The State ex rel. Al. G. Barnes Amusement Company v. Trimble

• Decision Date: 02 December 1927
• Docket Number: 26874
• Parties: The State ex rel. Al. G. Barnes Amusement Company v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

300 S.W. 1064

318 Mo. 274

The State ex rel. Al. G. Barnes Amusement Company v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 26874

Supreme Court of Missouri

December 2, 1927

Writ quashed.

Frank M. Lowe for relator.

(1) As the facts stated in the opinion show this was a travelling circus having no permanent abiding place and the character of the work necessarily changing, when the respondents held that it was defendant's duty to make the place reasonably safe for plaintiff to labor, without any qualification or exception to the rule, they refused to follow or be bound by the last controlling decisions of this court to the effect that where the work of the servant renders the place of work more or less dangerous, the master is not liable. Crawford v. Bolt & Nut Co., 278 S.W. 377; Britt v. Crebo, 199 S.W. 157; Leavengood v. Lead Co., 179 Mo. 229; Bradley v. Tea & Coffee Co., 213 Mo 320; Haggard v. Coal Co., 200 S.W. 1072. (2) Respondents refuse to follow or be bound by the last controlling decisions of this court to the effect that where the plaintiff was injured through the act of a fellow-servant, the master is not liable. Bradley v. Tea & Coffee Co., 213 Mo. 320; Leavengood v. Lead Co., 179 Mo. 229; Crawford v. Bolt & Nut Co., 278 S.W. 377; Purcell v. Shoe Co., 187 Mo. 276; McDermott v. Pacific Ry. Co., 30 Mo. 115; Haggard v. Coal Co., 200 S.W. 1072; Schaub v Ry. Co., 106 Mo. 90. (3) In holding in this case that the duty of furnishing a safe place for plaintiff to work was a continuing, non-delegable duty, when it was conceded that there was a custom known to the plaintiff and relied on by him that it was the duty of plaintiff and his fellow-servants to make such place safe, respondents refused to follow or be bound by the last controlling decisions of this court to the effect that where a master promulgates a rule or custom to govern and control its business, the following of which on the part of its servants would protect them in their work the master has performed his duty and could not be held liable for the act of a fellow-servant in failing to follow such rule or custom. Francis v. Railroad, 110 Mo 395; Yoacum v. Lusk, 223 S.W. 56; Forbes v. Dunnavant, 198 Mo. 193. (4) When respondents determined as stated in their opinion, that they found no evidence covering the point as to whose duty it was to place sufficient lights to render the place reasonably safe for the performance of the labor in which plaintiff was engaged, and refused to reverse the case for failure of proof, they refused to follow and be bound by the last controlling decisions of this court to the effect that a plaintiff cannot recover on mere speculation or conjecture. Crawford v. Bolt & Nut Co., 278 S.W. 377; Kramer v. Power & Light Co., 279 S.W. 47; Goranson v. Mfg. Co., 186 Mo. 300; Mathis v. Stock Yards Co., 185 Mo. 434; Yarnell v. Railroad, 113 Mo. 580; O'Malley v. Railroad, 113 Mo. 325.

Atwood, Wickersham, Hill & Chilcott for respondents.

Not only does the decision in this cause not conflict with any ruling or decision of this court, but is in harmony with and supported by numerous decisions of this court declaring the law under similar facts. Soltesz v. Belz Pro. Co., 260 S.W. 990; Reynolds v. Barnes, 253 S.W. 140; Lampe v. American Ry. Exp. Co., 266 S.W. 1009; Ward v. Ice Co., 264 S.W. 80; Gaines v. Pierce, 264 S.W. 93; Krajcovic v. Provision Co., 260 S.W. 825; Milzark v. Nat. Biscuit Co., 259 S.W. 832; Frey v. Packing Co., 260 S.W. 500; Gilbert v. Hilliard, 222 S.W. 1027; Jablonowski v. Mfg. Co., 251 S.W. 477; Bodenmueller v. Box Co., 237 S.W. 879; McNulty v. Portland Cement Co., 249 S.W. 730; Schuh v. Am. Car & Foundry Co., 241 S.W. 641; Chambers v. Hines, 233 S.W. 952.

Atwood, J. All concur, except Graves, J., who dissents.

OPINION

ATWOOD

Relator seeks to quash the record of the Kansas City Court of Appeals on a second appeal in the case of John E Reynolds, Respondent, v. Al. G. Barnes Amusement Company, Appellant, wherein respondent's judgment for $ 7,500 was affirmed. The conflicts alleged relate to the law applicable to acts of fellow-servants.

Looking to the opinion for the facts, as we must in this class of certiorari proceedings, we find this statement by Judge Arnold:

"On the second trial the evidence consisted largely of the testimony produced on the former trial. However, some witnesses were introduced by defendant who had not testified before. We have examined this evidence and find that it does not change the material facts shown in the former trial, which were set out in detail in our former opinion, and which we do not deem necessary to repeat herein. Reference is made therefore to our former opinion for a statement of the facts which is adopted as the statement of facts herein."

Turning to the first opinion, written by Judge Trimble and reported in 253 S.W. 140, we read statements of facts pertinent to the conflicts here alleged as follows:

"The defendant owns and exhibits a traveling circus. Plaintiff claims he was an employee thereof engaged in carrying seats out of one of its tents preparatory to defendant's removal from its show site in Kansas City to its next stand or place of exhibition, and that while doing that work he stepped into a stake hole and broke his leg. He brought this suit, based on negligence and also wanton, brutal and malicious failure to thereafter care for and aid him, and prayed for $ 25,000 actual and $ 25,000 exemplary or punitive damages. . . .

" There was ample evidence, and indeed it was conceded, that it was the custom for all working places about a circus to be lighted, for a light to be on every wagon being loaded and for all holes made to be filled up or covered over and for none to be left open . . .

"It would seem that the failure to have sufficient light and the leaving of a hole unfilled when it was the custom to have light and to fill all holes, would combine to bring about the breaking of plaintiff's leg, though the ultimate and principal cause of the injury was the leaving of the unfilled hole. . . .

"However, there was evidence of all the above-mentioned charges, and the jury could well say that they all combined to help bring it about. It is true, no one affirmatively and expressly testified to seeing this particular hole made by the pulling of a particular stake under the superintendence of any of the superiors, but the evidence is that the menagerie tent was down, its stakes had been pulled, no hole was there before that, the pulling of stakes and the taking down of the menagerie tent was done under direction of the supervisors, the stake hole was that of a menagerie tent stake, and from these facts the jury could find that it was a hole left in the ground by the removal of one of the menagerie tent stakes in the taking down of said tent. . . .

"It is conceded that it was the custom to at once fill or cover all holes made by the removal of tent stakes, and hence it was defendant's duty to leave no unfilled or uncovered stake holes. . . ."

The opinion by Judge Arnold here sought to be quashed states plaintiff's general charge of negligence to be defendant's failure to furnish plaintiff a reasonably safe place in which to work, including the charges of failure to fill the stake hole and failure to furnish sufficient light; and as to the evidence thereon, states:

"There was testimony in plaintiff's behalf that the only light thrown upon the immediate locality of the injury came from one or other of the tents. We find no evidence covering the point as to whose duty it was to place sufficient lights to render the place reasonably safe for the performance of the labor in which plaintiff was engaged. Certainly none tending to show that plaintiff had any control over the lights, or over other conditions which contributed to his injury, nor any which tended to show that his fellow-workmen had control over them."

Portions of the opinion particularly complained of as in conflict thus immediately follow:

"In this situation it was defendant's duty to exercise ordinary care to see that plaintiff's place of work was reasonably safe. This was a continuing non-delegable duty. [Koerner v. Car Co., 209 Mo. 158, 107 S.W. 481; Scheidler v. Iron Works, 172 Mo.App. 688, 155 S.W 897.] There was substantial evidence to the effect that lights were not...