Erwin v. Missouri And Kansas Telephone Company

• Decision Date: 28 July 1913
• Citation: 158 S.W. 913,173 Mo.App. 508
• Parties: W. M. ERWIN, Respondent, v. MISSOURI AND KANSAS TELEPHONE COMPANY, Appellant
• Court: Missouri Court of Appeals

158 S.W. 913

173 Mo.App. 508

W. M. ERWIN, Respondent, v. MISSOURI AND KANSAS TELEPHONE COMPANY, Appellant

Court of Appeals of Missouri, Springfield

July 28, 1913

Appeal from Barry County Circuit Court.--Hon. Carr McNatt, Judge.

Charles L. Henson, Special Judge.

Reversed and remanded.

J. S Davis, J. W. Gleed, D. E. Palmer, J. L. Hunt and G. M. Sebree for appellants.

(1) The equipment used was of the simplest kind and the dangers were obvious. Beckman v. Brewing Association, 98 Mo.App 555. (2) Plaintiff was guilty of contributory negligence. Dodds v. Coke Co., 115 Mo.App. 501; Whaley v Coleman, 113 Mo.App. 598; Knorpp v. Wagner, 195 Mo. 637; Myers v. Glass Co., 127 Mo.App. 557; Schiller v. Breweries Co., 156 Mo.App. 569. (3) An employer may conduct his own business in his own way, if that way is not unlawful. Letanovsky v. Shoe Co., 157 Mo.App. 120; Schiller v. Breweries Co., 156 Mo.App. 569; Brandt v. Breweries Co., 159 Mo.App. 568; Bradley v. Railroad, 138 Mo. 293; Minnier v. Railroad, 167 Mo. 99; Claybaugh v. Railroad, 56 Mo.App. 630. (4) The servant who enters upon the performance of work without objection to the method selected by the master assumes risk of injury incident to that method of doing the work. Letanovsky v. Shoe Co., 157 Mo.App. 120; Bradley v. Railroad, 138 Mo. 293. (5) Where the place to work is not permanent, the rules regarding the duty of the master to furnish a safe place to work do not apply. Meehan v. Railroad, 90 S.W. Mo. 102; Gibson v. Bridge Co., 112 Mo.App. 594; Tweed v. Telephone Co., 114 N.Y.S. 607; Slagle v. Village, 139 Ill.App. 423. (6) In placing the plank and preparing the place to work, plaintiff and the other members of the gang were fellow-servants. Bowen v. Railroad, 95 Mo. 268; Forbes v. Dunnevant, 198 Mo. 193; Herbert v. Wiggins 107 Mo.App. 287, 299. (7) Plaintiff's second instruction permitted a verdict on no other ground than that defendant did its work in a manner in which it was authorized to do it. For that reason it is grossly erroneous. Wilkes v. Railroad, 159 Mo.App. 711-726; Monroe v. M'f'g. Co., 133 S.W. 214; Steinmann v. Transit Co., 116 Mo.App. 673. (8) The court overlooked in this instruction the fact that there was involved only a temporary and changing place to work. This fact should have been noticed in the instruction. Gibson v. Bridge Co., 112 Mo. 594, 599; Bradley v. Railroad, 138 Mo. 307. (9) The instruction attempted to cover the whole case and authorize a verdict. The question of assumption of risk should therefore have been covered by it. Tabler v. Railroad 93 Mo. 579; Dale v. Railroad Co., 63 Mo. 455; Moore v. Miller Co., 55 Mo.App. 491. (10) Plaintiff's fifth instruction told the jury that plaintiff could recover unless the danger was so obvious that a reasonably prudent man would have quit the service rather than obey the foreman's order. This is not the test. Delo v. Mining Co., 160 Mo.App. 38, 44. (11) The court refused to instruct the jury as to the fellow-servant rule. This was error. Kaminski v. Iron Works, 167 Mo. 462. (12) Where the failure to file the transcript in time was due to a misunderstanding between appellant's counsel and the clerk, and did not result in delaying the hearing, the judgment will not be affirmed. Kamerick v. Castleman, 21 Mo.App. 587; State ex rel. v. Gage, 50 Mo.App. 201; Land & Inv. Co. v. Martin, 125 Mo. 114.

Sizer & Kemp for respondent.

(1) This case should be affirmed: 1st. Because appellant has failed to perfect its appeal in the manner provided by Sec. 2047, R. S. 1909. 2nd. Because appellant has failed to comply with Rules 12, 14, 15, 16 and 18 of this court. Columbus v. Coal Co., 144 Mo.App. 228; Caldwell v. Hawkins, 46 Mo. 263; Kamerick v. Castleman, 21 Mo.App. 592; Springfield Ins. Co. v. Harrison, 21 Mo.App. 306; Ott v. Spiker, 144 Mo.App. 347; Hinshaw v. Warren's Estate, 162 Mo.App. 280. (2) Respondent has waived no right to have this judgment affirmed on motion, by waiting to file his motion until after appellant had printed its abstract of record, and filed same in this court. McCollister v. Railroad, 129 Mo.App. 321; Ziefle v. Seid, 137 Mo. 541. (3) The appellant, having ignored the statute and the rules of this court, furnishes ample and just reasons for an affirmance; but, should this court refuse to affirm, then the appeal should be dismissed. Hinshaw v. Warren's Estate, supra; Ott v. Spiker, 144 Mo.App. 345. (4) Appellant asked no instruction on the theory of a safer way and no evidence was elicited on that theory and this court will not allow this case to go off on a theory not tried in the lower court. Masterson v. Transit Co., 204 Mo. 507, 521; Chandler v. Gloyd, 217 Mo. 416; O'Keefe v. Railroad, 124 Mo.App. 619; Carey v. St. Car Co., 125 Mo.App. 193; Nicket v. Railroad, 135 Mo.App. 671; Mitchell v. Railroad, 125 Mo.App. 11. (5) The question of contributory negligence is generally a jury question, and unless the danger was so glaring and imminent an appellate court will not interfere with the jury's finding on that fact. Corby v. Tel. Co., 232 Mo. 417; Shore v. Bridge Co., 111 Mo.App. 291; Millsap v. Beggs, 122 Mo.App. 7; Johnson v. Frisco, 160 Mo.App. 77; Curtis v. McNair, 173 Mo. 270. (6) Where the master retains through his foreman active control and supervision of the work, the servant's duty is to obey the foreman's orders and he has a right to rely upon the superior knowledge of the foreman and can rely on the fact that the master has performed his duty and that the place and manner of doing the work in conformity with orders are reasonably safe. Bloomfield v. Wooster Co., 118 Mo.App. 259; Hall v. Railroad, 165 Mo.App. 114, 145 S.W. 1170; Jarrell v. Coal Co., 154 Mo.App. 552; Smith v. K. C., 125 Mo.App. 150; Herdler v. Stove Co., 136 Mo. 3. (7) While it is true the master can conduct his business in his own way, yet that doctrine is restricted in its application by a very important qualification. He must always remain within the boundaries of reasonable care. Mack v. Railroad, 123 Mo.App. 536; Curtis v. McNair, 173 Mo. 283; Jarrel v. Coal Co., 154 Mo.App. 558; Brandt v. Breweries Co., 159 Mo.App. 573. (8) Defendant company owed a duty to his men to furnish a reasonably safe place to work, although that place was shifting. Corby v. Tel. Co., 231 Mo. 417; Jarrell v. Coal Co., 154 Mo.App. 552. (9) The fellow-servant doctrine is not applicable because the foreman selected the board for the plaintiff to stand on and ordered it placed as it was placed. Combs v. Construction Co., 205 Mo. 382, Reeder v. Lime Co., 129 Mo.App. 112; White v. Railroad, 156 Mo.App. 563. (10) There was no assumption of risk by plaintiff for a servant never assumes risks incident to the master's negligence. Holman v. Iron Co., 152 Mo.App. 685; Wiley v. Gass Co., 132 Mo.App. 380; Warren v. Railroad, 113 Mo.App. 498; Tinkle v. Railroad, 212 Mo. 468. (11) Plaintiff's second instruction was properly given. Murphy v. Street Railway, 125 Mo.App. 275; Gilber v. Car Co., 129 Mo.App. 93; Laforce v. Ins. Co., 43 Mo.App. 518-533; Corby v. Tel. Co., 231 Mo. 436; Gamache v. Tin Foil Co., 116 Mo.App. 601. (12) Plaintiff's fifth instruction, complained of by appellant, has been approved by the Supreme Court. Corby v. Tel Co., 231 Mo. 428; Burkhard v. H. & M. Co., 221 Mo. 708. (13) Instruction 12 was properly refused because the negligence in this case was plainly the negligence of the master, as he was present and directing the work, and whatever was done was at the master's bidding. Knight v. Donnely Bros., 131 Mo.App. 161; Combs v. Const. Co., 205 Mo. 382; Reeder v. Lime Co., 129 Mo.App. 112; White v. Railroad, 156 Mo.App. 563. (14) The Supreme Court and Courts of Appeal shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, materially affecting the merits of the action. Sec. 2082, R. S. 1909; Mann v. Duerr, 222 Mo. 1-15; Freeland v. Williamson, 220 Mo. 217; George v. Railroad, 225 Mo. 399.

CHARLES L. HENSON, Special Judge. Sturgis, J., concurs. Robertson, P. J., dissents to paragraphs I and II and expresses no opinion on the merits as he believes that stage of the case should not have been reached.

OPINION

CHARLES L. HENSON, Special Judge.

Judge FARRINGTON, having been of counsel in this cause, disqualified, and it was argued and submitted to Presiding Judge ROBERTSON and Judge STURGIS. They were unable to agree upon the disposition to be made of the cause, whereupon Charles L. Henson, of Mount Vernon, was agreed upon and chosen as special judge herein. The cause was then reargued, and submitted to the court as thus constituted.

ON THE MOTION TO AFFIRM THE JUDGMENT.

1. We are confronted, at the very outset, with respondent's motion to affirm the judgment, because of appellant's failure to file, in this court, at least fifteen days before the first day of the March term, 1912, of this court, a transcript of the record and proceedings of the circuit court or a certified copy of the record entry of the judgment appealed from together with the order granting the appeal. Every reason set out in the motion relates to the one just stated and it is unnecessary to repeat them. Accompanying the motion is a certified copy of records, made by the clerk of the court in which the appeal was granted, which we will treat as a sufficient "certificate" as required by section 2047, Revised Statutes 1909. The motion is also accompanied by a notice from respondent to the appellant of his intention to file said motion in this court on October 22, 1912. "or as soon thereafter as a hearing can be had." Copies of the motion and of the notice were served on appellant's attorney of record on October 16 1912. The motion, with the accompanying certificate, the notice,...