Mitchell v. St. Louis Smelting & Refining Co.

Decision Date04 November 1919
Docket NumberNo. 16903.,16903.
Citation215 S.W. 506,202 Mo. App. 251
CourtMissouri Court of Appeals
PartiesMITCHELL v. ST. LOUIS SMELTING & REFINING CO.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by William Mitchell against the St. Louis Smelting & Refining Company. From an order ranting defendant's motion for new trial after verdict for plaintiff, plaintiff appeals. Affirmed and remanded.

Joseph Reilly, of St. Louis, for appellant. Boyle & Priest and G. T. Priest, all of St. Louis, for respondent.

REYNOLDS, P. J.

Action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of the defendant at the latter's plant near Collinsville, in Madison County, Illinois.

The petition in the case avers that in September, 1917, while plaintiff was a resident of the city of St. Louis and a citizen of the state of Missouri, and within the city and state, defendant entered into a contract of hire with plaintiff, whereby plaintiff was to enter the service of defendant as a laborer at its place of business in the city of Collinsville, in the state of Illinois; that in said month land year plaintiff, "under the contract made in the state of Missouri," commenced Work for defendant and continued in the service of defendant as such laborer until November 29th, 1917; that on November 29th, 1917, at the city of Collinsville, in the state Of Illinois, defendant, in connection with its business, maintained and operated a smelting furnace; that on the day mentioned, defendant, by its foreman, ordered plaintiff to clear away the debris and slag, which covered the railroad track in front of the furnace; that defendant negligently permitted molten hot lead to escape from the furnace; that the surface of this molten lead had cooled and become hard, forming a crust of the same color as the ground surrounding it; that plaintiff was ignorant of the presence of the molten hot lead and it was not visible or discoverable to plaintiff by the exercise of ordinary care, and that while plaintiff, in the exercise of ordinary care, was attempting to break a large piece of the debris with a heavy hammer, he stepped on the crust, which broke and gave way, so that plaintiff's left fool was projected down into the molten hot lead beneath the crust, and his left foot burned from above the ankle to the sole thereof, so that the flesh was burned to the bone on that foot. Charging that defendant knew, or by the exercise of ordinary care would have known, of the presence of this hot lead, and of the danger of plaintiff stepping into it, and averring that by reason of his suffering and injury sustained plaintiff has permanently lost the use of his left foot, he demands damages in the sum of $15,000.

There was a demurrer interposed to this on various grounds but the demurrer was overruled. A motion to make the petition more definite and certain was also interposed and overuled.

The answer, after a general denial, charges that before and at the time plaintiff sustained the alleged injuries he was employed by defendant at its smelter in Madison County, Illinois; that defendant was at that time engaged in an enterprise wherein molten metal was then and there manufactured and used in dangerous quantities, and in an enterprise wherein statutory regulations of the state of Illinois were then imposed, for the regulating, guarding and placing of machinery and appliances for the protection and safeguarding of defendant's employés therein; that plaintiff was then and there directly engaged in his employment as a tapper-helper, whereby he was exposed and subjected to the dangers of the enterprise, and that while he was then and there in the course of the employment and subjected to the aforesaid dangers, plaintiff came in contact with certain of the molten metal then and there being manufactured and used by defendant whereby, as a result thereof, plaintiff received the injuries mentioned. Further answering, defendant avers that at that time, ever since, and now, there was and is in force in the state of Illinois a statute of that state known and cited as "Workmen's Compensation Act" (Hurd's Rev. St. 1917, c. 48, §§ 126-152i), and that the provisions of the act at the time of the alleged injury to plaintiff in his petition mentioned, applied to the defendant and to plaintiff because the defendant was engaged in this enterprise, and that in and by this Workmen's Compensation Act, certain compensation is therein provided for the employés of those employers who shall be injured by reason of an accident arising out of and in the course of their employment, and that the injuries herein sued for were sustained by plaintiff in an accident which arose out of and in the course of plaintiff's employment with defendant, and that the amount of compensation due plaintiff for the injuries aforesaid alleged to have been sustained is provided for in the Workmen's Compensation Act, in section 6 of which act It Is further provided that no common law or statutory right to recover damages for injuries sustained by an employé while engaged in the line of his duty as such employé other than the compensation provided for in the act shall be available to any employé who is covered by the provisions of the act; that it is further provided by that act that all accidents arising thereunder, if not settled by an agreement of the parties interested therein, should, except as otherwise provided, be determined by the Industrial Commission of the State of Illinois; that by section 11 of this act it is provided that the measure of responsibility of this defendant to plaintiff for personal injuries suffered in his employment shall be compensation as provided for in the act; that at the time of the injury to plaintiff, plaintiff was covered by the provisions of the aforesaid Workmen's Compensation Act and was then and there engaged in the line of his duty as such employé of the defendant. Further answering, defendant sets up that at and before the time of plaintiff's alleged injury plaintiff was in the employ of defendant, engaged then and there in extra-hazardous occupations; that both defendant and plaintiff were then and there bound by the above-mentioned Workmen's Compensation Act of the state of Illinois: that plaintiff received his alleged injuries from an extra-hazardous occupation mentioned in section 3 of that act; that by the terms and conditions of the act plaintiff is barred and prevented from recovering compensation or damages for his injuries, except according to the terms of that act; that thereafter plaintiff accepted from defendant certain payments of compensation under the aforesaid act and elected to be bound by the remedies provided in that act and elected his remedy thereunder, and is not entitled to bring this action.

To this answer a reply was filed, generally denying the allegations thereof.

There was a trial of the cause before the court and a jury and a verdict in favor of plaintiff in the sum of $4,893 Whereupon defendant filed a motion for a new trial, assigning as its fourth ground that the court erred in overruling defendant's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's evidence in chief; and as a tenth ground, that the verdict is for the wrong party. Another ground assigned (the fifth) was to the alleged error of the court in refusing defendant's requested instruction in the nature of a demurrer to the evidence, offered at the close of the whole case, and still another to error in giving instructions asked by plaintiff. The court sustained the motion, granting a new trial on the fourth and tenth grounds set out in the motion. Excepting to this, plaintiff has duly appealed.

Appellant, plaintiff below, in his abstract of the record, sets out the testimony, wherein it appears that Mitchell, the plaintiff, testified that he resides in the city of St. Louis, Mo., and that he commenced work for the defendant in September, 1917; that in that month he, with others, was at a saloon in St. Louis, Mo., and an employé of defendant came to them and asked if they wanted to go to work across the river; that they were paying good money there. Plaintiff asked what they paid and this employé said, "From three to four dollars a day and over." Plaintiff and the other men said they would try it, and defendant's employé said that if they wanted to work, to meet him the next morning at 10 o'clock and he would send them over to defendant's plant without expense to them. Plaintiff and the others agreed to this. Whereupon this man left, meeting them the next morning and taking them to defendant's plant, which was near Collinsville, Madison County, Illinois. They arrived at the plant about 12 o'clock and signed up for work the next morning. Plaintiff went to work for defendant the next day at its plant near Collinsville, defendant being there engaged in the smelting of lead. Plaintiff then testified as to the manner in which he was hurt. On cross-examination, asked what he meant by saying that he "signed up," plaintiff answered that wherever he went to work he had to sign up; that is, enter his name and his employer told him what he wanted him to do. Asked if defendant had then agreed upon his wages there, plaintiff said they did not agree to them. Asked what they agreed to pay him, plaintiff said: "I was to work in the Scotch house when I went there." Asked what they agreed to pay him, plaintiff said: "Different prices. It was piece work." When plaintiff left St. Louis with the other men they understood they were to get from three and a half to four dollars a day; when they got over to the plant they did not get a job at that rate. Plaintiff got a job at defendant's blast furnace. "I did not have any agreement to make," said plaintiff, "any time they came out and the mills were short they would...

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