Deiner v. Sutermeister
| Decision Date | 17 July 1915 |
| Parties | KARL DEINER v. CHARLES O. SUTERMEISTER et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Joseph A. Guthrie, Judge.
Reversed and remanded.
Pierre R. Porter and Cyrus Crane for appellants.
(1) The court erred in overruling defendants' demurrer to the evidence and in refusing the request for a peremptory instruction at the close of all the evidence. The plaintiff failed to prove a violation of the statute. (a) A "hoist" is not a "scaffold or structure" within the contemplation of the statute. (b) The statute cannot be invoked against a master who did not construct or own or operate or control the hoist. Klebe v Distillery, 207 Mo. 480. (c) A plaintiff who pleads specific negligence must prove it, and cannot rely on res ipsa loquitur. Cooper v. Realty Co., 224 Mo. 724; Gardener v. St. Ry. Co., 223 Mo. 419; Kirkpatrick v. Met. St. Ry. Co., 211 Mo. 85; Beave v. Transit Co., 212 Mo. 352; Feary v. Met St. Ry. Co., 162 Mo. 96; Ely v. Railroad, 77 Mo. 36. (d) Res ipsa loquitur will not lie where it is as probable that the accident was due to a cause for which the master was not liable as to a cause for which he was liable. Cothron v. Packing Co., 98 Mo.App. 343; McGrath v. Transit Co., 197 Mo. 104; State ex rel. v Shelton, 249 Mo. 697; Moriarty v. Co., 132 Mo.App. 653; Scott v. Nauss Co., 126 N.Y.S. 17. (d-1) The evidence failed to disclose whether the cause of the accident was due to negligent construction or operation, and for the latter Flanagan Brothers would be wholly responsible. (d-2) If the fall was due to negligent operation there would be no violation of the statute. (e) The section of the act under which this case was submitted to the jury is unconstitutional. Williams v. Railroad, 223 Mo. 666. (2) The court committed prejudicial error in permitting plaintiff's physician, Dr. Murphy, to state a conclusion which invaded the province of the jury. Taylor v. Railroad, 185 Mo. 257; Roscoe v. Railroad, 202 Mo. 594. (3) There is a defect of parties plaintiff. The court should not have permitted plaintiff to maintain the suit in his own name after the discovery of his insanity. A guardian should have been appointed by the probate court. 22 Cyc. 1222.
Ernest A. Scholer and Gage, Ladd & Small for respondent.
(1) The statute is a general law, and it was not necessary to specially mention it in the petition. It is sufficient if the facts alleged in the petition bring it within the statute, and we submit that they do. Lore v. Am. Mfg. Co., 160 Mo. 621; Strode v. Box Co., 250 Mo. 705; Lohmeyer v. Cordage Co., 214 Mo. 685. (2) This statute is highly remedial and is to be liberally construed. Koepp v. National Co., 151 Wis. 302; Kosidowski v. Milwaukee, 152 Wis. 233; Bohnhoff v. Fisher, 210 N.Y. 172; Johnson v. Railroad, 196 U.S. 17; Simpson v. Iron Works Co., 249 Mo. 376; Turner v. Land & Timber Co., 259 Mo. 15; Lore v. Am. Mfg. Co., 160 Mo. 608. (3) The rule of ejusdem generis does not apply, and the word "structure" must be construed as if it stood independently of the word "scaffold." Caddy v. Interborough R. T. Co., 195 N.Y. 415, 30 L. R. A. (N. S.) 30; Kosidowski v. Milwaukee, 152 Wis. 223; Koepp v. National Co., 151 Wis. 302. (4) The framework which supported the hoist, and even the hoist itself, were a structure within the meaning of this remedial statute. The board which broke and let the hoist fall was the top board of this framework on which rested the headpiece which supported the pulley, through which the hoist was operated. It was the breaking and falling of this board (which was part of this structure) which caused the injury to the plaintiff. (a) "Any artificial creation is a structure." Kosidowski v. Milwaukee, 152 Wis. 223. (b) "Any production or piece of work artificially put together in some definite manner is a structure." Fuvro v. State, 46 S.W. Tex. 932. (5) The duty of the master, created by the statute, is absolute and he is required to insure the safety of the structure used in the erection of a building against falling. The fact that the timber broke and fell shows that the structure was unsafe and insecure and the statute was violated. Stewart v. Ferguson, 164 N.Y. 553; Caddy v. Interborough R. T. Co., 195 N.Y. 415; Gombert v. McKay, 201 N.Y. 27; Smith v. Iron & Steel Co., 130 N.Y.S. 277; Bohnhoff v. Fisher, 210 N.Y. 172; Koepp v. National Co., 151 Wis. 302; Kosidowski v. Milwaukee, 152 Wis. 223; Railroad v. Enderle, 170 S.W. Tex. 276; Railway v. Kurtz, 147 S.W. 658; Delk v. Railroad, 220 U.S. 580; Railroad v. United States, 220 U.S. 559; Railroad v. Taylor, 210 U.S. 281. The duties of master are absolute and violation of this statute constitutes negligence per se. Simpson v. Iron Works, 249 Mo. 376. (6) The many authorities cited by the appellant, to the effect that the doctrine of res ipsa loquitur does not apply in this case, are not in point. (7) Our statute prohibits the use of any such unsafe or insecure structure, whether it was constructed or owned by the defendants, or hired, or borrowed, or procured by them in any other manner from others. Having hired the hoist from Flanagan Bros. and having hired Flanagan Bros.' engineer to operate it, they were, in all respects, as fully responsible as if they had constructed, owned and operated it themselves. This has been expressly decided. Bohnhoff v. Fisher, 210 N.Y. 172; Campbell v. McNulty, 148 N.Y.S. 73. (8) There was no error in admitting medical testimony for the plaintiff. The testimony objected to was at most but cumulative. Taylor v. Met. St. Ry. Co., 256 Mo. 210; Bragg v. Met. St. Ry. Co., 192 Mo. 334. (9) There is no defect of parties plaintiff. The plaintiff had a right to continue the suit in his own name, although he was insane. The suit was started while the plaintiff was sane, and he had never been adjudged insane. Allen v. Ranson, 44 Mo. 263; Koenig v. Depot Co., 194 Mo. 571.
Plaintiff sued defendants in the Jackson Circuit Court for personal injuries alleged to have been sustained by him while in defendants' employment and recovered judgment for $ 10,000. Defendants, after the usual motions, have appealed.
Defendants are partners engaged in business under the firm name of A. Sutermeister Stone Company, and were engaged at the time of the happening of the casualty on which this action is bottomed, in furnishing and putting in place the cut stone on a building in Kansas City, which was being constructed by Flanagan Brothers. Plaintiff, a young man about twenty-four years old, was in the employ of defendants as a common laborer, and at the immediate moment of the casualty was engaged in raising stone coping to the roof of said building by means of a hoist and in setting this stone in place upon the fire walls of the building. Two other men were employed in this work with plaintiff, namely, one Fischer, who seems to have been in charge of the work for defendants, and a negro by the name of Giles. The hoist which was being used belonged to Flanagan Brothers, who had leased it temporarily to defendants, to be used by the latter in lifting the stone from the ground to the roof of said building. For the use of this hoist and the engine which operated it, and for the services of the engineer who ran the engine, defendants paid Flanagan Brothers one dollar per hour. This hoist consisted, it seems, of two rectangular shaped wooden platforms which ran up and down in a wooden frame-work and were raised and lowered by cables which ran over pulleys, which pulleys were operated by a steam engine, called in the vernacular of the trade a "hoisting engine."
After the work of hoisting this stone had proceeded for some several hours it became necessary to lift to the roof by means of this hoist an irregularly shaped stone, slightly shorter than the others and not long enough to lean against the cage so as to prevent it from falling. Thereupon Fischer, who as stated, was in charge of this work, asked in the presence of Giles and plaintiff, "Wouldn't it be wise for one of you fellows to go along with this stone?" At once, before Giles replied, plaintiff, without responding to the question except by his action, stepped upon the platform of the hoist and immediately thereafter the engine began to lift the hoist with plaintiff thereon. While the hoist was in motion and some considerable distance up, it suddenly broke and fell to the ground, carrying plaintiff with it. By this fall plaintiff received a severe laceration of the scalp and other injuries to his head, which some of the medical witnesses in the case diagnose as a fracture of the skull. He was taken up unconscious and removed to the emergency hospital, whence after temporary treatment he was sent to the city hospital, where he remained for a period of nine weeks, and was discharged, apparently cured. After his discharge from the hospital he obtained light employment in one of the packing houses for some months, when he suddenly developed insanity, which necessitated his confinement in a sanitarium, where he yet was when the trial was had.
At a time left dark in the record, but as is conceded before plaintiff became insane, he filed this suit for damages against defendants. Subsequently, and after the suit had been pending for some time, an amended petition was filed herein wherein plaintiff's insanity was set forth as one of the results of the injuries which he had suffered and for which damages were asked. In brief, this amended petition alleged that defendants had borrowed or rented the hoist from Flanagan Brothers and that one, said Fischer, defendants' foreman, had directed plaintiff to go upon the platform of the hoist and steady and support the stone which was being lifted by it,...
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