Hamilton v. Standard Oil Co.

• Decision Date: 02 August 1929
• Docket Number: No. 26662.,26662.
• Parties: BENJAMIN S. HAMILTON v. STANDARD OIL COMPANY OF INDIANA and GEORGE V. HACKETT, Appellants.
• Court: Missouri Supreme Court

19 S.W.2d 679

BENJAMIN S. HAMILTON v. STANDARD OIL COMPANY OF INDIANA and GEORGE V. HACKETT, Appellants.

No. 26662.

Supreme Court of Missouri, in Banc.

August 2, 1929.

Appeal from Grundy Circuit Court. — Hon. L.B. Woods, Judge.

AFFIRMED (upon condition).

R.R. Brewster, Floyd M. Sprague and Chas. H. Mayer for appellants.

(1) The petition does not state a cause of action. (a) There is no allegation that at the time the alleged negligent order was given, plaintiff did not know his physical condition or that his mental condition was such that he was incapable of appreciating his own physical condition; nor was there any allegation that plaintiff was inexperienced as to the exact character of work he was ordered to do and the physical strength required to perform it. Under such circumstances the master is not liable for the servant's overexertion. 18 R.C.L. 658, sec. 151; 18 R.C.L. 705, sec. 187; 39 C.J. 766, 800; Hunter v. Candy Co., 307 Mo. 656; Lutgen v. Railroad Co., 294 S.W. (Mo. App.) 444; Stokes v. Wagon Co., 289 S.W. (Mo. App.) 987; Duvall v. Cooperage Co., 275 S.W. (Mo. App.) 586; Petrilli v. Swift & Co., 216 Mo. App. 626; Haviland v. Railroad Co., 172 Mo. 106; Harris v. Railroad Co., 197 S.W. (Ky.) 464. (b) Even if the petition could be construed to allege that at the time the alleged negligent order was given the plaintiff was ignorant as to his physical condition and as to the dangers incident to obeying the order of the foreman, there is an absence of the necessary allegation that the master knew or by the exercise of ordinary care could have known of such ignorance. Crowley v. Appleton, 148 Mass. 98; Tennessee Coal Co. v. Moody, 68 So. (Ala.) 274. (c) The fact that the servant alleged a physical disability did not change the rule, in the absence of an allegation that the servant was mentally deficient, or that, because of youth or inexperience, he did not appreciate the danger. Hasty v. Railroad Co., 97 S.W. (Ky.) 433; Kerlin v. Railroad Co., 128 N.W. (Ia.) 548; Smith v. Railroad Co., 87 S.W. (Tex.) 1052; Maupin v. Miller, 164 Mo. App. 153; Furlow v. Oil Mills, 149 S.W. (Ark.) 69. (d) The alleged promise of the company's foreman to give plaintiff such work as he was able to do, etc., imposed, at most, a contractual duty upon the company. The alleged promise added nothing to the duty imposed upon the company by law as a result of the relationship of master and servant, and it is for the breach of this duty imposed by law, and for this breach alone, that recovery might be had in this tort action. Lutgen v. Railroad Co., 294 S.W. (Mo. App.) 444; Coin v. Lounge Co., 222 Mo. 488; Ryan v. Paper Box Co., 156 Mo. App. 693. (2) The court erred in refusing the instructions in the nature of demurrers offered by both defendants at the close of all of the evidence. (a) There was no evidence upon which the jury could base a finding that either the alleged order of Hackett or the work which plaintiff did, in obedience thereto, was the proximate cause of plaintiff developing acute pulmonary tuberculosis, nor was the incident such as defendants were required to anticipate. (b) There was no evidence that plaintiff was directed to do work which required the lifting and swinging of a heavy hammer, the negligence alleged in the petition. (c) There was no evidence that Hackett or the company knew, or in the exercise of reasonable care should have known, that plaintiff had tuberculosis in such form as that, as a probable result of his doing the work assigned him, the latent condition would become patent. (d) Nor was there any evidence that plaintiff was ignorant as to his physical condition and the dangers incident to his doing the work, and that defendants knew or in the exercise of ordinary care should have known that plaintiff was ignorant of these things. This was a necessary element of plaintiff's case. 39 C.J. 282. Crowley v. Appleton, 148 Mass. 98; Tennessee Coal Co. v. Moody, 68 So. (Ala.) 274. (3) The court erred in giving plaintiff's Instruction P-5. (a) It failed to require (1) a finding that plaintiff was ignorant as to his condition and the dangers incident to his doing the work and (2) a finding that defendants knew or in the exercise of ordinary care should have known that plaintiff was ignorant of these things, 39 C.J. 282; Crowley v. Appleton, 148 Mass. 98; Tennessee Coal Co. v. Moody, 68 So. (Ala.) 274. (b) The instruction broadens the issues raised by the pleadings. The petition charged that the defendants negligently ordered plaintiff to do work which required the lifting and swinging of a heavy hammer and that he was injured while swinging and attempting to swing said heavy hammer; the instruction submits the negligence of defendants in ordering plaintiff to drive rivets with a hammer mentioned in evidence, and permits a recovery if, as a result of plaintiff's physical condition and the driving of said rivets, he was injured. Allen v. Railroad Co., 294 S.W. (Mo.) 80; Mitchell v. Brick Co., 266 S.W. (Mo. App.) 1013; State ex rel. Coal & Coke Co. v. Ellison, 270 Mo. 645; Degonia v. Railroad, 224 Mo. 564. (c) The instruction was misleading and highly prejudicial in submitting the contract to the jury. The relationship of master and servant having been established, the contract added nothing to and took nothing from defendant company's duty, and defendant Hackett was not even a party to the contract. It was highly prejudicial to confuse the issues by submitting the details of the contract to the jury; the jury, of course, were led to believe that the contract fixed the duty of the company. Coin v. Lounge Co., 222 Mo. 488; 39 C.J. 261; Payne v. Wright Bros. Co., 109 S.E. (W. Va.) 779; Gawne v. Bicknell, 162 Fed. 587; 18 R.C.L. 623; Shumaker v. Railroad Co., 48 N.W. (Minn.) 559; Wernick v. Railroad, 131 Mo. App. 52; Hales v. Raines, 162 Mo. App. 46. (d) The instruction was erroneous in that it broadened the issues made by the evidence. The clause complained of here was: "If you find and believe from the evidence that at such time the plaintiff's physical condition, by reason only of the injuries, if any, which he received on the 12th day of October, 1921, was such that plaintiff could not do said work with safety to himself," etc. There was no evidence that any injury received by the plaintiff on October 12, 1921, had anything whatever to do with his latent tubercular condition. Nor was there any evidence that plaintiff was directed to "drive rivets with a hammer." Plaintiff's evidence was that plaintiff was directed to put a winch or bracket on the tank, but plaintiff's evidence also showed that the customary and usual method of driving rivets in placing the winch or bracket on the tank was to use an air gun to drive the rivets. There is no evidence that plaintiff was told not to use an air gun and no explanation as to why he did not use the air gun. A direction to "drive rivets" which are usually driven with an air gun is not a direction to "drive rivets with a hammer," in the absence of some evidence which would reasonably explain why the usual and customary method could not be followed. Dixon v. Frazier-Davis Co., 298 S.W. (Mo.) 827; Degonia v. Railroad, 224 Mo. 564; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607. (4) The court erred in giving Instruction P-3 on behalf of plaintiff. (a) The doctor was not the agent of the defendant company. 39 C.J. 244; Note, 19 A.L.R. 1183; Elliott on Railroads, sec. 225; Haggerty v. Railroad Co., 100 Mo. App. 424; Quinn v. Railroad Co., 30 S.W. (Tenn.) 1036; O'Brien v. Cunard S.S. Co., 28 N.E. (Mass.) 267; Allan v. State S.S. Co., 30 N.E. (N.Y.) 485; Arkansas Railroad Co. v. Pearson, 135 S.W. 920; Union Pac. Railroad Co. v. Artist, 60 Fed. 368; A.T. & S.F. Railroad Co. v. Zeiler, 38 Pac. (Kan.) 282. (b) There is no evidence of any kind or character that the physician knew that the plaintiff had tuberculosis in such form as that the work which he did under the alleged order was likely to cause active tuberculosis. (5) The court erred in giving Instruction P-7 on behalf of plaintiff. This instruction cannot be applied where the place is perfectly safe, the tools perfectly safe, there is no emergency, and the sole danger, if there be any, arises from the physical condition of the plaintiff. This would require the master, he and the servant acting with equal knowledge, to take better care of the servant than the servant is required to take of himself. (6) The court erred in admitting, over defendants' objection, the testimony of Dr. Nickson to the effect that the swinging of "this sledge," and the doing of "this heavy work," caused plaintiff's injury. O'Leary v. Scullin Steel Co., 303 Mo. 363. (7) The court erred in giving Instruction P-8 on behalf of plaintiff. Bond v. Railroad Co., 288 S.W. (Mo.) 785.

A.G. Knight, McAllister, Humphrey & Pew and Mosman, Rogers & Buzard for respondent.

(1) The petition states every element of a good cause of action, and is not open to the attacks now made by appellants. (a) Under the uniform rulings of this court when an attack is made upon a petition after verdict and judgment, a very liberal construction will be given to such petition. Lopez v. Hines (Mo. Sup.), 254 S.W. 37; Robinson v. Levy, 217 Mo. 498; Reineman v. Larkin, 222 Mo. 157; Grobe v. Coal & S. Co., 217 Mo. App. 342; Swigart v. Lusk, 196 Mo. App. 471. (b) "Negligence consists in the failure to exercise that degree of care which persons of ordinary prudence in the same occupation exercise under the same circumstances to protect others from injury; the care required by a master or servant adjusting itself to the circumstances." Parks v. Central Coal & C. Co. (Mo. Sup.), 183 S.W. 560; Dean v. Railroad, 199 Mo. 386; 39 C.J. 282; Canadian Railroad Co. v. Senske, 201 Fed. 637; McMahon v. Express Co., 132 Mo. 641. (c) The test of the sufficiency of the petition is whether or not it charges defendants with negligence, and the liability of the defendants for...