State ex rel. Long v. Ellison

• Decision Date: 22 December 1917
• Citation: 199 S.W. 984,272 Mo. 571
• Parties: THE STATE ex rel. JOHN C. LONG v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals, and MARGUERITA CLARK
• Court: Missouri Supreme Court

199 S.W. 984

272 Mo. 571

THE STATE ex rel. JOHN C. LONG v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals, and MARGUERITA CLARK

Supreme Court of Missouri

December 22, 1917

Record quashed.

Rees Turpin and John B. Pew for relator.

(1)The respondent judges failed and refused to follow the last controlling decisions of this court.The conflict is between this decision and the decision of this court in Wojtylak v. Kansas & Texas Coal Co.,188 Mo. 260.And said instruction is in obvious and irreconcilable conflict with the decision in Hall v. Coal Company,260 Mo. 369.The St. Louis Court of Appeals has construed the foregoing decisions of this court by direct reference in the following cases and such construction is in direct, obvious and irreconcilable conflict with the opinion of said respondent judges in the cases at bar.Said cases are: Trayler v White,185 Mo.App. 325;Humphreys v. Railway,191 Mo.App. 710;Walker v. White,192 Mo.App. 13;Rissmiller v. Railway,187 S.W. 573;Pearson v Lafferty, 193 S.W. 40.

Hogsett & Boyle for respondents.

(1)This court may say that the decision of the Court of Appeals conflicts in certain particulars with previous rulings of this court and quash only that portion of the opinion permitting the judgment to stand if it is for the right party.State ex rel. v. Reynolds,194 S.W. 878.(2)This court may inquire into the correctness of the decision with which it is claimed the opinion of the Court of Appeals is in conflict, and overrule such decision and sustain the opinion of the Court of Appeals.State ex rel. v Reynolds,186 S.W. 1057.(3)This court has no jurisdiction to enter judgment in the case out of which the proceedings in certiorari arose, but will simply quash or sustain the opinion of the Court of Appeals as the circumstances warrant.State ex rel. v. Reynolds,186 S.W. 1072;State ex rel. v. Ellison,186 S.W. 1075.(4)The opinion of the respondent judges in holding that the omission in plaintiff's instruction for a verdict was cured by an instruction given at the instance of defendant is not in conflict with the decisions of this court.Shaw v. Kansas City,196 S.W. 1099;Salmons v. Railway,197 S.W. 37;Tawney v. United Railways,262 Mo. 602;Tranbarger v. Railroad,250 Mo. 59;Railroad Co. v. Kemper,256 Mo. 279;Railway v Stewart,201 Mo. 499;Lange v. Railroad,208 Mo. 477;Meily v. Railroad,215 Mo. 587-8;Meadows v Life Ins. Co.,129 Mo. 97;Hughes v. Railway,127 Mo. 452-3;Owens v Railway,95 Mo. 181.The St. Louis Court of Appeals has announced this rule in: Bliesner v. Distilling Co.,174 Mo App. 150;Pendergrass v. Railroad,179 Mo.App. 534;Farmer v. Railway,178 Mo.App. 594;Cooper v. McFarlen,184 Mo.App. 184;Crader v. Railroad,181 Mo.App. 542;Dorsey v. Railroad,175 Mo.App. 164;Spalding v. L. & M. Co.,183 Mo.App. 657;Craig v. Railways Co.,175 Mo.App. 616.The Springfield Court of Appeals has announced it in: Foster v. United Zinc Co.,189 Mo.App. 288;Quinley v. Traction Co.,180 Mo.App. 287.And the Kansas City Court of Appeals in: Steele v. Ancient Order of Pyramids,125 Mo.App. 682;Forge Co. v. Engine Co.,135 Mo.App. 89;Heller v. Ferguson,189 Mo.App. 490;Davis v. Railroad Co.,192 Mo.App. 422.(a) The instruction submits to the jury the proper theory of negligence and is abundantly supported by the evidence.Van Verth v. Cracker Co.,155 Mo.App. 299;Johnson v. Bolt & Nut Co.,172 Mo.App. 214;Hawkins v. Railroad Co.,189 Mo.App. 201, 219;Koerner v. Car Co.,209 Mo. 141.(b) The instruction does not assume the negligence of the defendant or his foreman.(c) When the jury were required by the instruction to find that the defendant did not exercise ordinary care to prevent the board from falling, and that in failing to exercise ordinary care to prevent the board from falling defendant was guilty of a careless and negligent act, they of necessity were required to find that it was negligence to permit the board to remain there under the conditions which existed.Geary v. Railway,138 Mo. 259;Dammann v. St. Louis,152 Mo. 198;Phippin v. Railway,196 Mo. 347;Brady v. Railroad,206 Mo. 538;State v. Grayor, 89 Mo. 605.

GRAVES, C. J. Bond and Blair, JJ., dissent, Blair, J., in separate opinion.

OPINION

In Banc.

Certiorari.

GRAVES C. J.

Certiorari to the Kansas City Court of Appeals, by which it is sought to quash the record of that court in the case of Marguerita Clark, appellant, v. John C. Long, respondent.Long is a contractor and builder in Kansas City, Missouri, and Marguerita Clark is the widow of Frank Clark, deceased, who came to his death by being struck with a piece of board, which fell from the roof of or scaffolding beside a certain dwelling house then being constructed by Long.The house was in the course of construction, and on the north side thereof were two dormer windows.The sheeting had not all been fully placed upon the east dormer window.There was a scaffold on this north side of the house, which was being used in the course of the work.The evidence shows that in the course of the work then being done, pieces of boards one inch thick, six inches wide and of lengths ten to sixteen feet were being used, as sheeting, and that to make proper breaks in the roof, and to cover the dormer windows, some of these boards were sawed into shorter lengths.Frank Clark was working in a drive-way leading to the north side of the said house, and near the scaffold on that side, and under the east dormer window.For two days the wind had been blowing quite a gale.The alleged negligence is thus stated in the petition, as we get it from the opinion of the Court of Appeals: "While so working on said retaining wall said deceased was struck in the head with a heavy board or timber, which said defendant, his foremen, superintendents and vice-principals in charge of and directing said work carelessly and negligently caused, suffered, or permitted to fall from said residence or some of the scaffolding about said residence when said defendant, his foremen, superintendents and vice-principals knew, or by the exercise of ordinary care could have known, that deceased was working at said point, and that he would be liable to be struck and injured by said board or timber."

The evidence does not show in positive terms from whence the board came that occasioned the death of Frank Clark, but it can well be inferred from the facts shown and stated that it was blown either from the roof near the east dormer window, or from the scaffold below the roof.

For the plaintiffthe court gave this instruction:

"The court instructs you that if you find from the evidence that on October 28, 1915, and prior to Frank Clark's injury, defendant's workmen had piled loose pieces of lumber across the top of the east dormer window on the north side of the roof of the building in question (if you so find), and that at said time a strong wind was blowing (if you so find), and that said boards were thereby liable to be dislodged and fall and injure persons who might be working near said residence (if you so find), and that Frank Clark, deceased, was at the time herein referred to engaged in laying stone in the automobile driveway leading to said residence from the north (if you so find), and was working in close proximity to the north wall of said residence, and at a point where he might be struck and injured by the falling of one of said boards (if you so find), and that defendant's foreman in charge of said work knew, or by the exercise of ordinary care could have known the foregoing facts (if you find them to be facts) in time by the exercise of ordinary care to have prevented any of said boards from falling, and that he carelessly and negligently failed to do so (if you so find); and if you further find from the evidence that previous to Frank Clark's injury defendant's workmen had also laid loose pieces of lumber upon the top scaffold on the north side of said building, over the place where Frank Clark was working, and that said scaffold was so constructed that it vibrated and that there was danger of said loose pieces of lumber (if any) falling from said scaffold and injuring Frank Clark, and that defendant or his foreman knew, or by the exercise of ordinary care could have known, these facts(if you so find them) in time by the exercise of ordinary care to have prevented any of said loose pieces, if any, from falling from said scaffold and injuring Frank Clark, but negligently failed to do so (if you so find); and if you further find that thereafter on said date one of said boards (if any) fell, either from said scaffold, by reason of the vibration thereof (if any), or from said dormer window, by reason of being dislodged by the wind (if any), and struck Frank Clark on the head (if you so find), and as a result thereof his skull was fractured and he thereby received injuries from which he died on or about October 30, 1915, and if you further find that plaintiff is the widow of Frank Clark, deceased, then you shall find a verdict in favor of the plaintiff and against the defendant."

Plaintiff had a verdict nisi for $ 10,000, which was reduced by remittitur to $ 7,500.The trial court granted defendant a new trial on the ground that it was error to have given this instruction.Of this instruction the Court of Appeals said (Clark v. Long,196 S.W. 409, 413):

"The instruction is further criticized for the reason that it permits the jury to find for plaintiff without finding that the hypothetical facts stated in the instruction, if true would constitute negligence.We think this criticism of the instruction is well taken.While it is true that the jury were required to find by the instruction that the defendant did not exercise ordinary care...