Seitz v. Pelligreen Construction & Investment Company

• Citation: 203 S.W. 503,199 Mo.App. 388
• Parties: FRANK SEITZ, Respondent, v. PELLIGREEN CONSTRUCTION & INVESTMENT COMPANY, a corporation, Appellant
• Decision Date: 07 May 1918
• Court: Court of Appeal of Missouri (US)

203 S.W. 503

199 Mo.App. 388

FRANK SEITZ, Respondent, v. PELLIGREEN CONSTRUCTION & INVESTMENT COMPANY, a corporation, Appellant

Court of Appeals of Missouri, St. Louis

May 7, 1918

Argued and Submitted April 4, 1918

Appeal from the Circuit Court of the City of St. Louis.--Hon. George H. Shields, Judge.

AFFIRMED.

Judgment affirmed.

R. J Balch and Jno. P. McCammon for appellant.

(1) The allegations of the petition were insufficient to admit evidence of statutory or ordinance violation. There is no act of the defendant pleaded, only (Abs., pp. 1, 2 and 3) that the defendant was in charge of the erection of a building and in exclusive control of all parts of it, and on which plaintiff was employed. All the circumstances essential to support the action must be alleged, or in substance appear on the face of the declaration (citing authorities). Kennayde v. Railroad, 45 Mo. 255; Reynolds v Railway Co., 85 Mo. 90. There is no rule of the common law requiring dangerous machinery to be fenced or guarded and the master is not answerable if a servant of full capacity is injured in consequence of working about unguarded machines. Bair v. Hebel, 103 Mo.App. 632, and cases cited. Neither is there a rule of the common law requiring any floor of a building to be covered over as the building progresses. The petition in the last case was held good only because one specification of negligence "sufficiently states a cause of action based on appellant's failure to comply with its (the act's) requirements," either expressly or by implication. Hogan v. Railway Co., 150 Mo. 48, 49; Lore v. Mfg. Co., 160 Mo. 608; Lohmeyer v. Cordage Co., 214 Mo. 685, 113 S.W. 1108. So strict is the law in the admission of evidence in such cases that where one breach of a statute is pleaded as the negligence relied on for recovery, the plaintiff cannot prove nor recover upon another and different breach of the same section. Huss v. Heydt Bakery Co., 108 S.W. 63, 210 Mo. 44; McClure v. Feldman, 184 Mo. 710, 84 S.W. 16; Chitty v. Railway Co., 148 Mo. 64, 74; Bromley v. Lumber Co., 127 Mo.App. 151, 104 S.W. 1134; Casey v. Transit Co., 103 S.W. 1146, 205 Mo. 721; King v Ry. Co., 109 S.W. 859, 130 Mo.App. 368. The same ruling, for the same reason, on similar pleading of the ordinance, was made in Gratiot v. Railway Co., 116 Mo. 450. (2) The court erred in admitting in evidence the ordinance. The case referred to by the trial court in the 116 Appeals, as authority for the admission of the ordinance, evidently is that of Mulderig v. Railroad Co. et al., 116 Mo.App. 655. But the law had not, before the passage of the ordinance here, made it negligence to fail to "lay scaffold boards over the joists and girders of a building as it progressed." It therefore required an ordinance before such failure could become negligence, and such negligence would not be common-law negligence, but statutory or ordinance negligence. If authority be needed to support this seemingly self-evident proposition, we have it in the opinion of the Supreme Court, speaking through Judge LAMM in Lohmeyer v. Cordage Co., 113 S.W. 1108, 214 Mo. 685. That action was grounded on a violation of a section of the Factory Act, requiring cogwheels and gearing to be uncovered and unguarded. The facts showing a violation of the act were pleaded. The court said: "Her (plaintiff's) case is confessedly based on that statute, for at common law an employer owed no duty to his employee to fence his machinery." This court also has so held in case of Bair v. Heibel, 103 Mo.App. 621, saying: "It seems there is no rule of the common law requiring dangerous machinery to be fenced or guarded and that the master is not answerable if a servant of full capacity is injured in consequence of working about unguarded machines," citing numerous authorities and including therein Lore v. Mfg. Co., 160 Mo. 608. "As between master and servant the master is not required to furnish the best and safest known appliances. . . . So with respect to its common-law duty to the public, it is not whether there are known appliances which the defendant did not use, but whether the appliances it does use are such as a person of ordinary prudence would have used which determines its negligence. There was therefore no error in the ruling of the court sustaining the motion to strike out this allegation in the petition." Hogan v. Railway Co., 150 Mo. 48 and 49: "It is not the duty of the master to furnish any particular kind of tools, implements or appliances. His duty in this respect is to use ordinary care and deligence in selecting and furnishing safe and suitable tools ad implements." Bohm v. Railway Co., 106 Mo. 433; Sutherland v. Lbr. Co., 130 S.W. 41, 149 Mo.App. 338; Shimers v. Mullins, 117 S.W. 91, 136 Mo.App. 298; Wilkinson v. Bottling Co., 136 S.W. 720, 154 Mo.App. 563. In Danker v. Mfg. Co., 102 Mo.App. 723, the court said: "The city ordinances referred to in the statement were improperly admitted as evidence and were of prejudicial influence, as a violation of them was not counted on in the petition as a cause of action." (3) Evidence violation of the ordinance was improper. (4) Plaintiff's Instruction No. 1 did not declare the law. The negligence declared on, and the theory of plaintiff at the trial conforming thereto, was common-law negligence. (5) Defendant's Instruction "E" properly declared the law in an action for common-law negligence. Under the authorities heretofore cited herein under points 2 and 3, it is clear that there was no duty at common law on defendant to lay floors or cover with scaffold boards the joists or girders of any floor as the building progressed, its duty being simply "to exercise ordinary care to provide reasonably safe tools and appliances for, and to make reasonably safe" the place of plaintiff. (6) This case must be tried in appellate court on the same theory as that on which it was tried below. Franklin v. School Dist., 197 S.W. 345; Huss v. Bakery Co., 210 Mo. 52, 108 S.W. 63; St. Louis v. Wright Con. Co., 210 Mo. 491, 109 S.W. 6, and authorities cited.

Claud D. Hall for respondent.

(1) It was proper to show under the petition that the defendant did not cover the joists or girders of the building on which plaintiff was working. (a) The plaintiff could prove any facts or circumstances which fairly tended to establish the negligence of the primary fact (the falling material and plaintiff being struck and falling) complained of. Fisher v. Golladay, 38 Mo.App. 531, 537. (b) It was the defendant's duty to cover the joists and girders with scaffold boards or other suitable material to make it reasonably safe for plaintiff. LaBatt on Master and Servant sec. 999 (p. 2675) and see cases under section 924 LaBatt pp. 24, 72-3-4; Section 7843, R. S. 1909; Pierson v. Gohr, 126 Maryland, 395; American Window Glass Co. v. Noe, 158 F. 777, 780. (c) Under a general allegation of negligence plaintiff may properly offer evidence tending to show specific acts of negligence. Wolven v. Springfield Traction Company, 143 Mo.App. 643; Hall v. Wabash, 165 Mo.App. 115; Hales v. Raines, 162 Mo.App. 46; Fields v. Levier, 184 Mo.App. 685. (d) Defendant did not raise the question of variance, by filing an affidavit as required by section 1846, R. S. 1909. See also; Holland v. Metropolitan St. Ry. Co., 157 Mo.App. 476; Waldhier v. Railway Co., 71 Mo. 514-516; Fisher v. Realty Co., 159 Mo. 562; Harrison v. Lakeman, 189 Mo. 589; Scalpino v. Smith, 154 Mo.App. 524. (2) The court did not err in admitting the ordinance in evidence. (Mulderig v. Railroad, 116 Mo.App. 655, 665; Bailey v. Kansas City, 189 Mo. 503, 514; Bragg v. Met. St. Ry., 192 Mo. 331, 350; Robertson v. Railroad, 84 Mo. 119, 121; McKee v. Peters, 142 Mo.App. 286, 288; Shell v. Railroad, 132 Mo.App. 528, 535; Welsch v. Railroad, 26 Mo.App. 358, 365; Becker v. Schutte, 85 Mo.App. 57; Marshall v. United Railways Co., 184 S.W. 159; Brannock v. Elmore, 114 Mo. 55, 59; Fergus Lane v. Atlantic Works, 111 Mass. 136; Briggs v. Railroad, 72 N.Y. 26; Meek v. Railroad, 38 Ohio 632; Devlin v. Gallagher, 6 Daly's Reports 494; Bain v. Light and T. Co., 116 Ark. 125; McGrath v. Railroad, 63 N.Y. 522; Knupple v. Knickerbocker Ice Co., 84 N.Y.S. 488; Oddie v. Mendenhall, 84 Minn. 58; Jones v. Co-operative Association, 109 Me. 448; Scott v. Dow, 162 Mich. 637; Lichtman v. Rose, 110 N.Y.S. 935; Henderson v. Durham Traction Co., 132 N.C. 779; Connor v. Electric Traction Co., 173 Pa. 602; Harrison v. Sutter St. Ry. Co., 116 Cal. 165; Stevens v. Boston Elevated Ry. Co., 184 Mass. 476; Orr. v. Baltimore & Ohio R. Co. , 153 N.Y. 920, 168, App.Div. 548. (3) Evidence of a violation of the ordinance was proper. Same authorities as under point 2. Gordon v. Roberts, 30 Cal.App. 76; Orr v. Railroad, 153 N.Y. 920, 168 App. Dw. 548; Fane v. Phila. Rapid Transit Co., 228 Pa. 471, and cases cited, l. c. 474; Grand Trunk Company v. Ives, 144 U.S. 408. (4) Plaintiff's Instruction No. 1 which submitted question of whether defendant was negligent in failing to have the joists and girders covered was proper because it submitted the negligence shown at the trial. (a) The defendant's motion for a new trial does not contain a sufficient ground upon which an assignment or error as to this instruction can be based. The fifth ground of the motion for a new trial (Abs., p. 82) is too general and it does not state the instruction is erroneous. Revised Statutes of Missouri, sec. 1841-1909; State v. Norman and David, 159 Mo. 531; Cook v. Clary, 48 Mo.App. 166. (b) But the instruction was proper under the specific negligence proven. See all authorities under Part 1, a and b. Yoder v. Wolff, 190 Mo.App. 48; Hales v. Raines, 162 Mo.App. 46, 58; Mulderig v. Railway, 116 Mo.App. 655; Fields v. Siever, 184 Mo.App. 685; Nagel v. Railroad, ...