Soltesz v. J.H. Belz Provision Co.

• Decision Date: 07 March 1924
• Docket Number: No. 23947.,23947.
• Parties: SOLTESZ v. J.H. BELZ PROVISION CO.
• Court: Missouri Supreme Court

260 S.W. 990

SOLTESZ v. J.H. BELZ PROVISION CO.

No. 23947.

Supreme Court of Missouri, Division No. 1.

March 7, 1924.

Rehearing Denied April 7, 1924.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

Action by Frank Soltesz against the 3. E. Belz Provision Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

A. & J. F. Lee and Joseph Renard, all of St. Louis, for appellant.

Foristel & Eagleton, of St. Louis, for respondent.

JAMES T. BLAIR, J.

This is an appeal from a judgment for $14,125, which respondent recovered in an action for damages for injuries which he alleges he received when he slipped upon pieces of fat he asserts appellant negligently allowed to fall and remain upon the floor over which, while in discharge of duty, he was moving a heavy barrel. There is ho doubt there is evidence tending to prove respondent was seriously injured.

The petition contained seven assignments of negligence. The case went to the jury under the allegation that "defendant negligently and carelessly caused, suffered, and permitted the flooring over which the plaintiff was required to handle loaded barrels to be and remain in a condition which was not reasonably safe for the work which the plaintiff was required to do, in that said flooring was wet, greasy, slippery, and contained various pieces of meats, fats, and other offal, and did thus and thereby render the floor dangerous and unsafe." The petition was not attacked. The answer was a general denial.

Appellant operated a packing business. In the room in which respondent was hurt about 40 men worked. In the afternoons hogs were killed and during the following forenoons were cut up in this room. In this process the fat was trimmed off and put in cans and then carried to the lard tank near by. The lean meat was otherwise disposed of. There was evidence tending to show that in this work pieces of fat often dropped from the benches at which the men worked and from the cans of fat as they were carried about, and that pieces of fat would fall or be thrown from the knives used by the men; that after the men had been at work a while in the morning usually there were pieces of fat over the floor and that this was the case on the morning when respondent was injured; that on this morning pieces of fat were seen at many places on the floor and near the elevator, close to which respondent fell, some time before his fall occurred. Appellant does not deny that proper practice in a place of the kind requires the floor to be kept clear of such pieces of fat. On the contrary, it proved that the government inspector who was stationed at the plant required this to be done, and that this requirement was made an order and passed on to the men with the sanction of appellant's officials and foremen. There was evidence that many packing houses kept one man whose business it was to see to the picking up of fat that got on floors in work of the kind. There was no evidence that any packer, other than appellant, attempted to get along without a man for such purpose. Respondent says that while, at the foreman's direction, he was moving a heavy barrel filled with spare ribs, he slipped upon one of the pieces of fat left on the floor.

Appellant contends the court erred: (1) In overruling the demurrers to the evidence, because (a) no negligence was shown; (b) respondent assumed the risk; and (c) the injury resulted from the act of a fellow servant. (2) In giving plaintiff's instruction 1, because it (a) allowed the jury to base a verdict on facts not proved; (b) it omitted the necessary elements of recovery which were pleaded, and upon which there was conflicting evidence; (c) it ignores defenses supported by the evidence; and (d) assumes controverted elements of liability. (3) In that the instruction on the measure of damages permitted double recovery in some respects. (4) In refusing certain instructions asked by appellant. And (5) in that the verdict in the form in Which it was returned is insufficient.

I. The first contention is that the saying that "a master can conduct his business in his own way, and the servant, knowing the hazards of his employment as the business is conducted, impliedly waives the right to compensation for injuries resulting from causes incident thereto, though a different method of conducting the business would have been less dangerous" (Bradley v. Railway, 138 Mo. loc. cit. 302, 39 S. W. 765), applies and requires a reversal. The quotation, or its substance, is frequently used and is well enough when understood. It was taken by this court from a decision of the Supreme Court of the United States, in which tribunal a doctrine as to assumption of risk prevails which is different from that adhered to by this court. Williams v. Pryor, 272 Mo. loc. cit. 621, 622, 200 S. W. 53; Id., 254 U. S. 43, 41 Sup. Ct. 36, 65 L. Ed. 120; Williamson v. Light & Power Co., 281 Mo. 549, 550, 219 S. W. 902; Littig v. Urbauer-Atwood Heating Co., 292 Mo. 226, 237 S. W. 779; Doody v. Woolen Mills (Mo. Sup.) 216 S. W. loc. cit. 534; Pyle v. Kansas City Light & Power Co. (Mo. App.) 246 S. W. loc. cit. 985.

In this case the evidence showed and appellant, in his argument, urges that pieces of fat habitually and continually got upon the floor. This made a condition dangerous to the men working in the room. It was proved by appellant that the government inspector gave rather vehement orders that the fat Must be kept off the floor, and expressed himself with somewhat vulgar violence when he saw the injunction was not scrupulously followed. Appellant adopted that order of the inspector as its own, and did not then and does not now contend that a floor strewn with pieces of fat does not render a place dangerous for those working in it. Instead of seeing to the removal of the fat from the floor, appellant attempted to pass the duty on to the workmen themselves, and ruled that each must pick up the nieces of fat he dropped. This rule was but ill obeyed by the men, and the condition of the floor does not seem to have improved materially. The foreman saw pieces of fat on the floor at times when he was about and picked up some of it. No one was specially designated to look after the matter, though the custom in other plants was to have a man for that purpose. It is obvious that appellant could not, by a general order, transfer its duty to use ordinary care to keep the floor reasonably safe to its servants and escape liability if their negligence caused respondent's injury. Mitchell v. Polar Wave ice & Fuel Co., 206 Mo. App. 271, 227 S. W. loc. cit. 269, and cases cited; Knorpp v. Wagner, 195 Mo. loc. cit. 662, 663, 93 S. W. 961.

"The doctrine of this court is that an employé only assumes such risks, in respect of the place where he is put to work, as are incident to the service after the employer has performed his duty by using care to provide a place of reasonable safety. And although the danger of the place may be obvious, if this is due to lack of care on the part of the master to furnish a safe place, the servant does not assume the risk." Williamson v.. Light & Power Co., 281 Mo. loc. cit. 549, 550, 219 S. W. 903, 904; Patrum v. Railroad, 259 Mo. 109, 168 S. W. 622, and cases cited.

The cases cited by appellant do not contravene this principle. Contributory aegligence was not pleaded, and it is not contended it conclusively appears from the evidence.

II. Instructions were given for respondent as follows:

(1) "The court instructs the jury that if you find and believe from the evidence that the plaintiff was in the employ of the defendant at its place of business mentioned in evidence on the 12th day of March, 1921, and that, while thus employed on said 12th day of March, 1921, he was engaged in wheeling a barrel over and upon the flooring mentioned in evidence, and that, while so engaged (if you do so find), his foot slipped upon a piece of fat and that he was injured thereby, and if the jury further find that at and prior to said occasion the defendant caused, suffered, and permitted the aforesaid flooring to be and remain covered with various pieces of fat, meats, or other offal, and that by reason thereof the flooring was not reasonably safe, for the work plaintiff was required to do, and if the jury further find that, in causing, suffering, and permitting the flooring to be and remain in the condition aforesaid (if you find from the facts that it did remain in such condition), the defendant failed to exercise ordinary care and was guilty of negligence; and, if the jury further find that the defendant in the exercise of ordinary care could have known of the presence of said fats, meats, or offal on said flooring in time thereafter to have removed the same, and that the defendant negligently failed to do so; and if the jury further find that the plaintiff was injured is a direct result of the defendant's negligence in causing, suffering, and permitting said pieces of fat...