Spicer v. Hannah

• Decision Date: 03 March 1952
• Docket Number: No. 21604,21604
• Citation: 247 S.W.2d 864,241 Mo.App. 1215
• Parties: SPICER v. HANNAH et al.
• Court: Missouri Court of Appeals

Page 864

247 S.W.2d 864

241 Mo.App. 1215

SPICER v. HANNAH et al.

No. 21604.

Kansas City Court of Appeals, Missouri.

March 3, 1952.

C. M. Hulen, Moberly, for appellants.

Raymond L. Falzone, and Hunter, Chamier & Motley, all of Moberly, for respondent.

BOUR, Commissioner.

Plaintiff brought this action to recover damages for the alleged wrongful death of her husband. The deceased was an employee of defendants, engaged in his regular work in defendants' coal mine, located in Randolph County, when he was killed by rock which fell from the roof of th mine. The defendants are Carl Hannah, Roy Hannah, and C. N. Hannah, partners doing business as Hannah Coal Company.

Plaintiff alleged in her amended petition that defendants duty rejected the workmen's compensation law of this state before the date of the fatal accident. The ground of negligence alleged in the petition need not be set out here. Defendants admitted in their amended answer that they rejected the workmen's compensation law before the accident occurred; denied the negligence charged; and pleaded 'that the place where the deceased was working at the time of the accident was his working place or room, and that it was the duty of the deceased to properly care for, prop or remove any and all rocks which were likely to fall in said place.' Defendants further alleged, in paragraph 11 of the amended answer, that 'if said rock fell, as in plaintiff's amended petition alleged, that the fall of said rock was occasioned by the negligence of the deceased in failing to properly care for his own working place, and failing to remove said rock or properly prop same, and that such negligence on the part of said deceased directly contributed to or was the sole cause of the injury as sustained by the deceased. That the fall of said rock was a risk which deceased assumed, and which was incident to his employment.'

Plaintiff filed a motion to strike paragraph 11 of the amended answer, and the motion was sustained. The trial resulted in a verdict and judgment for plaintiff in the sum of $4000, and defendants have appealed.

It is contended that plaintiff's motion to strike 'should not have been sustained in full.' The Workmen's Compensation Law, sec. 287.080, R.S.1949, V.A.M.S., provides that if any minor employer, who has been determined to be engaged in an occupation hazardous to employees, or any major employer has elected to reject the provisions of the compensation law, in any action to recover damages for personal injury or death of his employee in the course of his employment, it shall not be a defense that the same was caused by the negligence of a fellow servant, or that the employee had assumed the risk of the injury or death, or that the same was caused in any degree by the negligence of the employee.

Since the defendants admitted that they rejected the workmen's compensation law prior to the accident, it is obvious that the defenses of assumption of risk and contributory negligence were not available. This is conceded by defendants. They insist, however, the the court erred in striking their plea that the negligence of deceased was the sole cause of his death. This contention is without merit. A 'sole cause' defense is not an affirmative defense but is one that can be made under a general denial or under an answer specifically denying the negligence charged in the petition. Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548. In the instant case, defendants' amended answer specifically denied all of the charges of negligence in the amended petition. It is clear, therefore, that the 'sole cause' plea in paragraph 11 of the answer were mere surplusage. Ramp v. Metropolitan Street Ry. Co., 133 Mo.App. 700, 704, 114 S.W. 59, 61. The motion to strike was properly sustained. In ruling this point we have assumed, without deciding, that defendants' rejection of the compensation law did not preclude them from defending on the ground that the negligence of the deceased was the sole cause of his injury and death.

Defendants' second contention is that the court erred in overruling their motion for a directed verdict at the close of all the evidence. For the purpose of determining whether plaintiff made a case for the jury, we must disregard defendants' evidence, unless it aids plaintiff's case, and consider only the evidence most favorable to plaintiff and the most favorable inferences arising therefrom. Becker v. Aschen, 344 Mo. 1107, 1112, 131 S.W.2d 533, 536.

The evidence showed that plaintiff's husband, Ollie Clifton Spicer, was killed about 12:30 p. m., on September 26, 1947, while working as a loader in an entry in defendants' coal mine. The mine was operated by 'driving' entries or passageways, from the sides of which 'rooms' were opened or 'turned.' The entry in question ran east and west. At the time of the accident this entry was about 200 feet long, from 12 to 14 feet wide, and approximately 6 feet high. Four rooms had been turned off the entry. A permanent track ran east and west in the entry, upon which coal cars were drawn by mules. The track was about 36 inches wide and the south rail was 16 to 20 inches from the 'rib' or right side of the entry. The east end of the track was about 8 or 10 feet from the solid face of the coal at the east end of the entry. One witness said 12 to 14 feet. Another witness testified that temporary 'slide rails' had been placed beyond the east end of the permanent track. The vein of coal at the east end of the entry was about 5 feet high. (The term 'face of the coal,' as used hereinafter, means the solid face of the coal at the east end of the entry.)

For some time prior to his death, Spicer had been working at the east end of the entry. On the afternoon before the accident, Spicer drilled holes in the face of the coal and loaded them with powder. After he left the mine that day, the coal was 'cut' by Huston Hughes and his helper, Cleo Scofield, a machine being used for this purpose. The cut was made below the coal and it was about 5 1/2 feet in depth. Hughes and Scofield then fired the shots. The explosion broke up the coal and threw it down on the floor of the entry. The coal that was shot down was referred to by the witnesses as the 'break,' as distinguished from the solid face of the coal. The next day and while Spicer was loading this loose coal into a car standing on the track mentioned above, a portion of rock fell from the roof of the entry upon him, causing instant death. There were no eyewitnesses to the accident, but the evidence tended to show that Spicer was engaged in loading coal at the time of his death. As stated, the accident occurred about noon. Spicer's body was found a short time thereafter between the east and of the car and the face of the coal. His body was 'a little to the north of the car' with the head resting on loose coal. Two witnesses for plaintiff said the distance between the body and the face of the coal was about 10 feet; one said 12 feet. There was testimony that the distance between the car and the face of the coal was approximately 12 feet.

The roof of the entry was described by plaintiff's witnesses as 'black top.' They said the roof was dangerous, brittle, and 'broke out in squares like slate.' One witness testified that the roof had been 'shot' before Spicer was killed. It appears from the evidence that when the rock fell it left a hole in the roof. Hughes and Scofield, testifying for plaintiff, stated that they saw the hole immediately after the accident; that it was about 10 feet from the face of the coal, 'over the track' and 'directly above' or 'pretty near over' Spicer's body. Hughes also said the hole was about 6 or 8 feet from the 'break of the coal.' Henry Fainter, a witness for plaintiff, testified that the hole was from 12 to 14 feet from the face of the coal and that it extended over the east end of the car. He 'heard the rock when it hit the car.' The rock was described by the witnesses as 'egg shaped'--'kinda round'--'oval shaped'--'smooth'; and it was referred to as a 'niggerhead' rock. Plaintiff's witnesses testified that it was about 4 or 5 feet long and two or three feet wide. Two witnesses for defendant testified that they saw two rocks, one resting on deceased's head and the other on his legs.

At the time of the accident, Huston Hughes had been working in defendants' mine about four years. He testified that it was his duty to inspect entries in the mine the first thing every morning; that he did not inspect the same entry every morning--'maybe I'd go one way and someone else would go another'; that he made such inspections under orders given by defendants; that the entry in which Spicer was killed was inspected every morning by 'some day man or some boss'; that he had inspected this entry many times before the accident; and that the inspection consisted of clearing the track and sounding the roof 'up to the break.' Dewey Spicer, a son of the deceased, testified that he worked in defendants' mine four years, but that he left the mine about three months before his father was killed; and that during the time he worked there, Carl Hannah (one of the defendants) or 'some of the day men' would test the roof of the entries--'generally every day * * * up to the break of the coal.' A witness for defendant, who was working in the mine at the time of the accident, stated that he had seen Carl Hannah test the roofs of the entires.

Plaintiff's witness Hughes also testified as follows: About 7:15 a. m. on the day of the accident, he inspected the roof of the entry where Spicer was killed by 'sounding' the roof with a pick; and in so doing he discovered the rock that fell on Spicer. When he struck the rock it 'sounded drummy,' which indicated that it was 'loose.' It was 'too dangerous to work under.' He called defendant Carl Hannah, who was nearby, and told him something should be done about the rock....