Lampe v. St. Louis Brewing Association
| Decision Date | 04 May 1920 |
| Citation | 221 S.W. 447,204 Mo.App. 373 |
| Parties | WILHELMINE LAMPE, Respondent, v. ST. LOUIS BREWING ASSOCIATION, Appellant |
| Court | Missouri Court of Appeals |
Stetina v. Bergstein, was quashed by Supreme Court on certiorari. See 227 S.W. 47.
Appeal from the Circuit Court of the City of St. Louis.--Hon. Thomas L. Anderson, Judge.
AFFIRMED.
Judgment affirmed.
Jourdan Rassieur & Pierce for appellant.
(1) The court erred in permitting the plaintiff to read to the jury the deposition of her deceased husband, which had been taken in a suit brought by him against the defendant. Starkie on Evidence, 412-418; Womach v. St. Joseph, 201 Mo 467-468; Walker v. Philadelphia, 195 Penn. State 168; Seleck v. Janesville, 104 Wis. 570; Borders v. Barber, 81 Mo. 636, 644; Leslie v. Rich Hill C. M. Co., 110 Mo. 31; Bank v. Thayer, 184 Mo. 61, 99; Murphy v. Railway, 31 Hun, 358; Nelson v. Harrington, 72 Wis. 591, 606; Metropolitan Street Railway Co. v. Gumby, 99 F. 192; Fearn v. Ferry Company, 143 Pa. St. 122; Harrell v. Railway, 186 S.W. 677; Strode v. Railway, 197 Mo. 616; Holman v. Bachus, 73 Mo. 49, 51; 9 Am. & Eng. Enc. of Law, 357; Bloomington v. Osterle, 139 Ill. 120; Harrington v. Harrington, 2 How (Miss.) 701; Peery v. Moore, 24 Mo. 285; Bryan v. Malloy, 90 N.C. 508; Brown v. Johnson, 13 Gratt. 644, 649; Miller v. Gillespie, 54 W.Va. 450; Commissioner v. McWhorter, 2 McMullen 254; Walterhouse v. Walterhouse, 130 Mich. 89; Morgan v. Nicholl, L. R. 2 C. P. 117; Hovey v. Hovey, 9 Mass. 216; Brandon v. Mullenix, 11 Heisk. 446. (2) The court erred in refusing to sustain a demurrer to the evidence since the deceased assumed the risk of his employment and was guilty of such contributory negligence as to bar a recovery. Smith v. Forester-Nace Box Co., 193 Mo. 715, 737; Stutxke v. Consumers Ice & Fuel Co., 156 App. 1-11; Milby & Dow Coal & Mining Co. v. Balla, 18 L. R. A. 695; Douglas v. Scandia Coal Company, 141 N.W. 960; Clark v. Railroad, 179 Mo. 66; Armington v. Providence Ice Co., 82 A. 263; Moore v. American Express Co., 172 S.W. 416; Knorpp v. Wagner, 195 Mo. 637, 666. (3) The court erred in permitting Dr. Henske to give an opinion as to the possible effects of a broken rib tearing and injuring the lungs of the deceased and causing tuberculosis to develop, since there was no evidence to support such an assumption. Senn v. Railroad, 108 Mo. 142; Culbertson v. Railroad, 140 Mo. 35; Mammerburg v. Railroad, 62 Mo.App. 563; Heinzel v. Railroad, 182 Mo. 528.
Holland, Rutledge & Lashly and Joseph Kane for respondent.
(1) The court committed no error in receiving the deposition of the deceased husband of plaintiff which was taken in a suit brought by the decedent for the personal injuries from which he afterwards died. Such cause of action is perpetuated by the statute and transmitted to his widow upon his death. Sec. 5426, R. S. 1909; Strode v. St. Louis Transit Co., 197 Mo. 616; Harrell v. Railroad Co., 186 S.W. 677; Parson v. Parson, 45 Mo. 265; Howard v. Strode, 242 Mo. 210. (a) The court did not overrule the objection to the deposition on any court rule ground at all, but upon the merits of the objection. (b) Even if the court had assigned a wrong reason for a right ruling it is no ground for a reversal. Chlanda v. Transit Co., 213 Mo. 262; State v. Rose, 271 Mo. 25; State v. Kaiser, 124 Mo. 651; State ex rel. v. Finn, 100 Mo. 429; Green v. St. Louis, 106 Mo. 454; Bissell v. Warde, 129 Mo. 439; Egger v. Egger, 225 Mo. 116; Green v. Railroad Co., 211 Mo. 18. (2) The court did not err in refusing to sustain a demurrer to the evidence in this case because (a) under the law of Missouri there is no assumption of risk where the negligence of the master is involved; (b) whether the servant was guilty of contributory negligence is a question for the jury. State ex rel. v. Reynolds et al., 200 S.W. 58; Williams v. Pryor, 200 S.W. 53; Patrum v. Railroad, 259 Mo. 121; Curtis v. McNair, 173 Mo. 270; Strother v. Milling Co., 261 Mo. 23; Lohmeyer v. Cordage Co., 137 Mo.App. 624. (a) The deceased was not obliged under the law to quit his job and begin a search for employment as soon as a danger appeared, but was entitled to rely upon the promise of his employer that he would send the dangerous mule away. Warner v. Railroad, 62 Mo.App. 184; Huhn v. Railroad, 92 Mo. 440; Harris v. Railroad, 146 Mo.App. 524; Garaci v. Construction Co., 124 Mo.App. 709; Blundell v. Miller Elevator Co., 189 Mo. 552; Booth v. Railroad, 76 Mo.App. 516, 518, 519; Minnier v. Railway Co., 167 Mo. 99, 114; Robbins v. Mining Co., 105 Mo.App. 78, 82. (3) No error was committed in allowing Dr. Henske to testify to all of the causes of consumption. The cases cited by appellant under its point 3 are all railroad stoppage cases, which are distinguished from injury cases, where the doctor saw the patient, examined and treated him, and testified from his own observation as well as hypothetically. Millirons v. Railroad, 176 Mo.App. 39, 49; Patterson v. Springfield Traction Co., 178 Mo.App. 250, 260. (4) This judgment ought to be affirmed because it is for the right party, is modest in amount, and upon the whole record the plaintiff ought to win. Shinn v. Railroad Co., 248 Mo. 181, 182; Peterson v. Transit Co., 199 Mo. 344; Schnepbach v. Gas Co., 232 Mo. 611; Fox v. Windes, 127 Mo. 514; Noble v. Blount, 77 Mo. 239; Haehl v. Railroad Co., 119 Mo. 344; McFarland v. Heim, 127 Mo. 335; Sherwood v. Railroad Co., 132 Mo. 339, 346.
This is a master and servant negligence case. The action is maintained by Wilhelmine Lampe as widow of Frederick Lampe, the deceased employee of the defendant, to recover under the Compensatory Death Act the sum of $ 10,000, for the death of her husband alleged to have been caused by the defendant's negligence.
The verdict of $ 2,000 is a modest one if a liability was established.
The plaintiff's husband was a driver of and in charge of a team of mules furnished and owned by the defendant and which was used for the purpose of delivering defendant's product to various saloons in St. Louis and St. Louis County.
The relation of master and servant between the husband and the defendant is admitted. The negligence charged is, that on and prior to June 30, 1914, Frederick Lampe was in the employ of the defendant as a driver of a team of mules attached to a wagon, and that it was a part of his duties to care for and harness the said mules, and that one of said mules was vicious, wild and unmanageable, and that it would jump, kick, buck and lunge viciously without any provocation and without any warning, and that at said times the defendant knew, or by the exercise of ordinary care would have known that the said mule was as stated liable and apt to become violent and vicious and to kick, jump, buck, lunge and thus injure anyone coming near or around it, and that it was dangerous for anyone to work near or about it: and that defendant was guilty of negligence in requiring plaintiff's husband to work near and about said mule when the defendant knew, or by the exercise of ordinary care would have known, of such dangerous traits in said mule, and that it was not reasonably safe for plaintiff to work with or about said mule; that on the morning of June 30, 1914, while plaintiff's husband in the performance of the ordinary duties of his said employment, entered the stall provided by the defendant to put the harness on the mule, said mule suddenly, violently and viciously bucked and jumped or lunged against plaintiff, crushing him against the side of the stall with such force that he was bruised about the body, and one of his ribs was broken and shattered and driven through the linings into the tissues of his lung, lacerating, tearing and cutting the lung, and causing an abscess and hemorrhage, and that as a direct result of said injury the wasting and incurable disease of consumption or tuberculosis of the lungs developed, as a direct result of which said Frederick Lampe died on October 20, 1914, and that said injury, disease and death were directly caused by said negligence on the part of the defendant.
The defense was a general denial and a plea of contributory negligence, in that the death of the plaintiff's husband was caused by his own carelessness and negligence in kicking the mule and beating him with a rubber hose attached to a stick.
On this appeal, duly perfected by the defendant, error is complained of as follows:
First. The court erred in permitting the plaintiff to read to the jury the deposition of her deceased husband which had been taken in a suit brought by him against the defendant.
Second. The court erred in refusing to sustain a demurrer to the evidence, since the deceased assumed the risk of his employment and was guilty of such contributory negligence as to bar a recovery.
Third. The court erred in permitting Dr. Henske to give an opinion as to the possible effects of a broken rib tearing and injuring the lungs of the deceased and causing tuberculosis to develop, since there was no evidence to support such an assumption of fact.
As to the specification of error on the admission in evidence of the deposition, it appears that before the trial in the circuit court the plaintiff, after notice to the defendant, caused to be filed in the cause the deposition of her deceased husband which had been taken in a suit brought by him against the defendant on account of the same injuries that is here alleged to have caused his death. The deposition was taken before a Special Commissioner on behalf of the plaintiff in the prior cause.
On the second day after the filing of the deposition, the defendant filed a motion to suppress and to strike same from the files because the...
To continue reading
Request your trial