Schaum v. Southwestern Bell Telephone Co.

• Decision Date: 21 December 1934
• Citation: 78 S.W.2d 439,336 Mo. 228
• Parties: Joseph Schaum v. Southwestern Bell Telephone Company, a Corporation, Appellant, and Kansas City Telephone Company, a Corporation
• Court: Missouri Supreme Court

78 S.W.2d 439

336 Mo. 228

Joseph Schaum v. Southwestern Bell Telephone Company, a Corporation, Appellant, and Kansas City Telephone Company, a Corporation

Supreme Court of Missouri

December 21, 1934

Rehearing Overruled November 16, 1934.

Motion to Modify Opinion Overruled December 21, 1934.

Appeal from Clinton Circuit Court; Hon. Guy B. Park, Judge.

Reversed.

Battle McCardle, S. L. Harris and John Mohler for appellant; Earl H. Painter of counsel.

(1) The court erred: (1) in overruling appellant's demurrer to the petition for want of facts sufficient to constitute a cause of action against Kansas City Telephone Company, and (2) in overruling appellant's demurrer to the evidence for failure to prove facts sufficient to constitute a cause of action against Kansas City Telephone Company. (a) The liability of the master depends solely upon the establishment of negligence. Manker v. Standard Oil Co., 203 Mo.App. 404, 221 S.W. 142; 18 R. C. L. 544-546. (b) The facts alleged in the petition and the facts received in evidence negative the existence of negligence for failure to furnish goggles because: No duty to furnish goggles exists. Wulfert v. Murch Const. Co., 232 S.W. 243; Morris v. Wagner Elec. Mfg. Co., 243 S.W. 424; Harbacek v. Fulton Iron Wks., 287 Mo. 479, 229 S.W 803; Richardson v. So. Surety Co., 139 S.E. 839, 194 N.C. 469. The servant assumed the risk (same authorities as above), and assumption of risk in this State means absence of negligence on the master's part. Lutgen v. Ry Co., 294 S.W. 445; Sterling v. Parker-Washington Co., 185 Mo.App. 192, 170 S.W. 1163; Williams v. Pryor, 272 Mo. 613, 200 S.W. 54; Patrum v. Railroad Co., 259 Mo. 124, 168 S.W. 622; Jewell v. K. C. Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703; Fish v. Ry. Co., 172 S.W. 346; (c) No liability could arise under the promise or under the refusal to furnish goggles upon plaintiff's request for the same, or under the assurance of safety. Coin v. Talge Lounge Co., 222 Mo. 488, 121 S.W. 8; Lutgen v. Railroad Co., 294 S.W. 445; 18 R. C. L. 653. (d) The assurance of safety, in this case was ineffectual to avoid the defense of assumption of risk, if such a defense exists. Republic Iron Co. v. Thomasino, 176 F. 49; Rohrbacher v. Woodward, 124 Mich. 125, 82 N.W. 797; Golesh v. Utah Apex Min. Co., 162 P. 369; Waterman v. Skokomish Timber Co., 118 P. 36; Poorman v. Devling, 81 P. 252; McKane v. Marr, 77 Vt. 7, 58 A. 721; Warner v. Ry. Co., 62 Mo.App. 185; Gillaspie v. United Iron Wks., 76 Kan. 20, 90 P. 760; Wexler v. Salisbury, 91 Minn. 308, 98 N.W. 96; Knorpp v. Wagner, 195 Mo. 637, 93 S.W. 961; Pulley v. Standard Oil Co., 136 Mo.App. 172, 116 S.W. 430; Leitner v. Grieb, 104 Mo.App. 173, 77 S.W. 764; Harf v. Green, 168 Mo. 308, 67 S.W. 576; Holloran v. Union Iron Co., 103 Mo.App. 370, 35 S.W. 260; Zentz v. Chappell, 103 Mo.App. 208, 77 S.W. 86; Ryan v. Lea, 249 S.W. 685.

Pross T. Cross and Gerald Cross for respondent; R. H. Musser and Louis N. Wolf of counsel.

(1) Respondent's evidence made a case for the jury on the issue of negligence, and the court did not err in overruling appellant's demurrer. The negligence of the master was established in the following respects: (a) Negligently violated custom to provide goggles, after complaint. 45 C. J. 709; Caldwell v. Payne, 246 S.W. 312; Brunke v. M. & K. Tel. Co., 112 Mo.App. 623, 87 S.W. 84; White v. Ry. Co. 84 Mo.App. 411; Cassin v. Lusk, 277 Mo. 677, 210 S.W. 902; O'Mellia v. Kansas City, St. J. & C. B. Co., 115 Mo. 221; Detmering v. Railroad Co., 36 S.W.2d 116; Gordon v. Railroad Co., 222 Mo. 536, 121 S.W. 80; Rigley v. Prior, 290 Mo. 10, 233 S.W. 828; Lemser v. St. Joseph Mfg. Co., 70 Mo.App. 209. (b) Negligently ordered plaintiff, who was inexperienced and ignorant of the danger, to work without goggles. Gailus v. Pauly Jail Bldg. Co., 282 S.W. 125; Ingram v. Prairie Block Coal Co., 5 S.W.2d 413; Brann v. Hydraulic-Press Brick Co., 288 S.W. 941; McCarver v. Lead Co., 268 S.W. 687; Nash v. Lead Co., 238 S.W. 584. (c) Negligently assured plaintiff, who was inexperienced and had made complaint of the danger, to work without goggles. 4 Labatt's Master & Servant (2 Ed.) 3961; McGowan v. Ry. Co., 61 Mo. 528; Burkard v. Leschen & Sons Rope Co., 217 Mo. 466, 117 S.W. 35; Ingram v. Prairie Block Coal Co., 5 S.W.2d 413; Nash v. Lead Co., 238 S.W. 384; McCarver v. Lead Co., 268 S.W. 687; Clark v. Foundry Co., 234 Mo. 450; Sullivan v. Railroad, 17 S.W. 748, 107 Mo. 78; Bane v. Irwin, 172 Mo. 316; Herdler v. Range Co., 136 Mo. 3; Garard v. Coal Co., 207 Mo. 242; Hall v. Coal Co., 260 Mo. 351; Corby v. Phone Co., 231 Mo. 417; Mount v. Coal Co., 242 S.W. 943; Hoover v. Mining Co., 160 Mo.App. 326; Lackland v. Coal Co., 110 Mo.App. 634. (d) Negligently failed to provide reasonably safe place to work and reasonably safe appliances and devices. (2) Plaintiff did not assume the risk -- nor was he guilty of contributory negligence. Gailus v. Pauly Jail Bldg. Co., 282 S.W. 127; Williams v. Pryor, 272 Mo. 613, 200 S.W. 53; Fish v. Ry. Co., 263 Mo. 125, 172 S.W. 340; Charlton v. Railroad Co., 200 Mo. 413; Curtis v. McNair, 173 Mo. 270; Phippin v. Railroad Co., 196 Mo. 321; Jewell v. Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703; Dakan v. Chase, 197 Mo. 238; George v. Railroad Co., 225 Mo. 364; Burkard v. Rope Co., 217 Mo. 466; Brann v. Hydraulic Press Brick Co., 288 S.W. 941; Nash v. Lead Co., 238 S.W. 384; Ingram v. Prairie Block Coal Co., 5 S.W.2d 413; Keegan v. Kavanaugh, 62 Mo. 230; Stephens v. Ry. Co., 96 Mo. 211; McGowan v. Ry. Co., 61 Mo. 528; Hall v. Coal Co., 260 Mo. 351; Sullivan v. Ry. Co., 17 S.W. 748, 107 Mo. 78; Clark v. Foundry Co., 234 Mo. 450; Hoover v. Mining Co., 160 Mo.App. 326; McCarver v. Lead Co., 268 S.W. 687; Fogus v. Railroad, 50 Mo.App. 250; 4 Labatt's, Master & Servant (2 Ed.) 3961; 39 C. J. 801, 836; David v. Railroad, 41 S.W.2d 183; Kelly v. Railroad Co., 79 S.W. 978; Lawhon v. St. Joseph Veterinary Laboratories, 252 S.W. 44; Conroy v. Vulcan Iron Works, 62 Mo. 35; Gilbert v. Hilliard, 222 S.W. 1029. (3) Appellant cannot change his theory of the case on appeal. Pienieng v. Wells, 271 S.W. 62; State ex rel. Athletic Tea Co. v. Cameron, 273 S.W. 746; Seckinger v. Philibert Mfg. Co., 31 S.W. 957; Snyder v. Am. Car & Foundry Co., 14 S.W.2d 606; Guthrie v. Gillespie, 6 S.W.2d 889; Brunswick v. Insurance Co., 213 S.W. 45; Grimes v. Cole, 133 Mo.App. 522, 113 S.W. 685; Paramore v. Campbell, 149 S.W. 6, 245 Mo. 287; Oglesby v. Ry. Co., 1 S.W.2d 180.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This case, coming recently to the writer, is an action for damages for an injury to plaintiff's right eye alleged to have been sustained while working in a manhole. Plaintiff was employed by the Kansas City Telephone Company to do underground work, that is, work in connection with laying and replacing underground cables. Before he brought suit, the property and business of the Kansas City Telephone Company was taken over by the Southwestern Bell Telephone Company. At the trial plaintiff (respondent) dismissed as to the Kansas City Telephone Company (hereinafter referred to as the telephone company) and recovered a verdict against the Southwestern Bell Telephone Company for $ 20,000. From the judgment entered thereon, defendant Southwestern Bell Telephone Company has appealed. It will be referred to as the appellant.

The charges of negligence in respondent's petition were as follows:

"He was negligently ordered, directed and required, by said foreman of said defendant Kansas City Telephone Company, to enter said manhole and to chip away the sides of same by using a hammer and chisel without providing him with goggles to wear while so doing. . . . That it was not reasonably safe for plaintiff to be so engaged in the work of so chipping away the sides of said manhole without wearing goggles. . . . Plaintiff being inexperienced in the doing of said work, and being in doubt as to whether or not to so work within and chip the sides of said manhole with said hammer and chisel was reasonably safe . . . complained to said foreman that to so perform said work of chipping away the sides of said manhole without wearing goggles and without being provided with goggles to wear, rendered said work dangrous . . . and there requested said foreman to procure and furnish plaintiff with goggles that he might wear while engaged in said work . . . said foreman and vice-principal negligently and carelessly refused to procure or provide goggles as requested by plaintiff and negligently and carelessly ordered and required plaintiff to go ahead and perform said task and so chip away and enlarge the sides of said manhole without wearing said goggles and negligently and carelessly assured plaintiff that he could perform said work in safety and with reasonable safety to his person and without injury without wearing said goggles, and negligently failed to furnish plaintiff a reasonably safe place in which to work and reasonably safe appliances with which to work, in that it negligently failed to provide and furnish plaintiff with goggles to wear while performing said work."

Appellant first filed a demurrer to this petition, on the grounds that it failed to state a cause of action and that several causes of action were improperly joined therein, which was overruled. Appellant then filed an answer containing a general denial, a plea of contributory negligence and a plea of assumption of risk. No pleadings were filed on behalf of the telephone company. Appellant asserts that it cannot be held in this action for a claim in tort against the telephone company but because of the view we take of the case it will not be necessary to discuss this contention.

Respondent's evidence tends to show that on November 1, 1926, he and two...