Maurizi v. West. Coal & Mining Co.

• Decision Date: 24 November 1928
• Docket Number: No. 26372.,26372.
• Citation: 11 S.W.2d 268
• Court: Missouri Supreme Court
• Parties: VINCENZO MAURIZI v. WESTERN COAL & MINING COMPANY, Appellant.

11 S.W.2d 268

VINCENZO MAURIZI v. WESTERN COAL & MINING COMPANY, Appellant.

No. 26372.

Supreme Court of Missouri. Court en Banc.

November 24, 1928.

Appeal from Jackson Circuit Court. — Hon. O.A. Lucas, Judge.

AFFIRMED.

Edward J. White and Inghram D. Hook for appellant.

(1) No basis for voir dire examination. Chambers v. Kennedy, 274 S.W. 729; Pettit v. Goetz Sales Co., 281 S.W. 973; Hill v. Jackson, 272 S.W. 107. (2) Defendant's demurrer at close of evidence should have been given. Kansas Compensation Act; Menke v. Hauber, 99 Kan. 171; McRoberts v. Zinc Co., 93 Kan. 246; Construction Kansas Compensation Act: Smith v. Portland Cement Co., 94 Kan. 501; Karny v. Iron Co., 160 Wis. 316: Balken v. Coal Co., 183 Iowa, 1198; Bjork v. Bobbin & Shuttle Co., 111 Atl. (N.H.) 284; Metz v. Ry. Co., 90 Kan. 463; Cherokee Co. v. Britton, 3 Kan. App. 292; Smith v. Mining Co., 80 Pac. 779. (3) Defendant's instructions on contributory negligence and assumption of the risk should have been given. (4) Excessive Damages. Crockett v. Rys. Co., 243 S.W. 908; Corn v. Ry. Co., 228 S.W. 78; Powell v. Rys. Co., 226 S.W. 924; Johnson v. Brick & Coal Co., 276 Mo. 42; Highfill v. City of Independence, 189 S.W. 804; Dominick v. Coal Co., 255 Mo. 463; Lyons v. Railroad Co., 253 Mo. 143; Pendergrass v. Railroad, 179 Mo. App. 539; Nibler v. Ry. Co., 197 Mo. App. 696; Bate v. Harvey, 195 S.W. 571. (5) Explanation of plaintiff's conviction. State v. Jones, 249 Mo. 80; State v. Kimmel, 156 Mo. App. 461. (6) The alleged injury to plaintiff is inconsistent with the physical facts narrated. The back of a man five feet eight or nine inches tall, stooping over by the side of a car only twenty-three inches high and prying on the wheels of it with a three foot lever, would protrude above the side of the car, and a rock five or six feet long, three and a half to four feet wide and eighteen to twenty inches thick, falling from the roof, would, if it struck his back at all, strike it before it struck the car, and break his back and ribs. A verdict and judgment based upon a state of facts inconsistent with physical facts cannot stand. Nugent v. Milling Co., 131 Mo. 253; Kelsey v. Railroad, 129 Mo. 376; Hayden v. Railroad, 44 N.Y. Supp. 377. (7) In failing to allege notice of the defective condition of the roof of the defendant's mine, or that it had existed for a length of time sufficiently long to have enabled the defendant to discover it and repair it, the plaintiff's petition was fatally defective. Boemer v. Lead Co., 69 Mo. App. 601; Thornberry v. Mining Co., 126 Mo. App. 650; Wojtylak v. Coal Co., 188 Mo. 260: Anderson v. Coal Co., 138 Mo. App. 76; Adams v. Coal Co., 85 Mo. App. 486; Pippin v. Const. Co., 187 Mo. App. 360; Timson v. Coal Co., 220 Mo. 580; Nash v. Salt Co., 83 Kan. 447; Tanner v. Coal Co., 97 Kan. 21; Hockenberry v. Iron Works, 152 Pac. 628. (8) While foreign statutes may be enforced in a state with a similar law, founded upon the same general policy, the proof of the cause of action is always governed by the lex fori and not by the lex loci domicilii, for the courts of a state will not set aside their rules of evidence in favor of foreigners, but will proceed in the same way that it treats its own citizens, with respect to the proof and establishment of a cause of action. Yates v. Thompson, 3 Clark & Finn. 580; 3 Am. & Eng. Ency. Law. 540; Crone v. Dawson, 19 Mo. App. 215; Milkerson v. Truesdale, 63 Minn. 137; Taylor, Evid., sec. 49; Story, Conf. Laws (7 Ed.) 634a. A rule of evidence has no extraterritorial force and it is accordingly held that "a statute which provides that where an injury is caused by a defect, proof of the existence of the defect shall be presumptive evidence of the company's knowledge thereof, this is not the law of the case in an action brought in another state, where the ordinary rule still prevails that a master is not liable for injuries caused by defects unless they could have been discovered by the exercise of ordinary care." 5 Labatt's Master & Servant (2 Ed.) sec. 1997; Jones v. Railroad Co., 80 Minn. 488. (9) In permitting the plaintiff's counsel to ask the long hypothetical question to Dr. Twyman, without including the fact that plaintiff had no broken bones; that he had walked out of the mine without assistance; that he had failed to report the alleged injury for two days and that the physicians who had operated upon his kidney, whose depositions were on file before the case was tried, had stated that, in their opinion, the abscess on the kidney was due to an infection from the blood, the trial court erred, within the rulings of this court. Carbondale v. Kemp, 309 Mo. 241. (10) The court erred in giving the plaintiff's first instruction, since, in telling the jury plaintiff could not recover if he was guilty of contributory negligence or assumed risk, it was diametrically opposed to the case made by the petition, which expressly pleaded that by virtue of the statutes set out "he did not assume the risk or become guilty of contributory negligence for failure to ascertain that said rock was loose and was liable to fall or his failure to keep out of its way." "A recovery can be had only on the case made by the pleadings and the issues cannot be changed by the instructions." 11 Ency. Pl. & Pr. 164; Glass v. Gelvin, 80 Mo. 297; Bank v. Murdock, 62 Mo. 73; Railroad v. Miller, 39 Kan. 419. (11) This error was emphasized by the court refusing the two instructions asked by the defendant on assumed risk and contributory negligence, after plaintiff had attempted to abandon the case made by the petition and admit that the defenses obtained. Hall v. Coal Co., 260 Mo. 351; Goode v. Coal Co., 179 Mo. 250. (12) The inflammatory and prejudicial argument of counsel to the jury constituted reversible error. Wojtylak v. Coal Co., 188 Mo. 288; Bragg v. Railway, 192 Mo. 366; Neff v. Cameron, 213 Mo. 315; Union Pacific Ry. Co. v. Field, 137 Fed. 14.

C.O. Pingry, W.H. Senner and Madden, Freeman & Madden for respondent.

(1) The voir dire examination regarding insurance was proper. Chambers v. Kennedy, 274 S.W. 726: Kinney v. Street Ry. Co., 261 Mo. 97; Wagner v. Const. Co., 220 S.W. 897; Smith v. Scudiero, 204 S.W. 565: Snvder v. Electric Co., 284 Mo. 85; Jablonowski v. Mfg. Co., 279 S.W. 89; Malone v. Small, 291 S.W. 163: Dudacs v. Hotel Statler Co., 295 S.W. 826: Floun v. Birger, 296 S.W. 203: Stinkamp v. Chamberlin, 294 S.W. 764; Melican v. Const. Co. 278 S.W. 366; Plannett v. McFall, 284 S.W. 853. (2) Defendant's demurrer to the evidence was properly overruled. Hiatt v. Railway Co., 278 Mo. 806; Mosely v. Fuel Co., 281 S.W. 762: Secs. 49-205. 209, R.S. Kan. 1923; Little v. Coal Co., 83 Kan. 232; Cheek v. Railway, 89 Kan. 267; Caspar v. Lewin, 82 Kan. 604; Baisdrenghien v. Railway Co., 91 Kan. 730; Le Roy v. Railway Co., 91 Kan. 548; Quapaw Mining Co. v. Cogburn, 190 Pac. 420. (a) There are no physical facts in this case which can, under any theory, preclude recovery or which would warrant the sustaining of a demurrer. McHatton v. Railways Co., 246 S.W. 651; Titus v. Delano, 210 S.W. 44; Pelster v. Boiler Co., 268 S.W. 890. (b) Notice, actual or constructive, to defendant of the dangerous condition of the roof of the entry was not essential to recover, and need not have been pleaded or proved. Wojtylak v. Coal Co., 188 Mo. 260. (c) The Mining Act is a substantive law of the State of Kansas, not a mere rule of evidence, and as such will be enforced by the courts of this State. Hiatt v. Railway Co., 271 S.W. 806; Wojtylak v. Coal Co., 188 Mo. 295. (d) The Workmen's Compensation Act did not by implication repeal the Kansas Mining Act. State v. Davis, 284 S.W. 464; State v. Penman, 282 S.W. 498; White v. Greenway, 263 S.W. 104; Folk v. St. Louis, 250 Mo. 116; State v. St. Joseph's Convent, 116 Mo. 575; Shade v. Cement Co., 93 Kan. 258; Smith v. Cement Co., 94 Kan. 501; Echord v. Rush, 122 Kan. 260. (e) The defenses of assumption of risk and contributory negligence were not restored by virtue of any provisions of the Workmen's Compensation Act of the State of Kansas; and even if they were restored, such defenses could constitute no bar to the present action. First, the defenses of assumption of risk and contributory negligence are not restored to defendant by virtue of the Compensation Act. State v. Gehner, 280 S.W. 414; Balen v. Colfax Coal Co., 183 Iowa, 1198. Second, even were it held that the Compensation Act restored to defendant the defenses of assumption of risk and contributory negligence, such defenses would, nevertheless, under the admitted facts of this case, constitute no bar to plaintiff's cause of action. Little v. Coal Co., 83 Kan. 232; Baisdrenghien v. Railway Co., 91 Kan. 733; Curtis v. McNair, 173 Mo. 270; Mount v. Coal Co., 294 Mo. 603; Kidd v. Ry. Co., 274 S.W. 1079; Brizendine v. Railroad, 96 Kan. 691: Barnes v. Akins, 101 Kan. 359: Cherokee v. Britton, 3 Kan. App. 292; Bowers v. Mildren, 107 Kan. 584; Barrett v. Dessy, 78 Kan. 642; Wellston Coal Co. v. Smith, 65 Ohio St. 70; Head v. Lumber Co., 281 S.W. 445; Hamman v. Coal Co., 156 Mo. 232; Clippard v. Transit Co., 202 Mo. 432. (3) Defendant's requested Instructions B.C. and C-a were properly refused. (a) The defenses of assumption of risk and contributory negligence are not restored by virtue of the Workmen's Compensation Act, and hence the court properly refused instructions on these defenses. (b) Even had these defenses been restored by virtue of the provisions of the Workmen's Compensation Act, the facts of this case did not warrant the giving of any one of these instructions, the instructions being moreover erroneous in law and in fact in many particulars. (c) Instruction B requested by defendant was properly refused by the court for the reasons: No instruction on assumption by the plaintiff of injury in the manner or at the point mentioned in evidence, as a risk ordinary, usual and incident to his employment, was warranted in law for the...