Goode v. Central Coal & Coke Co.

• Citation: 186 S.W. 1122
• Decision Date: 07 February 1916
• Docket Number: No. 11695.,11695.
• Court: Court of Appeal of Missouri (US)
• Parties: GOODE v. CENTRAL COAL & COKE CO.

186 S.W. 1122

GOODE v. CENTRAL COAL & COKE CO.

No. 11695.

Kansas City Court of Appeals. Missouri.

February 7, 1916.

On Motion for Rehearing, June 12, 1916.

Error to Circuit Court, Macon County; Nat M. Shelton, Judge.

"Not to be officially published."

Action by Catherine Goode against the Central Coal & Coke Company. To review a judgment for plaintiff, defendant brings error. Affirmed.

Dan R. Hughes, of Brookfield, and Burns, Burns & Burns, of Macon, for plaintiff in error. B. R. Dysart and W. C. Goodson, both of Macon, for defendant in error.

JOHNSON, J.

This case was here on two former appeals, and each time the judgment was reversed and the cause remanded for errors in the instructions. We refer to the reported decisions which appear in 167 Mo. App. 169, 151 S. W. 508, and 179 Mo. App. 207, 166 S. W. 844, for a full recital of the facts. Another trial in the circuit court on the same facts resulted as before in a judgment for plaintiff, and again we are asked to interfere on the ground of prejudicial errors in the instructions.

The petition alleged that defendant "negligently failed and neglected to prop, brace, or otherwise support or protect the roof of said entry at a point from 15 to 25 feet north of the working place of said deceased, James V. Goode," and that such negligence was the cause of the death of Goode who was killed while eating his lunch by the falling of a slab of rock from the roof at that place. The first instruction given at the request of plaintiff authorized a recovery if the slab fell "at a point away from his working place," etc. It is argued that this general description of the location of the slab was a departure from the specific location alleged in the petition, and therefore a broadening of the pleaded issues. The rule is fundamental that, where the petition specifically defines the scope of the cause of action, the cause submitted to the jury in the instructions of the plaintiff should be no broader, but there are instances — and we think this is one of them — where such error should be regarded as nonprejudicial and consequently as constituting no good ground for disturbing the judgment.

The real controversy was whether Goode was killed away from his working place where defendant would be liable for the condition of the roof, or at his working place where he was required to keep the roof in safe condition. See 179 Mo. App. loc. cit. 209, 166 S. W. 844. This controversy was reduced by the evidence to the issue of whether the place of the killing was at the working place or from 15 to 25 feet north, and the jury could not have been misled by the instruction into finding that the slab fell from any other place. Other criticisms of this instruction in the argument of defendant obviously are unsubstantial and need not be discussed.

As we held on the first appeal, the cause is founded on section 5426, R. S. 1909, and the damages claimed are those allowed in section 5427, which do not include punitive but only compensatory damages. Defendan...