Dodd v. Independence Stove and Furnace Co.

• Decision Date: 10 June 1932
• Docket Number: No. 30064.,30064.
• Citation: 51 S.W.2d 114
• Parties: WILLIAM ELMER DODD v. INDEPENDENCE STOVE AND FURNACE COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

51 S.W.2d 114

WILLIAM ELMER DODD v. INDEPENDENCE STOVE AND FURNACE COMPANY, a Corporation, Appellant.

No. 30064.

Supreme Court of Missouri, Division 2.

June 10, 1932.

Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.

AFFIRMED.

Harris & Koontz and John F. Thice for appellant.

(1) The court should have given the peremptory instructions offered by the appellant for the reason that the evidence showed that the condition from which the respondent claimed to have been suffering could not have been caused by the inhalation of sand or sand dust and because there was no evidence to show that previous to the employment of respondent by appellant the respondent had any tubercular condition which might have been inflamed or increased by the inhalation of sand dust. (2) The court erred in giving instruction No. 1 which was offered by the respondent because this instruction included matters of which there was no proof and included matters not set out in the petition and failed to include matters covered by the defense and which were a necessary part of the instruction. (3) The court should have given instruction (d) offered by the appellant which defined assumption of risk not included in appellant's answer. (4) The court should have given instruction (f) offered by the appellant which covered the question of the failure of the respondent to use the device furnished him by the appellant. (5) The court should have given instruction (j) offered by the appellant because this instruction set out and covered the question of the use of the helmet which was introduced in evidence as plaintiff's Exhibit 1. (6) The court should have given Instruction "k" offered by the appellant because this instruction gave a necessary definition of the word "noxious" as used in the statute and in the instructions. (7) The court should have granted the continuance requested by defendant. (8) During the course of the trial, the appellant offered testimony relevant to the issues in the case and within the issues framed by the pleadings which the court refused to permit. (9) The court permitted the respondent to introduce testimony in the case over the objection of the appellant which was incompetent, irrelevant and immaterial including testimony of one of the attorneys for the respondent on matters which were not in any way involved in the matter of proof or disproof of the issues and which in particular was highly prejudicial.

Burrus & Burrus and Mosman, Rogers & Buzard for respondent.

(1) Appellant's brief is not sufficient to merit consideration. No authority is cited to support any contention made by appellant. Such points should not be considered. O'Howell v. Miller, 11 S.W. (2d) 1068; Francis v. City of West Plains, 226 S.W. 969; Burton v. Maupin, 281 S.W. 83. (2) (a) The judgment should be affirmed because appellant has failed to point out either in assignments of error or points and authorities, the matters complained of or the substance thereof, or to refer to the place in the record where such matters could be found. Hunt v. Hunt, 307 Mo. 375, 270 S.W. 365. (b) The burden is on the appellant to show that the trial court committed error, and in this respect it has failed. Hunt v. City of St. Louis, 278 Mo. 213, 211 S.W. 673; Crowl v. American Linseed Co., 255 Mo. 305, 164 S.W. 618. (c) The appellant has not pointed out any affirmative error shown by the record of this case, and the proceedings of the trial court are presumed to be correct unless the record affirmatively shows error. Vette v. Hackman, 237 S.W. 802. (3) Plaintiff made a perfect case for submission to the jury. Secs. 13253 and 13254, R.S. 1929; Boll v. Condie-Bray Glass & Paint Co., 321 Mo. 92, 11 S.W. (2d) 48; Wagner Electric Corp. v. Snowden, 38 Fed. (2d) 599. (4) Plaintiff's Instruction No. 1 was proper. It was within the pleadings and the proof. It properly defined the word "noxious." Webster's New International Dictionary. (5) The refusal to give Instruction D was proper. The instruction was upon assumption of risk, which is not a defense to an action by a servant against the master based upon a violation of a statute made for the benefit and protection of the employee. Hall v. Brown, 259 S.W. 871 (Mo. App.); Mabe v. Gille Mfg. Co., 271 S.W. 1023; State v. Arnold, 254 S.W. 850. Plaintiff did not assume the risk of injury arising from the negligence of the master. Doody v. California Woolen Mills Co., 216 S.W. 531. The evidence did not justify the inference that plaintiff had any knowledge of the risk of injury arising from the negligence of the defendant. An instruction unsupported by record evidence is erroneous. Karte v. J.R. Brockman Mfg. Co., 247 S.W. 417; Degonia v. Railroad Co., 224 Mo. 564, 123 S.W. 807. (6) Defendant's requested Instruction F was properly refused. The helmet, "Exhibit P-1," is not a respirator. Defendant's evidence was to that effect. The instruction directed a verdict on the theory that the helmet was a respirator without requiring a finding that it was in good condition. (7) The court properly refused to give defendant's Instruction J. The helmet was not a respirator; there was no evidence that it was such a device as was generally adopted or recognized by the public as a respirator; it did not take into consideration the condition of the helmet; it directed a verdict without respect to the condition of the helmet; it did not take into consideration the question of whether or not other foundrymen using such a helmet were reasonably careful and prudent men. Therefore, it was error. Fairfield v. Bichler, 195 Mo. App. 45, 190 S.W. 32. (8) The court did not err in permitting plaintiff to introduce evidence rebutting defendant's claim that it had furnished plaintiff with a respirator. It was proper to prove the admissions made by defendant's attorney. 22 C.J. 393; Everett v. Marston, 186 Mo. 587, 85 S.W. 540. It was proper to show Dr. Kuhn's connection with the insurance company. Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 279 S.W. 89.

COOLEY, C.

Suit for damages for personal injuries tried in the Circuit Court of Jackson County at Independence. Plaintiff recovered verdict and judgment for $10,000 and defendant appealed. Since the trial the plaintiff has died and the cause has been revived in the name of his administrator.

Plaintiff alleged and his evidence tended to prove that he contracted tuberculosis while in defendant's employ as a result of inhaling dust generated in defendant's manufacturing process in which plaintiff was employed, and his cause of action is based upon defendant's alleged failure to furnish him an adequate respirator for his use while engaged in such work, as required by statute, Section 6819, Revised Statutes 1919, Section 13254, Revised Statutes 1929. The sufficiency of the petition is not questioned. Defendant first answered by a general denial. During the trial and after plaintiff had offered his evidence in chief the defendant by leave of court filed an amended answer in which, after a general denial, it pleaded that the plaintiff had assumed the risk and that he had been guilty of contributory negligence in that he had failed or refused to use "a protective device answering to the requirements of the respirator required by the Statutes of the State of Missouri."

The defendant operated a manufacturing plant at Independence. Missouri, where it manufactured, among other things, cast-iron parts for stoves and furnaces. The castings emerged from the molds in which they had been cast with rough surfaces and with sand and perhaps other substances adhering to them, to remove which and to smooth and polish the castings they were subjected to a process called "sand blasting." In that process fine sand was projected with considerable force by compressed air through a hose against the surface to be cleaned, the sand in the air stream acting as the cutting and polishing agency. The sand blasting was done in a small room about eight feet square maintained for the purpose.

Plaintiff's evidence tended to show the following: He was between nineteen and twenty years of age when employed by defendant in October, 1925; he was then strong and healthy and had never had any lung trouble or any serious illness; his father and mother were healthy and the family history showed no evidence of tuberculosis; when employed by defendant he was put to work at sand blasting in the sand blast room; he had had no previous experience in such work nor in any factory work and knew nothing about work of the kind he was given to do; the sand blasting process generated a great deal of dust, so much that plaintiff had to get his face within a foot and a half or two feet of the casting upon which he was working in order to see it. The air in the room would become dust laden even when the fan designed to produce ventilation and air circulation was working and when it was out of order, as often happened, he frequently had to stop work and "go out to get my breath;" he was told nothing about the effect the work might have upon him and did not himself know that it was having any effect on his health until just before he "quit work," November, 1926. It is inferable from the evidence that the dust generated by the sand blasting process was composed, largely at least, of finely powdered sand, mixed perhaps with other substances ground off the castings by the action of the air driven sand.

When put to work plaintiff was given a "helmet" or "mask" to use and which he did use as a protection from the sand and dust. It was a hoodlike canvas headgear designed, as we understand the record, to be pulled down over the head and to come down to or over the wearer's shoulders, with a string to draw it about the neck and with a window-like opening about four inches long and two and a half inches wide in front of the wearer's eyes and a smaller one at the back, both openings being screened with finely meshed wire. According to plaintiff's...