Stricklen v. Combe Printing Co.

• Decision Date: 08 April 1913
• Citation: 155 S.W. 829,249 Mo. 614
• Parties: STRICKLEN v. COMBE PRINTING CO.
• Court: Missouri Supreme Court

155 S.W. 829

249 Mo. 614

STRICKLEN v. COMBE PRINTING CO.

Supreme Court of Missouri, Division No. 2.

April 8, 1913.

1. TRIAL (§ 260) — INSTRUCTIONS — INSTRUCTIONS COVERED BY OTHERS.

In a personal injury action by a minor servant, where the court properly charged the jury that, in case he was not required to put his hands between the jaws of the machine, then the verdict should be for the master, further instructions on that subject requested by the defendant are properly refused, even though correct in law.

2. MASTER AND SERVANT (§ 291) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

In a personal injury action by a minor servant whose hand was hurt in a machine used to make pasteboard boxes, where he testified that he had to put his hands between the jaws of the machine, and had to be pretty quick to get them out in time, an instruction requested by defendant that if both parts of the machine were stationary, and plaintiff was required to insert the box, and after inserting the box form he could cause the lower part of the machine to move up against the upper, he was not required to work between the stationary and traversing parts of the machine in motion, was properly refused, because disregarding the evidence.

3. MASTER AND SERVANT (§ 108) — INJURIES TO SERVANT — MACHINES — "TRAVERSE."

Where one part of a box-making machine closed against the face of the other, it is the traversing part of the machine, and falls within the purview of Rev. St. 1899, § 6434, providing that no minor or woman shall be required to work between the fixed and traversing parts of any machine while it is in motion, for the term "traverse" means something that thwarts, crosses, or obstructs, and in this case the part of a machine which moves against the other obstructs it.

4. MASTER AND SERVANT (§ 291) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

In a personal injury action by a minor whose hand was hurt in a box-making machine, the lower part of which folded up against the face of the other, where he testified that it was necessary for him to put his fingers between the parts of the machine, and that he was instructed to do so, a requested instruction that it was not dangerous for any one to work in front of or near the machine, the jaws being designed to press together the parts of the boxes, and it cannot be inferred that the operator was required to put his hands or fingers between the jaws while they were performing their function, was properly refused in disregarding the evidence.

5. MASTER AND SERVANT (§ 87) — STATUTES (§ 157) — REPEAL OF STATUTES — IMPLICATION — "CONFORMITY WITH."

Child Labor Act (Laws 1907, p. 86), providing in section 9 that no child under the age of 16 shall be employed to adjust a belt or oil any machinery, nor shall any child operate or assist in operating circular or band saws and the like, and in section 13 that all acts or parts of acts not in conformity therewith are repealed, did not repeal by implication Rev. St. 1899, § 6434, providing that no minor or woman shall be required to work between the fixed and traversing parts of any machinery in motion which is a part of the Inspection Act of 1891 (Laws 1891, p. 159), providing for the health and safety of employés, for, where a statute merely repeals all conflicting laws, the later statute must clearly effect the repeal, and not only is it obvious that the Child Labor Act did not repeal all of the Inspection Law, but, in view of the subsequent repeal and re-enactment of section 6434, it must be assumed that there was no intention on the part of the Legislature to repeal the act in question.

For other definitions, see Words and Phrases, vol. 2, pp. 1428, 1429.]

6. MASTER AND SERVANT (§ 14) — POLICE POWER.

Rev. St. 1899, § 6434, providing that no minor or woman shall be required to work between the fixed and traversing parts of any machine, is not in violation of the state or national Constitution, being a valid exercise of the police power.

7. STATUTES (§ 114) — TITLES — SCOPE OF TITLE.

Rev. St. 1899, § 6434, providing that no minor or woman shall be required to work between the fixed and traversing parts of any machine which is found in Inspection Act of 1891 (Laws 1891, p. 159), providing for the health and safety of employés, falls within the purview of the title of that act.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge.

Action by Homer Stricklen, by his next friend, Vernon E. Stricklen, against the Combe Printing Company. From an order granting defendant a new trial after an adverse verdict, plaintiff appeals. Reversed and remanded, with directions.

This suit was brought under section 6434, Revised Statutes 1899 (7829, R. S. 1909), which provides that "no minor or woman shall be required to * * * work between the fixed and traversing parts of any machine, while it is in motion by the action of steam, water or other mechanical power." The plaintiff got a verdict for $500, which, on motion for a new trial, was set aside and the plaintiff has appealed from the order granting a new trial.

The petition alleges that plaintiff is over 14 and under 21 years of age. It alleges that defendant was in the business of making pasteboard boxes and in other lines of business, and that it required plaintiff while in its employ to work between the fixed and traversing parts of a machine used in pressing and pasting together the ends of such boxes. The answer contains a general denial and a plea of contributory negligence without alleging what that contributory negligence was. It also raised the point that the section under which the suit is brought is unconstitutional, for the reason that the title to the act of which that section was a part contains more than one subject, and that the subject of that section is not clearly expressed in the title of said act, and, further, that it abridges the privileges and immunities of citizens of the United States, and denies to the defendant the equal protection of the laws. The evidence shows that the injury occurred on July 16, 1908, and that the plaintiff became 16 years old in September following. He began work Monday at noon, and the accident occurred on the following Saturday. The upper part of the machine was fixed and the lower part dropped down one or two inches to allow the end of the box to be inserted, and then closed up against the upper part of the machine in order to press and paste the parts of the end of the box together. As to whether it was necessary for the operator to insert his fingers between the fixed and moving parts of the machine the evidence is in conflict; that for the plaintiff tending to show that it was necessary and that for the defendant showing the contrary. Plaintiff testified that defendant's foreman directed him to so insert his fingers in order to hold the parts of the box in position. The foreman testified that he gave no such direction. Plaintiff testified that he "had to be pretty quick to get his hand out in time." Plaintiff's forefinger was caught, and the end of it mashed off by the machinery.

At the request of the defendant the court gave the following instructions:

"(8) If the jury believe from the evidence in this case that the defendant or its foreman did not require the plaintiff, Homer Stricklen, to put his hand or fingers between the upper and lower jaws of the header described in evidence, and of which the picture shown you is admitted to be a correct representation, while he was at work upon or with said machine, you will return a verdict for the defendant.

"(9) If you believe from the evidence that the plaintiff was instructed by ...