Mosely v. Sum

• Decision Date: 07 July 1939
• Docket Number: 35782
• Citation: 130 S.W.2d 465,344 Mo. 969
• Parties: Albert Mosely v. Francis Sum, Jr., and Eugenia Wissmath, Appellants
• Court: Missouri Supreme Court

130 S.W.2d 465

344 Mo. 969

Albert Mosely v. Francis Sum, Jr., and Eugenia Wissmath, Appellants

No. 35782

Supreme Court of Missouri

July 7, 1939

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Reversed.

George A. Hodgman and Robert S. Lindsey for appellants.

(1) The court erred in failing to sustain the demurrers to the evidence offered by these appellants because on any theory of the case and interpreting the evidence most favorably to the plaintiff, nevertheless, as a matter of law, plaintiff cannot recover against these appellants, for the reasons: (a) The plaintiff's own testimony revealed that the ladder which he alleges broke had been in plaintiff's care and possession and under his control for about twenty-five years that he had frequently used it and had repaired it, that neither of these appellants had ever seen the ladder and plaintiff had made no effort to show it to them, and that the plaintiff had far greater and superior knowledge and experience of the ladder and its condition on August 7, 1934 than these appellants or anyone else. (b) There was no competent evidence that these appellants had ever entered into a contract of employment with the plaintiff, or that the relationship of master and servant existed between them, or that in August, 1934, these appellants "owned, controlled and operated" the building in question. 20 R. C. L. 107, 120; 45 C. J. 962; State ex rel. Horspool v. Haid, 334 Mo. 196, 65 S.W.2d 923, 328 Mo. 327, 40 S.W.2d 611; Williams v. Ransom, 234 Mo. 69, 136 S.W. 349; Blundell v. Miller Elevator Mfg. Co., 189 Mo. 552, 88 S.W. 103; Forbes v. Dunnavant, 198 Mo. 193, 95 S.W. 934; Knorpp v. Wagner, 195 Mo. 637, 93 S.W. 961; Roberts v. Mo. & Kan. Tel. Co., 166 Mo. 370, 66 S.W. 155; Steinhauser v. Spraul, 127 Mo. 541, 28 S.W. 620, 27 L. R. A. 446; Junior v. Mo. E. L. & P. Co., 127 Mo. 79, 29 S.W. 988; Corby v. Mo. & Kan. Tel. Co., 231 Mo. 417, 132 S.W. 712; Watkins v. BirdSykes-Bunker Co., 322 Mo. 830, 16 S.W.2d 38; Watson v. Carthage Marble & White Lime Co., 290 S.W. 649; Modlagl v. Kaysing Iron & Foundry Co., 248 Mo. 587, 154 S.W. 752; Humphrey v. Lusk, 196 Mo.App. 442, 196 S.W. 53; York v. St. L.-S. F. Ry. Co., 333 Mo. 105, 62 S.W.2d 475; Kelly v. C. & A. Ry. Co., 105 Mo.App. 365, 79 S.W. 973; Chandler v. St. Joseph Lead Co., 178 S.W. 217; Clark v. Wheelock, 293 S.W. 456; Braden v. Friederichsen Floor & Wall Tile Co., 223 Mo.App. 700, 15 S.W.2d 923; Christy v. S. Mo. Ry. Co., 131 Mo.App. 266, 110 S.W. 694; McCormick v. Hutchison Co., 326 Mo. 380, 31 S.W.2d 971; Hunter v. Busy Bee Candy Co., 307 Mo. 656, 271 S.W. 800; Moore v. Kansas City, Ft. S. & M. Ry. Co., 146 Mo. 572, 48 S.W. 487; Hurst v. Kansas City, P. & G. Ry. Co., 163 Mo. 309, 63 S.W. 695; Graves v. Met. St. Ry. Co., 175 Mo.App. 337, 162 S.W. 298; Morris v. Kansas City L. & P. Co., 302 Mo. 475, 258 S.W. 431; Rogers v. Tegarden Packing Co., 185 Mo.App. 99, 170 S.W. 675; Smith v. Ozark Water Mills Co., 215 Mo.App. 129, 238 S.W. 573; Dietz v. Magill, 104 S.W.2d 707; Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345; Borden v. Daisy Roller Mill Co., 98 Wis. 407, 74 N.W. 91, 67 Am. St. Rep. 816; Cahill v. Hilton, 106 N.Y. 518, 13 N.E. 341; Marsh v. Chickering, 101 N.Y. 396, 5 N.E. 56; Jenney E. L. & P. Co. v. Murphy, 115 Ind. 566, 18 N.E. 30; McGill v. Cleveland S.W. Traction Co., 79 Ohio St. 203, 86 N.E. 989, 19 L. R. A. (N. S.) 793; Meador v. Lake Shore & Mich. So. Ry. Co., 138 Ind. 290, 37 N.E. 721; Shively v. Nixon Mining Drill Co., 128 Tenn. 675, 164 S.W. 772, 51 L. R. A. (N. S.) 337; Dahl v. Puget Sound Iron & Steel Works, 77 Wash. 126, 137 P. 315; Corcoran v. Milwaukee Gas Light Co., 81 Wis. 191, 51 N.W. 328; Sheridan v. Gorham Mfg. Co., 28 R. I. 256, 66 A. 576, 13 L. R. A. (N. S.) 687; Hall v. U.S. Canning Co., 76 A.D. 475, 78 N.Y.S. 617; Drum v. New England Cotton Iron Co., 180 Mass. 113, 61 N.E. 812; Dessecher v. Phoenix Mills Co., 98 Minn. 439, 108 N.W. 516; Collins v. Western Elec. Co., 178 Ill.App. 23; Nosal v. International Harvester Co., 187 Ill.App. 411.

William R. Schneider for respondent.

(1) If the judgment defendants were the actual owners of the property and the employers of the plaintiff, did they negligently require the plaintiff to do the work in which he was injured, with a ladder which they knew, or in the exercise of ordinary care could have known was defective or "bad" to the extent it was not reasonably safe for doing the work required to be done, and as a result, plaintiff was injured? Mitchell v. C. & A. Ry. Co., 132 Mo.App. 143, 112 S.W. 291; Shamp v. Lambert, 121 S.W. 770; Dougherty v. Mo. Pac. Ry. Co., 97 Mo. 647, 8 S.W. 900; Bliesner v. Riesmeyer Distilling Co., 174 Mo.App. 139, 157 S.W. 980; Williams v. Prior, 272 Mo. 613, 200 S.W. 53; Van Bibber v. Swift & Co., 286 Mo. 317, 228 S.W. 77.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action for damages on account of personal injuries sustained by plaintiff on August 7, 1934, while cleaning wall paper in a flat in the Sum Building. Plaintiff was employed as a janitor and maintenance man in the said building. He was injured by the collapse of a scaffold constructed by him from a board and three stepladders. The scaffold was errected in a hall for the purpose of reaching a portion of the wall paper in a 4 x 4 foot space or opening where the ceiling was several feet higher and the walls surrounding the opening extended up to a sky light. Plaintiff sustained a compressed fracture of the twelfth thorasic vertebra and other injuries. Suit was instituted against four defendants. A nonsuit was taken as to one at the close of plaintiff's evidence and the jury returned a verdict for plaintiff for $ 9668.15 against two of the remaining defendants. These defendants, Francis Sum, Jr., and Eugenia Wissmath, have appealed.

Plaintiff charged that defendants Ida Sum Wissmath, Eugenia Wissmath, Francis Sum, Jr., and Will C. Wissmath Realty Company owned, controlled and operated the building and that plaintiff was employed by said defendants. The answer of defendants denied both the ownership of the building and the employment of plaintiff, and alleged that the legal title to the building at the date of the injury was in Mina Sum; that plaintiff was employed by Mina Sum; that said employer had elected to come under the provisions of the Missouri Workmen's Compensation Act and was under it at the time of plaintiff's injuries; and that plaintiff had accepted compensation from said employer in the sum of $ 362, and the payment of all medical, hospital, nursing and X-ray expenses from said employer under the terms and provisions of said Missouri Workmen's Compensation Act.

Briefly the negligence charged in the petition is (1) that defendants negligently ordered plaintiff to do the work with stepladders when they knew that the one that broke was defective and not reasonable safe for the purpose; (2) that defendants negligently provided plaintiff with an old, weak and defective ladder with which to do said work; (3) that defendants negligently failed to warn plaintiff of the danger in using said ladder; and (4) that defendants negligently assured plaintiff that the ladder was safe for the purpose plaintiff was required to use it. Appellants make numerous assignments of error. We deem it necessary to notice only one. Appellants contend that there is no evidence that plaintiff was in their employment or that they furnished the ladder or were guilty of negligence and further urge that plaintiff was guilty of contributory negligence as a matter of law. Said issues are presented by demurrers to the evidence as offered at the close of all of the evidence. We shall consider the last point.

"The defense of contributory negligence is available, though not pleaded, if respondent's proof shows him to be guilty of contributory negligence as a matter of law which would bar recovery." [Cash v. Sonken-Galamba Company, 322 Mo. 349, 17 S.W.2d 927, 929; Buesching v. Gas Light Company, 73 Mo. 219, 229.]

In determining whether or not a submissible case was made for plaintiff, his evidence must be accepted as true together with all reasonable inferences that may be drawn from it. Defendants' evidence showing facts contrary to plaintiff's evidence and all unfavorable inferences must be rejected. [Willhauck v. Chi., R. I. & P. Ry. Co., 332 Mo. 1165, 61 S.W.2d 336, 338.]

Plaintiff's case rests largely on his own testimony. Plaintiff testified that he had worked for the Sum family for more than thirty years; that for more than twenty-five years he had been employed as a janitor and maintenance man at this particular building; and that he resided therein for fifteen years. He was employed by Francis Sum, Sr., as a janitor at the building prior to 1912 and continued there during the succeeding years, and with the subsequent owners of the building. At the time of plaintiff's injuries defendant, Will C. Wissmath Realty Company was in charge of the building, renting apartments, collecting rents, making repairs, giving orders to plaintiff and paying his salary.

On August 3, 1934 plaintiff received a letter from the Will C Wissmath Realty Company, per Will C. Wissmath, directing plaintiff "to clean the balance of the wall paper" at 3192 A, South Grand, an apartment in the Sum Building, and to do certain other cleaning. The letter contained no instruction as to how the work should be done or what appliances should be used and none of the defendants ever gave such instructions. Plaintiff did just what he wanted to do and as he thought best. His only instruction was as to the work to be done. Plaintiff testified, "Q. Now when you got this letter from Wissmath Realty Company directing you to do this work did you call up Miss Huck and...