Macklin v. Fogel Const. Co.

Decision Date04 September 1930
Citation31 S.W.2d 14,326 Mo. 38
PartiesFrank Macklin, Appellant, v. Fogel Construction Company
CourtMissouri Supreme Court

Motion for Rehearing Overruled September 4, 1930.

Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge.


E C. Hall for appellant; Atwood, Wickersham, Hill & Chilcott of counsel.

(1) Plaintiff was performing his work in the very presence and under the specific orders and directions of his master. The testimony on behalf of plaintiff that he and one other employee of defendant were ordered and directed to go into a dangerous place to handle a piece of timber weighing 800 pounds made out a clear case of negligence on the part of defendant, entitling plaintiff to a submission of the case to the jury. It was defendant's non-delegable duty to provide a sufficient number of men to perform the duties assigned. Smith v. Greer, 257 S.W. 839; Bowman v. Elec. Lt. Co., 213 S.W. 165; Lewis v. Am. Car & F. Co., 3 S.W.2d 285; Haggard v. Wire & Iron Co., 249 S.W. 714; Dietderick v. Mo. Iron & Metal Co., 9 S.W.2d 824. (2) Plaintiff's evidence clearly entitled him to a submission of the case to the jury on the issue of the release having been obtained by fraud. Plaintiff's evidence stands uncontradicted and unimpeached. Defendant stood mute and dared not contest this issue or any other issue made by the pleading and proof. The following cases authorized setting of releases aside on testimony not nearly so clear and strong as is shown here. Yeager v. Lead Co., 12 S.W.2d 522; Wingfield v Railroad Co., 257 Mo. 364; Loveless v. Mining Co., 201 S.W. 377; Rau v. Robertson, 260 S.W. 754; Carroll v. Ry. Co., 157 Mo.App. 267; Haigh v. Laundry Co. (Iowa), 50 L. R. A. (N. S.) 1091; Jacobson v. Railroad Co., L. R. A. 1916D 144; St. L.-S. F. Ry. Co. v. Cauthen, 48 A. L. R. 1447, note p. 1462. (3) Defendant refused to accept offer of plaintiff to return money paid under release. This was sufficient, and actual production of cash was therefore waived. Stephenson v. Kilpatrick, 166 Mo. 262; Cunningham v. Railroad Co., 167 Mo.App. 285. (4) The defendant is estopped from asserting no case was made for the jury because it filed a general demurrer and there were several issues made by the pleadings, and defendant waived its demurrer when it asked and was given instructions submitting its theory of non-liability on all the issues made by the pleadings, proof and instructions. Davison v. Hines, 246 S.W. 303; State ex rel. v. Allen, 272 S.W. 927; Herod v. Railroad Co., 299 S.W. 79; Torrance v. Pryor, 210 S.W. 430.

Lathrop, Crane, Reynolds, Sawyer & Mersereau, George J. Mersereau and Winston H. Woodson for respondent.

(1) Plaintiff failed to make a case for the jury, and the ruling of the trial court sustaining defendant's motion for new trial on the ground that the court should have sustained the defendant's demurrer to plaintiff's evidence was proper. (a) Plaintiff failed to prove that the defendant was negligent. State ex rel. v. Cox, 310 Mo. 367, 276 S.W. 869; Jackson v. Mining Co., 151 Mo.App. 640; Mo. Pac. R. Co. v. Horner, 15 S.W.2d 994. (b) Plaintiff failed to prove sufficient facts to set aside the release. Wingfield v. Railroad Co., 257 Mo. 347; McFarland v. Mo. Pac., 125 Mo. 253; Homuth v. Ry. Co., 129 Mo. 629; 48 A. L. R., note on page 1462. (2) Plaintiff assumed the risk. Halloran v. Iron & Foundry Co., 133 Mo. 470; Robinson v. Packing Co., 184 Mo.App. 410, 171 S.W. 34; Cluett v. Union Light & Power Co., 220 S.W. 865; Scaffin v. Abernathy, 171 S.W. 933; Saversnick v. S. & S. Co., 141 Mo.App. 509; Korpall v. Welding & Cutting Co., 253 S.W. 506; Shea v. Ry. Co., 76 Mo.App. 29; Gwynne v. Power Co., 195 S.W. 505. (3) Plaintiff adopted an unsafe position while rolling the timber off the car when he might have adopted a safe method; therefore, he was injured because of his own negligence and this defendant is not liable. Hunter v. Candy Co., 271 S.W. 800, 307 Mo. 656; Reynolds v. Ice & Storage Co., 184 S.W. 934. (4) Defendant is not estopped from claiming that the evidence was insufficient to warrant a submission of the case to the jury. Mills v. Steadley & Co., 279 S.W. 160; Sabol v. Cooperage Co., 282 S.W. 433, 313 Mo. 527; Clay v. Ry. Co., 5 S.W.2d 412; Goodson v. Schwandt, 300 S.W. 797, 318 Mo. 666; Doerr v. Insurance Co., 285 S.W. 962, 315 Mo. 266; Hoelker v. Am. Press, 296 S.W. 1010, 317 Mo. 64. (5) Even though this court should hold that the reason given by the trial court for sustaining defendant's motion for a new trial was erroneous, this court will affirm the ruling of the trial court if the motion for new trial should have been sustained upon any of the other grounds alleged therein. Manthey v. Contracting Co., 311 Mo. 147, 277 S.W. 927; State ex rel. v. Thomas, 245 Mo. 65. (6) The court erred in giving plaintiff's Instruction 1. Heigold v. United Rys. Co., 308 Mo. 142; Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Cooney v. Pryor, 203 S.W. 630; State ex rel. v. Ellison, 176 S.W. 11. (7) Plaintiff's Instruction 2 is erroneous for the reason that it does not submit any question of fact to the jury, but submits a proposition of law. Wingfield v. Ry. Co., 257 Mo. 365; Menefee v. Scally, 247 S.W. 261. (8) The court erred in giving plaintiff's Instruction 3.


Frank, J.

Suit by appellant, plaintiff below, to recover damages for alleged personal injuries. Plaintiff recovered judgment in the sum of $ 12,833. Defendant's motion for a new trial was sustained and a new trial granted on the ground that defendant's demurrer to plaintiff's evidence should have been given. Plaintiff appealed.

Plaintiff was in the employ of respondent, Construction Company, and at the time of his alleged injury he, with another employee, was engaged in unloading large heavy timbers from a railroad car.

The petition, among other things, alleges that plaintiff was in the employ of defendant; that defendant was unloading a car of heavy timbers; that defendant's superintendent ordered and directed plaintiff and one Gooch to unload said timbers from said car; that said timbers were fourteen inches square, eighteen feet long, weighed about eight hundred pounds, and were too heavy for two men to handle without danger of being hurt; that said timbers and said car were wet and slippery; that defendant negligently ordered plaintiff to unload said timbers from said car without sufficient help and without proper tools; that plaintiff protested, but was assured by defendant that he could safely proceed to unload said timbers and that plaintiff relied on said assurance; that plaintiff was not accustomed to unloading such timbers and knew nothing of the facts aforesaid, but that defendant knew or by the exercise of ordinary care should have known all of said facts and that said place was not a safe place for men to work and that plaintiff did not have sufficient help or proper tools with which to do said work; that plaintiff relied on the superior knowledge of defendant's superintendent, and while attempting to unload said timbers by rolling them from said car as directed by said superintendent, said timbers being too heavy and very slippery, plaintiff was thrown from his hold and footing on said car and said timbers, and fell to the ground below and was seriously and permanently injured.

The answer contained: (1) a general denial; (2) a plea of contributory negligence; (3) assumption of risk; and (4) a plea of compromise and settlement, alleging that plaintiff accepted from defendant the sum of $ 495 in full settlement of all claims and demands on account of said alleged injuries and released and discharged defendant from all liability on account thereof.

The reply was (1) a general denial; and (2) a plea that said release was obtained by fraud and misrepresentation. The reply pleads the facts constituting the alleged fraudulent representations. These we will discuss later.

The evidence shows the following state of facts. Respondent, Fogel Construction Company, was constructing a building in Kansas City and at the time in question was unloading heavy timbers from a railroad car to be used in said building. This was an open coal car with sideboards and ends. The timbers extended about four feet above the sides of the car and were held in place by standards. These timbers were approximately eight by fourteen inches, about fourteen feet long and weighed from six to eight hundred pounds. It had been raining and was still drizzling and the car and timbers were wet and slippery. Plaintiff was in the employ of defendant as labor foreman, but he, as well as all other workmen, was under the direction and control of Lile Fogel, defendant's superintendent, at all times when he was present. Plaintiff was not experienced in unloading timbers from a car; had never done that kind of work before. On the day in question, defendant's superintendent was present and directed plaintiff and one Gooch to get on the car and roll the timbers off. The standards had theretofore been removed from the side of the car. In obedience to the orders of the superintendent plaintiff and Gooch climbed on the car for the purpose of rolling the timbers off. The timbers had slipped to the east end of the car. The superintendent directed plaintiff and Gooch to push each timber to the west six or eight feet before rolling it off the car. Plaintiff was on the east and Gooch was on the west end of the car. Plaintiff had to walk on the edge of the sideboard of the car and push the timber. After they had pushed the first timber to the west, the superintendent said, "That is far enough; roll it off." They then rolled the timber off the car, and as it went off, plaintiff slipped, fell to the ground and was injured.

Concerning the cause of plaintiff's fall, he testified:

"Q. What...

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