Hopkins v. Am. Car & Foundry Co.

• Decision Date: 06 November 1928
• Docket Number: No. 19819.,19819.
• Court: Missouri Court of Appeals
• Parties: WALLACE HOPKINS, RESPONDENT, v. AMERICAN CAR & FOUNDRY COMPANY, A CORPORATION, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

11 S.W.2d 65

WALLACE HOPKINS, RESPONDENT, v. AMERICAN CAR & FOUNDRY COMPANY, A CORPORATION, APPELLANT.^*

No. 19819.

St. Louis Court of Appeals. Missouri.

Opinion filed November 6, 1928.

Appeal from the Circuit Court of the City of St. Louis. — Hon. H.A. Rosskopf, Judge.

AFFIRMED.

Watts & Gentry and Arnot L. Sheppard for appellant.

G.A. Orth of Counsel.

(1) The court erred in refusing to give to the jury the demurrers requested by appellant at the close of respondent's case and at the close of all of the evidence, respectively: (a) Because respondent's petition wholly failed to state facts sufficient to constitute a cause of action against appellant. Sabol v. Cooperage Co. (Mo.), 282 S.W. 425; Zasemowich v. Manufacturing Company (Mo.), 213 S.W. 799. (b) Because the undisputed evidence clearly showed that the proximate cause of the sliding of a portion of this pile either was conjectural, or was the result of negligence on the part of respondent's fellow servant, in either of which events respondent failed to make a prima-facie case. Frankly, appellant considers that the evidence showed that the proximate cause was the negligence of a fellow servant. Jones v. Liggett & Myers Tob. Co., 284 S.W. 513; Crawford v. Kansas City Bolt & Nut Co. (Mo.), 278 S.W. 373. (2) The court erred in permitting respondent to prove that the Mexican, who piled the material, had worked on that machine only one day. There was nothing in respondent's petition to warrant the admission of any evidence tending to show that Mexican was an incompetent servant; and there could have been no other purpose in making the proof shown. State ex rel. Long v. Ellison, 270 Mo. 645, 195 S.W. 722. (3) Respondent requested the court to give, and the court did give, but one instruction in his behalf, viz., on the measure of damages. Nevertheless, in his argument to the jury respondent's counsel insisted in arguing questions of law entirely outside of the instructions, and in orally instructing them on the safe-place rule. Powell v. Union Pacific Ry. Co., 255 Mo. 420, 164 S.W. 628, 639; Lewellen v. Haynie (Mo.), 287 S.W. 634, 649. (4) The verdict is excessive.

Louis J. Robinson and Earl M. Pirkey for respondent.

(1) The duty to furnish plaintiff a reasonably safe place is a nondelegable duty. Lampe v. American Railway Express Co., 266 S.W. 1009; Adair v. K.C. Terminal Ry. Co., 282 Mo. 133; Sneed v. Shapleigh Hardware Co., 242 S.W. 699; Coontz v. Missouri Pac. Ry. Co., 121 Mo. 659; White v. Montgomery Ward & Co., 191 Mo. App. 268; Strother v. Milling Co., 261 Mo. 16; Fogarty v. Transfer Co., 180 Mo. 512; Small v. Ice & Fuel Co., 179 Mo. App. 460; Mertz v. Rope Company, 174 Mo. App. 94; Bien v. St. Louis Transit Co., 108 Mo. App. 412; Hutson v. Railroad, 50 Mo. App. 300; Morin v. Rainey, 207 S.W. 858; Jorkiewicz v. American Brake Co., 186 Mo. App. 534; Bradshaw v. Standard Oil Co., 204 S.W. 831; Hallweg v. Bell Telephone Co., 195 Mo. 157. (2) The act of a fellow servant in the presence of the foreman is the act of the master. Krajovic v. J.H. Belz Provision Co., 260 S.W. 826; White v. Montgomery Ward & Co., 191 Mo. App. 271; Sullivan v. Railroad, 107 Mo. 78; Herdler v. Buck Stove Co., 136 Mo. 17; Combs v. Rountree Const. Co., 205 Mo. 381. (3) "A general plea of negligence, whether in the petition or answer, is sufficient without specifying the particular acts, unless objected to by motion or otherwise before trial." Geninazza v. R.U. Leonori Auction & Storage Co., 252 S.W. 419. (4) The circuit court and the Court of Appeals are required to follow a decision of the Court en Banc where it conflicts with a subsequent decision of a division of the Supreme Court. State ex rel. United Railways Co. of St. Louis v. Reynolds et al., 213 S.W. 782. (5) Only such objections as are necessarily and absolutely fatal to pleadings will be allowed on demurrer ore tenus. Objections ore tenus are not favored. Lorenz v. Bull Dog Automobile Insurance Association of Chicago, 277 S.W. 596.

DAUES, P.J.

This is an action for personal injuries. The case comes back to us from the Supreme Court after certiorari proceedings. Our former opinion is reported as Hopkins v. American Car & Foundry Co., 295 S.W. 841, where the petition is set out and fully discussed and a complete statement of the case is made.

We were then of the opinion that we were bound to follow the case of Kramer v. Kansas City Power & Light Co., 311 Mo. 369, 279 S.W. 43, as the last controlling decision of the Supreme Court, and though we expressed grave doubt as to whether the petition should be held to be insufficient after verdict, we concluded that the Kramer case, supra, precluded us from holding otherwise. Confusion arose with reference to the Kramer case, in that the reported opinion shows a majority of the court concurring in the main opinion as well as in the concurring opinion. When the instant case came before the Supreme Court, en Banc, on certiorari, that matter was clarified, in that the official record in the Kramer case shows a majority of the court as concurring in Judge WHITE'S concurring opinion and not in the main opinion, so that the concurring opinion by WHITE, J., is the law of that case, and under such concurring opinion it is then held that the petition in the instant case is sufficient after verdict.

Counsel for appellant, after this case came up for rehearing here, still insist that the Supreme Court's opinion does not compel us to hold the petition good. We cannot bring ourselves to believe that it is not our plain duty to take the opinion attached to the mandate as the controlling decision on the question. That opinion is reported as State ex rel. Hopkins v. Daues et al., Judges, 6 S.W. (2d Series) 893. There it is held, after a full discussion of the matter, that the correct rule in Missouri is that a general charge of negligence in a petition or answer is sufficient unless such pleading is properly assailed before verdict for want of definiteness. So that court has held the petition in the instant case to be sufficient after verdict. We therefore now hold, that appellant's attack upon the petition is of no avail.

A point not decided in the former opinion is again strenuously pressed, and that is that counsel for respondent not having instructed in the case except on the measure of damages, was erroneously permitted to argue the law to the jury. What occurred in the case, as appears from the record, is as follows:

"MR. PIRKEY: They say now, `we put up a pile there, we had charge of it, we had the whole thing; here is a man comes along and thought we understood our business, were doing our work right, and this thing falls over on him.' We come up and say, `You ought to have looked; you ought to have known whether that was going to fall; you ought to have gone to the office and told the company to pile this different' — in other words, excuse us for what we did, but condemn the man because he didn't do a thing which the law said it was our duty to do, which we undertook to do, and which this man had a right to believe we would do when he said, `Here I am, strong and able-bodied; I have got two feet; I have got two hands; I am ready to do a day's work and do as I am told.'

"MR. SHEPPARD: Your Honor, we object to the statement that the law says it was our duty...