Einhaus v. O. Ames Co.
| Decision Date | 21 December 1976 |
| Docket Number | No. 37240,37240 |
| Citation | 547 S.W.2d 821 |
| Parties | John EINHAUS, Appellant, v. O. AMES CO., a Division of McDonough Co., and Stanley Wilson, Respondent. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Rendlen, Rendlen & Ahrens, Charles E. Rendlen, Jr., Hannibal, for appellant.
Wasinger & Parham, Hannibal, for respondent.
John Einhaus, the appellant, prays this court to reverse and remand for trial his claim against Samuel Wilson for personal injuries he allegedly sustained while in the employ of Mr. Wilson following a judgment dismissing Count V of his petition with prejudice entered by the Circuit Court of Lewis County upon his failure to comply with an order of that court directing him to amend Count V of his petition. 1 We reverse and remand.
The issue on appeal is whether the trial court erred in dismissing plaintiff's (as Mr. Einhaus shall hereinafter be identified) petition with prejudice and entering judgment for the defendant (as Mr. Wilson shall hereinafter be identified), and this in turn hinges upon whether the trial court abused its discretion in ordering the plaintiff to further amend his petition as already amended. In order to resolve this question we set out the essentials of plaintiff's petition and ascertain whether, as amended, his petition was subject to a motion to make more definite and certain.
Count V of the petition alleged that plaintiff was employed by the defendant on August 14, 1973 when the defendant was directing and supervising him in his activities and work in the preparation of a roll of barbed wire which was to be used by the defendant in the construction and building of a fence for the defendant; that while so engaged in the course of his employment, and at the direction and under the control of the defendant, he was driving a rod through the roll of barbed wire he was using a hammer furnished him by the defendant when the hammer "failed and broke, and a piece or chip from the head or face of said hammer splintered, chipped or broke off and flew into and struck the eyes, nose and face of Plaintiff, directly and proximately causing" the injuries and damages thereinafter alleged. In Paragraph 6 of Count V plaintiff further alleged that the carelessness and negligence of the defendant as being one or more of the following:
(e) that defendant "carelessly and negligently failed to take any precautions or adopt any means or method for the protection of his employee" and "failed to furnish safety glasses or goggles or protective eye and face equipment" to use while Plaintiff was working for and employed by the defendant.
Defendant's motion to make more definite and certain attacked each of these allegations except 6(b) and 6(e). After the trial court sustained defendant's motion the plaintiff filed an "Amendment to Petition" adding the following to paragraph 6 of Count V of his petition:
"(f) That Defendant Stanley Wilson knew, or under the circumstances should have known, that said hammer was defective and inadequate for the purpose of driving a steel rod through a roll of barbed wire, as hereinbefore alleged in Paragraph 4.
(g) That Defendant, Stanley Wilson, by reasonably examining said hammer, could have discovered its defective condition and that it was inadequate for the purpose hereinbefore alleged in Paragraph 4.
(h) That the type of work being done by Plaintiff, as described above in Paragraph 4, was of such a nature that flying chips, fragments or sparks might reasonably result, and that therefore there was a reasonable need for Defendant Stanley Wilson to furnish Plaintiff with safety glasses or goggles."
This amendment by plaintiff brought forth another motion to make more definite and certain whereby the defendant contended that the petition, as amended, was still so indefinite and uncertain and couched in conclusionary terms that he was unable to file responsive pleadings. The reasons alleged by the defendant in support of his motion were that:
(d) 6(f) pleads in conclusionary terms that the hammer was defective and inadequate for the purpose of driving a steel rod but does not allege how or in what manner the hammer was defective and inadequate, and
(e) 6(g) pleads that defendant could have discovered the hammer was defective and inadequate as to "allow discovery on examination."
It concludes by pleading "(t)hat the matters pleaded against this Defendant are merely conclusions and not fact and must therefore be disregarded."
This motion was presented and sustained by the trial court and the plaintiff was granted twenty days within which to plead further. When plaintiff did not further amend his petition as ordered, Count V of his petition as to defendant Stanley Wilson was dismissed with prejudice and judgment entered for the defendant.
On appeal the plaintiff contends that the trial court erred (1) in entering judgment for the defendant because his allegations of defendant's negligence are not mere conclusions, as defendant contends, but are allegations of "ultimate fact," (2) because the trial court did not apply general principles of construction of pleadings in ruling on defendant's motion for more definite statement in concluding that his petition was not sufficiently specific for the defendant to file a responsive pleading, and (3) that by sustaining said motion the trial court required him to plead evidentiary matters.
Rule 55.27(d) V.A.M.R. provides that a party may move for a more definite statement of any matter contained in a pleading which is not averred with sufficient definiteness or particularly to enable him to properly prepare his responsive pleadings. A motion to make more definite or certain is addressed to the sound discretion of the trial court and its ruling thereon will not be disturbed provided a sound discretion was exercised in ruling on the motion. Kornberg v. Getz Exterminators, Inc., 341 S.W.2d 819, 820 (Mo.1961); Kansas City Stock Yards Co. v. A. Reich & Sons, Inc., 250 S.W.2d 692, 699(15) (Mo.1952).
The question then is whether plaintiff's petition averred sufficient facts to apprise the defendant of the negligent acts with which he was charged so that he could prepare a responsive pleading.
In disposing of the plaintiff's contentions we must take cognizance of the nature of plaintiff's cause of action, i. e., a claim by an employee for injuries sustained in the course of his employment by reason of the failure of the employer to furnish him with safe and adequate tools and equipment. While the employer is not the insuror of the safety of the employee, the measure of his duty is to exercise ordinary care to provide the employee with reasonably safe tools or appliances with which to perform his services for the employer. Hill v. Wainwright Industries, Inc., 522 S.W.2d 131, 133(1) (Mo.App.1975). Defendant acknowledges this duty in his brief filed in this court.
A petition seeking damages for actionable negligence must allege "ultimate facts" which, if proved, show (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury, (2) the failure of the defendant to perform that duty, and (3) an injury to the plaintiff directly and proximately resulting from defendant's failure to perform the duty owed to plaintiff. Scheibel v. Hillis, 531 S.W.2d 285, 288(1) (Mo.banc 1976). The trial court denied defendant's motion to dismiss, and the thrust of defendant's alternative motion was that he was entitled to have the plaintiff advise him with more particularity and precision (1) in what manner he was careless in furnishing the hammer, (2) in what manner the hammer furnished was defective, and (3) in what manner the hammer furnished was unreasonably dangerous. The defendant argues that the terms "carelessly," "negligently," "defective" and "dangerous" are mere conclusionary terms, and unless plaintiff is required to plead with more definiteness and explanation he is unable to prepare his responsive pleadings and generally prepare for trial.
Neither the plaintiff nor the defendant have cited us any authority whether pleading that a tool is "defective" constitutes the pleading of an "ultimate fact" or a conclusion, nor have they cited any case holding that where that term has been pled, it was held to be subject to a motion to make more definite and certain. Our research has led us to no Missouri case ruling on this point, although two cases Gray v. Doe Run Lead Co., 331 Mo. 481, 53 S.W.2d 877 (1932) and Choate v. City of Springfield et al., 74 S.W.2d 869 (Mo.App.1934) were master-servant suits for injuries sustained in the course of plaintiffs' employment by reason of the employer's failure to furnish them with a safe tool with which to perform their assigned tasks...
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... ... Einhaus v. O. Ames Co., 547 S.W.2d 821(4, 5) (Mo.App.1977) ... The pleadings enlarged by the interrogatory evidence, understood in legal ... ...
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