Clayton v. Metalcrafts Corporation

• Decision Date: 15 January 1929
• Docket Number: No. 20501.,20501.
• Citation: 12 S.W.2d 938
• Parties: CLAYTON v. METALCRAFTS CORPORATION.
• Court: Missouri Court of Appeals

12 S.W.2d 938

CLAYTON v. METALCRAFTS CORPORATION.

No. 20501.

St. Louis Court of Appeals. Missouri.

January 15, 1929.

Rehearing Denied February 5, 1929.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by Elic Clayton against the Metalcrafts Corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

John J. Nangle, of St. Louis, for appellant.

Mark D. Eagleton, Everett J. Hullverson, and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries, sustained by plaintiff while in the employ of defendant, on April 9, 1926. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $10,000. Subsequently, however, as an alternative to the granting of a new trial, a remittitur in the sum of $5,500 was entered by plaintiff, whereupon judgment was rendered for plaintiff for $4,500, from which defendant has duly appealed.

In his petition, plaintiff alleged, in substance, that he was engaged in the employ of defendant as the operator of a punch press; that he did not have charge of the machine, and was ignorant of its construction and mechanism; and that, while he was engaged in working at or about said machine, in the normal and usual manner, with the dies thereof motionless and at rest, the upper die, suddenly and unexpectedly, and in an unusual manner, without the foot lever having been moved or pressed, and while plaintiff's hand was under said upper die, descended with great rapidity and force, as the direct result of the carelessness and negligence of defendant, crushing the thumb of plaintiff's right hand.

The answer filed by defendant was a general denial, coupled with pleas, first, of assumption of risk, and, second, of contributory negligence, in that plaintiff carelessly and negligently allowed his hand to remain on the press while the same was being operated by him, when he knew, or by the exercise of ordinary care should have known, that it was dangerous and unsafe to do so.

While no reply has been set out in the abstract of the record, it nevertheless appears that the case was tried by the parties upon the theory that the new matter contained in defendant's answer was directly at issue throughout the proceeding.

Plaintiff had been in the employ of defendant for four years, performing such duties as were assigned to him from time to time, including the occasional operation of the particular punch press upon which his injuries were subsequently received. This punch press seems to have been constructed in the usual manner, with upper and lower dies, operated by pressure applied with the foot upon a pedal extending three or four inches above the floor. A large part of the control mechanism, which was rather intricate, and of a nature to permit an occasional irregular movement of the plunger, was covered, and not visible to the operator. During former operations, and twice on the morning in question, the press had repeated, of which fact plaintiff had advised his foreman on each occasion, whose response was that plaintiff should return and continue to work on the machine, and that he would later have it repaired. Other witnesses testified to having had similar experiences with the machine, of which the foreman had also been given timely information by them.

According to plaintiff's version of the case, at the moment of the accident he was endeavoring to release a piece of metal which had become caught in the trough of the press, when the same suddenly repeated, without his foot having touched the pedal, causing the thumb on his right hand to be severely crushed between the dies. The evidence for defendant, to the contrary, tended to show that the foreman had never known of one of the punch presses repeating, and that plaintiff's injury was received, not in the manner detailed by him, but as a result of his having placed his foot upon the pedal while in the act of pushing the metal upon the machine.

The first challenge to the propriety of the judgment has to do with the refusal of the court to discharge the jury, on motion of defendant, for alleged improper and prejudicial questions propounded by counsel for plaintiff to the members of the panel on their voir dire. It appears that counsel for plaintiff, at the outset of his examination, in the presence of defendant's counsel and the court, but out of the hearing of the jury, asked defendant's counsel if the Lynton T. Block Insurance Company was interested in the outcome of the case, and that the latter answered that such company was engaged in the defense of the suit as the insurer of the nominal defendant. Plaintiff's counsel then proceeded to ask the members of the panel collectively whether any of them had a financial interest in such insurance company, or had ever been employed as a claim adjuster for that, or any other, company. Counsel for defendant objected to the question as prejudicial, and moved the discharge of the jury, which motion was overruled. Plaintiff's counsel then pointedly asked juror No. 1 whether he personally had ever been employed as a claim adjuster for any insurance company, to which defendant's counsel interposed the same objection and motion as before, but again without avail. The court did state, however, that the questions should not thereafter be directed to the prospective jurors individually, to which suggestion plaintiff's counsel at once acceded.

We gather from the oral, as well as from the printed, argument of learned counsel for defendant, that his complaint goes to the question propounded to juror No. 1 individually. Apparently conceding, in view of the number of decisions on the subject, that such good faith was shown as to be the basis for the question put to the entire panel, the suggestion is made that the rights of defendant were prejudiced when the identical inquiry was directed at juror No. 1 alone. The claim of error is largely that with which appellate courts have lately so often had to deal, namely, that the question of liability insurance was thus improperly allowed to be injected into the case.

The insistence here made, even in the unusual situation presented, strikes us as wholly unavailing. The abundance of authority as to the right of counsel for plaintiff to have interrogated the members of the panel regarding their possible connections with the insurance company, admittedly present in court by its attorney, and actively and solely engaged in the defense of the action, obviates the necessity of our entering upon a discussion of such subject. Consequently, proceeding upon the basis that the inquiry theretofore had was proper, the fact that, after the question had been addressed to the members of the panel collectively, counsel for plaintiff saw fit to repeat it to an...