Sanders v. Armour & Co.

• Decision Date: 05 February 1927
• Docket Number: No. 4131.,4131.
• Citation: 292 S.W. 443
• Court: Missouri Court of Appeals
• Parties: SANDERS v. ARMOUR & CO. OF DELAWARE et al.

292 S.W. 443

SANDERS v. ARMOUR & CO. OF DELAWARE et al.

No. 4131.

Springfield Court of Appeals, Missouri.

February 5, 1927.

Rehearing Denied March 31, 1927.

Appeal from Circuit Court, Greene County; Warren L. White, Judge.

Action by W. J. Sanders against Armour & Co. of Delaware and others. Judgment for plaintiff, and defendant named appeals. Affirmed.

A. B. Reid, of Chicago, Ill., and Mann & Mann, of Springfield, for appellant.

Sizer & Gardner. of Monett, for respondent.

BAILEY, J.

This is an action for damages brought by the husband for the loss or aid, services, and companionship of his wife, Mrs. W. J. Sanders, alleged to have been injured by a fall while employed by defendant in the poultry department of its plant at Springfield on July 12, 1924. The cause was tried to a jury resulting in a verdict for plaintiff in the sum of $6,500. Thereafter, pending a motion for new trial, plaintiff remitted $2,500, and judgment was entered for the sum of $4,000. Defendant has appealed.

It is first contended that defendant's demurrer to the evidence should have been sustained, because there is no proof of the specific acts of negligence alleged. The petition is quite lengthy, and we shall set out only such portions as seem necessary to a proper understanding of the issues.

The petition alleges that defendant company was engaged in the operation of a plant for dressing and picking poultry in the city of Springfield, of which defendant Crawford was foreman ; that it was defendant's duty to furnish plaintiff's said wife with a reasonably safe place in which to work ; that on July 12, 1924, plaintiff's wife was employed by defendant in the "tipping room" of said plant, and that her work of "tipping" (which is the final touch in the removal of the smaller feathers of a chicken being picked or dressed) required her to walk across the floor and carry dressed chickens some 30 feet ; that defendant negligently caused the floor of the tipping room to be sprayed with a disinfectant, which was a liquid composed of lime and water ; that said substance was placed on the floor "in great quantities and so thick the floor was thereby made very slick, slippery, and dangerous to walk upon." It is then alleged that sawdust, feathers, and other substances were allowed to remain on top of the disinfectant liquid so as to conceal the same and give the floor the appearance of safety to walk upon ; that, while the floor was in such condition, and while plaintiff's wife was walking across the floor of said tipping room, carrying chickens, by reason of the slick and unsafe condition of said floor, she was caused to slip and fall, causing serious injuries to her hip and spine. Then follows a charge of some eight or nine specific acts of negligence. As one of these specific acts of negligence, it is alleged :

That defendants "were further careless and negligent in that, even though it was necessary and proper, by reason of the nature and character of the business in which defendants were engaged, to disinfect said floor by some sort of disinfectant, yet the defendants carelessly and negligently placed said disinfectant material, as aforesaid, on said floor, in large and excessive and unnecessary quantities, thereby rendering the work of plaintiff's said wife extrahazardous, and exposing her and Other employees to unnecessary dangers; all of which said dangers and defects and extra hazards were known to, and appreciated by, the defendants," etc. (Italics ours.)

Before considering the demurrer to the evidence, we shall follow the order set by learned counsel for defendants in their brief and first dispose of the question as to the propriety of instruction A, the principal Instruction given on behalf of plaintiff. This Instruction first requires the jury to find that plaintiff's wife was employed by defendant and fell while engaged at her work in carrying a shackle of chickens across the floor. It then continues as follows :

"And if you further find and believe from the evidence that the said defendant Armour & Co., of Delaware, its agents and servants, had prior thereto sprayed said floor with a disinfectant' liquid, composed of lime and water, and that said liquid had been so placed and left and permitted to be and remain upon said floor in such quantities that thereby said floor was rendered slick and not reasonably safe for plaintiff to walk upon in the performance of her duties, and if you further find that the said defendant Armour & Co., of Delaware, its agents and servants, knew or by the exercise of ordinary care could have known of the presence of said liquid on said floor at the place where plaintiff's wife fell in time to have avoided injuring the plaintiff's wife by the exercise of ordinary care on their part, and they failed to do so, then you will find the defendant Armour & Co. guilty of negligence." (Italics ours.)

Instruction B was of like import except that it applied only to defendant Crawford, the foreman.

It is contended by defendants that these instructions are broader than the pleadings, because they authorized a recovery if the jury should find that the liquid had been placed and permitted to remain on the floor "in such quantities that thereby the floor was rendered slick," whereas the specific negligence alleged was that defendants placed the liquid on the floor "in large and excessive and unnecessary quantities." It is further contended that all that part of plaintiff's lengthy petition preceding the paragraphs specifying different acts of negligence which caused the injury is mere matter of inducement, general in its terms, and that plaintiff is bound by the specific acts of negligence alleged, and may not base his right to recover on other grounds. The rule is well established that a litigant is bound by the specific acts of negligence pleaded, and recovery may be had only upon one or more of such negligent acts charged constituting a cause of action, although the petition may contain a general allegation of negligence. McManamee v. Ry., 135 Mo. 447, 37 S. W. 119; Lauff v. Carpet Co., 186 Mo. App. 123, 171 S. W. 986. We believe, however, that rule can be applied to the petition in this case only by a strained and technical construction. The petition first charges defendant with the duty to furnish a reasonably safe place in which to work. Then follows that portion of the petition from which we first quoted, containing the allegation that the substance was placed on the floor "in great quantities and so thick that said floor was thereby made slick," etc. A careful reading of the petition shows this may be fairly construed as a specific charge of negligence, wholly independent of the eight or nine other negligent acts charged in the latter part of the petition, including the charge that the liquid was used in "large, excessive, and unnecessary quantities," and that defendant could not have been misled thereby. Had that part of the petition, which able counsel state was mere matter of inducement, alleged in general terms that defendant negligently permitted the floor to become slick and dangerous, and followed this by a specific charge that such condition of the floor was caused by the negligent use of the liquid in "excessive and unnecessary quantities," we believe defendant's position would be tenable. But the first part of the petition specifies the manner in which the slippery condition of the floor was produced with equal particularity to that contained in the latter part of the petition quoted, and, in the absence of a motion to make more definite, we do not believe it reasonable to hold the first part of the petition a mere nullity simply because other specific acts of negligence are alleged in another part of the petition not inconsistent therewith. Thompson v. Livery Co., 214 Mo. 487, 113 S. W. 1128. We shall therefore consider the instructions under the theory that the first part of the petition contains a separate and specific charge of negligence, viz. that the liquid was put on the floor "in great quantities," etc.

In construing these instructions, we must keep in mind the rule that an instruction need...