Dyer v. W.M. Sutherland Building & Contracting Co.

• Decision Date: 11 February 1929
• Citation: 13 S.W.2d 1056,321 Mo. 1015
• Parties: Frank P. Dyer, Appellant, v. Wm. M. Sutherland Building & Contracting Company
• Court: Missouri Supreme Court

13 S.W.2d 1056

321 Mo. 1015

Frank P. Dyer, Appellant, v. Wm. M. Sutherland Building & Contracting Company

Supreme Court of Missouri

February 11, 1929

Motion for Rehearing Overruled February 11, 1929.

Appeal from Circuit Court of City of St. Louis; Hon. Franklin Miller, Judge.

Reversed and remanded.

Strubinger & Strubinger and Percy Werner for appellant.

(1) The constitutional provision which declares that "no law enacted by the General Assembly shall relate to more than one subject, which shall be clearly expressed in the title," must be given a liberal interpretation, so as not to limit or cripple legislative enactments. State v. Miller, 45 Mo. 498. (2) The object of the provision was to prevent unscrupulous men and interested parties from inserting matters in the body of a bill of which the title gave no intimation. State v. Miller, 45 Mo. 498. (3) Courts should never declare a statute void unless its nullity and invalidity are placed, in their judgment, beyond a reasonable doubt. State ex rel. v. Ransom, 73 Mo. 78. (4) Mere generality of title does not invalidate an act where the topics treated in the latter are kindred in nature and have a legitimate association under the head which the title states. State ex rel. v. County Court, 102 Mo. 531. (5) "It was not intended that the substance of the act should be embraced in the title, but that the subject should be stated in general terms, not specifically." In Matter of Burris, 66 Mo. 442; State v Bockstruck, 136 Mo. 336. (6) The title of an act is sufficient if it does not mislead as to its chief topic and the minor features have a natural connection with the subject named in the title. State ex rel. v. County Court, 122 Mo. 427. (7) An act which has been acquiesced in by Legislature and people for many years, has reappeared in successive revisions of the statutes, has repeatedly been construed, applied and enforced by the courts and has been acted upon and regarded as in all respects a valid law should not be "haunted by the ghosts of unconstitutionality." Goodner v. Abstract & Guar Co., 314 Mo. 151. (8) Courts presume that acts of the Legislature are constitutional. The burden is upon him who alleges the contrary to prove it beyond a reasonable doubt. State v. Addington, 77 Mo. 110; State ex rel. v. Laughlin, 75 Mo. 147; State ex rel. v. Ransom, 73 Mo. 78. (9) The decision in Williams v. Railroad, 233 Mo. 680, that the section of the Factory Act relating to railroads was unconstitutional, because not embraced in the title to the act, did not affect the validity of independent sections. Simpson v. Iron Works, 249 Mo. 378.

Banister, Leonard, Sibley & McRoberts and Frank P. Aschemeyer for respondent.

(1) Sec. 6802, R. S. 1919 (Laws 1891, p. 159, sec. 19), is in violation of Section 28, Article IV, of the Constitution, and, therefore, unconstitutional, because the subject-matter of said Section 6802 is not within the purview of the title of the act, and the subject-matter of said Section 6802 is not clearly expressed in the title to said act. Williams v. Railroad, 233 Mo. 666. (a) The title of an act must express the subject clearly and in such terms that no one may be in doubt as to what matter is treated of. State v. Burgdoerfer, 107 Mo. 30; State v. Coffee & Tea Co., 171 Mo. 643; Kansas City v. Payne, 71 Mo. 162; St. Louis v. Weitzel, 130 Mo. 616. (b) The title of a statute should be a clear index of the subject-matter thereof. State v. Price, 229 Mo. 670; State ex rel. Niedemeyer v. Hackman, 292 Mo. 27; Williams v. Railroad, 233 Mo. 666. (2) Lapse of time does not make an unconstitutional act constitutional.. Goodner v. Abstract & Guaranty Co., 282 S.W. 698 (separate concurring opinion of Graves, J.); 12 C. J. 798-799; Kucker v. Oil & Gas Co., 230 Pa. St. 528; People v. Kempner, 154 A.D. 674, affirmed 208 N.Y. 16; Comm. v. Hazen, 207 Pa. St. 52; Leckenby v. Printing Co., 176 Pa. 490; Parker v. Bradley, 204 Ala. 455; In re Orkney St., 194 Pa. St. 425. (a) A section of law illegally enacted acquires no force or validity by being brought forward and inserted in the revised statutes. Bowen v. Mo. Pac. Ry. Co., 118 Mo. 541; Brannock v. Railroad, 200 Mo. 561. (b) The revised statutes are compilations and not revisions, and the power of the revision committee is purely clerical, i. e., to compile and arrange. Ex parte Hutchins, 296 Mo. 331. (3) The judgment is for the right party and should be affirmed. Phillips v. Pulitzer Pub. Co., 238 S.W. 127; Koehler v. Paving Co., 269 S.W. 400; Grohman v. Maccabees, 237 S.W. (Mo. App.) 875; Kansas City Stock Yards of Maine v. Grain Co., 279 S.W. (Mo. App.) 771; Amber v. Davis, 282 S.W. (Mo. App.) 459. (a) Plaintiff must prove the specific negligence pleaded. Dyer v. Bldg. & Contr. Co., 258 S.W. (Mo. App.) 48; Rice v. White, 239 S.W. 141; Yarbrough v. Packing Co., 231 S.W. (Mo. App.) 72; Shumake v. Norton, 215 Mo.App. 87. (b) Plaintiff failed to make out a case for the jury and defendant's instructions in the nature of demurrers to the evidence should have been given. Dyer v. Bldg. & Contr. Co., 258 S.W. (Mo. App.) 48; Bennett v. Equipment Co., 214 S.W. 244; Garaussen v. Mfg. Co., 186 Mo. 300; Meyer v. Realty & Investment Co., 292 S.W. 17; David v. Cider Co., 186 Mo.App. 13. (c) Plaintiff failed to show any violation of Sec. 6802, R. S. 1919, and it would have been improper to have submitted to the jury an issue based upon defendant's negligent violation of this statute. Meyer v. Realty & Investment Co., 292 S.W. 17; Dyer v. Bldg. & Contr. Co., 258 S.W. 48.

Ragland, J. All concur, except Blair, J., who dissents.

OPINION

RAGLAND

This is an action for personal injuries. Respondent states the case from one angle and the appellant from another. In order to save time we adopt in part the statement of each as constituting a general statement of the case as a whole.

"The appellant, Frank P. Dyer, a carpenter by trade, was employed by the respondent, W. M. Sutherland Building & Contracting Company, on construction work which it was doing for the Continental Portland Cement Company at Continental, Missouri near St. Louis.

"The respondent was engaged in constructing six concrete silos, which were built in two parallel rows of three each, the silos being connected by walls running from the bottom to the top, so that there were two enclosed wells between the six silos, one between the two to the north and the two in the middle, and one between the two to the south and the two in the middle.

"Plaintiff was employed as a carpenter, and on October 29, 1920, the day on which he claims to have been injured, he was working at the bottom of the south well -- that is, the well formed by the four curving walls and connecting walls of the two southermost silos and the two immediately north thereof.

"At the time of his alleged injuries three of the silos had been completed, with the exception of capping, and each of the other three silos upon which work was progressing had reached a level of about twenty-four feet in height.

"All of the evidence showed that the silos were constructed in four-foot sections, the forms being made by segments eight feet long and four feet high, and the carpenters would set up a form for a four-foot section and after the concrete had been poured and had hardened another four-foot form would be placed on top of the first, and so the silos were built up four feet at a time.

"All of the evidence showed that inside the well in which plaintiff was working there was built a scaffold formed by 4x4's, which ran from the ground or foundation up to the top, and 2x6 ledgers were fastened across the 4x4's at whatever height was desired for the platform, 2x10 planks then being laid on top of the ledgers to form the surface of the platform. This scaffold or platform was, of course, built within the irregularly-shaped space formed by the conjunction of the four convex walls of the silo with the connecting or abutting walls.

"The plaintiff testified that at the time he was injured he was working in the bottom of the well, with concrete walls rising some twenty-four feet on all sides of him. He was engaged, with his partner, Mr. Patrick Morrison, also a carpenter, in taking out and nailing on braces to the 4x4's which supported the scaffold or platform. While engaged in this work he was struck on the shoulder by a piece of 2x4 lumber about five feet long. He did not see the piece of 2x4 fall and had no knowledge where it came from, except that it came from above. . . .

"The defendant's evidence was descriptive of the method used in constructing the silos, and was all to the effect that as the work progressed and a four-foot section on a silo had been completed, it was necessary to raise the forms up through the platform and to raise up the platform from time to time so that forms were taken up through the platform nearly every day, and the platform was raised about four times a week. It also appears from the evidence of both plaintiff and defendant that in the progress of the work it was necessary for workmen to pass continually up and down through the platform and to be taking material through the platform.

"The defendant's evidence is also to the effect that it was necessary to have openings in the platform, not only to permit the moving of the concrete forms and other materials necessary in the work, but to provide light for men who were constantly working below the platform and down in the well, and that all light came from above and through the platform." . . .

"The amended petition, on which the cause was tried, as ground for recovery, sets out Section 6802 of the Revised Statutes of Missouri 1919, which provision is as follows:

"'All scaffolds or structures used in or for the erection, repairing or taking down of...