Majestic Mfg. Co. v. Reynolds

• Citation: 186 S.W. 1072
• Decision Date: 02 June 1916
• Docket Number: No. 19346.,19346.
• Parties: MAJESTIC MFG. CO. v. REYNOLDS, Judge, et al.
• Court: United States State Supreme Court of Missouri

186 S.W. 1072

MAJESTIC MFG. CO. v. REYNOLDS, Judge, et al.

No. 19346.

Supreme Court of Missouri. In Banc.

June 2, 1916.

Certiorari by the Majestic Manufacturing Company, a corporation, against George D. Reynolds and others, Judges of the St. Louis Court of Appeals, to quash the record of said St. Louis Court of Appeals in the case of Francis Corry, by next friend, against the Majestic Manufacturing Company. Writ of certiorari quashed.

This is an original proceeding by certiorari to bring up for quashal the record of the St. Louis Court of Appeals in the case of Francis Corry, by Next Friend, Respondent, v. Majestic Manufacturing Company, Appellant, 181 S. W. 1076, lately pending in that court, for that, as it is alleged, the opinion written therein fails to follow the rule laid down by this court in the case of Cole v. Lead Co., 240 Mo. 397, 144 S. W. 855.

The facts in the case of Corry v. Majestic Manufacturing Co. (App.) 181 S. W. 1076, in brief are that plaintiff therein, a boy 18 years of age, while operating a foot power metal cutting machine, suffered the loss of one finger and portions off other fingers of his right hand. The machine in question is, as forecast, operated solely by foot power. It consists of two blades, or knives, which when in use are closed together in a manner similar to shears. The lower knife is fixed in a table; the upper knife, moving up and down in slots, is held apart from the fixed lower one by spiral springs at each end, and caused to descend in a shearing movement against the lower knife at the will of the operator, by means of a treadle operated by foot power.

Plaintiff in the Corry Case, while using this appliance, was, it is said, injured to the extent stated by the slipping forward of the metal strip which he was engaged in cutting, which metal strip carried his hand under the knife at the moment he operated the appliance by pressing down upon the treadle mechanism with his foot. The negligence complained of is the failure to guard this appliance, on the theory that the same is a "machine," or "machinery" within the purview of section 7828, R. S. 1909. Since the facts have been fully stated by the St. Louis Court of Appeals in their opinion therein, to be found where cited above, we see no occasion to cumber our reports with their details. The curious, if so inclined, may read them at the place stated.

The precise point wherein it is contended the opinion of the St. Louis Court of Appeals in the Corry Case fails to follow our ruling in the case of Cole v. Lead Co., supra, is, as we gather it, in holding that the above-described appliance is a machine within the purview of section 7828, supra. The language of the opinion of the St. Louis Court of Appeals in the Corry Case, wherein this conflict is said to occur, reads thus:

"It must be presumed that the lawmakers used the terms `machine' and `machinery' in their popular sense and meaning, which would include a machine of the character here in controversy. There is no thought or suggestion in the statute that the particular motive power is material. And in the case of a machine of this general character there would appear to be no substantial difference in the danger to be incurred by the operator in operating one driven by mechanical power and one operated by foot power, as was this. Where such a machine as this is run by mechanical power, it is necessary for the operator, either by foot or hand, to `operate' it; i. e., to press, by foot or hand, a lever or similar contrivance in order to cause the cutting portion of the machine to descend when required. It would appear to be immaterial whether the operator presses with his foot a lever to set in motion a `power machine' of this character, or presses a foot pedal and thereby supplies the power which causes the knife to descend. Indeed, it is to be inferred from the evidence that in the case before us the very fact that plaintiff had to exert some physical force in order to operate the machine contributed to occasion the slipping of the oily metal sheet with his fingers, whereby he came in contact with the knife.

"The argument that, with respect to the duty to guard imposed by the statute, there is no essential distinction between a machine such as this and a pair of `hand shears,' is obviously unsound. Not only is there a vast difference in the danger incurred in the use thereof respectively, but the former is in fact a `machine,' as that term is popularly known and used, while the latter is a mere simple tool. We think it altogether clear that the instrumentality in question is to be regarded as a `machine,' within the purview and intendment of the statute. It would, indeed, be a strained and narrow construction which would exclude it from the operation thereof. And it cannot be doubted that the evidence sufficiently shows that it was `so placed as to be dangerous to persons employed thereabout while engaged in their ordinary duties.'"

Toward a discussion of this question what we say below will be directed.

Percy Werner, of St. Louis (Leigh C. Turner, of St. Louis, of counsel), for petitioner. Albert E. Hausman, of St. Louis, for respondents.

FARIS, J. (after stating the facts as above).

Manifestly, the first inquiry in an original proceeding by certiorari, whereby the record in a cause is brought up to us from a Court of Appeals, is to ascertain whether such Court of Appeals in the opinion brought into question, has in fact failed to follow "the last previous ruling" of this court on the question of law involved.

We but repeat when we say that within their jurisdiction the several Courts of Appeal are empowered to construe authoritatively any statute found in the books. In fact they may construe it wrong, in the sense at least, that they may construe it in a manner different from that which we would put on it if it were before us, yet notwithstanding even such patent error, till we have passed upon it and...