Dyrcz v. Hammond Packing Co.

• Decision Date: 30 April 1917
• Docket Number: No. 11954.,11954.
• Citation: 194 S.W. 761
• Parties: DYRCZ v. HAMMOND PACKING CO. et al.
• Court: Missouri Court of Appeals

194 S.W. 761

DYRCZ v. HAMMOND PACKING CO. et al.

No. 11954.

Kansas City Court of Appeals. Missouri.

April 30, 1917.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

"Not to be officially published."

Action by John Dyrcz against the Hammond Packing Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

William G. Holt, of Kansas City, and Samuel I. Motter and O. E. Shultz, both of St. Joseph, for appellants. Mytton & Parkinson, of St. Joseph, for respondent.

TRIMBLE, J.

Plaintiff, while at work piling meat in the defendant Packing Company's plant, was standing on a box, which broke under his weight, allowing him to fall backwards against certain iron or steel rods, thereby according to the only testimony in the case on the subject, injuring plaintiff's back, kidneys, and neck, and rupturing him on both sides, causing him to be in bed for a year and two months and rendering him unable to continue his occupation as a helper in a meat packing plant, and compelling him to do light work on the farm. At the time he was hurt he was earning $2.50 per day and could work at the heaviest jobs, piling heavy meat weighing as much as 150 or 180 pounds. He was 37 years of age. He brought suit for $50,000 damages, basing his cause of action upon the claim that, in order to enable him to pile meat higher than he could reach while standing on the floor, his foreman obtained two boxes and placed one upon the other close to the pile of meat he was erecting, and then negligently ordered him to stand thereon, assuring him that the boxes were strong enough to hold him, and that, relying upon the assurance, he got upon the boxes, and, while lifting a heavy load of meat above his head, the top of the box broke letting him fall. The jury returned a verdict of $10,000 in plaintiff's favor, but the trial court directed that a remittitur of $3,335 be entered or a new trial would be granted. Thereupon the plaintiff remitted that sum and judgment for $6,665 was entered in his favor. The defendant thereupon appealed.

Defendant attacks the sufficiency of the petition, charging that it nowhere alleges that the foreman, Ushler, had any control of or superintendence over the plaintiff, or was acting within the scope of his employment, when he gave the alleged negligent order to use the insufficient box; and defendant further claims that the statements in the petition that in the negligent giving of the order to use the insufficient box, the defendant Hammond Packing Company was "acting through" said Ushler are mere legal conclusions.

In our view the authorities cited by defendant on this point are cases where no facts are alleged in support of the ultimate fact sought to be established as a legal fact or conclusion of law growing out of the pleaded facts, but the ultimate fact sought to be established is boldly and at once stated as a mere conclusion of law. Of course, if that is the case with the petition here, then it is bad since the pleading of a mere conclusion of law, unsupported by allegations of issuable facts, is no pleading at all. The petition in this case alleged the following facts:

That on a certain date the "defendant Hammond Packing Company owned, operated, and maintained a packing plant," etc.; that defendant "Ushler was a foreman in the employ of the defendant Hammond Packing Company;" that "plaintiff was in the employ of said company, and on said date was by the defendant company, acting through defendant Kasimir J. Ushler, and the defendant Ushler instructed to pack meats at a great height above the floor in the second floor of the cooling department building; that the defendant Kasimir J. Ushler and the defendant Hammond Packing Company, acting through Kasimir J. Ushler, negligently ordered him to use a box or boxes of insufficient strength to support a man to stand upon in doing the work of packing said meats; that the plaintiff complained to the defendants and each of them that said boxes were too light and weak and of insufficient strength to hold his weight in doing said work, but the defendant Kasimir J. Ushler, and the defendant Hammond Packing Company, acting through Kasimir J. Ushler, and each of them, assured him that said boxes were more than ample and sufficient to support him in doing said work, and carelessly and negligently directed him to continue in his labors; that, relying upon the judgment of the defendants given as aforesaid, on said date he was upon said boxes performing his work in the manner directed by the defendants; that on account of the weakness, lightness, and insufficient strength of the boxes that he was standing upon, the box or boxes broke, precipitating him to the ground and against iron or steel pipes."

Here, then, was pleaded certain definite issuable facts, namely, that the packing company was operating its plant; that Ushler was in its employ as a foreman, and plaintiff was also in its employ; that defendant through its foreman instructed plaintiff to pack meats, and negligently ordered him to use an insufficient box to stand upon in doing the work; that the plaintiff complained both to the defendant and the foreman that the box was insufficient, but that the foreman assured him it was sufficient, and negligently ordered him to continue his labors. It would seem that the necessary inference flowing from these facts, thus stated, is that the foreman was over plaintiff in the work then being performed, and that the foreman was acting in his capacity as foreman such as would bind the defendant. This being the case, it cannot be said that the petition wholly fails to state any cause of action whatever. The most that can be said against it is that a cause of action was alleged, but the statement thereof may have been defective in a certain particular.

Now, no attack was made upon the petition in any way in the trial court. No demurrer was filed, nor was even an objection to the introduction of evidence under the petition interposed. The motion in arrest said nothing about the insufficiency of the petition; nor did the motion for new trial, though that is not strictly the place for it. So that defendant's objection to the petition arises for the first time in the appellate court. It has been held many times that such objection is then too late, unless the petition is so defective as to wholly fail to state any cause of action and will not support a judgment. Sexton v. Metropolitan St. Ry., 245 Mo. 254, 149 S. W. 21; Thomasson v. Mercantile, etc., Ins. Co., 217 Mo. 485, 116 S. W. 1092. We think the petition amply sufficient after verdict. Hurst v. City of Ash Grove, 96 Mo. 168, 172, 9 S. W. 631; Chance v. City of St. Joseph, 190 S. W. 24.

In a reply brief defendants deny that the case was tried by both sides upon the theory that Ushler was foreman over the plaintiff and empowered to direct him in his work, but a survey of the record will inevitably lead an impartial mind to the conclusion that no controversy was raised at the trial over that feature nor issue made of it in the evidence. The defendants asked no instruction submitting that issue to the jury, but, on the contrary, in their instruction 5 told the jury that:

"Before it can find for plaintiff, it must believe from the evidence that defendant Ushler went to the freezer with plaintiff, and placed the box for him to use and directed him to use the same, and unless the jury finds such to be true, then its verdict will be for defendants."

It would seem that since the question of Ushler's authority to direct plaintiff was not contained in this instruction, nor submitted in any other, the tacit implication under the circumstances would be that Ushler was the foreman over plaintiff and had authority to direct him, or at least that such fact was not seriously controverted. Besides, in the testimony of Ushler, who was defendant's witness, occurs such passages as these:

"Q. Who was Dyrcz's foreman? A. I was his foreman. * * * Q. How did you spend your time? What did you do? A. Well, I was foreman in there. Q. You were foreman? A. Yes, sir. Q. What did your duties as foreman require you to do? A. Well, I have to look after the men to see that they do their work and get their work done. Q. How many men do you look after, about? A. Oh, sometimes we have got 75 and sometimes more. Q. Seventy-five? A. Seventy-five and 65 according to how much you want. Q. Are they working all on one floor? A. No, sir. Q. How are they distributed? A. Well, some of them working on the fourth floor, and some of them working on floor 1, and if we have got lots of stock meat we have more places to look after. Q. You go and visit all these places? A. I go around from one place to another right along all day long. That is, four or five gangs. * * * Q. During the four years that Dyrcz has worked for the company, and you were his foreman, how much of the time, about, if you can tell, had he spent in working in those rooms, where meat was piled up? * * * Q. Was it necessary for you to tell him how to do that work, or did he know how to do it? A. Well, he knew how to do it himself. He was working so long."

The above was in direct examination. On cross-examination he was asked:

"Q. You were his foreman? A. Yes, sir. Q. When was it you took him down and showed him where to put the Star Bellis in No. 2? A. I cannot remember now what day. * * * Q. When did you first take him down and show him where to put it? A. I can't remember now. Q. You don't remember when you did that? A. No, sir. Q. But you did do it, didn't you? A. Yes, sir. Q. You did it at some time, didn't you? A. I show him in there some time; yes, sir. Q. But you don't remember when it was you did it? A. No, sir."

In view of the foregoing and other parts of the record, we are of the opinion that the question of Ushler's authority to give plaintiff the order and the assurance relied upon by him was not controverted, but merely the question of whether he...