Crowl v. American Linseed Company

• Decision Date: 03 March 1914
• Citation: 164 S.W. 618,255 Mo. 305
• Parties: PERRY CROWL, an Insane Person, by MARTHA CROWL, His Guardian, Appellant, v. AMERICAN LINSEED COMPANY
• Court: Missouri Supreme Court

164 S.W. 618

255 Mo. 305

PERRY CROWL, an Insane Person, by MARTHA CROWL, His Guardian, Appellant, v. AMERICAN LINSEED COMPANY

Supreme Court of Missouri, First Division

March 3, 1914

Appeal from Jackson Circuit Court -- Hon. Thomas J. Seehorn, Judge.

Reversed and remanded (with directions).

Hale Dean & Higgins, Charles A. Stratton and Bird & Pope for appellant.

(1) The plaintiff did not owe a cent to any Missourian, and his cause of action in suit was the only asset claimed by his guardian and by the comity of nations, the plaintiff, by his guardian had a right to sue, in the courts of this State to recover a debt due the plaintiff from the defendant, no creditor of the plaintiff objecting, and the action of the trial court in granting the defendant a new trial, solely on the ground that plaintiff did not have capacity to sue or maintain this suit, was erroneous. Thurston v. Rosenfield, 42 Mo. 479; Robertson v. Stead, 135 Mo. 138; Richardson v. Busch, 198 Mo. 187; Allen v. Ranson, 44 Mo. 263; Bank v. Gilpin, 105 Mo. 22. (2) If there was a want of capacity to sue and maintain this suit, it was apparent on the face of the plaintiff's amended petition, and it should have raised it by special demurrer; and by filing a general demurrer, and by answering over on the merits, the defendant waived and abandoned its right to question the want of capacity to sue, and it could not thereafter raise the question anew by any proceeding, and the action of the trial court in granting a new trial solely on account of the want of capacity to sue and maintain this action, was erroneous, and the decision and judgment should be reversed, and the cause remanded with directions to the circuit court to enter judgment on the verdict. Planing Mill v. Church, 54 Mo. 520; State v. Sappington, 68 Mo. 454; Butler v. Lawson, 72 Mo. 227; Walker v. Deaver, 79 Mo. 664; May v. Burk, 80 Mo. 675; Y. M. C. A. v. Duback, 82 Mo. 475; Bank v. Gilpin, 105 Mo. 17; Spillane v. Railroad, 111 Mo. 555; Grenshaw v. Ullman, 113 Mo. 633; Dodson v. Lomax, 113 Mo. 555; Gregory v. McCormick, 120 Mo. 657; Jones v. Railroad, 178 Mo. 528; Hendricks v. Calloway, 211 Mo. 536; McKee v. Downing, 224 Mo. 115; Loan Co. v. Brown, 59 Mo.App. 461; Haase v. Distilling Co., 64 Mo.App. 131; Finney v. Randolph, 68 Mo.App. 557; Burnham v. Tillery, 85 Mo.App. 453; Jones v. Railroad, 89 Mo.App. 653; Alexander v. Wade, 106 Mo.App. 141; Moir v. Dodson, 14 Wis. 279; 6 Ency. Pl. & Pr., 376-378; Secs. 1804, 2119, R.S. 1909.

Meredith & Harwood and Cowherd, Ingraham, Durham & Morse for respondent.

(1) If there was error warranting the action of the trial court in sustaining the motion for new trial and in arrest, the reason assigned is immaterial. (2) The guardian appointed in the State of Kansas had no right to maintain this suit in Missouri. Plaintiff could have qualified under the Missouri statutes as a curator or guardian, and the plaintiff alleging she was duly and legally qualified, the question of her capacity to sue was properly raised by answer. (3) The second instruction given by the court of its own motion was erroneous for the following reasons: (a) It is so long, involved, misleading, and confusing as to be unintelligible to the average layman. Williams v. Ransom, 234 Mo. 66; Stid v. Railroad, 236 Mo. 398; Gardner v. Met. St. Ry., 223 Mo. 417. (b) The jury is authorized to find from the evidence that the foreman McKee ordered Crowl to take a position of danger upon the scaffold underneath the rod or shafting. There is no testimony on which to base this instruction. (c) The jury are authorized to find that the grinding machine was choked at the time Crowl was injured; that the choking of the machine caused the belt to run off the pulley. There is no evidence tending to show the machine was choked. The only evidence upon the subject being to the contrary, and it was erroneous to submit the question to the jury. (d) The instruction permitted the jury to find that the belt ran off owing to the choked condition of the grinding machine. This was doubly erroneous because there was no evidence to show the grinding machine was choked, and even if there were, it was for the jury to say whether that was the cause of the belt running off. Regan v. Railroad, 93 Mo. 348; Glaser v. Rothschild, 221 Mo. 180; Flucks v. Railroad, 143 Mo. 17; Neas v. Railroad, 138 Mo.App. 484. (e) As a part of the negligence of defendant, the jury are told they may find the connection was not guarded. The petition pleads a negligent failure to guard the belt. The instruction must present the same issue as the pleading. (f) The instruction allows the jury to predicate negligence upon the failure of McKee, the foreman, to inform Crowl of the danger of injury arising from the unguarded condition of the connection. This is erroneous for two reasons: First, Crowl being a man of mature years and ample experience, it was not negligence to fail to give him warning; second, the instruction is broader than the petition, in that the petition specifically states the kind of warning that should have been given, and the instruction does not follow the pleading. (4) The court erred in not giving instructions numbers 12, 14 and 15, and each of them, asked by defendant. (5) The verdict was grossly excessive. Nichols v. Glass Co., 126 Mo. 67; Burdict v. Railroad, 123 Mo. 236; Waddell v. Met. St. Ry., 213 Mo. 8; Murray v. Railroad, 47 Barb. 196. There is no action at common law for failure to guard machinery, and the first count of plaintiff's petition fails to state a cause of action. It was on this count the verdict was given, and the judgment entered. As plaintiff's petition stands therefore without cause of action stated, the case should be finally disposed of in this court. Bair v. Heibel, 103 Mo.App. 632; Lore v. Mfg. Co., 160 Mo. 608; Czernicke v. Ehrlich, 212 Mo. 386; Lohmeyer v. Cordage Co., 214 Mo. 685.

OPINION

WOODSON, P. J.

The plaintiff, an insane person, by his guardian, appointed by the probate court of Wyandotte county, Kansas, instituted this suit in the circuit court of Jackson county, Missouri, against the defendant, to recover the sum of $ 35,000 damages for personal injuries sustained by him, through the alleged negligence of the agents and servants of defendant, in operating a certain piece of machinery, mentioned in the evidence, and the shafting and belting used in connection therewith.

A trial was had before the court and jury which resulted in a verdict and judgment for the plaintiff for the sum of $ 8,000. Motions for a new trial and an arrest of judgment were timely filed, assigning the usual grounds therefor, and specially that the guardian of plaintiff had no legal capacity to sue in the courts of this State. The court sustained the motion for a new trial solely for the reason that the guardian had no legal capacity to sue in the courts of this State. From the order granting the new trial, plaintiff duly excepted and appealed the cause to this court.

The facts are few and practically undisputed, save two, namely, the question of contributory negligence, and the extent of the plaintiff's injuries.

The undisputed facts are as follows:

The defendant was a corporation duly organized and doing business under the laws of this State, with its offices and works at Kansas City, Missouri. It was engaged in the manufacture and sale of linseed oil, flax meal and the by-products thereof. David Dietrick was the superintendent of the defendant's plant, and S. A. McKee and W. S. Brown were the foremen of the pressroom thereof, the former on the day and latter on the night shift. The pressroom was on the first floor with a basement beneath.

The pressroom was sixty by eighty feet, and in this room there was a grinding machine and another machine called the feeder, or one machine composed of two parts as stated, which conveyed the oil cakes to the grinder. This machinery was run by a line shaft and a counter shaft. The latter was about fifteen feet north of the former. From the counter shaft two belts ran, one to the grinding machine, which sat on the floor below, and the other to the feeder. There was also a third belt connecting the line shaft with and operated the counter shaft. These shafts were furnished with pulleys of various dimensions, upon which the belts ran. The counter shaft is what is known as a dead or still shaft, and never moves until it is connected with the line shaft by means of a belt. The manner of connecting the two was to first put the belt over the pulley on the dead or still shaft and then push or slip it onto the pulley of the line shaft; at times this was done while it was running and at others while it was still. The latter shaft, if I correctly understand the record, was never still while the engine was running, and the former was never in motion except when connected to the line shaft by means of the belt.

The counter shaft was fastened to two pine posts, twelve or fourteen inches square (upon which the ceiling rested) and about twelve feet apart, standing east and west, by means of iron hangers or sockets screwed or bolted to the posts by large screws or bolts, in which the ends of the shaft rested and revolved. This shaft was of iron and was about one and a half inches in diameter, and the pulleys were made of iron and wood and fastened to the shafts by means of set screws. The line pulley was thirty inches in diameter and with an eight-inch face, and the counter shaft pulley was twenty inches in diameter with a twelve-inch face. Both shafts ran east-and-west and parallel to each other.

The coupling is not particularly described by any witness, but Mr. Dietrick, the superintendent of the defendant company testified "That the coupler was a regular standard coupler." And Mr. Gant, a...