State ex rel. Pelligreen Construction Company v. Reynolds

• Decision Date: 18 July 1919
• Parties: THE STATE ex rel. PELLIGREEN CONSTRUCTION COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

214 S.W. 369

279 Mo. 493

THE STATE ex rel. PELLIGREEN CONSTRUCTION COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri, First Division

July 18, 1919

Record quashed.

R. J Balch and John P. McCammon for relator.

(1) The assignments of error in relator's motion for new trial were sufficient. Wampler v. Railway Company, 269 Mo 464; Stid v. Railway Company, 236 Mo. 397; Collier v. Lead Company, 208 Mo. 256. It has been so held in criminal cases under a more exacting statute. State v. Noland, 111 Mo. 492. (2) The petition does not state a cause of action under the res ipsa loquitur doctrine. McGrath v. Transit Co., 197 Mo. 97. The petition showed a case of master and servant, did not allege any failure of defendant to use ordinary care to furnish plaintiff a reasonably safe place to work, and did affirmatively show "the injury arose from an event in its nature not so obviously destructive of safety or so tortious in its quality as in the first instance to permit no inference save that of negligence on the part of the person in control." Wall v. Jones, 18 N.Y.S. 674. In the case above, except as to the extent of the injury, the facts are identical. (3) Failure to lay scaffold boards over the joists and girders of the building was not common-law negligence, and testimony as to the ordinance or its violation should have been rejected. The peremptory instruction asked by defendant was proper. To admit such testimony it was necessary to plead it. Lore v Manufacturing Co., 160 Mo. 608; Lohmeyer v. Cordage Co., 214 Mo. 685; Hogan v. Railway Company, 150 Mo. 48; Bohn v. Railway Company, 106 Mo. 433; Sutherland v. Lumber Co., 149 Mo.App. 338; Shriners v. Mullins, 136 Mo.App. 298; Smith v Box Co., 196 Mo. 715; Barron v. Lead & Zinc Co., 172 Mo. 234; Box Company v. Saucier, 213 F. 312.

Claude D. Hall for respondents.

(1) It was proper to show under the petition that the defendant did not cover the joists or girders of the building on which plaintiff was working. (a) The plaintiff could prove any facts or circumstances which fairly tended to establish the negligence of the primary fact (the falling material and plaintiff being struck and falling) complained of. Fisher v. Golladay, 38 Mo.App. 537; Calvert v. Railroad, 38 Mo. 467; Goodwin v. Rock Isl. Ry. Co., 75 Mo. 75; Schneider v. Railroad, 75 Mo. 295-6; Edwards v. Chicago, Rock Isl. & Pac. Ry. Co., 76 Mo. 399. (b) It was defendant's duty to make plaintiff's place of work reasonably safe. By covering the joists and girders with scaffold boards, as is customary in buildings of that kind, this would have been done and the injuries to the plaintiff would have been averted. Usage or custom is relevant to show what constitutes negligence or as bearing on negligence in a given case. Jones on Evidence (2 Ed.), sec. 163, p. 184; Schiller v. K. C. Breweries Co., 156 Mo.App. 569; Gordon v. Railroad, 222 Mo. 536; Minier v. Railroad, 167 Mo. 99; Chrismer v. Tel. Co., 194 Mo. 189; Sec. 7843, R. S. 1909. (c) Under a general allegation of negligence plaintiff may properly offer evidence tending to show specific acts of negligence. Wolven v. Springfield Traction Co., 143 Mo.App. 643; Hall v. Wabash, 165 Mo.App. 115. (d) Defendant did not raise the question of variance, by filing an affidavit as required by Sec. 1846, R. S. 1909. Waldheir v. Ry. Co., 71 Mo. 514; Fisher v. Realty Co., 159 Mo. 562; Harrison v. Lakeman, 189 Mo. 589. (2) The court did not err in admitting the ordinance in evidence. Bailey v. Kansas City, 189 Mo. 514; Bragg v. Met. St. Ry., 192 Mo. 350; Robertson v. Railroad, 84 Mo. 121; Brannock v. Elmore, 114 Mo. 59. (3) The defendant's motion for a new trial does not contain a sufficient ground upon which an assignment of error as to this instruction can be based. The fifth ground of the motion for a new trial is too general and it does not state the instruction is erroneous. R. S. 1909, sec. 1841; State v. Norman, 159 Mo. 531; Wampler v. S. F. Ry. Co., 269 Mo. 464; Mfg. Co. v. Bates Co., 201 S.W. 92.

BLAIR, P. J. Bond, J., not sitting.

OPINION

Certiorari.

BLAIR P. J.

The record brought here for review is that of the St. Louis Court of Appeals in Seitz v. Pelligreen Construction & Investment Company, 199 Mo.App. 388, 203 S.W. 503.

I. The ruling that the grounds of the motion for new trial respecting the giving and refusing of instructions were too general to authorize a review of such instructions is in conflict with the decisions of this court. State ex rel. United Railways Co. v. Reynolds et al., 278 Mo. 554, 213 S.W. 782, is in point and controlling.

II. "The petition alleges that defendant was in charge and in exclusive control of the erection of a building on Fourth near Vine Street, in the City of St. Louis, and that on or about November 30, 1917, while plaintiff was in the employ of defendant and doing carpenter work on the third floor of the building, plaintiff was 'by reason of the negligence of the defendant, struck by a piece of building, or other material, with great force and violence, which fell from a floor above the third floor, on which plaintiff was working, by reason whereof, by reason of the negligence of defendant, the plaintiff fell with great force and violence a distance of about forty feet, from the third . . . to the first floor of said building, and that by reason of being struck as aforesaid, and by reason of falling said distance . . . which was due to the negligence of defendant,'" plaintiff was injured, etc. The Court of Appeals ruled that this petition was sufficient after judgment. The objection made on the trial was, according to the Court of Appeals, that the petition did not allege "any acts which constituted negligence." It is insisted this ruling conflicts with decisions of this court. The Court of Appeals held the petition charged general negligence and, on the trial, justified evidence of specific acts of negligence. Relator contends there is no charge of common-law negligence, that the petition is not based on the statute (Sec. 7843, R. S. 1909) and that no ordinance is pleaded. Several decisions of this court are cited.

(a) There is no conflict with McGrath v. Transit Co., 197 Mo. 97, 94 S.W. 872, since the Court of Appeals did not uphold the petition on the ground that the doctrine of res ipsa loquitur applied. (b) The Court of Appeals ruled that the petition counted on common-law negligence; that a motion to make more definite and certain might have been pertinent, but that a cause of action was stated. Relator cites no decisions of this court which conflict with that ruling. Its contention in this connection is more relevant to the question whether there was evidence to support the verdict.

III. An ordinance of the City of St. Louis was admitted in evidence, and the Court of Appeals upheld that ruling. The ordinance provides, in substance, that it is the duty of persons in charge of the construction of buildings to cover joists or girders above the second floor with scaffold boards or other suitable material, as the building progresses, so as sufficiently to protect workmen from falling between the joists and girders and to protect workmen on lower floors from injury from falling bricks, tools, "or other substances." The ordinance was not pleaded. The Court of Appeals applied the rule that when a cause of action is based upon a violation of duty imposed solely by ordinance, the ordinance must be pleaded; but if an ordinance is used merely as a matter of evidence it need not be pleaded any more than any other evidence. The ruling of the Court of Appeals that the petition charges a cause of action must stand, so far as this proceeding is concerned, no conflict being shown. It must be conceded the petition is not based upon a violation of the ordinance. In these circumstances the ruling of the Court of Appeals on the admission of the ordinance is not in conflict with, but is supported by, the decisions of this court. [Bragg v. Met. St. Ry. Co., 192 Mo. 331, 91 S.W. 527; Bailey v. Kansas City, 189 Mo. 503, 87 S.W. 1182; Robertson v. Railroad, 84 Mo. 119.] If the petition stated a cause of action at common law, then the ordinance was competent.

IV. It is contended the Court of Appeals conflicted decisions of this court in ruling there was evidence justifying the submission of the Seitz case to the jury. It is not necessary to set out all the evidence detailed in the opinion of the Court of Appeals. That court states there was evidence tending to show that Seitz, under his foreman's directions, was working on the third floor; that others were working on a...