Forbis v. Hessing

• Decision Date: 28 July 1931
• Parties: Lee Forbis v. J. M. Hessing, Doing Business under Firm and Style of Hessing Construction Company, Appellant
• Court: Missouri Supreme Court

41 S.W.2d 378

328 Mo. 699

Lee Forbis v. J. M. Hessing, Doing Business under Firm and Style of Hessing Construction Company, Appellant

Supreme Court of Missouri

July 28, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Harry A Rosskopf, Judge.

Affirmed.

Allen Moser & Marsalek for appellant.

(1) The action of a trial court in setting aside a verdict and granting a new trial, on the ground that the verdict is against the weight of the evidence, will be regarded as arbitrary and unwarranted and will not be sustained where the evidence is such that no verdict for the party in whose favor the new trial was granted will be allowed to stand. Cullison v. Wells, 317 Mo. 880; Lyons v Corder, 253 Mo. 539; Ordelheide v. Land Co., 208 Mo. 239; Rodan v. Transit Co., 207 Mo. 406; Loftus v. Met. St. Ry. Co., 220 Mo. 479. (2) The evidence failed to make a submissible case for plaintiff for the reason that the evidence showed that defendant, as a master, could not, by the exercise of ordinary care, have discovered that the condition of the board in question was such as to render it dangerous for use by plaintiff, but that the hidden, latent defect therein was one which, under the circumstances, could not have been discovered except by the exercise of such extraordinary care to make a minute examination or test as is not required of a master. Kolbow v. Mfg. Co., 318 Mo. 1248; Hoffman v. White Lime Co., 317 Mo. 86; Hysell v. Swift & Co., 78 Mo.App. 39; State ex rel. v. Ellison, 271 Mo. 463; Purdy v. Elec. & Mfg. Co., 197 Pa. 257, 51 L. R. A. 881; Siebert v. Tobacco Co., 217 Mo.App. 163; 39 C. J. 425, 426, sec. 542, note 67; 18 R. C. L. 562, 563, sec. 73, note 2. (3) Plaintiff is bound by the specific allegations of negligence made in his petition, and can recover only on proof of the specific negligence alleged. Bonnarens v. Lead Belt Ry. Co., 309 Mo. 76; Kuhlman v. Water, Light & Transit Co., 207 Mo. 638; McGrath v. Transit Co., 197 Mo. 97. (4) The action of a trial court granting a new trial on the ground that the verdict is against the weight of the evidence is subject to review by this court, and an order thus granting a new trial will not be allowed to stand if the court's action was purely arbitrary or capricious, or such as to constitute an abuse of discretion on the part of the court. 2 R. C. L. 211, sec. 176; Rodin v. Railroad, 207 Mo. 406; Lyons v. Corder, 253 Mo. 539; Ordelheide v. Land Co., 208 Mo. 239; Loftus v. Met. St. Ry. Co., 220 Mo. 480. (5) As there was no conflict whatsoever in the evidence the trial court was without authority to grant a new trial on the ground that the verdict is against the weight of the evidence, and its action in so doing was arbitrary and unwarranted, constituting a clear abuse of the court's discretion. First National Bank v. Wood, 124 Mo. 72; St. Louis v. Worthington (Mo. Sup.), 19 S.W.2d 1067; Cullison v. Wells, 317 Mo. 889; Ordelheide v. Land Co., 208 Mo. 239; East Arkansas Lbr. Co. v. Bryant, 215 Mo.App. 452; Akin v. Hall, 277 S.W. 962; Secs. 1424, 1453, R. S. 1919.

Jones, Hocker, Sullivan & Angert and Ralph T. Finley for respondent.

(1) The evidence made a case for the jury on the issue of the defendant's negligence. Mulloy v. Painting Co., 214 S.W. (Mo. App.) 409; Gutridge v. Ry. Co., 105 Mo. 529; Pendegrass v. Railway Co., 179 Mo.App. 531; Flynn v. Union Bridge Co., 42 Mo.App. 529. (2) The trial court properly exercised its discretion in granting a new trial. Miles v. Haney, 190 Mo.App. 224; Lead & Zinc Co. v. Webster, 193 Mo. 364; Seeger v. Silver Co., 193 Mo. 407. It is immaterial that the testimony of the witnesses as to the facts in the case showed no conflict. The issue in the case was as to defendant's negligence on the facts shown by the record. Duggan v. Fidelity & Casualty Co., 296 S.W. (Mo. App.) 823. (3) The granting of a new trial is scrutinized with less strictness than if a new trial had been refused. Guthrie v. Gillespie, 319 Mo. 1146. Even if the plaintiff had recovered judgment, and it should be reversed for insufficiency of evidence, or because not supported by the pleadings, the appellate court would reverse and remand the case instead of reversing it outright. Bibb v. Grady, 231 S.W. (Mo. App.) 1023; Clark v. Ry. Co., 4 S.W.2d 847.

Ragland, J. Atwood and Frank, JJ., concur; Gantt, P. J., concurs in the result.

OPINION

RAGLAND

This is a master-and-servant case: an action for personal injuries suffered by an employe through the alleged negligence of his employer. For a general statement of the issues involved and the questions brought up on this appeal, we quote from appellant's brief:

"Lee Forbis, the respondent, instituted this suit against the appellant, J. M. Hessing, to recover damages for personal injuries sustained while in the appellant's employ. The trial below resulted in a verdict in favor of appellant, following which a motion for a new trial filed by respondent was sustained by the court on the ground that the verdict of the jury is contrary to the weight of the evidence. Appellant perfected this appeal from the order of the court sustaining said motion and seeks to have the verdict of the jury reinstated.

"The issues were made up upon respondent's second amended petition and the appellant's answer thereto.

"The amended petition alleges, in substance, that the appellant is a building contractor, engaged in business under the firm name and style of Hessing Construction Company; that on and prior to the 13th day of March, 1926, appellant was engaged in assisting in the construction of the Bell Telephone Building in St. Louis, during which time respondent was in his employ as a lather; that on or about said day the respondent as such employee was engaged in the work of placing metal laths on the walls and columns of said building, and in the course of said work it was necessary for respondent to stand on a scaffold which consisted of four stepladders about twelve feet high, placed around the column on which he was working, with crossboards resting on the steps of said ladders, creating a platform about ten inches wide upon which respondent walked and stood while engaged in his work, and that while so engaged one of said boards broke, causing the plaintiff to fall a distance of about seven feet to the floor below. Appellant was charged with negligence causing respondent's injuries, as follows:

"(1) That appellant negligently provided a defective, weakened and insufficient plank in said scaffold, in that said plank was weakened by knot holes, auger holes and cracks therein, and that such defective plank was so covered with plaster that respondent, in the exercise of due care, did not discover such defects before standing on it.

"(2) That the appellant, by his foreman, agent and servant in charge of said work, negligently directed the building of such scaffold in a negligent manner and of defective material, in that one of the boards was full of knots and knot holes so that it was weak and likely to break, when he knew, or by due care should have known, of such defects.

"The answer was a general denial. . . .

"The action of the trial court in setting aside a verdict and granting a new trial, on the ground that the verdict is against the weight of the evidence, will be regarded as arbitrary and unwarranted and will not be sustained where the evidence is such that no verdict for the party in whose favor the new trial was granted will be allowed to stand. (Citing cases.)

"The evidence failed to make a submissible case for plaintiff for the reason that the evidence showed that defendant, as a master, could not, by the exercise of ordinary care, have discovered that the condition of the board in question was such as to render it dangerous for use by plaintiff, but that the hidden, latent defect therein was one which, under the circumstances, could not have been discovered except by the exercise of such extraordinary care to make a minute examination or test as is not required of a master. (Citing cases.)"

Appellant's contention just set forth challenges the sufficiency of the evidence to support a jury finding that he failed to exercise ordinary care in providing the scaffold board which broke and thereby occasioned respondent's injuries. The evidence bearing on that specific issue will be abstracted or summarized.

Respondent was employed as a metal lather. At the time of his injury he was standing on a scaffold and was engaged in drilling holes in a column or pilaster which was to be covered with metal laths. In the construction of the scaffold four stepladders were used; they were so placed that two of them supported a single board on one side of the column, and the other two a board on the opposite side; these two boards in turn supported a third placed at right angles to them and next to the column. Each of the boards was approximately two inches thick and ten inches wide and was ten or twelve feet in length; one of them, when respondent was standing on it, suddenly broke in two, dropping him to the concrete floor seven feet below and thereby occasioning the injury for which he sues.

Respondent testified: "I had nothing to do with the construction of this scaffold in the first place; I had nothing to do with the selection of the boards that went into the scaffold; when it was first built I was drilling holes in the bottom of the column and I was standing on the floor. I am not positive as to who moved the scaffold from other positions to the position where it was when I was injured on it. It only takes a few seconds to move a scaffold and I am not sure who did move it. I couldn't say whether I had anything to do with the moving of it or not. It takes such a short time to move one I couldn't say. Mr. Peterson selected the particular...