Munoz v. American Car & Foundry Co.
| Citation | 296 S.W. 228,220 Mo.App. 902 |
| Parties | FRANK MUNOZ, RESPONDENT, v. AMERICAN CAR & FOUNDRY COMPANY, A CORPORATION, APPELLANT. |
| Decision Date | 07 June 1927 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Erwin G. Ossing, Judge.
Judgment reversed and cause remanded.
Watts & Gentry and Arnot L. Sheppard for appellant.
G. A Orth, of counsel.
(1) Respondent's petition wholly fails to state a cause of action on the only ground of negligence upon which he went to the jury. Kersey v. Railroad, 79 Mo. 362; Tucker v. Telephone Co., 132 Mo.App. 418. (2) (a) Instruction No. 1 is too general to constitute a correct guide for the jury under the pleadings and the evidence and amounts to a roving commission given to the jury to find in respondent's favor upon any supposed ground of negligence it may discover. Smith v. Anderson Motor Service Co., 273 S.W. 741; Ward v. Poplar Bluff Ice & Fuel Co., 264 S.W. 80; West v. Holladay, 196 S.W 403; Allen v. Lumber Co., 190 Mo.App. 399; Eastridge v. Lumber Co., 188 Mo.App. 438; Feldewerth v. Railroad, 181 Mo.App. 630; Jackels v. K. C. Rys. Co., 231 S.W. 1023. (b) Instruction No. 1 is further erroneous for the reason that neither hypothesis therein contained is sufficient standing alone to sustain a verdict; the first because: (1) plaintiff and Reyes were fellow servants; (2) no negligence on Reyes' part is pleaded; (3) no negligence on his part is proved; and the second because it is too general and does not require the jury to find the specific characteristics of negligence pleaded in the petition. Allen v. Lbr. Co., 157 S.W 662, 664, 171 Mo.App. 492; Allen v. Lbr. Co., 168 S.W. 794, 182 Mo.App. 280. (c) The instruction is broader than the petition. It permits the jury to find that Frank Reyes was negligent at the time of respondent's injury, whereas such negligence is neither pleaded nor proved. Boles v. Dunham, 208 S.W. 480; Stid v. Railroad, 236 Mo. 382; State ex rel. v. Ellison et al., 270 Mo. 645, 195 S.W. 722; Courter v. Mercantile Co., 266 S.W. 340; Kuhlman v. W. L. & T. Co., 271 S.W. 788. (d) That portion of the petition which attempts to plead a cause of action on the ground of Reyes' incompetency states specifically in what respects he was incompetent, thereby limiting respondent's recovery to incompetency in those respects, whereas the instruction permits a recovery upon a general finding by the jury that he was incompetent in any respect. The instruction, therefore, is broader than the petition and proof, under the authorities last above cited, and in addition to this permitted a recovery without requiring the jury to find any causal connection between his injury and the particular trait of character alleged to have given rise to his carelessness or negligence. Allen v. Lumber Co., 171 Mo.App. 492, 157 S.W. 661; Allen v. Lumber Co., 182 Mo.App. 280, 168 S.W. 794; Burns v. McDonald Mfg. Co., 252 S.W. 984. (3) There is no competent evidence connecting Reyes with respondent's injury in any way. Respondent did not see the iron which fell on him until it was already on his foot and does not know what caused it to fall. Reyes' remarks after the injury constituted a mere narrative of what had occurred and were not a part of the res gestae and were, therefore, incompetent. Jackels v. K. C. Rys. Co., 231 S.W. 1923; Redmon v. Railroad, 185 Mo. 1, and cases cited; Pryor v. Payne, 263 S.W. 982; Ruschenberg v. Railroad, 161 Mo. 70; State ex rel. v. Trimble, 276 S.W. 1020. (4) The court should have sustained appellant's demurrers for the reason that respondent failed to plead or prove that Reyes was incompetent or that his incompetency was the proximate cause of respondent's injury. (a) The mere fact that a fellow servant is incompetent does not tend even prima facie to establish negligence on the part of the employer. Huffman v. Ry. Co., 78 Mo. 50; Kersey v. R. R. Co., 79 Mo. 362; Tucker v. Telephone Co., 132 Mo.App. 418; Allen v. Quercus Lumber Co., 171 Mo.App. 492, 157 S.W. 661. (b) Taking into consideration Reyes' statement of how the accident happened, there is no evidence tending to show any negligence on his part at the time the casualty occurred. Hawley v. Lusk, 184 S.W. 1173. (5) The court erred in excluding appellant's evidence tending to show that Frank Reyes was a captain on the safety committee in appellant's plant. This was certainly competent as a circumstance throwing light upon whether or not Reyes was habitually careless and negligent and whether or not appellant had knowledge of it. (6) (a) The court erred in failing to rebuke counsel and discharge the jury on account of respondent's counsel's statement in argument, calling on appellant to explain the absence of Reyes as a witness in this case. The evidence showed not only that Reyes' evidence was just as available to respondent as it was to appellant, but that appellant had made every effort possible to obtain his attendance as a witness. Atkinson v. United Rys., 228 S.W. 483. (b) The court erred in failing and refusing to rebuke counsel and discharge the jury when respondent's counsel, in argument, made the highly prejudicial statement that an employee could get a lot of toes mashed at appellant's factory for a dime; and suggesting that appellant was trying to conceal certain facts. Jackman v. Railway, 206 S.W. 244. (7) The verdict is excessive. (8) Neither the trial court nor this court is bound by the evidence of respondent, which purports to show that Frank Reyes was habitually careless and negligent, for the reason that such evidence is palpably untrue. The record in this case discloses beyond the peradventure of a doubt that the charge of habitual carelessness and negligence in regard to Frank Reyes was an afterthought and was conceived long after this suit was filed. Steele v. Railway, 265 Mo. 115; Flack v. Railroad, 224 S.W. 421; Lindsey v. Shaner, 236 S.W. 322.
Mark D. Eagleton and E. J. Hullverson for respondent.
(1) The evidence showed a prima-facie case for the jury based upon the habitual negligence and incompetency of Reyes as alleged in plaintiff's petition. Burns v. McDonald Mfg. Co., 213 Mo.App. 640; Houston v. Foundry Co., 282 S.W. 170, and cases cited. It was the positive and nondelegable duty of defendant to furnish reasonably safe fellow-workmen. Houston v. Foundry Co., 282 S.W. 170, and cases cited. The petition sufficiently pleads defendant's negligence, the habitual negligence and incompetency of Reyes, and that his negligence caused plaintiff's injuries. A very liberal construction of it must be made. Morrow v. Service Co., 286 S.W. 106. (2) Plaintiff's Instruction No. 1 required a finding of defendant's negligence in furnishing Reyes, a habitually negligent and incompetent servant, to work with plaintiff, and that Reyes negligently caused the piece of iron to fall upon plaintiff's foot, all of which is alleged in plaintiff's petition. The instruction follows the language of the petition and is correct. Laycock v. Rys. Co., 235 S.W. 91; Smith v. Greer, 257 S.W. 829. (3) No error can be predicated by appellant upon the exclusion of any evidence because: (a) Defendant's motion for new trial does not adequately allege or point out the evidence excluded, and is insufficient to preserve the matter for appellate review. Bartner v. Darst, 285 S.W. 449. (b) Evidence that Reyes was appointed captain on a safety committee in appellant's plant was not competent. He might have been appointed because he was careless and negligent, in order to induce him to be more careful and set an example for others. The offered evidence did not show whether he was appointed before or after plaintiff was injured. It was not relevant or competent to prove any issue in the case. (4) Appellant cannot predicate error upon the admission of testimony because: (a) Defendant's motion for new trial does not point out or designate the evidence complained of and is insufficient to preserve the matter for appellate review. Bartner v. Darst, 285 S.W. 449. (b) The evidence as to Reyes' statement at the time plaintiff was injured was competent and admissible as part of the res gestae. Beeson v. Fleming, 285 S.W. 708; State ex rel. v. Trimble, 285 S.W. 729; Barz v. Yeast Co., 308 Mo. 288, and cases cited; Kuether v. Power Co., 276 S.W. 105; Nahorski v. Rys. Co., 271 S.W. 749; Pryor v. Payne, 263 S.W. 982; Talbert v. Ry Co., 284 S.W. 499; Chapman v. Mfg. Co., 263 S.W. 993. (5) The verdict was not excessive. (6) (a) It was proper to comment upon defendant's failure to produce Reyes as a witness. Miller v. Clay Prod. Co., 282 S.W. 141; Hartman v. Hartman, 284 S.W. 488; State v. Finkelstein, 213 S.W. 465; State v. Emory, 79 Mo. 461; State v. McCord, 237 Mo. 242; Kennett v. Construction Co., 273 Mo. 279; State v. Shepherd, 192 S.W. 427; State v. Kester 201 S.W. 62; State v. Linders, 299 Mo. 671. (b) The argument of plaintiff's counsel as to the value of injured toes was proper, and further was in proper reply to a similar argument of defendant's counsel.
Plaintiff's action for damages for personal injuries resulted in a judgment in his favor and against the defendant in the sum of $ 1850. After moving unsuccessfully for a new trial defendant brings the case here on appeal.
Whilst the second amended petition upon which the case was tried contains three assignments of negligence, we are, on this appeal, concerned with the single assignment of negligence upon which plaintiff submitted his case to the jury, the charging part of which reads as follows:
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