Tindall v. Marshall's U. S. Auto Supply Co.

• Decision Date: 12 December 1941
• Docket Number: 37678,37679
• Citation: 159 S.W.2d 302,348 Mo. 1189
• Parties: Leslie Tindall v. Marshall's U.S. Auto Supply Company, Inc., a Corporation, Appellant. Leslie Tindall, Appellant v. Herbert Calkins and Wallace P. Cowan
• Court: Missouri Supreme Court

159 S.W.2d 302

348 Mo. 1189

Leslie Tindall v. Marshall's U.S. Auto Supply Company, Inc., a Corporation, Appellant. Leslie Tindall, Appellant v. Herbert Calkins and Wallace P. Cowan

Nos. 37678, 37679

Supreme Court of Missouri

December 12, 1941

Rehearing Denied February 26, 1942.

Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Judge.

Reversed as to Marshall Company and affirmed as to Cowan.

Francis O'Sullivan and Charles M. Miller for appellant in Case No. 37678.

(1) The trial court erred in refusing the peremptory instructions B-1 and E, requested by defendant and appellant, the Marshall Company, at the close of all the evidence, to find the issues in favor of the Marshall Company, for the following reasons: (a) Because the petition did not state a case of occupational disease, in that it disclosed plaintiff's alleged injuries were the result of alleged negligence of defendants, nor did the evidence prove an occupational disease. Zole v. Town Mfg. Co., 218 Mich. 564, 275 N.W. 250; Lucier v. Pansy Hosiery Co., 286 Mich. 585, 282 N.W. 254; Seattle Can Co. v. Dept. of Labor, 147 Wash. 303, 265 P. 739; Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 128 A. 635, 44 A. L. R. 363; Gentry v. Swan Chem. Co., 234 Ala. 506, 174 So. 530; Birmingham Elec. Co. v. Meachan, 175 So. 322; American Mut. Liab. Co. v. Aquicola Furnace Co., 183 So. 677; Industrial Comm. of Ohio v. Roth, 98 Ohio St. 34, 120 N.E. 172; Wolf v. Chemical Co., 336 Mo. 746, 81 S.W.2d 323; Downey v. Gas Co., 338 Mo. 803, 92 S.W.2d 580; Ind. Comm. v. Talso, 376 Ohio App. 282, 174 N.E. 622; Dille v. Plainview Coal Co., 217 Iowa 827, 250 N.W. 607; Quality Milk Prod. v. Linde, 159 Okla. 256, 15 P.2d 58; Barron v. Texas Employees Ins. Co., 36 S.W.2d 464. (b) Because the evidence disclosed that plaintiff's alleged injuries were the result of an accident as defined in the Missouri Workmen's Compensation Act (Sec. 3659, R. S. 1939), and under said act, and the court was without jurisdiction, plaintiff and defendant, Marshall Company being under and covered by said act. Downey v. K. C. Gas Co., 338 Mo. 803, 92 S.W.2d 580; Wolf v. Chemical Co., 336 Mo. 746, 81 S.W.2d 323; McNeely v. Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509; Victory Sparkler Co. v. Francks, 147 Md. 368, 128 A. 635, 44 A. L. R. 363; Soukop v. Assur. Co., 341 Mo. 614, 108 S.W.2d 86; Industrial Comm. v. Roth, 98 Ohio St. 34, 120 N.E. 172. (c) Because if plaintiff's alleged injuries were not the result of an accident as defined by Section 3959, Revised Statutes of Missouri, 1939, of the Workmen's Compensation Act, the same was an action in tort at common law, aided by the Missouri statutes relating to safety of employees, if properly pleaded and applicable, and not an occupational disease. Gentry v. Swan Chemical Co., 234 Ala. 506, 174 So. 530; Maryland Cas. Co. v. Marshall's Co., 117 F.2d 905 (a declaratory judgment suit on cause of action at bar).

Homer A. Cope, Cope & Hadsell, James H. Snyder and Walter A. Raymond for respondent.

(1) The trial court committed no error in refusing the demurrers to the evidence requested by the appellant, Marshall Company, as a submissible case was made against it. (a) Occupational disease. Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Secs. 10212, 10223, R. S. 1939; Jones v. Chicago, B. & Q. Ry. Co., 343 Mo. 1104, 125 S.W.2d 5; Hutcherson v. Thompson, 343 Mo. 884, 123 S.W.2d 142; Plank v. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Wolf v. Chemical Co., 336 Mo. 746, 81 S.W.2d 323; Knaup v. Western Coal & Mining Co., 342 Mo. 210, 114 S.W.2d 969; Goaslund v. City of Pocatello, 102 P.2d 650; Evans v. Chevrolet Motor Co., 232 Mo.App. 927, 105 S.W.2d 1081; Reaves v. Kramer, 231 Mo.App. 368, 97 S.W.2d 136; Wolf v. Mallinckrodt Chemical Works, 336 Mo. 746, 81 S.W.2d 323, 329; Whitely v. Eagle-Pitcher Lead Co., 115 S.W.2d 536. (b) Non-applicability of the Missouri Workmen's Compensation Act. State ex rel. Natl. Lead Co. v. Smith, 134 S.W.2d 1061; Sec. 3695(b), R. S. 1939; Knaup v. Western Coal & Min. Co., 342 Mo. 210, 114 S.W.2d 969; Evans v. Chevrolet Motor Co., 232 Mo.App. 927, 105 S.W.2d 1081; Joyce v. Luse-Stevenson Co., 139 S.W.2d 918; Row v. Cape Girardeau Foundry Co., 141 S.W.2d 113; Downey v. Kansas City Gas Co., 338 Mo. 803, 92 S.W.2d 580; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47.

Homer A. Cope, Austin D. Hadsell, James H. Snyder and Walter A. Raymond for appellant in Case No. 37679.

(1) A submissible case was made against the defendant Wallace P. Cowan. Pevesdorf v. Union E. L. & P. Co., 333 Mo. 1155, 64 S.W.2d 939; McCarver v. St. Joseph Lead Co., 216 Mo.App. 686, 268 S.W. 686; Baker v. Atlas Portland Cement Co., 299 S.W. 70; Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865. (2) The court erred in giving defendants' instruction W submitting the issue of plaintiff's contributory negligence when there was no plea of contributory negligence in the answer of any of the defendants. Dodd v. Independence Stove & Furnace Co., 330 Mo. 662, 51 S.W.2d 114; Webster v. International Shoe Co., 18 S.W.2d 131; Vaccaro v. St. Louis, 123 S.W.2d 230; Brewer v. Silverstein, 64 S.W.2d 289; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543; Kleinlein v. Foskin, 321 Mo. 887, 13 S.W.2d 648. (3) The court erred in giving, of its own motion, instruction Z on the forms of verdict advising the jury they might find in favor of the employee and against the master if the case pleaded and submitted was solely a respondeat superior case. Ruehling v. Pickwick-Greyhound Lines, Inc., 337 Mo. 196, 85 S.W.2d 602; Sanguinett v. May Dept. Stores, 228 Mo.App. 1161, 65 S.W.2d 162; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903.

Charles M. Miller for respondent.

(1) Appellant's purported abstract of the record shows he has preserved and filed no bill of exceptions as required by law and we urge there is nothing this court can review, except the record proper. Appellant Tindall cannot use the bill of exceptions of the Marshall Co. Winning v. Brown, 340 Mo. 178, 100 S.W.2d 303; Gann v. Railroad Co., 319 Mo. 214, 6 S.W.2d 39; Secs. 1174, 1183, 1198, inc., R. S. 1939. (2) The giving of instruction W by the trial court was proper and not prejudicial to appellant, Tindall. (3) The giving of instruction Z by the trial court, was proper and not prejudicial. (4) Cowan has a final judgment in his favor and it cannot be made to depend upon the result of the appeal of the Marshall Company.

OPINION

Clark, J.

Plaintiff brought suit in the Circuit Court of Jackson County against his employer, the Marshall Company, its sales manager, Calkins, and its store manager, Cowan, to recover for injuries alleged to have been caused by carbon monoxide poisoning suffered by plaintiff in his employment. At the close of the evidence plaintiff took an involuntary non-suit as to Calkins. The jury returned a verdict in favor of Cowan, and against the Marshall Company for $ 10,000. The Marshall Company appealed and plaintiff appealed from the judgment rendered in favor of Cowan. In this court the two appeals have been separately briefed and given separate numbers, 37678 and 37679, but they are both treated in this opinion.

Plaintiff's petition alleged that he was employed by the Marshall Company in its retail store from some time in July to December 27, 1938, his duties being to install parts and accessories on automobiles; that Cowan was employed by the Marshall Company as its store manager, at all times acting within the scope of his employment, with complete supervision and control over said store and employees, including plaintiff; that plaintiff was required to do his work in the rear room of the store, working from nine to ten hours a day and sometimes on Sunday; that automobiles were constantly being driven in and out of the room where plaintiff worked; that, as a necessary incident to plaintiff's work, motors were caused and permitted to run thereby emitting poisonous gases, vapors and fumes, in harmful quantities and under harmful conditions, so as to poison the air in plaintiff's place of work; that such condition existed during the entire time of plaintiff's employment; that plaintiff inhaled and absorbed such poisonous gases, etc., and as a result thereof "did contract a severe form of occupational disease incident and peculiar to plaintiff's employment;" that plaintiff's injury was caused by defendants' negligence as follows: (a) failure to furnish a safe place to work, in that defendants failed to furnish any reasonably adequate means of ventilation; (b) failure to equip the place of work with blowers and suction fans to carry off the poisonous gases, etc.; (c-d) failure to warn plaintiff; (e) that they assured plaintiff that the gases were harmless; (f) that they ordered plaintiff to close the ventilators and doors and to work with them closed; (g) that they failed to have plaintiff examined by a licensed physician. The petition sets out the injuries which plaintiff claims to have received and prays judgment for $ 25,000.

The Marshall Company first filed a general demurrer which was overruled. Then it filed an answer, containing a general denial, a plea which it designated as assumption of risk, and a further plea that it was at all times operating under the Missouri Workmen's Compensation Act and that, if plaintiff was injured in the manner alleged, the same was governed by that Act and the circuit court was without jurisdiction.

Defendant Cowan filed a general denial.

In our view, the appeal of the Marshall Company will be determined by the answer to one question: do the pleadings and proof bring this case under the provisions of our Workmen's Compensation Act?

The proof shows that the Marshall Company did not...