Ingram v. Prairie Block Coal Co.

• Decision Date: 24 March 1928
• Docket Number: No. 26383.,26383.
• Parties: WILLIAM INGRAM v. PRAIRIE BLOCK COAL COMPANY, ELMIRA COAL COMPANY AND HENRY WINGER, Appellants.
• Court: Missouri Supreme Court

5 S.W.2d 413

WILLIAM INGRAM v. PRAIRIE BLOCK COAL COMPANY, ELMIRA COAL COMPANY AND HENRY WINGER, Appellants.

No. 26383.

Supreme Court of Missouri, Division Two.

March 24, 1928.

Appeal from Johnson Circuit Court. — Hon. Ewing Cockrell, Judge.

AFFIRMED.

W.E. Suddath and A.M. Clark for appellants.

(1) The court erred in refusing the peremptory instruction requested by defendants at the close of all the evidence. Knorpp v. Wagner, 195 Mo. 637; Britt v. Crebo, 199 S.W. 154; Snyder v. Media Mining Co., 206 S.W. 593; Korpall v. Atlas Co., 253 S.W. 506; Kelmer v. Zine Co., 227 S.W. 861. (2) The court erred in refusing to instruct the jury to return a verdict in favor of defendant Elmira Coal Company. (3) The court erred in its rulings on the testimony: (a) In admitting testimony of other accidents, at indefinite times and places in the mine, in which one man was killed and many hurt; (b) In permitting plaintiff to say he would not have gone to the place of injury, if he had not been assured of safety; (c) In permitting plaintiff to testify that defendant said he would take the case to the Federal court, that he had lots of money, etc.; (d) In permitting plaintiff's counsel to ask the president of defendant company if he was unwilling to face the danger faced by the employees. Coale v. Railway, 60 Mo. 227; Hipsley v. Railway, 88 Mo. 348; Bowles v. Kansas City, 51 Mo. App. 421; Charlton v. Railway, 200 Mo. 413. (e) And in admitting in evidence the answer of defendant Prairie Block Coal Co., same being the answer on which the case was tried. Wesner v. Railway, 177 Mo. App. 117, syl. 4; Hildreth v. Hudloc, 282 S.W. 747. (4) The court erred in refusing to give Instructions L and M on the part of defendants. Britt v. Crebo, 199 S.W. 154; Haggard v. McGrew Coal Co., 200 S.W. 1072. (5) The court erred in failing to sufficiently reprimand counsel for plaintiff for improper and prejudicial conduct, persisted in throughout the whole course of the trial. Such conduct consisted in: (a) Reference to plaintiff's wife and children. Franklin v. Kansas City, 213 Mo. App. 154; Hecke v. Dunham, 192 S.W. 120; Stephens v. Railway, 96 Mo. 207; Dayharsh v. Railway, 103 Mo. 570; Mahaney v. Railway, 108 Mo. 191; Ex parte Dick & Bros. v. Ellison, 287 Mo. 139; Williams v. Railway, 123 Mo. 573. (b) Reference to financial condition of both plaintiff and defendant. Bishop v. Hunt, 24 Mo. App. 373; Haynes v. Town of Trenton, 105 Mo. 123; Mahner v. Linck, 70 Mo. App. 380; Killoren v. Dunn, 68 Mo. App. 212. (c) Inflammatory references to a fire in the mine, and that defendants took the mules out before the men. (d) Appeals to racial prejudice. Fathman v. Tumulty, 34 Mo. App. 236; Gibson v. Zeibig, 24 Mo. App. 65; Busse v. White, 302 Mo. 672, 683. (e) Persistent misconduct of counsel. Neff v. City of Cameron, 213 Mo. 350; Wojtylak v. Coal Co., 188 Mo. 260; Jackman v. Railway, 206 S.W. 246; Lewellen v. Haynie, 287 S.W. 634; Stroud v. Doe Run Lead Co., 272 S.W. 1082.

Pross T. Cross and Davis & Ashby for respondent; Nick M. Bradley and Gerald Cross of counsel.

(1) In their brief, appellants admit that the roof was not reasonably safe and say that plaintiff was guilty of negligence in working under it at all, even in the face of the orders of his foreman to work there. Plaintiff had a right to rely upon the superior knowledge and judgment of the master — the foreman. Brown v. Brick Co., 288 S.W. 941; McCarver v. Lead Co., 268 S.W. 687; Nash v. Lead Co., 238 S.W. 384; Clark v. Foundry Co., 234 Mo. 450; Sullivan v. Railway, 107 Mo. 78; Bane v. Irwin, 172 Mo. 316; Herdler v. Range Co., 136 Mo. 17; Garard v. Coal Co., 207 Mo. 242; Hall v. Coal Co., 260 Mo. 351; Corby v. Phone Co., 231 Mo. 417; Mount v. Coal Co., 242 S.W. 943; Hoover v. Mining Co., 160 Mo. App. 326; Lackland v. Coal Co., 110 Mo. App. 634. It is actionable negligence for the master to order the servant to do a given thing without first knowing that it is reasonably safe for the servant to do it. McCarver v. Lead Co., 268 S.W. 687; Nash v. Lead Co., 238 S.W. 584. Ordering a remonstrating servant to do a certain work is an assurance of safety, and renders the master liable. Brown v. Brick Co., 288 S.W. 941. When the servant is ordered into a dangerous place or to do a thing, he need not set his judgment against that of the master, at the peril of being discharged, but the servant may obey the order without being adjudged guilty of assumption of risk or contributory negligence — unless the danger is so glaring and obvious that a person of ordinary prudence would not undertake the task. And whether it is such, is always a question for the jury. Stephens v. Railroad, 96 Mo. 207; Keegan v. Kavanaugh, 62 Mo. 230; Nash v. Lead Co., 238 S.W. 584; Hall v. Coal Co., 260 Mo. 351. (2) The Elmira Coal Company was liable for debts of Prairie Block Coal Co. At the time plaintiff was injured he was employed by the Prairie Block Coal Company, a corporation of Iowa. This company, without any license or permit from the Secretary of State, and in violation of the statute, owned and was operating the mine at Elmira. About a month after plaintiff's injury, a new corporation was formed under the laws of Missouri, the Elmira Coal Company, and the Prairie Block Company immediately transferred all of its property over to the Elmira Company, for a consideration of $125,000, which sum the evidence showed had never been paid. Where one corporation buys and takes over all the property and assets of another corporation, it thereby and automatically, becomes liable for the debts, claims and liabilities of the corporation whose assets it takes over. Slattery v. Trans. Co., 91 Mo. 217; Thompson v. Abbott, 61 Mo. 176; Kinion v. Railroad, 39 Mo. App. 382; Berthold v. Holladay, 91 Mo. App. 233; Lighting Co. v. Hobart, 98 Mo. App. 227; Manny v. Surety Co., 103 Mo. App. 716; Barrie v. Railways, 138 Mo. App. 557; Palmer v. Railroad, 142 Mo. App. 633; Sweeny v. Mining Co., 194 Mo. App. 140; Sebree v. Company, 212 S.W. 11; Quinn v. Assur. Co., 183 Mo. App. 8; Zachra v. Mfg. Co., 179 Mo. App. 683; In re Doe Run Lead Co., 283 Mo. 646; Peters v. Express Co., 256 S.W. 100; Goodwin v. Express Co., 15 A.L.R. 1112. Defendant Elmira Coal Company requested no instructions defining its right or the law pertaining to its liability, but was guilty of "nondirection." Plaintiff submitted only an instruction on form of verdict against defendant Elmira Coal Company. Plaintiff and defendant were guilty of the same offense, "nondirection;" and nondirection is not error. A plaintiff may submit his case without instruction if he so desires. Williams v. Taxicab Co., 241 S.W. 970; Conley v. Railway, 253 S.W. 424; McDonald v. Railways, 245 S.W. 559; Armstrong v. Scullin Steel Co., 268 S.W. 386; Eddings v. Childress, 253 S.W. 130; Kelly v. Columbia Box Co. (Mo. Sup.), 248 S.W. 589. (3) Where improper evidence is erroneously admitted, the error may be cured by the court sustaining a motion to strike it out and instructing the jury to disregard it. Harrison v. Light Co., 195 Mo. 606; Weinben v. Peoples, 241 S.W. 645; Hamm v. Railroad, 211 Mo. App. 460; Spillman v. Freymann, 246 S.W. 976; Connor v. Rys. Co., 298 Mo. 18; Gaty v. Railways, 251 S.W. 61; O'Melia v. Railroad, 115 Mo. 205; Cochran v. People's Ry. Co., 131 Mo. 607; Logan v. Met. St. Ry., 183 Mo. 582; Walser v. Wear, 141 Mo. 443; Matthews v. Railway, 142 Mo. 645. (4) While a witness plaintiff was permitted to say that he would not have been at the place where he was injured, had he not been given the assurance of safety by the foreman. The matter objected to was proper. It was not a matter of speculation, guess or argument; he knew why he was there, and how he came to be there at the time of the injury. This was a matter of fact of which he had first and positive knowledge. It was entirely proper for him to state whether or not he acted on the assurance given by the foreman, and whether he relied upon it or not. His reliance upon the assurance of safety made by the foreman was a vital point in plaintiff's case.

WHITE, P.J.

Action for personal injuries. Suit was filed in the Circuit Court of Ray County; on application of plaintiff, change of venue was granted and the cause went to Johnson County, where a trial before a jury, January 3, 1925, resulted in a verdict and judgment for the plaintiff in the sum of twelve thousand dollars. Defendants appealed.

The plaintiff, William Ingram, employed by the Prairie Block Coal Company, an Iowa corporation, worked for that company in a coal mine at Elmira in Ray County, Missouri. The injury complained of was incurred March 24th or 25th, 1923. The defendant. Henry Winger, was foreman in charge of the work, and plaintiff was under his direction at the time of the alleged injury.

Plaintiff had been working for the Prairie Block Coal Company for three years, in Iowa and in Missouri. He was twenty-six years of age. He worked with what is called a machine crew, consisting of himself and one John Servi, and the foreman. Henry Winger, Winger was called the machine-runner, probably because he directed the operations of the machine. A mining machine was about eight feet long and two and a half feet wide. It was run along next a face of coal, and knives or picks operating on an endless chain cut the dirt from under the coal a space of from two and one-half to three feet wide. A shoveler came along and threw this dirt away from the face into what is called the "gob." The roof of the mine at the place where the plaintiff was working was about three feet high. It appears that the machine was pulled by a chain fastened to a jack set further in the drift fifty feet in advance of the machine. A jack was an iron bar about four and one-half feet long. It was set on the floor with the top in a hole punched in the roof so that it slanted toward the machine. The chain passed around the bottom part of the jack, and as the machine was pulled the pressure tightened the...