McCullough v. W. H. Powell Luber Co.

• Decision Date: 06 December 1919
• Docket Number: No. 2408.,2408.
• Parties: McCULLOUGH v. W. H. POWELL LUBER CO.
• Court: Missouri Court of Appeals

216 S.W. 803

205 Mo. App. 15

McCULLOUGH v. W. H. POWELL LUBER CO.

No. 2408.

Springfield Court of Appeals. Missouri.

December 6, 1919.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by C. W. McCullough, administrator of the estate of Charles Furnis McCullough, deceased, against the W. H. Powell Lumber Company, a corporation. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Frank H. Farris, of Rolla, and G. C. Dalton, of Salem, for appellant.

Wm. P. Elmer and John M. Stephens, both of Salem, for respondent.

BRADLEY, J.

Plaintiff, as the administrator of Charles Furnis McCullough, deceased, sued to recover damages under sections 5426 and 5427, R. S. 1909, for the death of the deceased, alleged to have been caused by the negligence of the defendant. It is alleged in the petition that the deceased was single and unmarried, and that he left surviving neither wife nor children, and was over the age of 21 years at the time of his death; that he left as his sole and only heirs and distributees, his father, mother, four brothers, and three sisters, naming them. It is further alleged that the deceased, at and for a long time prior to his death, contributed his earnings to the persons named for their necessary support and maintenance; that on the day of January, 1918, and for some time prior thereto, the deceased was employed by the defendant company as fireman of its boiler in the operation of a planing mill in Salem, Mo., and that he was under the direction of its foreman.

The grounds of negligence charged in the petition are: (1) That it was the duty of the defendant to furnish the steam boiler and engine which deceased was firing in a reasonably safe condition, and to furnish the deceased reasonably safe tools and appliances with which to carry out and discharge his duties; and it is charged that the defendant wholly disregarding and neglecting its duties in this behalf did not furnish reasonably safe tools and appliances and did not furnish a boiler in a reasonably safe condition, but that on the contrary the said boiler was unsafe, and in a condition dangerous to human life for those engaged in firing and operating it, and that defendant knew of this condition or could have known such condition by the use of the required care. (2) That on the day of January, 1918, the defendant's foreman directed deceased to fill said boiler with water and place a fire thereunder, and to run and operate the same, and that the deceased obeyed said instructions as directed, and was running, operating, and conducting said boiler, when said boiler because of its dangerous and defective condition, exploded, and inflicted upon deceased, internally and externally, serious burns, from which he died on the same day. (3) That the steam line from said boiler to the engine was old and defective, and was carelessly, negligently, and defectively connected to the boiler, and was so loosely connected that the pressure of the steam from the boiler blew the same off, allowing and permitting the steam and hot water to escape at and upon deceased, thus and thereby causing his injury and death.

It is further charged in the petition that the deceased was inexperienced in the work in which he was engaged, and that the defective condition of the boiler was unknown to him, and could not have been known to him by the exercise of reasonable and ordinary care; that the defect was concealed, and that deceased relied upon defendant exercising ordinary care in furnishing reasonably safe machinery and appliances with which to work, and a reasonably safe place in which to work.

To this petition defendant interposed a demurrer based upon eight specified grounds, but the demurrer is bottomed principally upon the proposition that plaintiff has no legal capacity to maintain this cause. The demurrer was overruled, and defendant answered by a general denial, and that plaintiff had no legal capacity to sue; also defendant pleaded assumption of risk and contributory negligence. The cause was tried before the court and a jury, resulting in a verdict in favor of plaintiff in the sum of $5,000. Defendant, being unsuccessful in its motion for a new trial, prosecutes its appeal to this court.

The record discloses that deceased was a young man 24 years of age, but was still living at home with his mother and father, four brothers, and three sisters, some of which brothers and sisters were yet minors. The family, it seemed, lived in common, and whatever deceased made went to the maintenance of the whole family. The father and the boys farmed, made ties, and did whatever was at hand in the way of common labor, and the evidence is that the deceased was making about $2 per day.

The boiler room in which was the boiler deceased was firing was 16x32 feet. The boiler was incased in brick walls. From underneath and to the rear of the boiler there extended down 18 inches a 3-inch pipe. To this pipe was attached an elbow, which connected with a pipe leading to the pump for pumping water into the boiler, and also connected with this 18-inch pipe was what is called the mud pipe, which extended out beyond the end of the boiler, and the evidence was that, when the pump was in operation, the platform upon which it rested shook considerably, so that the pipe connecting the pump with the elbow mentioned was also shaken considerably when the pump was in operation. The evidence shows that the boiler and connections had been installed about a year prior to the accident resulting in the death of the deceased, but that it had been operated only about 6 months of this time.

The evidence shows that the accident occurred about 6 o'clock p. m. on January 14, 1918, about quitting time, as the witnesses say. The injury to deceased was caused, as shown by the evidence, because the pipe leading from the elbow mentioned to the pump became disconnected at the elbow, and this permitted the steam and water in the boiler to escape into the boiler room. There is no direct evidence as to where in the boiler room the deceased was at the time the pipe became disconnected, but the evidence shows that the disconnection resulted in a sudden explosion, which partly lifted the roof of the boiler room, and blew some of the brick from the top of, and a hole in, the boiler room wall, and there is evidence that the brick wall around the boiler was partly demolished. The deceased was badly and fatally scalded and burned about his face, In his mouth, in his throat, and over his entire body, and was unable to make any statement of consequence. Upon hearing the explosion, the men about the mill, including one of the brothers of deceased, went to the boiler room, and found deceased in the shavings room, a small room extending across the entire width of the boiler room, and in front of the boiler, and into which the shavings from the mill were blown and used for fuel. There was no mud and water in the shavings room, and it is apparent that deceased went from wherever he was at the time of the explosion to the shavings room in his effort to escape.

The evidence tends to show that the pipe that extended from the elbow to the pump, and which became disconnected, was screwed into the elbow only about 2 or 2½ rounds. The threads on this pipe where it entered the elbow were stripped, and remained in the elbow, and were found there when an examination was made after the injury. There is some evidence that this pipe was screwed into the elbow as far as the threads extended on the pipe; but, if this be true, then as appears from the record, there were only 2 or 3 rounds of threads cut on the pipe when the machinery was installed. This particular elbow was new at the time of the installation of this machinery. The threads extended into it some three-fourths of an inch, which would have permitted the pipe to have been inserted to that depth, had sufficient threads been cut on the pipe. The record also shows that the threads on this particular pipe were cut at the time of the installation of the machinery about a year previous to the accident; also it is shown by witnesses of experience that this pipe should have been inserted in the elbow at least three-fourths of an inch in order to have been reasonably safe, considering the size of the boiler and the amount of steam usually carried in operating the planing mill.

Defendant makes several assignments of error, in view of which three propositions are presented: (1) Can the plaintiff rely upon his allegation of general negligence when he has followed such general allegation by allegations of specific acts of negligence, and does the evidence support the specific act of negligence alleged? (2) Has plaintiff any legal capacity to maintain this cause of action; and, if so, may the recovery be for more than nominal damages? (3) Was error committed in the admission of evidence?

1. It seems to be the established and accepted law of this state that where specific acts of negligence are charged in the petition, which contains also a general allegation of negligence that the specific negligent acts alleged are treated as superseding the general averment, and the plaintiff must recover, if at all, on the specific acts of negligence alleged. Lauff v. Carpet Co., 186 Mo. App. loc. cit. 135, 171 S. W. 986; McManamee v. Missouri Pacific Railway Co., 135 Mo. 440, 137 S. W. 119; Barnett v. Star Paper Milling Co., 149 Mo. App. 498, 130 S. W. 1121; Gibler v. Railroad Co., 148 Mo. App. 475, 128 S. W. 791; Waldhier v. Railroad Co., 71 Mo. 514; Clark v. General Motor Car Co., 177 Mo. App. 623, 160 S. W. 576; O'Brien v. Western Steel Co., 100 Mo. 182, 13 S. W. 402, 18 Am. St. Rep. 536; McCarty v. Hotel Co., 144 Mo. 397, 46 S. W. 172; Chitty v. Railroad, 148 Mo. 64, 49 S. W. 868. Plaintiff cannot, therefore, rely upon his general allegation of negligence. We do not think it' necessary to cite any authorities to support the proposition that plaintiff...