Plank v. Brown Petroleum Co.

• Decision Date: 12 June 1933
• Docket Number: No. 30778.,30778.
• Citation: 61 S.W.2d 328
• Parties: ARCHIE PLANK v. R.J. BROWN PETROLEUM COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

61 S.W.2d 328

ARCHIE PLANK v. R.J. BROWN PETROLEUM COMPANY, a Corporation, Appellant.

No. 30778.

Supreme Court of Missouri, Division One.

June 12, 1933.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Claude O. Pearcy, Judge.

REVERSED AND REMANDED.

Holland, Lashly & Donnell, Wm. H. Allen and W.E. Moser for appellant.

(1) Plaintiff's Second Amended Petition does not contain allegations sufficient to constitute a cause of action against defendant. It alleges plaintiff contracted pneumonia while in defendant's employ; a recovery is sought because of alleged violations of the occupational disease statutes, but it fails to allege that said pneumonia is a disease incident or peculiar to the work or process in which he was employed. R.S. 1929, Ch. 95, Art. VI, Sec. 13252. Plaintiff's evidence failed to bring the case within the occupational disease statutes, because he did not produce testimony showing that the disease of pneumonia is incident or peculiar to the work or process in which he was employed. R.S. 1929, Ch. 95, Art. VI. Sec. 13252. (2) Instruction 1, given at plaintiff's request, is erroneous. (a) It recited duties which defendant owed its employees in general, when such matters are not involved in the pleadings or proof; it failed to limit the jury's consideration to the duties which were claimed to have been owed and violated, as shown by the pleadings and proof. Kitchen v. Schlueter Mfg. Co., 20 S.W. (2d) 683; Bank v. Murdock, 62 Mo. 73; Mansur v. Botts, 80 Mo. 658; State ex rel. v. Ellison, 270 Mo. 652. The instruction is merely abstract. Such an instruction is always to be criticized, and if it tends to mislead the jury it is deemed to be reversible error. Moran v. Railroad Co., 255 S.W. 331; Fuller Co. v. Wholesale Drug Co., 219 Mo. App. 519; Culbertson v. Ry. Co., 178 S.W. 269. (b) In his petition plaintiff alleges his pneumonia was caused by defendant's negligent failure to provide specific means and devices, to-wit, respirators, masks, hoods, fans, flues, etc. The instruction authorizes a recovery if defendant failed to provide all or any effective means or devices for the prevention of illness or disease. Plaintiff's petition is specific; the instruction is general; it is broader than the petition (or proof) and therefore erroneous. Instructions must be limited to, and cannot be broader than either the pleadings or evidence. Allen v. Ry. Co., 294 S.W. 80; Chitty v. Ry. Co., 148 Mo. 64; McManamee v. Ry. Co., 135 Mo. 440; Waldhier v. Railroad Co., 71 Mo. 514; Kitchen v. Schlueter Mfg. Co., 20 S.W. (2d) 682.

Everett Hullverson and Staunton E. Boudreau for respondent.

(1) After the verdict and judgment the most liberal and favorable interpretation will be made to sustain the sufficiency of the pleading and, if the language of the petition is susceptible of a construction that states a cause of action, the petition will be upheld. Finley v. Williams, 29 S.W. (2d) 105; State ex rel. Schroeder & Tremayne, Inc., v. Haid, 41 S.W. (2d) 790; Baugher v. Gambel Const. Co., 26 S.W. (2d) 949; Munford v. Sheldon, 9 S.W. (2d) 909; Foster v. Railroad Co., 321 Mo. 1202, 14 S.W. (2d) 573; Ringo v. Ry. Co., 4 S.W. 396, 91 Mo. 667; Bondurant v. Roven Coal Co., 25 S.W. (2d) 572; Frederick v. Bruchner, 101 S.W. 621, 124 Mo. App. 31; Frye v. Railroad Co., 200 Mo. 377, 8 L.R.A. (N.S.) 1069; Roth v. St. Joseph, 167 S.W. 1155, 180 Mo. App. 381, motion to transfer to Supreme Court denied, 171 S.W. 944; Zachra v. Am. Mfg. Co., 162 S.W. 1077, 179 Mo. App. 683; Nye v. U.S. Fid. & Guar. Co., 37 S.W. (2d) 991; Wilson v. Natl. Bond. & Inv. Co., 46 S.W. (2d) 923; Hayden v. Sample, 10 Mo. 215. (a) Said instruction is further erroneous, in that it fastens liability on defendant for failing to post certain notices without requiring a finding by the jury that such notices had been furnished defendant by the Commissioner of Labor and Industrial Inspection. R.S. 1929, sec. 13264. (b) It is further erroneous because it fastens liability on defendant for a failure to post such notices if the work being done is subsequently discovered to be dangerous to health, while the statute limits this duty to known dangers. R.S. 1929, sec. 13264. (c) The instruction is further erroneous because it is broader than the pleadings, in that it imposes liability on defendant for a failure to provide means for the prevention of any disease or illness, when the petition is based on the claim that plaintiff suffered a specific disease and ill effects. See authorities cited under Point 2 (a) and (b). (2) Plaintiff's Instruction 6 was erroneously given, because it authorized the jury to allow damages for being permanently injured when there was no competent evidence that he sustained any permanent injuries. Lebrecht v. United Rys. Co., 237 S.W. 113; Smiley v. Ry. Co., 160 Mo. 636; Bante v. Wells, 34 S.W. (2d) 980. An occupational disease is one which results from the occupation in question. The jury found, and the evidence is sufficient to support their finding, that plaintiff's injuries were the result of disease caused by his occupation. Sec. 13253, R.S. 1929; Boll v. Condie-Bray Glass & Paint Co., 321 Mo. 82, 11 S.W. (2d) 52; Kovaliski v. Collins Co., 128 Atl. 288; Jannusch v. Weber Bros. Metal Works, 241 Ill. 8; Zajkowski v. Am. Steel & Wire Co., 258 Fed. 9, 6 A.L.R. 348; Robertson v. State Industrial Accident Comm., 235 Pac. 684; Texas Employers' Ins. Assn. v. Jimenez, 267 S.W. 752; Travelers' Ins. Co. v. Smith, 266 S.W. 574; Clinchfield Carbocoal Corp. v. Kiser, 139 Va. 451, 124 S.E. 271; Dondurand v. Hydrox Co., 222 Ill. App. 267; May v. Belleville Enameling & Stamping Co., 247 Ill. App. 275; Matthiessen & Hegeler Zinc Co. v. Industrial Board, 120 N.E. 249; Labanoski v. Hoyt Metal Co., 126 N.E. 548. Plaintiff's petition states a cause of action under the occupational disease statutes. The evidence supports the petition. Instruction I follows the language of the occupational disease statutes and is not broader than both pleadings and evidence. Johnson v. Railroad Co., 259 Mo. 534, 168 S.W. 716; Davis v. Term. Ry. Co., 49 S.W. (2d) 52; Doyle v. Term. Ry. Co., 31 S.W. (2d) 1013; Maher v. Donk Bros. Coal & Coke Co., 20 S.W. (2d) 895; Siberell v. Railroad Co., 9 S.W. (2d) 917; Dietzman v. St. L. Screw Co., 300 Mo. 196, 254 S.W. 65; Secs. 13252, 13264, R.S. 1929; Kippenbrock v. Railroad Co., 270 Mo. 486. (a) All the instructions in the case, including plaintiff's Instruction 1 and defendant's Instructions 2 and 3, must be read together and considered as a whole. Smith v. So. Ill. & Mo. Bridge Co., 30 S.W. (2d) 1085; Neal v. Caldwell, 34 S.W. (2d) 113; Kaechelen v. Barringer, 19 S.W. (2d) 1039; Leimkuehler v. Wessendorf, 18 S.W. (2d) 453; Schultz v. Schultz, 316 Mo. 728, 293 S.W. 110. (b) The statute does not make defendant's posting of the notices conditional upon the notices being furnished to defendant by the Commissioner of Labor and Industrial Inspection. Sec. 13264, R.S. 1929; Cropper v. Titanium Pigment Co., 47 Fed. (2d) 1038. (3) Plaintiff's given Instruction 1 does require a finding that the damages from plaintiff's occupation and means of preventing the consequences were known. Sec. 13253, R.S. 1929. (d) No notices whatever were posted, and the failure to post them, whether the dangers were known or not, is, by virtue of the statute, negligence per se. Cropper v. Titanium Pigment Co., 47 Fed. (2d) 1038; Sec. 13253, R.S. 1929. (e) The issue of posting notices of dangers from plaintiff's occupation and means of avoiding the consequences of them whether known or not, was not in fact submitted to the jury at all under the instructions, but was expressly withdrawn from their consideration by defendant's given Instruction 2. (3) There was ample evidence in the record upon which to submit to the jury the issue of permanent injuries. (4) The court properly refused defendant's offered Instructions C, D and E because by plaintiff's Instruction 1 the issues sought to be withdrawn by these instructions were abandoned and not submitted to the jury. Smith v. So. Ill. & Mo. Bridge Co., 30 S.W. (2d) 1085; Neal v. Caldwell, 34 S.W. (2d) 113; Kaechelen v. Barringer, 19 S.W. (2d) 1039; Leimkuehler v. Wessendorf, 18 S.W. (2d) 453; Schultz v. Schultz, 316 Mo. 728, 293 S.W. 110. (5) There was ample evidence upon which to submit to the jury the issues of the dangers from plaintiff's occupation and means of avoiding their consequences. Sec. 13253, R.S. 1929.

FERGUSON, C.

This action was instituted by plaintiff to recover damages for alleged personal injury and disease which he claims to have sustained while employed by defendant petroleum company. The theory of the action is that plaintiff's alleged injuries and consequent illness or disease directly arose out of and resulted from conditions maintained and permitted by defendant company in violation of Section 13252, Revised Statutes 1929, which requires:

"Every employer of labor in this state engaged in carrying on any work, trade or process which may produce any illness or disease peculiar to the work or process carried on, or which subjects the employee to the danger of illness or disease incident to such work, trade or process, to which employees are exposed, shall for the protection of all employees engaged in such work, trade or process, adopt and provide approved and effective devices, means or methods for the prevention of such industrial or occupational diseases as are incident to such work, trade or process."

Plaintiff had verdict and judgment for damages in the sum of $17,500 and defendant appealed.

As necessary to a discussion of the assignments of error made by appellant and to an understanding, at the threshold, of the nature of this case we shall first summarize the facts developed by plaintiff's evidence with the reasonable inferences arising therefrom. Defendant company as its name indicates was engaged in some branch of the petroleum business, the exact nature of which does not...