreman instructed a workman, who went by the name of Bennett, but whose name was Colvin, and who operated the planer, to show plaintiff how to clean and oil the blades of the machine; that Colvin did this by means of a short stick and with it pushing the sawdust and shavings in the blades down through the knives and into a suction conveyor which was not in good working condition; that to clean the blades thus plaintiff had to put his hand down among the blades while the machine was stationary; that Colvin also instructed plaintiff how to oil the machinery, and plaintiff continued to do this, and later, after Colvin left the factory, the foreman had plaintiff to continue to oil and clean the machine as he had done theretofore, and did so up until the day of the injury, oftentimes in the presence of the foreman but not always being especially or specifically ordered to do so by him; that it was customary for the foreman to oil the pulleys on the power shaft overhead or above the machine; that on the morning of the injury the foreman placed a ladder up to the pulleys, told plaintiff to get him an oil can, and, after this order was obeyed, the foreman went up the ladder with the oil can and began working on the pulleys; that the foreman then told plaintiff to procure himself another oil can, and, in obedience to such direction, plaintiff got one and began to oil the blades and bearings, the

I foreman at the time seeing what he was doing; that plaintiff proceeded to clean the blades as he had been shown and instructed, and while doing so, and with his right hand down in the machine, it was suddenly started up causing the knives to commence revolving, shearing off four of plaintiff's fingers; some of them being cut off as many as four times and practically causing the loss of his hand.

It is claimed that reversible error was committed by plaintiff's counsel in the examination of jurors upon their voir dire. In one of the general questions propounded, the panel was asked if any one thereon had any connection with any employer's liability company. Objection thereto being made and sustained, counsel for plaintiff explained that what he meant to ask was whether any on the panel ever had the handling of claims for personal injuries with a railroad, industrial company or establishment, or liability insurance company. This was objected to as being immaterial, irrelevant, and having no tendency to prove or disprove the qualifications of a juror; and then a motion was made to discharge the jury, which motion the court denied. Defendant's complaint now is that no insurance company was interested in the suit, that plaintiff's counsel knew this, and yet, by the inquiry, sought to create the impression that one was defending the suit. In the first place, there is nothing in the record of the trial to show that no insurance company was interested or defending, or to show that plaintiff was so informed. An affidavit to that effect and as to what transpired between counsel, appended to and filed with the motion for new trial, does not preserve such extraneous matters. Ryans v. Hospes, 167 Mo. 342, 363, 67 S. W. 285; State v. Green, 117 Mo. 298, 22 S. W. 952; State v. Jackson, 126 Mo. 521, 29 S. W. 601. In the next place, the question as explained, and upon which the motion to discharge was based, went to ascertain whether any prospective juror had ever acted as a claim agent or adjuster of personal injury claims. It carried no intimation that an insurance company was interested in the suit or was the real defendant. It is a well-known fact of human nature that those whose business it is to investigate and, if possible, settle personal injury claims, do become imbued with more or less prejudice against the validity and extent of such claims, perhaps having good reason to become prejudiced; , but, whether justified or not, the fact that such prejudices do unconsciously exist makes it important for a plaintiff to ascertain whether such agents, or men who have once engaged in the occupation of claim agents, are on the panel, so that he may select his peremptory challenges intelligently.

It Will be observed that the information here sought could not have been obtained by privately asking the defendant whether an insurance company was defending, since that would in no way reveal whether there were any ex-claim agents on the panel. That the inquiry would draw the juror's attention to the subject of liability insurance and thus they might surmise or guess that possibly the defendant had liability insurance, is nothing more than what they might likely do anyway, since as intelligent men they would know the practice of having liability insurance is very common. Besides, if we were to speculate on what surmises might enter the juror's mind, it could well be thought that such would necessarily arise from the testimony of one of defendant's witnesses wherein he referred to having sent his bill for attendance upon plaintiff and other persons injured from time to time "to the insurance company." To instill into the jurors' minds the idea that the defendant is not really interested in the outcome of the case, because whatever may be the result some one else will have to bear the loss, is very reprehensible, and, where it appears that such has been the adroit purpose and result, such conduct will meet with the punishment of a reversal; and counsel should not try to see how near they can come to the danger line without getting over it, since sooner or later they will inadvertently get over. But, under the circumstances herein considered, we cannot say that counsel was acting in bad faith or that the discretion of the trial court, in refusing to discharge the jury, was abused. Hence the judgment should not be reversed upon the point claimed. Meyer v. Gundlach-Nelson Mfg. Co., 67 Mo. App. 389; Boten v. Sheffield Ice Co., 180 Mo. App. 96, 106-108, 166 S. W. 883; Kinney v. Metropolitan St. Ry. Co., 261 Mo. 97, 114, 169 S. W. 23; Yates v. House Wrecking Co., 195 S. W. 549, 551; Sailer v. Friedman, etc., Shoe Co., 130 Mo. App. 712, 720, 109 S. W. 794.

It is urged that reversible error was committed in sustaining plaintiff's challenge to a juror. Usually the disposal of a challenge of a juror for cause is a matter largely in the sound discretion of the trial court, albeit a reviewable discretion and one that must be exercised without palpable views. In this case the juror said that owing to his acquaintance with one of the counsel for defendant, his work with such counsel in the lodge room of certain orders, he felt that it would embarass him to sit in the case, and that his friendship for said counsel might prejudice him, and that he might be inclined to favor the defendant on that account. In answer to such counsel's questions whether, regardless of these things, he could give a fair and impartial verdict, the juror replied, "I think I could." In the cases cited by appellant as authority for reversal on this point, the fact that the juror could try the case impartially clearly appeared, and in none of them did the jurors say they would feel embarrassed or be prejudiced. But here the juror said he would feel that way and for that reason might be prejudiced and inclined toward the defendant. The trial judge saw the juror, heard him give his answers, and was better able than us to determine whether he would make a fair juror or not. At any rate, we cannot say the court's judicial discretion was palpably abused. McCarthy v. Cass Avenue, etc., R. Co., 92 Mo. 536, 540, 4 S. W. 516; Theobald v. St. Louis Transit Co., 191 Mo. 395, 416, et seq., 90 S. W. 354.

There was no error in permitting plaintiff to introduce the evidence of the witness Colvin in rebuttal. The effect of the testimony Colvin gave was to rebut the evidence defendant had offered as to the shifting of the belt and as to the only way in which the machinery could be started, namely, by using the long handle which extended down in front of the machine which required the operator to be...