Lally v. Morris

• Decision Date: 17 February 1930
• Docket Number: No. 16839.,16839.
• Citation: 26 S.W.2d 52
• Parties: LALLY v. MORRIS.
• Court: Missouri Court of Appeals

26 S.W.2d 52

LALLY v. MORRIS.

No. 16839.

Kansas City Court of Appeals. Missouri.

February 17, 1930.

Rehearing Denied March 3, 1930.

Appeal from Circuit Court, Jackson County; Ralph P. Latshaw, Judge.

"Not to be officially published."

Action by Clarence L. Lally against A. I. Morris, doing business as the Morris Rental Company. On death of plaintiff, Elon J. Levis as executor was substituted as plaintiff. From judgment for plaintiff, defendant appeals.

Affirmed.

Harris & Koontz, of Kansas City, for appellant.

Neibling & Levis and John Hyde, all of Kansas City, for respondent.

ARNOLD, J.

This is an action in damages for personal injuries. The trial resulted in verdict and judgment for plaintiff in the sum of $3,500. Pending action of the court on a motion for new trial, plaintiff died. Upon proper procedure, Elon J. Levis, as executor, was substituted as party plaintiff. The motion for new trial being overruled, defendant has appealed.

The said executor has filed a motion to dismiss the appeal, and, as his reasons therefor, says there is a defect of party plaintiff in that the appeal is being prosecuted in the name of the parties as originally instituted without making the executor a party to said appeal. Second, that appellant has failed to include in his abstract all the evidence, or so much thereof as is necessary to a full understanding of all the questions presented for determination. In support of the latter assertion, said executor has filed what he denominates an additional abstract of record.

Referring to the sufficiency of the abstract, we find the abstract presented by appellant fairly sets forth the entire evidence in the cause. Although it is practically all in narrative form, this method is allowed by our rules. For the purpose of this appeal we may treat the cause as though said executor was named the plaintiff. The trial court made an order of substitution. Our files show appellant's abstract and brief were duly served upon the attorneys of record for plaintiff. Accordingly, it is ordered that our records be amended so that it shall appear that Elon J. Levis, as executor of the estate of Clarence L. Lally, deceased, is plaintiff in this appeal. The motion to dismiss the appeal is overruled.

The petition alleges, in substance, that plaintiff was employed as a janitor and houseman at an apartment building either owned or controlled by defendant; that part of his duties included lighting and regulating a furnace used in the heating of said building; that, while plaintiff was lighting the burner thereof, a violent and unusual explosion occurred, injuring him. The negligence charged consists of the following allegations: Failure to furnish a reasonably safe place in which to work; defective and improper appliances; failure to warn plaintiff of the danger therefrom; negligent orders and assurances of safety to plaintiff in the operation of said burner.

Defendant's answer contains a plea of contributory negligence, and also alleges that, at the time and place of plaintiff's injuries, defendant had more than ten employees regularly employed in this state, and, as a consequence, plaintiff's claim comes within the purview of the Missouri Workmen's Compensation Act (Laws 1927, p. 490), and the circuit court is without jurisdiction to entertain the proceedings.

In his reply plaintiff denied generally defendant's answer and set up certain allegations not material to the questions presented in this appeal, in estoppel of defendant's contention that the Compensation Act applied to plaintiff's action.

The evidence discloses that defendant owned and maintained with other buildings a three-story apartment building known and numbered as 1305 Troost avenue, in Kansas City, Mo.; that plaintiff had been in the employ of defendant as a janitor thereabout for just ten weeks prior to the date of his alleged injuries; that among his other duties, which included general work about the premises, he attended the furnace used for heating said building; that there was located in said furnace a crude oil burner, heating a large steam boiler forming part of the heating plant; that bricks were laid inside the fire box therein; that there was a small motor housing containing a fan; that a small pipe carried the oil into the fire box of the furnace to the burner tips; that this consisted of a hollow tube or small pipe inside of a larger pipe, which smaller pipe was crimped at the end and projected into the furnace; that the oil would shoot out from the feed pipe, and the fan operating and blowing through the large pipe would spray the oil over the blaze as it left the tip; that the feed pipe extended five or six inches into the furnace, and was about fourteen inches below the bottom of the door; that some of the oil would drop into the furnace from the tip unconsumed; that there was also a leak from the blow pipe; that practically all the time plaintiff was working there was an accumulation of oil in the fire box; that there was no safety device attached to the furnace, and, in the event the fire in the burner went out from any cause, the oil continued to run, unless manually turned off; that the furnace had no pilot light or common fuel gas connection for lighting the burner; that the only method for lighting the burner would be to throw a lighted paper into the fire box, then turn on the oil; that no appliance for lighting the burner had been provided; that, if the furnace had been running for a while and was shut off, or went out, the fire bricks and collected carbon about the fire box and burner in the furnace retained heat for some time; that at such times it was hot enough to light a paper; that a piece of paper then thrown in unlighted would ignite the burner.

It further appears plaintiff had been employed in general farm work and as a warehouse laborer before going to work for defendant. He had no previous experience in the operation of an oil burner furnace. It was no part of his duties to make any repairs upon the furnace. He was advised, if anything went wrong with the furnace, to make a report to defendant's manager on the premises and defendant would make needed repairs, and this was done on several occasions. Defendant understood and was aware plaintiff had not previously operated an oil burner, and a Mr. Van, another employee, was directed by defendant to instruct plaintiff in the manner of operating the furnace. Plaintiff testified that Mr. Van told him to open the door of the furnace, light a piece of paper, throw it into the fire box, then turn on the oil and watch the burner tip until there was sufficient amount of oil flowing to make a good blaze. Defendant several times in the presence of plaintiff tested the burner because of trouble he had reported of the fire in the furnace going out. On such occasions plaintiff noticed that, after the burner had been going for some time, if shut off and then relighted, defendant would merely toss in an unlighted paper which would ignite and light the burner.

It is in evidence that within a week of plaintiff's employment trouble in the furnace developed; that the burner frequently would go out, and that this continued at intervals; that on such occasions plaintiff made a report thereof, and defendant personally came out and made such adjustments or repairs as he deemed necessary; that he made tests as hereinbefore stated; that during the course of plaintiff's employment plaintiff asked defendant if there was any danger from the operation of the furnace, and was assured there was none; that plaintiff believed such statements, and relied upon them for safety.

The accident in question occurred December 16, 1926. On the day previous it appears the furnace had gone out twice after being lighted; that upon being again relighted by plaintiff it continued to burn and operate properly the balance of the day; that plaintiff had reported to defendant's manager how the furnace had acted; that defendant did nothing about the matter; that on the day in question at 5 a. m., the usual time, plaintiff lighted the burner and went about his work; that, after the building was heated, plaintiff turned off the burner; that at about 6:45 o'clock he again lighted the furnace by lighting a paper and throwing it into the fire box, then turning on the oil; that the furnace lighted and was in operation when plaintiff left to attend his other duties; that, upon returning after several minutes, he discovered that the burner had gone out; that he then shut off the oil; that he did not notify the manager of his repeated attempts to light the furnace, since she had not yet awakened; that he again ignited it by throwing a piece of lighted paper into the fire box and turning on the oil; that, after operating some 4 or 5 minutes, the furnace again went out; that he then again shut off the oil and attempted to relight the furnace; that at this latter attempt he merely threw in an unlighted paper and turned on the oil, apparently under the belief that there was sufficient heat in the furnace to ignite the paper. An explosion ensued, from which plaintiff sustained the injuries alleged.

An expert witness, testifying on behalf of plaintiff, stated, in answer to a...