Edwards v. Smith

• Decision Date: 17 July 1926
• Docket Number: No. 4071.,4071.
• Citation: 286 S.W. 428
• Parties: EDWARDS v. SMITH et al.
• Court: Missouri Court of Appeals

286 S.W. 428

EDWARDS v. SMITH et al.

No. 4071.

Springfield Court of Appeals. Missouri.

July 17, 1926.

Rehearing Denied August 31, 1926.

Appeal from Circuit Court, Scott County; Frank Kelley, Judge.

Action by A.M. Edwards against S. J. Smith and another. Judgment for plaintiff, and defendants appeal. Affirmed.

H. C. Blanton, of Sikeston, and Oliver & Oliver, of Cape Girardeau, for appellants. Ray B. Lucas, of Benton, and Ward & Reeves, of Caruthersville, for respondent.

BAILEY, J.

This is an action for damages on account of personal injuries received by plaintiff while in the employ of defendants at their cotton gin in Vanduser, Mo. On trial to a jury, plaintiff obtained a verdict in the sum of $4,666.76. Froth the judgment thereon, defendants have appealed.

Plaintiff's petition states that defendants are copartners doing business as the Vanduser Gin Company; that on December 13, 1924, he was employed to work for defendants in their cotton gin in the capacity of "ginner"; that he was injured on December 16, 1924; that his duties required him to keep the gin stands running, and that it was defendants' duty to furnish him a reasonably safe place in which to work; that on the night he was injured one of the gin stands became choked with wet boll cotton, which made it necessary for plaintiff to clean the roll in said stand; that while so engaged the gin breast lever, which he had securely "pulled up," released itself, and the gin breast fell; that at the same time plaintiff's left hand was caught under the roll board, and carried onto the saws, thereby severely and permanently mangling and cutting his hand and fingers, so that plaintiff has forever lost the use of part of his left hand. Negligence is charged in failing to securely and properly fasten the gin stand to the floor, and insufficiency of the foundation on which the stand rested, and that by reason of such condition the vibration caused the said gin breast lever to release. It is further alleged that the gin brushes were improperly balanced, causing vibration; that the fan was improperly installed, which caused the gin to choke and vibrate; that the gin breast lever was insufficiently notched to withstand the vibration of the machinery; that plaintiff is dependent on manual labor for "a livelihood for himself and family," and his earning capacity has been permanently impaired, for which he asks damages in the sum of $10,000. The answer contained specific denials of the allegations in plaintiff's petition, together with pleas of contributory negligence and assumption of risk.

Appellants make no point on the sufficiency of the evidence to support the verdict, except in one particular, which we shall hereafter refer to. It is therefore unnecessary to review the evidence, further than to indicate the manner in which the accident occurred. The evidence shows the cotton gin, on which plaintiff was injured, was about 5 feet and some inches long and 42 inches high. It consisted of a frame, inside of which is a revolving brush fastened to the frame by hinges. Attached to a mandrel are some 80 circular saws, about 12 inches in diameter, three-quarters of an inch apart, and rotating, when the machine is running, in the opposite direction to the brushes. The gin brush overlaps the saws about one-eighth inch, and its purpose is to take the cotton from the saw. There is also a "gin breast," which is simply a frame to which is attached curved wooden ribs, which fit in between the saws. The gin breast is raised and lowered by means of a lever attached to the end of the frame on the outside of the woodwork inclosing the machinery. It is operated by raising it to a perpendicular position and setting the notch, which is on the lower side of the lever, into a projection on the frame made for that purpose. There is also what is known as a "roll board" fastened at the top of the breast by a hinge, which roll board can be raised by hand and fastened in a notch. When the gin breast is raised by means of the lever, the ribs rise above the saws, so that the saws are entirely covered, and one attempting to unchoke the gin, as plaintiff was doing at the time of the injury, could do so without danger of his hands coming in contact with the saws. The gin was shown to vibrate considerably, and there was ample evidence tending to support the allegations of the petition that there was considerable vibration and an insufficient notch to hold the gin breast lever. The evidence further indicates that plaintiff, at the time of the injury, had first raised the gin breast by use of the lever, and, after removing the "apron" from the front of the gin, raised the roller board and started to take out the cotton which had choked the gin. He had on gloves to prevent the cotton bolls from sticking his hands. While thus engaged, the lever slipped out of the notch which held it in place, the gin breast then fell, exposing the saws, and plaintiff's left hand was carried against the rapidly revolving saws by the roll board, causing the injuries complained of.

1. Error is first assigned because of the failure of the court to discharge the jury after the plaintiff's counsel had, on three different occasions, intimated to the jury that an insurance company was defending the suit; whereas, in fact, there was no evidence of such fact. We shall consider the three circumstances referred to in the order of their occurrence. During the redirect examination of Dr. Traubitts, a witness for plaintiff, he was asked if he knew Mr. Oliver (one of defendants' attorneys), and if he knew whom he represented at a certain time when he, with plaintiff, was attempting to settle the lawsuit while in the doctor's office. The doctor replied, without objection, that Mr. Oliver was an attorney for the Vanduser Gin Company. He was then asked if he (Mr. Oliver) represented anybody else connected with the law suit. On timely objection the witness was not permitted to answer the question. No further demand wag made of the court, and no exceptions were saved. This point, therefore, requires no further consideration.

During the direct examination of plaintiff, and while he was being questioned as to medical treatment, the following occurred:

"Q. How about the pay? A. The insurance people of the gin company paid the doctor bill. "Mr. Oliver: We object to the answer, and ask that it be stricken as voluntary and prejudicial.

"The Court: I think so. Court will sustain the objection as to the insurance people paying it.

"Q. What I want, do you own anything—

"Mr. Oliver: I object to counsel interrupting the court.

"The Court: I am directing the jury to disregard the remark about the insurance people paying the doctor bill."

From the foregoing it will be seen the answer of the witness that the insurance people paid the doctor bill was voluntary, and defendants' objection to the answer recognized that fact. No objection was made to the question itself, and the court promptly advised the jury to disregard that portion of the answer referring to the insurance people. Since the court sustained the only objection made at the time, and no exceptions were saved, there is nothing connected with that incident upon which we could possibly convict the trial court of error. The question may have been adroitly or skillfully worded, so as to obtain the answer without revealing the real purpose, and thus inform the jury that an insurance company was in the case. However, as to that, we may not speculate, but will assume the question was asked in good faith.

During the cross-examination of defendant John M. Draughon the following occurred:

"Q. I will ask you to state to the jury if you didn't tell him you was willing to pay him for this injury, but you wanted the insurance company to do it?

"Mr. Blanton: Now, we ask that this jury be discharged for that; that is the third time they have tried to bring this proposition before the jury, and it is wholly incompetent.

"Mr. Ward: This is offered for the purpose of showing he admitted liability.

"The Court: Court will sustain the objection and direct the jury to disregard it.

"Mr. Blanton: And we ask that the jury be discharged.

"The Court: I am not going to discharge them.

"Mr. Blanton: Note our exception. And we also ask that counsel be rebuked and reprimanded for doing it the third time.

"The Court: I don't have any remembrance about it being the third time.

"Mr. Blanton: Note our exceptions.

"Mr. Ward (out of hearing of jury): I offer to show by this witness that in a conversation of Vanduser with this plaintiff he told him that they ought to settle this case and pay for his injuries, and he wanted to do it, but they had Insurance and the insurance company wouldn't do it.

"Mr. Oliver: We object to the offering, for the reason it is prejudicial, and offered solely for the purpose of prejudicing the jury, as against the direct ruling of the appellate courts of this state, and it is asked by counsel for the sole purpose of eliciting conversations leading up to and attempting to settle and compromise this case prior to the trial of it, and for that additional reason is incompetent.

"The Court: Sustained."

Appellants strongly urge that the foregoing question was asked solely for the purpose of getting before the jury an insinuation that the case was being defended by an insurance company, and thus prejudice the jury against defendants, when in fact there was no evidence that defendants were protected by insurance. In support of this contention, we are cited to a great number of Missouri cases, condemning such practice and reversing judgments, where improper influence is brought to bear on a jury by injecting into the case extraneous matter. Among these cases are Chambers v. Kennedy (Mo. Sup.) 274 S. W. 726; Trent v. Lechtman Printing Co., 141 Mo. App. 437, 126 S. W. 238; Gore v. Brockman, 138 Mo. App. 231, 119 S. W. 1082.

There can no longer be any argument in regard to the...