Kettlehake v. American Car & Foundry Co.

• Decision Date: 04 February 1913
• Parties: AGNES KETTLEHAKE, Respondent, v. AMERICAN CAR & FOUNDRY COMPANY, Appellant
• Court: Missouri Court of Appeals

153 S.W. 552

171 Mo.App. 528

AGNES KETTLEHAKE, Respondent, v. AMERICAN CAR & FOUNDRY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 4, 1913

Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.

AFFIRMED.

Judgment affirmed.

Watts Gentry & Lee for appellant.

(1) The court erred in overruling the defendant's demurrer to the evidence. The same rule is applicable in this case as that which has been applied in suits by section hands, in suits for personal injuries, and in suits by widows of section hands for damages occasioned by their death by the operation of trains by railroad companies. Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 435; McGrath v. Transit Co., 197 Mo. 97; Sissell v Railroad, 214 Mo. 515; Clancy v. Transit Co., 192 Mo. 615; Evans v. Railroad, 178 Mo. 508; Davies v. People's Railway Co., 159 Mo. 1; Degonia v. Railroad, 224 Mo. 564; Van Dyke v. Railroad, 230 Mo. 259; Ginocchio v. Railroad, 155 Mo.App. 163; Hitz v. Railroad, 152 Mo.App. 687. (2) The court erred in denying the application of the defendant, American Car & Foundry Company, for removal of this case to the United States Court after the plaintiff had taken a non-suit as to the two individual defendants who were originally joined. Powers v. Railroad, 169 U.S. 192. (3) The court erred in permitting the plaintiff to testify over the objection of defendant's counsel that she had no means of support except her husband. This was very prejudicial to the defendant, especially where it was a non-resident corporation, since it paraded the poverty of the widow before the jury. There was nothing in the case to justify punitive damages. If there had been, then such evidence would have been admissible, but this action is based purely on negligence. Therefore evidence of the financial condition of either plaintiff or defendant was inadmissible. Overholt v. Vieths, 93 Mo. 422; Stephens v. Railroad, 96 Mo. 207; Weller v. Railroad, 120 Mo. 635; Railroad v. Roy, 102 U.S. 45; Chicago v. O'Brennan, 65 Ill. 160; Railroad v. Powers, 74 Ill. 341; Railroad v. Moore, 61 Ga. 151; Railroad v. Morandow, 93 Ill. 302; Railroad v. Johnson, 103 Ill. 512; Railroad v. Pitzer, 109 Ind. 179; Green v. Railroad, 122 Cal. 563; Railroad v. Evans' Administrator, 23 Ky. L. Rep. 568; Brennan v. Coal Co., 241 Ill. 610; Gas Co. v. State, 109 Md. 186.

George Safford for respondent.

(1) The rule applicable to section hands working on railroad tracks where trains are expected to be running to and fro at all times does not apply to car repairers working about and upon cars on repair tracks in car shops when the employer by custom impliedly contracts to notify the repairers when cars are to be moved, in time to permit them to reach a place of safety, and to refrain from moving such cars until such timely notice is given. Anderson v. Railroad, 196 Mo. 448; Porter v. Stockyards Co., 213 Mo. 372; Koerner v. Car Co., 209 Mo. 141. (2) Every fact which the evidence tends to prove, though but in the slightest degree, must be taken as admitted by an instruction in the nature of a demurrer to the evidence, and every inference which the evidence tends to show in plaintiff's favor should be drawn. Wilkerson v. Railroad, 26 Mo.App. 144; Field v. Railroad, 46 Mo.App. 449; Bender v. Railroad, 137 Mo. 240; Moore v. Railroad, 73 Mo. 439; Vautrain v. Railroad, 78 Mo. 45. (2) The court did not err in denying appellant's petition for removal. (a) We deny that a petition for removal lies when a controversy, for the first time, becomes one wholly between citizens of different states on account of an involuntary termination of the controversy, after the trial has begun in good faith, as to the local defendant. Lathrop, Shea & Henwood Co. v. Int. C. & I. Co., 215 U.S. 247; Alabama G. S. R. Co. v. Thompson, 200 U.S. 206; Railroad v. Herman, 187 U.S. 63; Knott v. McGilvray, 124 Cal. 128; McGilvray v. Knott, 179 U.S. 680; McDonnell v. Jordan, 178 U.S. 229; Gerling v. Railroad, 151 U.S. 686; Fisk v. Henarie, 142 U.S. 469; Rosenthal v. Coates, 148 U.S. 142; Laidly v. Huntington, 121 U.S. 179; Bank v. Claypool, 120 U.S. 268; Gregory v. Hartley, 113 U.S. 742; Scharff v. Levy, 112 U.S. 711; Alley v. Nott, 111 U.S. 472; Moon on Removal of Causes, art. 187; Moon on Removal of Causes, art. 7; Howe v. Railroad, 30 Wash. 575. (b) But an involuntary nonsuit with leave to move to set same aside and reinstate does not terminate the controversy. State to use Resp. v. Kessler, 15 Mo.App. 590. (c) Nonsuit after demurrer to the evidence has been sustained and timely exceptions saved, is involuntary. Nivert v. Railroad, 232 Mo. 811; Shoe Co. v. Prickett, 84 Mo. 94; Lewis v. Mining Co., 199 Mo. 463; Dunnevant v. Mocksond, 122 Mo.App. 428. (3) The court did not err in admitting evidence as to the pecuniary standing of plaintiff. (a) Such evidence is admissible to show that plaintiff was dependent on her deceased husband for support and the amount he did contribute and would have contributed to her and her children's support. Railroad v. Moseley, 51 So. 424; Railroad v. Jones, 130 Ala. 456; Swift & Co. v. Foster, 163 Ill. 50; Mulhall v. Fallon, 176 Mass. 266; Electric Light Co. v. Sullivan, 22 App. D. C. 115; Fowler v. Furnace Co., 58 N.Y.S. 223, 41 A.D. 44; Railroad v. Altemeier, 60 Ohio St. 10; Railroad v. Burnett, 38 S.W. 813; Railroad v. White, 56 S.W. 204; Railroad v. Knight, 52 S.W. 640; Railroad v. Davis, 54 S.W. 909; Thoresen v. Railroad, 94 Wis. 129; Cooper v. Railroad, 66 Mich. 261; Railroad v. Crudup, 63 Miss. 291; Pressman v. Mooney, 5 A.D. 121; Sills v. Railroad, 28 S.W. 908; Ewin v. Railroad, 38 Wis. 613; Johnson v. Railroad, 64 Wis. 425; Annas v. Railroad, 67 Wis. 46. (b) An objection that testimony is "immaterial" is so general that it amounts to no objection at all, and does not constitute proper foundation for the assignment of error in this court. State v. Hailsabeck, 132 Mo. 359; State v. Howard, 203 Mo. 600; State v. Meagher, 124 Mo.App. 333; State v. Crone, 209 Mo. 316; Randell v. Railroad, 102 Mo.App. 342; Lumber Co. v. Rogers, 145 Mo. 445; Gayle v. Car & Foundry Co., 177 Mo. 427.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

--The appeal in this case, from a judgment against the American Car & Foundry Company, was originally taken by that company to the Supreme Court of the State. The verdict and judgment were for $ 5400. On consideration of the cause the Supreme Court, adopting an opinion by Mr. Commissioner BROWN, transferred the cause to our court, the opinion reported under the title Kettelhake v. American Car & Foundry Company, 243 Mo. 412, 147 S.W. 479.

The action was originally instituted February 5, 1908, by plaintiff, widow of one Frank Kettlehake, against the defendant American Car & Foundry Company and two others for the recovery of damages alleged to have been sustained by reason of the death of her husband. As pleaded in the amended petition, the right of action set out in the first count of the petition purported to be based upon section 2864, Revised Statutes 1899, as amended by the Act approved April 13, 1905 (Session Acts 1905, p. 135), now section 5425, Revised Statutes 1909, $ 10,000 being claimed as damages under the provisions of that act. The second count was founded on section 2866, Revised Statutes 1899, as amended by the Act approved March 19, 1907 (Session Acts 1907, p. 252), now section 5426, Revised Statutes 1909. Ten thousand dollars was likewise claimed under this act. Before the case was finally submitted to the jury, plaintiff dismissed as to the second count, so that is out of this case. Recovery was had on the first count and against the appellant American Car & Foundry Company alone, the plaintiff having taken an involuntary nonsuit as to the two individual defendants. It is in connection with this latter phase of the case that a federal question was sought to be injected into the case. We refer to the opinion of Mr. Commissioner BROWN, before cited, for a full statement of the facts connected with this.

The errors here assigned by counsel for the appellant are four, namely, to the overruling of the demurrer to the evidence, to the admission of improper evidence tending to show plaintiff's poverty, to the giving of improper instructions and to the denial of the application of the American Car & Foundry Company's application for removal of the cause to the United States Circuit, now District, Court.

It goes without saying that the demurrer to the evidence is to be determined on that of plaintiff, respondent here. A very careful reading and consideration of that satisfies us that it was sufficient to take the case to the jury. Plaintiff's husband was a car repairer in the employ of defendant, a corporation created and organized under and by virtue of the laws of the State of New Jersey, engaged in the manufacture and repair of cars in the city of St. Louis. It there had extensive shops and yards, moving cars in and about its yards by locomotive engines owned and operated by it there being a network of tracks in its yards along which it moved and on which it placed cars in course of construction or repair. Immediately before the accident Kettlehake and a fellow employee named Lechner were engaged in what Lechner calls "working bottoms; that is, fastening nuts on the bottoms of these box cars." He further testified that to do this they worked under a car, which had been placed on one of the tracks in the yards of the defendant corporation. He and Kettelhake had been at that work all of the day of the accident, which occurred between four and five o'clock on January 23d. A few minutes after four o'clock on that afternoon having occasion to quit his work temporarily and go to a toilet room, he left Kettlehake...