State ex rel. American Car & Foundry Company v. Daues

• Decision Date: 15 November 1926
• Docket Number: 27045
• Citation: 288 S.W. 13,315 Mo. 1229
• Parties: The State ex rel. American Car & Foundry Company v. Charles U. Daues et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

288 S.W. 13

315 Mo. 1229

The State ex rel. American Car & Foundry Company v. Charles U. Daues et al., Judges of St. Louis Court of Appeals

No. 27045

Supreme Court of Missouri

November 15, 1926

Opinion quashed.

Watts & Gentry and Arnot L. Sheppard for relator G. A. Orth of counsel.

(1) Plaintiff's petition pleads that relator "failed to furnish this plaintiff with a reasonable and safe place to work in, to-wit, that in and about the premises of this defendant were left lying on the ground other rails and iron and steel." This is a plea of specific negligence. Respondents' holding to the contrary is in direct conflict with the decisions of this court in Lyman v Dale, 262 Mo. 353, and Rice v. White, 239 S.W 141. (2) Plaintiff's petition did not plead that relator was negligent in failing to furnish him sufficient working space. For this reason he could not recover on that theory, although the case originated in a justice of the peace court. Respondents' opinion, therefore, permitting a recovery on that ground is directly in conflict with this court's opinion in the case of Lyman v. Dale, 262 Mo. 353. (3) Plaintiff could not recover on the ground of negligence, mentioned in Point 1, for the reason that he failed to plead or prove any causal connection between that and his injury, but pleaded, or attempted to plead, a causal connection only between the foreman's order to drop the rail and his injury. Therefore, respondents' opinion permitting a recovery under the safe-place rule is squarely in conflict with the following decisions of this court in Young v. Shickle H. & H. Iron Co., 103 Mo. 324; Mathiason v. Mayer, 90 Mo. 585; Lyman v. Dale, 262 Mo. 353.

Moldafsky & Tennenbaum for respondents.

(1) The appellant has lost sight of the fact that this suit was begun before a justice of the peace, and, therefore, the technical rules of pleading do not apply here. Sec. 3735, R. S. 1919; Dalton v. United Rys. Co., 134 Mo.App. 392; Viviano v. Davis, 258 S.W. (Mo. App.) 69. (2) The statement or petition in this cause was attacked for the first time after verdict and appeal, and the statement will be regarded as sufficient. Schwartz v. National Acc. Soc., 267 S.W. 90; Steinbruegge v. Prudential Ins. Co., 196 Mo.App. 194; Reeves v. Stratton, 232 S.W. 1062. (3) There is no evidence nor does the record show that plaintiff elected to plead in strictness and therefore the case of Lyman v. Dale, 262 Mo. 353, does not apply. (4) The lack of an essential averment in the petition was supplied by proof offered by the plaintiff and admitted without objection theretofore; the defect in the petition was unavailable to defendant on appeal. State ex rel. Smith v. Trimble, 285 S.W. 732; Sec. 1550, R. S. 1919. (5) The Supreme Court or Courts of Appeals shall not reverse the judgment of any court unless it shall believe that error was committed by such court against the appellant or plaintiff in error and materially affecting the merits of the action. Sec. 1513, R. S. 1919.

Atwood, J. All concur, except Graves, J., absent.

OPINION

ATWOOD

In compliance with our writ of certiorari directed to the judges of the St. Louis Court of Appeals there is before us the record in the case of Russell Harrison, plaintiff, v. American Car & Foundry Company defendant. The facts are thus stated in respondents' opinion handed down in this case on February 2, 1926:

"It appears that while plaintiff and three other persons were working under the direction of defendant's foreman, Frank Reid, in unloading billets from a car, the defendant's foreman directed them to drop a steel rail while they were in a space about four and one-half feet wide and about twenty-five feet long. It appears that there was not sufficient room between these two piles of billets, where these laborers had started to erect another pile, to lay them down, and they were directed by the foreman to drop this rail because of the insufficient room to lay it down. The rail which the four men were carrying was about twenty feet long and weighed about seven hundred pounds. The men were carrying this rail between the two piles of billets in order to make preparations for assembling another pile of billets. The south end of the rail, where two of the laborers were, was out in the driveway, and these two laborers had plenty of room to perform their work, but plaintiff and his co-laborer on the north end of the rail did not have the room that the other two had. Plaintiff's co-laborer changed from the opposite side to the same side where plaintiff was, and was then told by defendant's foreman to drop the rail. The rail struck another rail lying there, bounded and caught plaintiff's foot. Plaintiff testified: 'When the rail hit my foot my foot turned upside down and my foot busted.' Plaintiff said there was not enough room to get out of the way."

The case originated before a justice of the peace in the city of St. Louis, and as to the pleadings there filed the opinion reads:

"The petition alleges that plaintiff was injured on the 13th day of August, 1920, while carrying a steel rail and while in the act of throwing the said rail on the ground, the rail when thrown striking another rail, which caused the rail which was thrown to the ground to bound and strike plaintiff's foot. The negligence alleged is that defendant 'failed to furnish this plaintiff with a reasonable...