State ex rel. Horspool v. Haid

• Decision Date: 06 December 1933
• Citation: 65 S.W.2d 923,334 Mo. 196
• Parties: State of Missouri at the Relation of Henry J. Horspool, Relator, v. George F. Haid, William Dee Becker and Simon G. Nipper, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

65 S.W.2d 923

334 Mo. 196

State of Missouri at the Relation of Henry J. Horspool, Relator, v. George F. Haid, William Dee Becker and Simon G. Nipper, Judges of the St. Louis Court of Appeals

Supreme Court of Missouri

December 6, 1933

Record quashed.

E H. Robinson, A. E. L. Gardner and Allen, Moser & Marsalek for relator.

(1) In again holding that, in the cause of Forsythe v. Horspool Forsythe could recover, despite the fact that he and his fellow-servant, another carpenter, constructed the platform of the scaffold, the only part that gave way, for their own use, and negligently constructed it by failing to nail the long boards thereof to the supporting look-outs, by reason of which negligence the boards tipped -- the inner, unsupported ends of the long boards, at the middle of the platform sinking down, and the outer ends thereof flying upward -- respondents' last opinion in said cause is in direct conflict with the opinion and decision of this court on certiorari in this very case, viz., State ex rel Horspool v. Haid, 328 Mo. 327, wherein respondents' former opinion in said cause was quashed, as well as with the following decisions of this court referred to in State ex rel. Horspool v. Haid, supra, and with which respondents' said former opinion was there held to be in conflict, namely: Williams v. Ransom, 234 Mo. 55; Forbes v. Dunnavant, 198 Mo. 211; Guthrie v. Gillespie, 319 Mo. 1148. (2) Though respondents, in their last opinion in said cause state that Forsythe testified "that the boards used were all they had to use for this platform," said opinion is in direct conflict with the opinion of this court in State ex rel. Horspool v. Haid, 328 Mo. 327, and with the cases there cited and with which respondents' former opinion in said cause was there held to be in conflict, since it conclusively appears that, with the boards used, Forsythe and his coworker could have made this platform absolutely safe and secure, so that the boards thereof could not have tipped or tilted as they did, by exercising the slightest care in the construction thereof, namely, by simply nailing the outer ends of the long boards to the lookouts. Williams v. Ransom, 234 Mo. 73. (3) The fact that respondents in their last opinion in Forsythe v. Horspool state that Forsythe and his coworker did not see the bundles of shingles and did not know that they were being placed on the platform, does not at all serve to distinguish that case from the Williams, Forbes and Guthrie cases, supra, with which this court, in State ex rel. Horspool v. Haid, supra, held that respondents' former opinion in said cause was in conflict. The failure, if any, of Forsythe to observe the presence of the shingles at or prior to the time when he and his coworker worked up to them and added their weight at the center of the platform, was simply a failure to exercise any precaution to avoid the very danger that he and his coworker had negligently created by leaving the boards loose on the lookouts with nothing to prevent them from tipping as they did -- of which dangerous condition they alone had knowledge. Furthermore, as held by this court in State ex rel. Horspool v. Haid, supra, Forsythe and his fellow-carpenter must be held to have known that shingles would have to be furnished them for their use, and should have anticipated that they would or might be placed on this very platform, and were charged with the duty of so constructing the platform as to make it secure and serviceable under all conditions that might naturally arise in progress of the work. Respondents' said last opinion in said cause is therefore directly in conflict with: State ex rel. Horspool v. Haid, 328 Mo. 327, 40 S.W.2d 611; Williams v. Ransom, 234 Mo. 55; Forbes v. Dunnavant, 198 Mo. 211; Guthrie v. Gillespie, 319 Mo. 1148; Kelsay v. Railroad Co., 129 Mo. 376; Payne v. Railroad Co., 136 Mo. 580; Hook v. Railway Co., 162 Mo. 581. (4) In again holding, in the cause of Forsythe v. Horspool, that Forsythe made a case for the jury -- despite his negligence and that of his fellow-servant in failing to fasten the long boards of the platform to the lookouts -- upon the theory that relator was negligent in causing shingles for the use of said plaintiff and his coworker to be placed on the middle part of this loose platform, though relator had no knowledge whatsoever that the platform had been thus negligently constructed so as to be so insecure as to not support the men and the shingles, and had no reason to anticipate that any injury could result from placing the shingles on the platform, respondents' said last opinion is in direct conflict with the opinion and decision of this court on certiorari in this very case, namely, State ex rel. Horspool v. Haid, 328 Mo. 327, as well as with the prior decision of this court in Hunter v. Candy Co., 307 Mo. 671, cited in State ex rel. Horspool v. Haid, supra, and with which respondents' said former opinion was there held to be in conflict, and is also directly in conflict with the following, among other prior decisions of this court, namely: State ex rel. Lusk v. Ellison, 271 Mo. 473; American Brewing Co. v. Talbot, 141 Mo. 685. (5) In holding that the plaintiff in Forsythe v. Horspool made a case for the jury -- despite the fact that the tipping and falling of the platform was directly and proximately due to the highly negligent manner in which he and his coworker constructed it -- upon the theory that relator was negligent in causing the shingles to be placed on said platform -- said last opinion of respondents in said cause is also in direct conflict with the following, among other, decisions of this court holding that if it conclusively appears that a plaintiff was negligent and that his negligence proximately operated as an efficient cause of his injury, but for which such injury would not have occurred, in no event can he recover. Van Bibber v. Swift & Co., 286 Mo. 317; Zumault v. Railroad Co., 175 Mo. 312; Sloan v. Polar Wave Ice & Fuel Co., 19 S.W.2d 479; Dickson v. Ry. Co., 124 Mo. 150, 25 L. R. A. 320, 46 Am. St. Rep. 429.

Campbell Allison, Joseph A. Falzone and Orval C. Sutter for respondents.

(1) When the opinion, either itself or by necessary inference therefrom, distinguishes the case in question from the facts in the case with which it is claimed to be in conflict, there is no conflict. State ex rel. Railroad v. Ellison, 173 S.W. 690, 263 Mo. 509; State v. Trimble, 39 S.W.2d 372. (2) In certiorari, this court is bound by the opinion of the Court of Appeals as to what the facts are. State ex rel. Koenan v. Daues, 288 S.W. 14; State ex rel. Kilkenny v. Daues, 289 S.W. 550; State ex rel. Amusement Co. v. Trimble, 300 S.W 1064; State ex rel. Ward v. Trimble, 39 S.W.2d 372; State ex rel. Fletcher v. Haid, 22 S.W.2d 1045; State ex rel. Consolidated School District No. 2 v. Haid, 41 S.W.2d 806. (3) On certiorari this court will not attempt to reconcile immaterial and inconsistent statements found in the opinion of the Court of Appeals; all intendments are in favor of the regularities of determination and proceedings below. State ex rel. Shartel v. Skinker, 25 S.W.2d 477; State ex rel. Kansas City v. Trimble, 20 S.W.2d 17; State ex rel. Consolidated School District No. 2 v. Haid, 41 S.W.2d 806; State ex rel. Calhoun v. Reynolds, 233 S.W. 483, 289 Mo. 506; State ex rel. Railway v. Allen, 236 S.W. 868. (4) A servant never assumed the risk of injury growing out of the master's negligence; need not use even ordinary care, and knowledge will not be imputed to him unless the danger be glaringly obvious. Sloan v. Polar Wave Ice & Fuel Co., 19 S.W.2d 476; State ex rel. Railway v. Cox, 46 S.W.2d 849; William v. Pryor, 200 S.W. 53, 272 Mo. 621; Williamson v. Union Elec. L. & P. Co., 219 S.W. 902, 281 Mo. 549; Fish v. Radwood, 263 Mo. 106; Curtis v. McNair, 173 Mo. 270; Lempe v. St. Louis Brewing Co., 221 S.W. 450. (5) Fraud is seldom susceptible of direct and positive proof. Although it may not be presumed, yet it is as legitimate to infer its existence from surrounding circumstances as it is to infer crime from surrounding circumstances which is done every day. Howard v. Zweigart, 197 S.W. 64; Porter v. United Rys., 148 S.W. 162; Edwards v. Stave Co., 221 S.W. 744; Rau v. Robinson, 260 S.W. 751; Mulkmus v. Concrete Co., 131 S.W. 148, 150 Mo.App. 464; McCoy v. McMahon Const. Co., 216 S.W. 770; State ex rel. v. Bland, 23 S.W.2d 1029; State ex rel. v. Trimble, 23 S.W.2d 162; McMillan v. Israel, 30 S.W.2d 626; Green v. Ry. Co., 30 S.W.2d 784. (6) Respondent's opinion cannot be in conflict with a rule of law applied by this court to given facts unless, respondent applies a different rule of law to the same or similar facts. If the facts found by respondent are different, no conflict can exist. On certiorari, this court is bound by respondent's finding that there was sufficient evidence to support the jury's finding that plaintiff was not guilty of contributory negligence; that the platform did not fall because negligently constructed, but because the same had been negligently overloaded. On certiorari, this court will not itself evolve new facts in order to create a mere fanciful conflict. State ex rel. Wabash Ry. v. Ellison, 204 S.W. 396; State ex rel. American Press v. Allen, 256 S.W. 1049; State ex rel. Security Mut. Life Ins. Co. v. Allen, 267 S.W. 379; State ex rel. Ry. v. Haid, 37 S.W.2d 437; State ex rel. Brenner v. Trimble, 32 S.W.2d 760, 326 Mo. 702; State ex rel. Silverforb v. Smith, 43 S.W.2d 1054; State ex rel. Ward v. Trimble, 39 S.W.2d 372, 327 Mo. 773; State ex rel. Consolidated School District v. Haid, 41 S.W.2d 806; State ex rel. Vesper Buick Auto Co. v. Daues, 19 S.W.2d 700; State ex rel. Lindsay v. Kansas City, 20 S.W.2d 7; Turner v. Anderson, 236 Mo. 523, 139 S.W. 180; ...