The State ex rel. Pevely Dairy Co. v. Daues

• Decision Date: 31 December 1926
• Docket Number: 27457
• Citation: 289 S.W. 835,316 Mo. 418
• Parties: The State ex rel. Pevely Dairy Company v. Charles H. Daues et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

289 S.W. 835

316 Mo. 418

The State ex rel. Pevely Dairy Company v. Charles H. Daues et al., Judges of St. Louis Court of Appeals

No. 27457

Supreme Court of Missouri

December 31, 1926

Writ quashed.

W. E Moser and John S. Marsalek for relator.

(1) Plaintiff's instruction was erroneous in adopting as a test of ordinary care the question whether defendant was negligent in permitting the mule to be in an open stall instead of in a box stall. The use of a comparison of different methods or means as the measure of ordinary care in an instruction has been held by this court to be reversible error, and respondents' holding to the contrary conflicts with: Sommer v. Portland Cement Co., 295 Mo. 530; Glover v. Meinrath, 133 Mo. 304; Muirhead v Railway, 103 Mo. 252; Tabler v. Railway Co., 93 Mo. 84. (2) The master is not required to provide the safest best or most suitable appliances, nor to follow any particular method of conducting his business. His legal duty is to exercise ordinary care to adopt methods and means which are reasonably safe. Chrismer v. Tel. Co., 194 Mo 208; Shohoney v. Railroad, 223 Mo. 677; McGinnis v. Brick Co., 261 Mo. 297; Beasley v. Transfer Co., 148 Mo. 413. (3) The erroneous direction cannot be disregarded as an unnecessary burden assumed by plaintiff, first, because it conflicts with the rule previously set out on the same subject; second, because the erroneous statement is included in the principal instruction on liability, and is so combined with other findings that the jury could not have decided the issue submitted without taking the improper part of the instruction into consideration. Sommer v. Cement Co., 295 Mo. 519; Tabler v. Ry. Co. 93 Mo. 84; Cottrill v. Krum, 100 Mo. 406; Degonia v. Railroad, 224 Mo. 589; Crone v. United Rys. Co., 236 S.W. 657; McKenzie v. Randolph, 257 S.W. 126.

Mark D. Eagleton, Everett Hullverson and Harry S. Rooks for respondents.

(1) In Glover v. Meinrath, 133 Mo. 292, and Sommer v. Cement Co., 295 Mo. 519, there was no opinion concurred in by a majority of this court. In each case there were several assignments of error, and no particular assignment of error was concurred in by a majority of the court as error or grounds for reversal. Therefore, in neither of those cases is there, as to the point here involved, a controlling decision of the Supreme Court upon which a conflict can be predicated. State ex rel. Bank v. Davis, 284 S.W. 467; Viquesney v. Kansas City, 305 Mo. 488; State v. Gochenour, 225 S.W. 691. (2) Tabler v. Railroad, 93 Mo. 79, and Muirhead v. Railroad, 103 Mo. 251, are not in conflict with the present decision, because those cases did not decide the point involved in this case, and merely held erroneous an instruction making the choice of an unsafe method instead of a safe one determine the question of liability and wholly failing to require any finding whatever of negligence. (3) The following controlling decisions of this court held the master liable for negligence in failing to adopt specific means of protecting the servants from exposure to danger, and approved instructions that, in submitting the question of negligence, necessarily involved a comparison of the method not used with the method that was used. The Court of Appeals was compelled to follow and did follow them, and the opinion is not in conflict with any controlling decision of this court. Knott v. Iron Wks., 299 Mo. 613; Kuhn v. Lusk, 281 Mo. 324; Kennedy v. Gas Light Co., 215 Mo. 688; Thompson v. Railroad, 270 Mo. 87; Trebbe v. American Steel Fdys., 185 S.W. 179; Hamilton v. Mining Co., 108 Mo. 364; Huhn v. Railroad, 92 Mo. 440; Hite v. Ry. Co., 225 S.W. 916; Dietzman v. Screw Co., 300 Mo. 196. (4) The Court of Appeals, in holding that the instruction, after requiring proper and sufficient facts to direct a verdict, merely required plaintiff to assume an unnecessary burden when it referred to the facts claimed to constitute an erroneous comparison, followed the latest and controlling decision of this court on that point, to-wit, Wolfe v. Payne, 294 Mo. 170, 186. (See, also, Hunt v. Railroad, 303 Mo. 107, 128.) The only later case en banc cited by relator is Sommer v. Cement Co., 295 Mo. 519, which is not a controlling decision for the reasons stated above. But further, the opinion in the Sommer case does not discuss or decide that precise question at all.

Ragland, P. J. All concur, except Graves, J., absent.

OPINION

RAGLAND

This is an original proceeding in certiorari wherein relator seeks to quash a judgment and an opinion of the St. Louis Court of Appeals because of an alleged conflict with decisions of this court. The cause in which the record is brought here for review was an appeal from the Circuit Court of the City of St. Louis, entitled Oscar Williams, respondent, v. Pevely Dairy Company, a corporation, appellant. The opinion of the Court of Appeals disposing of the appeal follows:

"This is an action for damages for personal injuries sustained by plaintiff while employed by defendant as a hostler in defendant's stable. Plaintiff recovered a verdict and judgment for $ 7,500, and defendant has appealed.

"The petition alleges that plaintiff was kicked by a mule owned and used by defendant in the dairy business; that the mule was mean, vicious and unruly, and likely to kick and injure persons, which fact the defendant knew, or by the exercise of ordinary care should have known; that on May 5, 1924 plaintiff, while engaged in his duties as an employee in the stable, was kicked and injured by said mule. Defendant's negligence is alleged as a failure to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work, or with a reasonably safe mule at and near which to work; that the mule had mean propensities and was not reasonably safe; second, a negligent order of defendant which required plaintiff to be around the mule and that defendant negligently assured plaintiff that he could work there with reasonable safety to himself, although defendant knew, or should have known, that said mule was dangerous and likely to kick; third, that defendant permitted the mule to occupy an open stall when a closed stall was near by and which could have been used for that purpose; fourth, defendant's failure to warn plaintiff of the disposition of the mule and the dangers incident thereto; fifth, defendant negligently failed to exercise ordinary care to discover the disposition and propensities of the mule and that he was dangerous and not reasonably safe.

"The answer is a general denial.

"The case was submitted to the jury on the allegations that defendant furnished a mule which was unsafe because it was unruly and possessed a disposition to kick, and negligently kept the mule in an open stall instead of a box stall.

"The facts may be briefly stated, taking them from the record as they appear most favorable to the verdict. Plaintiff, a man about thirty-five years of age, while employed by defendant as a hostler in its stables in the city of St. Louis, was seriously injured by the kick of a mule on May 5, 1924. The mule, called 'John,' was brought to the stable of defendant about ten days prior to the day of the accident. The first few days after the mule's arrival at the stable he was kept in a box stall, about fourteen feet square, which was enclosed all around, with a door leading to the aisle. The mule was sick when he was brought to the stable and was placed in the box stall so that he could be taken care of better. It was necessary to administer medicine to the animal, and this was done by others assisted by plaintiff. From the very beginning it was noticed, according to plaintiff, that the mule acted differently from the average mule, in that he would wheel around and kick if one came close to him. There is evidence that this viciousness was observed in the mule during the entire time he was in the stall. Plaintiff said the mule had kicked at him some six or seven times previous to the time he was injured, and that the mule did this notwithstanding the fact that its physical condition seemed to be getting better. On this occasion plaintiff was passing through the aisle of the stable when the mule backed out of a straight stall and kicked him. There was evidence to show that the mule was not an average mule, but was illtempered and would kick, though there was much evidence on the part of defendant directly to the contrary, and while defendant's witnesses said the mule was a docile animal, one of the defendant's witnesses who said he was an expert on the subject of mules, conceded that a mule which would kick six or seven times in a period of ten days would be considered a vicious mule and would be unsafe. And though, as we have already said, there is much evidence on the part of defendant that the mule was not vicious but was a gentle specimen, only rebellious when forced to take medicine, there is proof of a substantial character on the part of plaintiff to sustain the inference that the mule was vicious and unruly.

"The injury was most serious. Plaintiff sustained a hemorrhage of the spinal cord; paralysis of both limbs; a fracture of the spine; loss of muscle power in the ligaments of the back, and there is evidence that these injuries are of a permanent character and will disable plaintiff from ever performing any manual labor. The size of the verdict is not challenged.

"The first point made is that the court should have sustained defendant's demurrer to the evidence at the close of the whole case. It is said that the charge that the defendant negligently furnished a mule with a vicious and unruly disposition and likely to kick was not sustained by the evidence, which merely showed that the mule was sick and was naturally rebellious to the necessary...