McCombs v. Bowen

• Decision Date: 30 April 1934
• Citation: 73 S.W.2d 300,228 Mo.App. 754
• Parties: HATTIE McCOMBS, APPELLANT, v. JOHN BOWEN, RESPONDENT
• Court: Kansas Court of Appeals

73 S.W.2d 300

228 Mo.App. 754

HATTIE McCOMBS, APPELLANT, v. JOHN BOWEN, RESPONDENT

Court of Appeals of Missouri, Kansas City

April 30, 1934

Appeal from Circuit Court of Henry County.--Hon. W. L. P. Burney Judge.

Judgment affirmed.

O. H Swearingen and Dan Johnson for appellant.

Ross E Feaster and Elmer D. Silvers for respondent.

OPINION

BLAND, J.

This is an action for wrongful death. There was a verdict and judgment in favor of plaintiff in the sum of $ 5,000. In due time defendant filed a motion for a new trial. The motion set forth, among other things, that the court erred in giving plaintiff's Instructions 1 and 2. At a subsequent term the court sustained the motion on the ground that he erred in giving said instructions. Plaintiff has appealed.

The action is brought by the widow. The petition alleges that defendant, John Bowen, was the owner and operator of a coal mine in Henry County; that he employed plaintiff's husband to dig and mine coal therein; that defendant failed to provide a good and sufficient amount of ventilation for the men employed in the mine; that her husband was compelled, as defendant's employee, to work for seven months in said mine without sufficient air and without the ventilation required by law; that because thereof plaintiff's husband was poisoned, made ill and sick; that he died of said illness and poison caused by said insufficient ventilation and insufficient air in the mine; that the illness, sickness and poison of her husband was an occupational disease and did not come within the provisions of the Workmen's Compensation Act.

The answer, in effect, admits all of the allegations of the petition, save that it denies that plaintiff's husband died from an occupational disease contracted while in the employ of the defendant, alleges that he died of lobar pneumonia and denies that the air condition in the mine, in any way, contributed to said disease.

Plaintiff does not abstract any of the testimony but the bill of exceptions in reference thereto merely states that each party introduced evidence supporting his respective allegations. Respondent has printed an additional abstract of the record which recites that there was one witness who testified that he and plaintiff's husband "went down on the creek fishing the latter part of March, about ten days before deceased died, maybe a week before he took down sick."

Plaintiff's instructions numbered 1 and 2 read as follows:

"The court instructs the jury that if they find and believe from the evidence that the defendant, John Bowen, failed and refused to furnish a good and sufficient amount of ventilation at all times in the mine mentioned in the evidence, and that as a proximate result of said failure, if you so find, Jess McCombs was made sick and poisoned, and that said sickness and poison, if you so find, contributed to his death, then your verdict will be in favor of the plaintiff and against John Bowen, and you will assess her damages in such sum, not exceeding $ 10,000, as you find from the evidence she has sustained, or will sustain, as a necessary result, of the death, if any, of her husband, Jess McCombs."

"The court instructs the jury that negligence may be the proximate cause of an injury of which it is not the sole or immediate cause, and if you find from the evidence that defendant, John Bowen, was negligent in failing to furnish sufficient ventilation in said mine at all time, if you so find, during the period Jess McCombs was employed therein, and that the said negligence of John Bowen concurred with some other cause or causes in bringing about and causing the death of plaintiff's husband, the defendant's negligence would be the proximate cause of Jess McCombs' death within the meaning of that term as used in these instructions."

It is insisted by plaintiff that the court erred in granting a new trial because there was no exception taken to the actions of the court in giving the instructions. Defendant insists that it is not necessary that the record show an exception to the giving of an instruction where the court sustains the motion for a new trial on account of the giving of the same. We think that this contention must be sustained. The rule in reference to a situation of this kind is stated by the St. Louis Court of Appeals in Noren v. Am. School of Osteopathy, 2 S.W.2d 215, 219, as follows:

"It is only where the appellate court seeks to sustain the grant of a new trial on some ground not specified by the lower court (the reason given by the latter having been found insufficient) that it is precluded from considering such other reason, unless an exception was saved by the complaining party at the time of the adverse ruling. Otherwise stated, in order that the respondent on appeal may have the benefit of errors assigned in his motion for a new trial, but not designated by the trial court as grounds for sustaining the motion, the record must show that the respondent duly excepted at the time to the rulings on which he predicates his assignments of error. Consequently, so far as concerns the giving of instruction No. 1 for plaintiff, and the refusal of instruction No. 5, requested by defendant, we are not only at liberty, but it is our duty, to review the propriety of the order granting the new trial, even though there were no exceptions saved, inasmuch as the court pointedly placed its ruling upon such grounds." [See, also, Owens v. K. C. C. C. & St. Jos. Ry. Co., 201 S.W. 548, 550.]

If the court had the power to sustain the motion at the...