Probst v. St. Louis Basket & Box Company, a Corp.

• Citation: 207 S.W. 891,200 Mo.App. 568
• Parties: ELIZABETH LAVERE PROBST and EARL JOSEPH PROBST, by their next friend, FRANK J. GROB, Respondents, v. ST. LOUIS BASKET & BOX COMPANY, a corporation, Appellant
• Decision Date: 07 January 1919
• Court: Court of Appeal of Missouri (US)

207 S.W. 891

200 Mo.App. 568

ELIZABETH LAVERE PROBST and EARL JOSEPH PROBST, by their next friend, FRANK J. GROB, Respondents, v. ST. LOUIS BASKET & BOX COMPANY, a corporation, Appellant

Court of Appeals of Missouri, St. Louis

January 7, 1919

Appeal from the Circuit Court of the City of St. Louis.--Hon. Thomas C. Hennings, Judge.

AFFIRMED.

Judgment affirmed.

Kelley & Starke and Chas. E. Morrow for appellant.

The petition does not state a cause of action. The death is alleged to have occurred on January 25, 1913, and this suit was filed November 20, 1914, one year and ten months later. The allegations in the petition that plaintiffs did "within one year of the time of said death bring an action for damages on the same cause of action set forth in this petition and that plaintiffs suffered a non-suit in said action" is not sufficient, because it does not allege the date of said non-suit, nor that this action was brought within one year after said non-suit, as required by Statute. The limitation provided by the Damage Act creating this action is not merely a remedy, but it is a part of the right of action itself, and the petition must show that it was brought within the time allowed by law. Clark v Railroad, 219 Mo. 524; Tiffany, Death By Wrongful Act section 121.

Leonard & Sibley for respondents.

(1) Pleadings will be liberally construed to prevent a defeat of justice, particularly after verdict. A party on appeal will not be heard to argue the absence of pleading on evidence waived at the trial. Cobb v. Railroad, 149 Mo. 135 143 and 144; Stamper v. Hammond P. Co., 180 S.W. 1076. (2) If the master is negligent, his negligence is not excused by the fact that the negligence of the fellowservant of plaintiff contributed with that of the master to cause the injury. Radtke v. St. L. Basket & Box Co., 229 Mo. 15; Bluedorn v. Railroad, 108 Mo. 448; Young v. Iron Co., 103 Mo. 324; Craig v. Railroad, 54 Mo.App. 523; Moriarity v. Schwarzschild, etc., 132 Mo.App. 655; Rigsby v. Oil Well Supply Co., 115 Mo.App. 317; Mertz v. Rope Co., 174 Mo.App. 94; Musick v. Dald Packing Co., 58 Mo.App. 334; Hawarth v. Railroad, 94 Mo.App. 226; Cole v. Transit Co., 183 Mo. 81; Amick v. Kansas City, 187 S.W. 582. The dual capacity doctrine prevails in the master and servant law in Missouri. Fogarty v. St. L. Transfer Co., 180 Mo. 503; Rigsby v. Oil, etc., Co., 115 Mo.App. 313; Mertz v. Leschen Rope Co., 174 Mo.App. 94; Bien v. Transfer Co., 108 Mo.App. 399. A plaintiff, under the immediate control and direction of another employee of defendant, although they work together at a common work, are not fellowservants, but the other is the defendant's vice-principal. Burkard v. Rope Co., 217 Mo. 466; Cites-Moore v. Railroad, 85 Mo. 588; LaSalle v. Kosta, 190 Ill. 130; Rigsby v. Co., 115 Mo.App. 297. Whether one is a vice-principal or a fellow-servant is a question for the jury. Gale v. Helmbacher Co., 140 S.W. 77; Radtke v. St. L. B, & B, Co., 229 Mo. 1; Fogarty v. Transfer Co., 180 Mo. 490. (2a) A defeated party must specify in his motion for a new trial the particular instruction in which he claims error lies, otherwise he is held to have failed to have called them to the attention of the trial judge and they will not be considered on appeal. Maplegreen Co. v. Trust Co., 237 Mo. 350; Palski v. City et al., 264 Mo. 458; Wampler v. Railroad, 269 Mo. 472; K. C. D. & M. Co. v. Bates County, 201 S.W. 92; Lampe v. V. R., 202 S.W. 438; Nitchman v. V. R., 203 S.W. 491; Seitz v. Pelligreen Const. Co., 203 S.W. 503; Wynne v. Wagoner v. Co,, 204 S.W. 15. (3) When there is evidence that the alleged negligence of employer concurred with the act of a fellow-servant to cause the injuries complained of, it is not the law that the jury must find that the negligence of defendant was the sole cause of the injuries. Newcomb v. Railroad, 169 Mo. 409. (4) It is proper to instruct the jury to consider the "age and condition in life" of the deceased father in awarding damages to surviving infant children and "age and condition" of the children. McKenzie v. V. R., 183 Mo.App. 312.

BECKER, J. Reynolds, P. J., and Allen, J., concur.

OPINION

BECKER, J.--

Plaintiffs sued by next friend for the alleged negligent killing of their father and recovered a judgment below against the defendant in the sum of $ 5500. In view of the assignments of error it will be necessary to set forth plaintiffs' petition, which is as follows:

"Plaintiffs state that they are the only lawful children of one John Probst, who was, on or about the 25th day of January, 1913 in the employ of defendant in said factory and engaged under the guidance and control of defendant, in removing certain logs from a tank or vat filled with boiling water and live steam, which said vat was, at the time, being operated by defendant in connection with its said business."

"Plaintiffs state that at said time said tank or vat was constructed of concrete and was rectangular in shape, with dimensions of about fourteen feet by twenty-eight feet; that it was sunk in the ground to a depth of several feet, and projected above the ground to a heighth of approximately two feet, nine inches; that the top of the walls of said tank were capped by a wooden plank approximately fourteen inches wide, which ran around the top of the walls of said tank; that the top of said tank was partly covered with loose planks or boards, and that said tank was not under any roof or other protection, but was exposed to the action of rain and the elements and was continually moist from the escaping steam and water; that on said date said John Probst was employed in removing the steamed or boiled logs from said tank as aforesaid; and, as was the custom of the employees of said department, as defendant well knew, or by the exercise of reasonable care would have known, and as was the instruction of the defendant's servants and agents in charge of said department of said factory, was standing upon the tank for the purpose aforesaid."

"Plaintiffs state that at said time there was no railing or handhold or other safety appliance of any kind provided on or about said tank, although it would have been entirely practicable to have afforded some protection, and it was negligent in defendant not to do so."

"Plaintiffs state that defendant was maintaining and operating in said factory, at the times hereinabove referred to, a derrick, which was situated near the south wall of said tank, and was used for the purpose of hoisting logs out of the said tank; that said derrick was exposed to the action of the steam and rain and the elements, as was also said vat or tank; that in consequence the wooden planks around the top of the wall of said tank, as well as the wooden cover thereof and the said derrick, were wet and slippery and the rope in said derrick was new and stiff and swollen and could be moved through the blocks in said derrick only with great difficulty, and all of said apparatus was in unsafe and improper and dangerous condition, as defendant well knew, or by the exercise of reasonable care would have known, and this condition was due to defendant's negligence and carelessness."

"Plaintiffs further state that the poles and hooks provided by defendant at said time for the use of plaintiff and other employees in getting the logs out of said vat were too short, defective, and not properly constructed for the purpose intended, and were dangerous for the use of plaintiff and other employees."

"Plaintiffs state that under all these dangerous conditions, which plaintiffs allege existed long prior to and on or about the said 25th day of January, 1913, said John Probst was instructed by defendant just before the scalding hereinafter alleged, to take logs out of said tank, and was repeatedly instructed and required to hasten in his work so as to render it impossible for him to safeguard himself against the consequences of the dangerous and negligent conditions above described; that at said time the water in said tank had been carelessly and negligently permitted by defendant to reach so low a stage that it was three or four feet below the top of the walls of said tank, so as to make it very difficult to get logs out of same; and plaintiffs state that while the said John Probst was standing upon the south wall of said tank and endeavoring to reach the logs with the defective poles and hooks described and while bending over for that purpose, said derrick swung near him and lightly touched him, or attracted his attention, and his foot slipped upon the wet and slippery footing aforesaid, and he fell into the said vat, all because of defendant's negligence and carelessness as aforesaid."

"Plaintiffs further state that the said derrick was, at said time, caused to swing, as aforesaid, by the endeavor of defendant's representatives in charge of said operations to straighten out the rope in said derrick, which operation was rendered unreasonably difficult by reason of the unsafe and negligent condition of the derrick and its equipment as aforesaid, and in pulling at the rope for the purpose above set out, the derrick was unexpectedly caused to swing near or past the said John Probst."

"Plaintiffs further state that as a result of the carelessness of said defendant as above set out and in consequence of the falling into said vat as above described, the said John Probst was scalded and burned over his whole body."

"Plaintiffs further state that he was removed to the Alexian Brothers Hospital in said city of St. Louis, where he died a few hours later from his said injuries."

"Plaintiffs state that defendant provided and maintained all the said apparatus and equipment, and controlled all the methods of operation used in said factory, and that defendant was...