Sterling v. Parker-Washington Company
| Decision Date | 03 November 1914 |
| Parties | MAY STERLING, Administratrix, Respondent, v. PARKER-WASHINGTON COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Rehearing Denied 185 Mo.App. 192 at 221.
Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.
AFFIRMED. REHEARING OVERRULED.
Judgment affirmed.
S Mayner Wallace, Wm. R. Orthwein and Shepard Barclay for appellant.
(1) There has been no amendment of the petition, or other showing in the record, to suggest that plaintiff's cause of action is revivable by the administratrix: Only actions "other than those resulting in death" are so revivable, and that showing must appear. After the verdict was set aside (May 9, 1912) the trial court had no power, after the death of plaintiff, in March, 1912, to reinstate the verdict in his name, without a showing such as is required by the revival statute, if at all. R. S. 1909, sec. 5438; Showen v. Railroad, 164 Mo.App. 41. (2) As it was the duty of the plaintiff to make the proper parties to the suit upon the filing of his petition, so it is his duty, upon the death of any one of the parties plaintiff or defendant, to take the proper steps to bring in the necessary representatives. 1 McQuillin, Pl. & Pr., sec. 487, p. 466. (3) The plaintiff died in March, 1912 (at the February term of the circuit court, R. S. 1909, sec. 4150). The power of the court below to enter judgment on the verdict in the name of the original plaintiff expired at the next (April, 1912) term of said court, whereas the judgment was set aside at that term; and later that order was vacated at the same term, and the motion for new trial was overruled, several terms later (August 7, 1912) contrary to R. S. 1909, secs. 1922-3. State ex rel. v. Stratton, 110 Mo. 426. The judgment (although written in the record) is not deemed entered, and does not become operative, until the motion for new trial is overruled. Walter v. Scofield, 167 Mo. 537; Loan Assn. v. Augustin, 2 Mo.App. 132; Lane v. Kingsberry, 11 Mo. 408; Scott v. Scott, 44 Mo.App. 600. (4) When the motion for new trial was sustained, the verdict was set aside; and as it appeared, later, that plaintiff had died in March, 1912, the court had no power thereafter to proceed to vacate that order or take other steps until facts were shown to warrant a revival of the action, in cases "other than those resulting in death." That showing was never made. R. S. 1909, sec. 5438; Showen v. Railroad, 164 Mo.App. 41; Sargeant v. Rowsey, 89 Mo. 617; Gamble v. Daugherty, 71 Mo. 599. (5) The peremptory instruction to find for defendant should have been given. (a) The admissions of plaintiff, as to the facts, have the same force as admissions in the pleadings. Shirts v. Overjohn, 60 Mo. 308; State v. Brooks, 99 Mo. 143. (b) Plaintiff admitted his thorough acquaintance with sharpening and tempering of tools, during many years, and also admitted that "when you work with chisels they frequently chip off;" that he had "seen that when other people sharpened them and when" (he) "sharpened them." Plaintiff's evidence affirmatively shows that he was thoroughly experienced and fully aware of whatever danger existed from the use of such tools, and knew that such an accident as happened was a risk of the service in which he was engaged. Hence defendant is not liable (even if Missouri law applies which we do not admit). (c) There is no testimony that Winlan tempered that chisel which did the harm. Hence it was error to submit that supposed fact, as the court did (in the first instruction) without evidence of it. Rose v. Rubeling, 24 Mo.App. 369; Alexander v. Harrison, 38 Mo. 258. (d) The evidence shows that, when the accident occurred, plaintiff was the chief representative of defendant at Muskogee. Winlan had previously left defendant's service, leaving plaintiff in charge of the asphalt plant and machinery, so that whatever duty there was, for inspection of tools for use in that plant of defendant, at that time, devolved on the plaintiff (under his own testimony), and the undisputed facts, so that the omission of plaintiff to use reasonable care to inspect those tools could not be ascribed to defendant, in such circumstances. Knorpf v. Wagner, 195 Mo. 637; Railroad v. Long, 137 P. 1156 (Okla.); Henry v. Boiler Co., 151 Mo.App. 595; Modlagl v. Kaysing Co., 248 Mo. 587. (e) There was no evidence by plaintiff (who best could tell) that he was unaware how the chisel had been tempered (if it really had been tempered) or what sort of coal had been used therefor. His affirmative testimony shows he knew every fact which his employer might know, as to the safety of the chisel, in respect of the condition of hardness, which he says caused his injury, which condition of hardness plaintiff says he always desired. Those facts required the peremptory instruction for defendant. Modlagl v. Kaysing Co., 248 Mo. 587; Knorpf v. Wagner, 195 Mo. 637; Henry v. Boiler Co., 151 Mo.App. 595; Graves v. Railroad, 162 S.W. 298; Lead Co. v. Swyers, 161 F. 687; Railroad v. Duran, 134 P. 876; Railroad v. Johnson, 207 F. 521; O'Hara v. Mach. Co., 171 F. 394; Herricks v. Railroad, 257 Ill. 264. (f) The undisputed and admitted facts show there is no liability. Rahm v. Railroad, 129 Mo.App. 683; Henry v. Boiler Co., 151 Mo.App. 595, 160 Mo.App. 615. (6) The defendant's request for instruction 2 sought to inform the jury briefly, that if plaintiff's eye was not hurt by a piece of the chisel he used, then the verdict should be for defendant, even though he was struck in the eye by some other substance while using a chisel that broke. (7) There is no inference of negligence from the happening of such an accident. Railroad v. Dunn, 134 P. 876. (8) The cause of action arose in Oklahoma and the law of that place governs the liability. Farrar v. Railroad, 149 Mo. 197; Newlin v. Railroad, 222 Mo. 391. (9) Oklahoma as a separate jurisdiction has been governed by laws of which the court will take judicial notice, namely, Federal statutes, administered by Federal courts, to which the present State courts are regular successors by the terms of Federal law. R. S. 1909, secs. 6283, 1833; State v. Moseley, 38 Mo. 380. Under those laws applicable to Oklahoma, plaintiff having full knowledge of the facts in regard to the sharpening and tempering of chisels, as described by him had no cause of action under the laws of Oklahoma contained in the Federal statutes, of which this court should take judicial notice. Mollhoff v. Railroad, 15 Okla. 540; Co. v. O'Nesky, 6 Ind. Terr. 180; Farrar v. Railroad, 149 Mo. 197; 7 F. Stats. Annot., p. 278. (10) Under so much of the law of Oklahoma, of which the court may judicially take notice, without other proof, the facts of this case create no liability. Rahm v. Railroad, 129 Mo.App. 686; Railroad v. Duran, 134 P. 876; Railroad v. Mase, 63 F. 115; Railroad v. O'Leary, 93 F. 737; Railroad v. Charless, 162 U.S. 359; Ruemmeli Co. v. Cahill, 14 Okla. 422. (11) The first instruction for plaintiff was erroneous in several particulars: (a) It raised new issues not made by the pleadings by turning the issue of defendant's case (in respect of furnishing reasonably safe tools) into a different issue, namely: As to whether "common coal" or "blacksmith's coal" was used by Wennland in tempering the chisel in question. It is error to give an instruction changing the issues of the pleadings. Mays v. Pryce, 95 Mo. 603; Bloom v. Pape, 36 Mo.App. 603; 1 McQuillin Pl. & Pr., sec. 768; Feegan v. Seed Co., 92 Mo.App. 240; Davidson v. Transit Co., 211 Mo. 320. (b) The instruction was without evidence to support the assumption that the tempering was the cause of the injury to plaintiff. Winlan not only tempered but sharpened the tools (two different sorts of acts). There is no evidence that tempering was the cause of the breakage of the chisel, as distinguished from sharpening, which the petition does not charge as negligence. The chisel might have broken as easily because it was sharpened carelessly, and no such charge is made by the petition. It was the duty of plaintiff to show which of those acts was the cause. Without such evidence, the first instruction should not have been given, but on the contrary the peremptory one for defendant. Warner v. Railroad, 178 Mo. 134; Root v. Railroad, 195 Mo. 367; Reiss v. Steam Co., 128 N.Y. 103; Grant v. Railroad, 133 N.Y. 657; Railroad v. Victory, 47 S.W. 440; Gas Co. v. Kaufman, 48 S.W. 434; Hughes v. Railroad, 91 Ky. 531; Hanrahan v. Railroad, 45 N.Y.S. 477; Railroad v. De Graff, 29 P. 664. (c) That instruction also calls for a finding that "the use of blacksmith's coal was necessary" to temper the chisel, but there was no testimony to support such a finding. Such form of instruction (even if there had been such evidence) is erroneous as tending to raise a side or immaterial issue. Root v. Railroad, 195 Mo. 348; Feegan v. Seed Co., 92 Mo.App. 240. (d) That instruction for plaintiff was erroneous also, in singling out and emphasizing the "coal" features and repeating the same idea over and over again; plainly commenting on the evidence. Chappell v. Allen, 38 Mo. 221; Chouquette v. Barada, 28 Mo. 498; Gage v. Mears, 107 Mo.App. 147; Bank v. Currie, 44 Mo. 91; Railroad v. Stock Yards, 120 Mo. 559; Swink v. Anthony, 96 Mo.App. 426; Meyer v. Railroad, 45 Mo. 137; Siegrist v. Arnot, 10 Mo.App. 197. (12) The verdict is excessive, because (after plaintiff's death) some of the elements of damage in the findings on the second instruction for plaintiff were unwarranted. The future loss of earnings were improper to allow in the verdict, as reinstated by the court on ruling on the motion for new trial in August, 1912, after plaintiff had died.
Wm. L. Bohnenkamp and Watts, Gentry & Lee for respondent.
(1) There was no occasion...
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