Jewell v. Sturges

• Decision Date: 14 November 1912
• Citation: 151 S.W. 966,245 Mo. 720
• Parties: JEWELL v. STURGES et al.
• Court: Missouri Supreme Court

151 S.W. 966

245 Mo. 720

JEWELL v. STURGES et al.

Supreme Court of Missouri, Division No. 1.

November 14, 1912.

On Rehearing November 26 and 30, 1912.

1. MASTER AND SERVANT (§ 88) — INJURIES TO SERVANT — INDEPENDENT CONTRACTOR — DEFECTIVE PLACE TO WORK.

Plaintiff, an iron roller, was injured while working in defendant's plant by being caught in the loop of a hot bar of iron, due to the absence of an iron post intended to be set in the floor to prevent such an injury. Defendant company furnished all the instrumentalities for the manufacturing operations. Held, that defendant was liable for plaintiff's injuries, whether plaintiff was an employé of defendant or of the head roller who, under a contract dictated by a labor union, did all the actual work of manufacture in the mill according to a certain piece work schedule, and employed, discharged, and paid plaintiff and the other workmen under him.

2. MASTER AND SERVANT (§ 88) — NATURE OF RELATION — SERVANT OF INDEPENDENT CONTRACTOR — INJURIES — LIABILITY OF OWNER.

Where an owner undertakes to furnish the place and the appliances with which an independent contractor is to perform his contract and retains possession and control over the place and appliances, the owner will be liable for injuries to the servants of a contractor by reason of the unsafe character of the place; the contractor and his employés under such circumstances having the same right that an ordinary employé has to demand of the owner a reasonably safe place to work.

Graves, P. J., and Lamm and Ferriss, JJ., dissenting.

In Banc. Appeal from Circuit Court, Jackson County; Jos. E. Guthrie, Judge.

Action by Jesse Jewell against Benjamin Sturges and the Kansas City Bolt & Nut Company. Judgment for plaintiff against the Kansas City Bolt & Nut Company, and it appeals. Affirmed.

Because of a dissent in division, the case was transferred to the court in banc, and after a rehearing the latter adopted the divisional opinion of WOODSON, J., as the opinion of the court in banc, which is as follows:

"This case was here on a former appeal, and the opinion affirming an order of the circuit court, granting the plaintiff a new trial, is reported in 231 Mo. 176, 132 S. W. 703, 140 Am. St. Rep. 515. The facts of the case were fully stated in detail by the court in the opinion before mentioned, and for that reason they will be but briefly stated here; reference is made to that case for a statement of the facts as they appear by the record in this appeal.

"Briefly stated, the defendant was a large manufacturing concern which manufactured various products made of iron and steel, and among other things it made rods, bolts, and nuts. A part of the work necessary to produce those articles was to heat and roll large bodies of iron through the rolling mill, which constituted one of the departments of the defendant company's plant. That was accomplished in the following manner: `Scrap iron was bundled up, bound together, and heated to a white heat in a furnace. It was then run through a set of rolls by other employés, called "roughers," and thus formed into billets some three feet in length and three inches thick; it was then passed to another set of employés, called "strainers and catchers," of which plaintiff was one, who passed it through other sets of rollers several times, reducing it each time in thickness and increasing its length until it reached the desired dimensions. The rolls at which plaintiff was engaged stood in an east and west direction, containing several sets of rolls about 15 feet in length. The plaintiff occupied the north side of the string of rolls. Those working with him were on the south side of the string of rolls. Those on the south side would take a billet from the roughers and place the end of it in the rolls; the rotary motion of which would convey it to the north side, where the plaintiff would catch it with a pair of iron tongs, and place the end of it in another set of rolls beneath the ones from which it had just passed, and it would be carried back to the south side by the same means and reduced in thickness and extended in length, as previously stated. This method was continued until the bar was some 30 or 40 feet in length, when the process of "repeating" was begun; that is, the plaintiff would catch the end of the bar with a pair of tongs as it came through at the east end of the rolls and carry it around north in a semicircle and place the front end in the rolls at the west end of the string which so ran as to carry the bar back to the south side. By this process the bar would be coming through at the east end of the string of rolls to the north side, and at the same time it would be going through the rolls to the south side at the west end of the rolls.' The foregoing quotation is taken from the statement of the case in the former opinion.

"The evidence showed that some 8 or 10 feet back from the set of rollers there was a hole made in the floor of the mill in which an iron post was designed to be inserted, when the `repeating' process, before mentioned, was being carried on. This was intended to prevent the catcher from being caught in the loop of the bar and drawn up to and crushed by it against the rollers in case the rear end thereof should for any reason hang in the roller. That, at the time of the plaintiff's injury, said post was not in position, but in lieu thereof an iron spindle and some other materials were placed on the floor near said hole. That while the plaintiff was engaged in the performance of his duties as a catcher, the rear end of a rod caught in the roller, and the loop thereof surrounded and knocked said iron spindle and other materials aside and caught the plaintiff just above the ankle of the foot and drew it up against a tub of water, which was setting between him and the rollers, and so burned, bruised, and mangled his leg that, after suffering excruciating pain and mental anguish for a year or more, it became necessary for his limb to be amputated just above the ankle. The second trial resulted in a verdict for the plaintiff for $18,000, of which he remitted $3,000, leaving $15,000, for which judgment was entered, and in due time the defendant appealed.

"All of the questions except one presented by the record on the former appeal were carefully and fully considered and disposed of by this court in the opinion before mentioned. Counsel for the defendant at the second trial, retried in the circuit court all the questions passed on by this court on the former appeal, and have rethrashed them out here on this appeal, and request us to reconsider them at this time. After a careful reexamination of the questions of fact and law presented by this record, we are satisfied that the conclusions reached, when the case was here before, were correct, and no good would be accomplished by restating or passing upon them again.

"We will content ourselves at this time by first restating the question not passed upon in the former opinion, and, second, the substance of the evidence bearing upon it, all of which was not introduced at the former trial, namely, that the plaintiff was not working for the defendant at the time he was injured, but was employed by and was working for the Blue Valley Lodge No. 2 of the National Amalgamated Association of Iron, Steel & Tin Workers, and that in consequence thereof defendant company was not liable to the plaintiff for the injuries received by him.

"The evidence in this case covers more than 400 pages of printed matter, and a large portion of it relates to this question, and we will therefore only be able to set out the substance of part of it and the effect of other portions, which is as follows: A contract between the defendant company and said Association of Workers, which is as follows: The portions of said document introduced in evidence being in the words and figures following:

"`Page No. 3. Ex. 1 — A. E. P. "`Sheffield, Mo.

"`Western Scale.

"`Memorandum of Agreement.

"`We, Kansas City Bolt & Nut Co., of the first part, and Blue Valley Lodge No. 2, State of Missouri, National Amalgamated Association of Iron, Steel & Tin Workers, of the second part, do hereby agree that the following scales of prices, based upon the actual sales and shipments of iron or steel, as arranged for in conferences, shall govern the wages of the several departments as herein stated, commencing July 1, 1902, and ending June 30, 1903.

"`It is further agreed that no scale shall go below the base price named on the rate selected.

"`It is understood: First. That iron mills (except sheet mills) working steel shall pay price and one-half price for steel, but this shall not apply to mild steel, that is, working that steel of which the output of the mill shall be as great as when working iron of the same sizes; but when the output of steel is but three-fourths (¾) of the output of iron, the rule price and one-half shall apply.

"`Second. On all mills working iron or steel weighing one hundred and thirty (130) pounds, or over, extra help shall be furnished to the heater, the same to be paid by the company.

"`Third. The time in scrapping and busheling, also finishing departments, shall in no case exceed nine hours and fifteen minutes from the regular time the mill begins to roll until the first furnace commences to charge the last heat. This shall not apply to mills working shorter charging hours; this not to apply to boiling departments (except scrapping and busheling); also other departments working under the three-turn system. The time for meals on following-up mills shall not be counted in.

"`Page No. 4. Ex. 1 — B. E. P.

"`Fourth. Wherever deviations from the Western Iron Scale, signed for by any manufacturer and the Amalgamated Association, are made and evidence is produced to prove it, the Amalgamated Association and manufacturers agree to make every effort to correct the same, provided the trains and furnaces are similar, but if the...