Kitchen v. Schlueter Mfg. Co.

• Citation: 20 S.W.2d 676
• Decision Date: 14 October 1929
• Docket Number: No. 27611.,27611.
• Parties: ORA KITCHEN v. SCHLUETER MANUFACTURING COMPANY, Appellant.
• Court: United States State Supreme Court of Missouri

20 S.W.2d 676

ORA KITCHEN v. SCHLUETER MANUFACTURING COMPANY, Appellant.

No. 27611.

Supreme Court of Missouri. Division One.

October 14, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

REVERSED AND REMANDED.

Jones, Hocker, Sullivan & Angert for appellant.

(1) The plaintiff's petition does not state facts sufficient to constitute a cause of action, either generally or under the doctrine of res ipsa loquitur. (a) To make a case of res ipsa loquitur against the master the petition must plead facts concerning the event resulting in plaintiff's injury, which exclude all defensive inferences attributable by law to the negligence of the plaintiff, a fellow-servant, defects in the machinery or instrumentality involved which are latent or so recent in happening as to afford no reasonable opportunity for their discovery, lack of causal connection and the assumption of the usual hazards of the employment. The petition must also show control of the instrumentality by the master, and that the plaintiff had nothing to do therewith. Sabol v. Cooperage Co., 313 Mo. 540; Meade v. Water & Steam Supply Co., 300 S.W. (Mo.) 516; Hoffman v. Lime Co., 296 S.W. (Mo.) 770; Removich v. Construction Co., 264 Mo. 47; Von Trebra v. Gaslight Co., 209 Mo. 648; Klebe v. Distilling Co., 207 Mo. 489; McGrath v. Transit Co., 197 Mo. 104; Ash v. Printing Co., 199 S.W. (Mo.) 998; Prapuolenis v. Construction Co., 279 Mo. 367; Wilt v. McCallum, 214 Mo. App. 333; Halt v. Railroad, 279 S.W. (Mo.) 148; Case Note L.R.A. 1917E 4; R.S. 1919, Sec. 1220. (b) The petition pleads only the fact of the injury and the general conclusion that the injury resulted from the negligence of the defendant. The allegation of such a conclusion tenders no issue of fact and should not be considered in determining the sufficiency of the petition. Kramer v. Power & Light Co., 311 Mo. 383; Sabol v. Cooperage Co., 313 Mo. 542; Zasemowich v. Mfg. Co., 213 S.W. (Mo.) 802. (c) The petition is not aided by the course which the evidence took on the question of guarding. The issues must be confined to the pleadings, notwithstanding the evidence took a wider scope, especially in view of the trial court's and the plaintiff's theory of res ipsa loquitur. State ex rel. v. Ellison, 270 Mo. 653; Kuhlman v. Transit Co., 307 Mo. 635; Talbert v. Railway Co., 314 Mo. 367; Allen v. Mo. Pac., 294 S.W. (Mo.) 80. The petition wholly fails to state a cause of action, and, therefore, the rules with respect to a defectively stated cause of action do not apply, and it cannot be contended that if objection had been made an amendment would have been allowed during trial, because a failure to comply with the guarding statute would be specific negligence wholly disconnected with the cause of action attempted to be pleaded under res ipsa loquitur. Swift v. Fire Ins. Co., 279 Mo. 614; Stonemets v. Head, 248 Mo. 252; Cold Storage Co. v. Kuhlmann, 238 Mo. 702; Paving Co. v. Investment Co., 309 Mo. 661; State ex rel. v. Trimble, 315 Mo. 166. It is manifest that even if this court should conclude that the petition must be considered as having been amended to include the specific charge of negligence that the defendant failed to comply with the guarding statute, then the question of res ipsa loquitur passes out of the case and the plaintiff cannot depend thereon. Byers v. Essex Inv. Co., 281 Mo. 375; Ballman v. Teaming Co., 281 Mo. 355; Beave v. Transit Co., 111 S.W. (Mo.) 52; McManamee v. Mo. Pac., 135 Mo. 440; Allen v. Mo. Pac., 294 S.W. (Mo.) 87. (d) The sufficiency of the petition may be challenged for the first time in the Appellate Court. The record shows that the defendant was not guilty of "lying in wait" on the question, because it filed its motion to make the petition under the doctrine of res ipsa loquitur. When the trial court overruled that motion it necessarily held a cause of action was stated. La Rue v. La Rue, 294 S.W. (Mo.) 723; Removich v. Construction Co., 264 Mo. 47; Stonemets v. Head, 248 Mo. 262; Hudson v. Cahoun, 193 Mo. 557; E. St. L. Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. 702; Metropolitan Paving Co. v. Investment Co., 309 Mo. 661; Cole v. Parker-Washington Co., 276 Mo. 266. (2) The court erred in overruling defendant's demurrer to the evidence. (a) The evidence wholly fails to make a case under the doctrine of res ipsa loquitur. It not only shows that the plaintiff was operating the machine and had the duty of reporting when it was out of order, but it fails to authorize a finding that the machine was defective, and, if so, that the defendant was negligent in failing to discover such defective condition. Authorities, Point 1. (a), (b) When the plaintiff offered in evidence and asked the court to submit plaintiff's Instruction 2 on the theory of negligent failure to guard the machine, she waived any right to rely on the doctrine of res ipsa loquitur. Carpenter v. Burmeister, 217 Mo. App. 112; Gibson v. Wells, 258 S.W. (Mo. App.) 3; Heckfuss v. Paving Co., 224 S.W. (Mo. App.) 99; Kuhlman v. Transit Co., 307 Mo. 607; Pate v. Dumbold, 298 Mo. 435; Porter v. St. Joseph, etc. Co., 277 S.W. (Mo.) 913; Erlich v. Mittelberg, 299 Mo. 284; State ex inf. v. Gromer, 252 S.W. (Mo.) 707. (c) The evidence is wholly insufficient to show any negligence with respect to defects in the machine or insufficiency of the guard used, there being no evidence that anyone else had been injured on the machine, and the plaintiff's own proof showing that the machine was used without injury to anyone before and after the accident. The evidence shows that it was not necessary for the plaintiff to put her hands between the dies, and the master should not be required to assume that she would do so. Am. Brewing Assn. v. Talbot, 141 Mo. 684; Lowe v. Railroad, 265 Mo. 593; Chrismer v. Telephone Co., 194 Mo. 209; Brands v. Car Co., 213 Mo. 712; Sabol v. Cooperage Co., 313 Mo. 537; Myers v. Strauss, 264 S.W. (Mo.) 801; Zasemowich v. Mfg. Co., 213 S.W. (Mo.) 803; Trigg v. Land & Lumber Co., 187 Mo. 236; State ex rel. v. Ellison, 271 Mo. 473. (3) There being neither sufficient pleading nor evidence to sustain the theory that the machine in question was not safely and adequately guarded, the court erred in refusing defendant's withdrawal Instruction C. (4) The court erred in giving plaintiff's Instruction 2. Having offered evidence over the objections of the defendant as to the specific negligence in failing to properly guard the machine, and offering Instruction 1 thereon, the court erred in permitting the plaintiff to go to the jury under the doctrine of res ipsa loquitur. Carpenter v. Burmeister, 217 Mo. App. 112; Gibson v. Wells, 258 S.W. (Mo. App.) 3; Heckfuss v. Paving Co., 224 S.W. (Mo. App.) 99; Kuhlman v. Transit Co., 307 Mo. 607; Pate v. Dumbold, 298 Mo. 435; Porter v. St. Joseph, etc. Co., 277 S.W. (Mo.) 913.

Douglass & Inman for respondent; Hensley, Allen & Marsalek of counsel.

(1) The petition states a cause of action. (a) The facts alleged that the machine was so designed and intended that the plunger would make one operation and then ascend, when the operator put her foot on the treadle, but that on the occasion of her injury, after so operating once, it again descended without any action on plaintiff's part, injuring her, and that her said injury directly caused by negligence of defendant, states a cause of action. State ex rel. Packing Co. v. Reynolds, 287 Mo. 697; Heckfuss v. Packing Co., 224 S.W. 99; Sullivan v. Railroad, 97 Mo. 113; Ash v. Print Co. (Mo.), 199 S.W. 994; Eckhardt v. Mfg. Co. (Mo.), 235 S.W. 117; Blanton v. Dold, 109 Mo. 64; Wyler v. Patican, 150 Mo. App. 474; Dieter v. Zbaren, 81 Mo. App. 612; Quinley v. Trac. Co., 180 Mo. App. 287; Davidson v. Railroad, 98 Mo. App. 142; Hill v. Railroad, 49 Mo. App. 520, 121 Mo. 477; Sec. 1239, R.S. 1919. (b) Defendant conducted the case below on the theory that the petition stated a cause of action, and is bound by that theory on appeal. Geninaza v. Storage Co. (Mo.), 252 S.W. 417; In re McMenamy's Guardianship, 307 Mo. 98; McCoy v. Modern Woodmen, 275 S.W. 555; Simpson v. Wells, 292 Mo. 301; Jett v. Ry. Co., 178 Mo. 664; Penney v. Stock Yards Co., 212 Mo. 309; Chinn v. Naylor, 182 Mo. 583; Sartin v. Hospital Assn. (Mo.), 195 S.W. 1038; Duerst v. Stamping Co., 163 Mo. 607. (2) The demurrer to the evidence was properly overruled. (a) Where general negligence is pleaded, plaintiff may prove and submit specific negligence. Carpenter v. Burmeister, supra; Scharff v. Box Co., 151 Mo. App. 46; Moulderig v. Railroad, 116 Mo. App. 24. (b) The evidence showed specific negligence on defendant's part in failing to guard the machine safely and securely, as the statute requires. Sec. 6786, R.S. 1919; Lore v. Mfg. Co., 160 Mo. 162; Cole v. Lead Co., 240 Mo. 408; Mabe v. Mfg. Co., 219 Mo. App. 234. (c) There was ample evidence before the jury from which they could infer that the machine was defective. Prapuolenis v. Const, Co., 279 Mo. 358; Settle v. Railroad, 127 Mo. 336; Scheurer v. Rubber Co., 227 Mo. 347; Taul v. Saddlery Co., 299 S.W. 420; Collingsworth v. Zinc Co., 260 Mo. 703; Oborn v. Nelson, 141 Mo. App. 428; Am. Car & T. Co. v. Barry, 195 Fed. 919; Bartley v. Trorlicht, 49 Mo. App. 217; Staggs v. Mining Co., 199 S.W. 718. (3) Defendant's Instruction E was properly refused. It imposed too great a burden on plaintiff. Price v. Railway, 220 Mo. 463; Carlson v. Wells (Mo.), 276 S.W. 26; Simpson v. Ry. Co. (Mo.), 192 S.W. 739; Porter v. Ry. Co., 311 Mo. 72. It ignored the issue of defendant's negligence in failing to guard the machine. (4) Plaintiff's Instruction 2 was properly given. The instruction submits specific negligence, and was so regarded by defendant in the trial, as is shown by defendant's Instruction 4, which imposes upon plaintiff the burden of proving that the machine was defective. Defendant cannot, on appeal, take a position inconsistent with its trial theory.

LINDSAY, C.

The plaintiff,...