The State ex rel. American Packing Co. v. Reynolds

• Decision Date: 30 April 1921
• Citation: The State ex rel. American Packing Co. v. Reynolds, 230 S.W. 642, 287 Mo. 697 (Mo. 1921)
• Parties: THE STATE ex rel. AMERICAN PACKING COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

230 S.W. 642

287 Mo. 697

THE STATE ex rel. AMERICAN PACKING COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

April 30, 1921

Writ quashed.

Anderson Gilbert & Hayden and M. N. Hayden for relator.

(1) The St. Louis Court of Appeals affirmed the judgment of the trial court. Considering the errors assigned by relator in that court, the necessary effect of its decision is that it held the converse of all of the propositions outlined in the six points which follow, while it expressly decided against relator in respect to the first four points. (2) The petition in this case wholly failed to state facts sufficient to constitute a cause of action. The case involves the relationship of master and servant. In order for a recovery to be sustained upon the theory of res ipsa loquitur, it is essential that plaintiff's petition aver the following facts: (1) that the machine in question was under the sole control of relator; (2) that its plan of construction and method of operation, and especially the cause of its sudden starting, were facts peculiarly within the knowledge and control of relator; (3) that plaintiff possessed neither the knowledge, nor the means of knowledge, of the cause of the sudden starting of the machine on the occasion of his injury and (4) that there were no witnesses known to him by whom he could prove the cause of the sudden starting of the machine and no other means of proof of that fact within his knowledge. The petition must aver the foregoing facts or must contain other averments from which these facts may be reasonably inferred. Klebe v. Distilling Co., 207 Mo. 480; Removich v. Const. Co., 264 Mo. 43; Ash v. Printing Co., 199 S.W. 994; Byres v. Inv Co., 219 S.W. 570. (3) If a petition in a case seeking recovery of damages for personal injuries sustained by a servant, wholly fails to state facts sufficient to constitute a cause of action, it is defective upon a general demurrer to the overruling of which exceptions need not be saved, nor is the point waived by the filing of an answer thereafter. The question of the sufficiency of the petition as against a general demurrer may be raised at any time and in the court of appellate jurisdiction for the first time. R. S. 1909, secs. 1800 and 1804; Paddock v. Somes, 102 Mo. 235; Hoffman v. McCracken, 168 Mo. 343; Hudson v. Cahoon, 193 Mo. 557; White v. Railroad, 202 Mo. 561; Hanson v. Neal, 315 Mo. 277; Hubbard v. Slavens, 218 Mo. 621; Diener v. Publishing Co., 230 Mo. 619; Chandler v. Railroad, 251 Mo. 599; Hynds v. Hynds, 253 Mo. 20; Warren v. Lead & Zinc Co., 255 Mo. 145; Carpenter v. St. Joseph, 263 Mo. 711. (4) If the petition in this case wholly fails to state facts sufficient to constitute a cause of action it is permissible and proper to object to the introduction of any testimony, and in this case we submit that relator's objection to the introduction of any testimony, for the reason assigned, should have been sustained. Haseltine v. Smith, 151 Mo. 404; Ice Co. v. Kuhlmann, 238 Mo. 685; Thompson v. Lyons, 220 S.W. 942. (5) If, as the St. Louis Court of Appeals holds, the plaintiff may bring his suit upon the theory res ipsa loquitur and upon the trial, over the objection of the defendant, offer evidence tending to establish the specific cause of the sudden starting of the machine, and may recover under such circumstances, then a plaintiff may bring his suit upon one theory and recover upon another and different theory. That is not the law as declared in numerous cases by this court. Chitty v. Ry. Co., 148 Mo. 64; Real Estate Co. v. Realty Co., 159 Mo. 567; Von Trebra v. Gaslight Co., 209 Mo. 661. (6) The admission over the objection of relator, of testimony tending to prove specific negligence, was reversible error. Gibler v. Ry. Co., 148 Mo.App. 475; McAnany v. Shipley, 189 Mo.App. 396; Roscoe v. Ry. Co., 202 Mo. 576; Price v. Ry. Co., 220 Mo. 345. (7) Instruction No. 1 given by the court to the jury at the instance of the injured plaintiff was erroneous in that it purported to cover the plaintiff's case and to submit his theory of liability, and in doing so submitted the specific negligence which the evidence, admitted over the objection of the defendant, tended to establish. It submitted issues nowhere pleaded nor referred to in the petition, and it was therefore reversible error to give it. Degonia v. Railroad Co., 224 Mo. 564; Scrivener v. Railroad Co., 260 Mo. 421; Young v. Dunlap, 195 Mo.App. 119; McGinnes v. Railroad Co., 195 Mo.App. 390; Gunn v. Ry. Co., 270 Mo. 517; Traw v. Heydt, 216 S.W. 1009; Latham v. Harvey, 218 S.W. 401; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; State ex rel. Long v. Ellison, 272 Mo. 571.

Fred C. Steltemeier, Christian F. Schneider and Charles E. Morrow for respondents.

(1) The petition in this case contains an assignment of general negligence and is not subject to general demurrer. The defendant has not preserved its motion to make the same more definite and certain by bill of exceptions and saved no exceptions to the overruling of it and regardless of all other questions, the petition is good, for a general assignment of negligence is sufficient under the rule in Missouri. Conrad v. De Montcourt, 138 Mo. 311; Frankel v. Hudson, 271 Mo. 504; Gurley v. Railroad, 93 Mo. 445; Mack v. Railroad, 77 Mo. 232; Lemay v. Railroad, 105 Mo. 370; Sullivan v. Railroad, 97 Mo. 113. Following these Missouri decisions, the Courts of Appeal have often so decided. Dieter v. Zbaren, 81 Mo.App. 614; Jacquin v. Railroad, 57 Mo.App. 320; Hill v. Railroad, 49 Mo.App. 520; Wills v. Railroad, 44 Mo.App. 51; Quinley v. Traction Co., 180 Mo.App. 299; Wyler v. Ratican, 150 Mo.App. 478. (2) Under a plea of general negligence the proof of any negligence which causes the injury is permissible and the particular acts relied upon may be shown. Frankel v. Hudson, 271 Mo. 504; Price v. Street Ry. Co., 220 Mo. 435; Dickson v. Railroad, 104 Mo. 491; Fleming v. Railroad, 263 Mo. 188. Following these decisions of this court, the Courts of Appeal have often so held. Wolven v. Traction Co., 143 Mo.App. 645; Lauff v. Carpet Co., 186 Mo.App. 135; Feldewerth v. Railroad, 181 Mo.App. 640; Lafever v. Pryor, 218 S.W. 970; Fisher v. Golladay, 38 Mo.App. 538; James v. Mott, 215 S.W. 913. (3) The doctrine if res ipsa loquitur applies to the facts of this case and for that reason a plea of general negligence is proper. Blanton v. Dold, 109 Mo. 64; Ash v. Printing Co., 199 S.W. 994; Price v. Street Ry. Co., 220 Mo. 435; Myers v. Independence, 189 S.W. 816. (4) By answering, defendant waived its motion to make the petition more definite and certain and waived all objections except that the court has no jurisdiction of the subject-matter of the action and that the petition does not state facts sufficient to constitute a cause of action. R. S. 1909, sec. 1804; Ashton v. Pennfield, 233 Mo. 417; Ware v. Johnson, 55 Mo. 500; Spillane v. Railroad, 111 Mo. 555; Titus v. Development Co., 264 Mo. 240. (5) On certiorari the only questions which may be presented to this court are whether or not the opinion of the Court of Appeals is contrary to the last rulings of this court upon a question of law. State ex rel. Const. Co. v. Reynolds, 214 S.W. 369; State ex rel. Peters v. Reynolds, 214 S.W. 121.

ELDER, J. Woodson, J., absent.

OPINION

In Banc.

Certiorari.

ELDER J.

Certiorari to quash judgment of the St. Louis Court of Appeals.

Relator seeks by writ of certiorari to quash a judgment entered by the St. Louis Court of Appeals affirming a judgment of the Circuit Court of the City of St. Louis, in a case in which one Jacob Heckfuss was respondent, and the American Packing Company (relator herein, was appellant, reported in 224 S.W. 99, for the alleged reason that said Court of Appeals failed to follow the last previous ruling of this court, as required by the Constitution of this state.

The opinion of the Court of Appeals outlines the petition in the case, and the negligence charged therein, as follows:

"The petition alleges that plaintiff was a laborer in the employ of defendant at its plant and factory in the City of St. Louis; that defendant in operating its business at said plant used a machine consisting of a hopper, cylinder, crusher and knives in making sausage and chopping meat; that this machine was operated by power, transmitted to it by belts and pulleys; that he was ordered and directed by defendant to clean said machine or grinder, and at the time said machine was stopped and not in motion. The negligence of defendant is charged in the following language: '. . . The said machine by reason of the negligence of the defendants was suddenly and without warning or notice to the plaintiff started and caused to revolve, and the wheels and cylinder and crusher and knives thereof to revolve and turn, whereby the plaintiff's right hand and thumb and fingers thereof were caught in said machine, . . .'"

The evidentiary facts of the case are thus set out in the opinion:

"Plaintiff was injured while cleaning one of these machines at defendant's establishment. It appears from the testimony that he had worked in a similar plant a number of years under the same foreman and bosses he was working under at the time he was injured. He had gone to work at the plant where he was injured only a few days before the accident took place. The parties for which he had worked before this had taken over the property of the West End Packing and Provision Company, and the new company was known as the American Packing Company. Plaintiff had been working at this machine where he was injured only an hour or two before the accident happened. The machine consists of a funnel-shaped hopper, projecting up through the bottom of which are...