The State ex rel. Frank Adam Electric Company v. Allen

• Decision Date: 22 May 1923
• Citation: 251 S.W. 917,299 Mo. 25
• Parties: THE STATE ex rel. FRANK ADAM ELECTRIC COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

251 S.W. 917

299 Mo. 25

THE STATE ex rel. FRANK ADAM ELECTRIC COMPANY v. WILLIAM H. ALLEN et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

May 22, 1923

Writ quashed.

Jones Hocker, Sullivan & Angert for relator.

(1) The rule of ejusdem generis has been uniformly applied by the Supreme Court in the construction of statutes, and the general words in Sec. 6786, R. S. 1919, should not be construed as extending the language to include "mercantile" establishments. State v. Richard Wade, 267 Mo. 257; Regan v. Ensley, 283 Mo 307; State ex rel. v. Wurdeman, 227 S.W. 67; City of St. Louis v. Laughlin, 49 Mo. 559; State v Dinnisse, 109 Mo. 438; State v. Grisham, 90 Mo 165. (2) That a statute is a remedial one is no reason for not applying the rule of ejusdem generis. The Supreme Court has applied the rule to the Homestead Statute, a statute held to be a highly remedial one. Regan v. Ensley, 283 Mo. 297. (3) The only condition under which a departure from the rule is justified is a case in which the particular words exhaust the class or genus to which they belong. The statute in question does not present such a case, for the particular words do not exhaust the genus. State ex rel. v. Wurdeman, 227 S.W. 67. (4) The court should not read into the statute words which have been omitted by the Legislature. Dworkin v. Ins. Co., 226 S.W. 851. (5) In the judicial construction of a statute, the construction placed upon it by the general understanding of the public is entitled to persuasive force. Timmonds v. Kennish, 244 Mo. 318; Fears v. Riley, 148 Mo. 49; Barber Asphalt Paving Co. v. Meservey, 103 Mo.App. 186; Verdin v. St. Louis, 131 Mo. 125.

Conrad Paeben for respondents; James T. Roberts of counsel.

(1) The several courts of appeals have as much right to construe the statutes as has the Supreme Court, and if such construction is demanded in the course of decisions in cases coming properly within their jurisdiction, their construction is as final in such cases as is the construction of statutes by the Supreme Court. Sublette v. Railroad, 198 Mo. 192; McManus v. Burrows, 217 S.W. 514. (2) What is commonly called the Guarding Statute or Factory Act (Sec. 6786, R. S. 1919), being highly remedial and an enlargement of the rights formerly given under the common law, must be liberally construed so as to effectuate the true intent and meaning thereof. Sec. 7048, R. S. 1919; Austin v. Bluff City Shoe Co., 176 Mo.App. 565; Cole v. North American Lead Co., 240 Mo. 247. (3) The doctrine of ejusdem generis is a rule of construction only, and should never be invoked to defeat the manifest purpose of the statute, but should be applied as an aid in ascertaining the legislative intent and does not control where it clearly appears from the statute, as a whole, that any such limitation was intended. 36 Cyc. 1120; Henderson v. Wabash, 81 Mo. 605; Lexington v. Bank, 130 Mo.App. 687; Bank v. Ripley, 161 Mo. 126. (4) Where the particular words exhaust the class or genus, there is nothing ejusdem generis left, and in such cases the courts must give the words a meaning outside of the class indicated by the particular words or we must say that they are meaningless, thereby sacrificing the general words to preserve the particular words. Bank v. Ripley, 161 Mo. 126; 39 Cyc. 1222. (5) The subject-matter of the statute and the purpose the Legislature had in mind is the guarding of machinery. The act described the machinery to be guarded and the words here under consideration, "In all manufacturing, mechanical and other establishments" are used incidentally in connection with the main purpose in view. Tatum v. Laundry Co., 208 S.W. 143. (6) "Mechanical" is a term of very broad meaning and is defined as "pertaining to mechanics or machinery," and a mechanic is one engaged in operating machines or machinery. The term "mechanical establishment" is broad enough to cover any place or plant where machinery is set up and used. Tatum v. Laundry Co., 208 S.W. 142. (7) A power-driven saw, not in a building, temporarily placed and used for cutting lumber for a viaduct, comes within the meaning of the word "establishment." Henderson v. Heman Const. Co., 199 S.W. 1045.

SMALL, C. Woodson, C. J., and Walker, J., concur; Ragland and White, JJ., concur in result; James T. Blair, David E. Blair and Graves, JJ., dissent.

OPINION

In Banc

Certiorari.

SMALL C. --

We heretofore issued our writ of certiorari to the honorable judges of the St. Louis Court of Appeals in the case of Meta Stoll v. Frank Adam Electric Company, a cause duly pending in and decided by that court, to which it was appealed by the plaintiff, who was non-suited below. The suit was brought in the Circuit Court of the City of St. Louis upon the charge and evidence tending to prove that the defendant Electric Company, which conducted a store on Pine Street in said city for the sale of electric washing machines and other electrical apparatus, failed to guard the dangerous machinery in such washing machines, whereby plaintiff was injured.

The Court of Appeals in its opinion reversed the judgment of the lower court, and at the instance of defendant we issued our writ of certiorari to review the action of the Court of Appeals. The opinion of said court, omitting the caption, is as follows:

"This is an action to recover for personal injuries alleged to have been sustained by plaintiff while working as a clerk or demonstrator in defendant's place of business, by having her hand caught between the rubber rollers of an electrically operated 'wringer' attached to a washing machine.

"The court gave a peremptory instruction for defendant at the close of plaintiff's case, and plaintiff took an involuntary nonsuit with leave to move to set the same aside. Upon the overruling of said motion plaintiff perfected her appeal to this court.

"The accident occurred on the 12th of December, 1918, and this action is based upon Section 7828, Revised Statutes 1909, now Section 6786, Revised Statutes 1919.

"The defendant conducted a store on Pine Street, in the city of St. Louis. In this store were the usual fixtures to be found in one of this kind. Arranged on the floor were rows of electric stoves and electric washing machines. These machines were so arranged as to create a narrow aisle wide enough for a person to walk through. Plaintiff was employed as a saleswoman, and worked for defendant in this store, which was designated as an electric shop. It was plaintiff's duty to sell anything in the store that customers wanted. She had worked for defendant about three months prior to the accident. When a customer would come in it was plaintiff's duty to demonstrate these washing machines with their various attachments. The machine which caused plaintiff's injury is known as a Thor washing machine. There is a button attached to the machine which turns on the electric power. This power is conveyed to the machine by means of an electric cord which is plugged in at a socket located near the desk. There is a lever which is used to start and stop the rollers of the wringer attached to the machine. She plugged in the socket located on the floor, and as she arose some one was trying to pass her in the narrow aisle as she stood close to this washing machine. The rollers which caught her hand were not guarded. In answer to the question as to how it happened, she stated: 'As I got up to a standing position some one was going past me, and turning my body I was standing at this machine, this Thor machine, and my hand was drawn in between the rollers of this machine, which were running, just to take my hand through.'

"It appears that she did not start the machine after plugging in the cord, but it had been left apparently in a position to start as soon as the cord was attached. The rollers in this wringer were located at a height slightly above the waist-line of plaintiff. The machines were not manufactured in this establishment, but were merely sold there as a retail store. The evidence also discloses that it was possible to guard the rollers of this machine, and that similar machines were guarded in laundries.

"Aside from the doctor who testified as to plaintiff's injuries only three witnesses testified in this case.

"I. The facts are plain and undisputed. The questions of law presented by this appeal are: whether or not defendant was engaged in such business as comes within the provisions of the section of our statute above referred to; and, whether or not plaintiff was guilty of contributory negligence as a matter of law.

"II. The statute upon which this action is based, as it existed at the time of the accident, reads as follows:

"'The belting, shafting, machines, machinery, gearing and drums in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible,' etc.

"This statute has been construed by our appellate courts a number of times, although the exact questions presented here have not been heretofore directly passed upon by any of the courts of this State, so far as we have been able to ascertain.

"Our Supreme Court, in Cole v. North American Lead Co., 240 Mo 397, 144 S.W. 855, stated that this section of our statute was 'one of the wisest and most humane statutes to be found upon our statute books, and should be given a broad and liberal interpretation, because it is remedial and highly salutary. . . . The Legislature knew that the human mind and conduct was such that a servant when in the performance of his duties to his master, surrounded by dangerous machinery, in motion, with his mind concentrated upon his work,...