State v. Ellison

• Decision Date: 22 December 1917
• Docket Number: No. 20382.,20382.
• Citation: 199 S.W. 984,272 Mo. 571
• Parties: STATE ex rel. LONG v. ELLISON et al.
• Court: Missouri Supreme Court

199 S.W. 984

272 Mo. 571

STATE ex rel. LONG v. ELLISON et al.

No. 20382.

Supreme Court of Missouri. In Banc.

December 22, 1917.

Certiorari by the State, on relation of John C. Long, against James Ellison and others, Judges of the Kansas City Court of Appeals, and another to review the judgment of such court (196 S. W. 409) reversing an order granting a new trial in an action by Marguerita Clark against John C. Long. Record quashed.

Rees Turpin and John B. Pew, both of Kansas City, for petitioner. Hogsett & Boyle, of Kansas City, for respondents.

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, Mo., 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 1 inch thick, 6 inches wide, and of lengths 10 to 16 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 driveway 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 foreman, 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 plaintiff the 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:

"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 to prevent said board from falling, and that in failing to exercise ordinary care so to prevent said boards from falling defendant was guilty of a careless and negligent act, still it does not require the jury to find that the boards piled upon the dormer window or the scaffold were negligently permitted to remain there after they were or could have been discovered.

"The question as to whether defendant and his foreman were negligent in permitting the boards to remain at said places after they could have discovered their presence was one for the jury, and the court should have required the jury to find that it was negligent for defendant to have so permitted them to remain. Defendant was not negligent as a matter of law in so permitting the boards to remain in such places. It was necessary in the progress of the building of the residence to have these pieces of boards near at hand, as the men were working upon the siding and sheeting at the time, and must of necessity have had the boards near at hand in order to carry on their work with reasonable celerity. It was necessary for these carpenters to have a place where they could temporarily place timbers which they were to use, and it was for the jury to say that the places in which they actually placed the timbers were reasonably safe places under all the circumstances. We believe that this instruction, taken alone, was erroneous. Lukamiski v. Steel Foundry Co., 162 Mo. App. 631, 142 S. W. 1093; Glaser v. Rothschild, 221 Mo. 180, 120 S. W. 1, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576; Cross v. Northern Central Coal Co. (App.) 186 S. W. 528. However, all of the instructions given, both for plaintiff and defendant, must be read together, and if all of the instructions fairly state the law, then the vice in plaintiff's instruction is cured, and this is so even if the vice in plaintiff's instruction appears in the instruction purporting to cover the entire case. Bliesner v. Distilling Co., 174 Mo. App. 139, 157 S. W. 980.

"On behalf of the defendant the court instructed the jury that `before you can find for the plaintiff you must find from the evidence that either John Long, the defendant, or Ed Marrs, his foreman, did something a reasonably careful man under the same circumstances would not have done or failed to do something a reasonably careful man would have done under such circumstances, and thereby caused the death of Frank Clark.' And in another instruction the court instructed the jury that, if Frank Clark was killed as the result of a mere accident, then they could not find for plaintiff, and `by "accident" as used herein is meant an occurrence or casualty happening without the fault or negligence of the defendant or injured party.'

"The failure of plaintiff's instruction to have the jury find that it was negligence on the part of the defendant to have permitted the boards to remain at the places given was merely an omission that might be supplied by other instructions, and we believe that this omission was fully covered by these instructions to which we have referred."

This holding is charged to be in conflict with our rulings. The Court of Appeals likewise held that the petition stated a good cause of action, and this is charged as conflicting with this court. It is also charged that the court was without jurisdiction. In relator's petition for our writ it is said:

"At the time plaintiff filed her affidavit for appeal there was no money judgment in existence. The amount claimed in the petition was $10,000, and the amount in dispute was $10,000, which was in excess of the jurisdiction of the Kansas City Court of Appeals. Powers v. Missouri Pacific Railway Company, 262 Mo. 701, loc. cit. 705, 172 S. W. 1; Eads v. Kansas City Electric Light Company (App.) 180 S. W. 994."

The Court of Appeals reversed the ruling nisi as to new trial, and reinstated the judgment for $7,500. Further details, if necessary, will follow in the course of the opinion.

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