Williams v. Ransom
| Decision Date | 31 March 1911 |
| Citation | 136 S.W. 349,234 Mo. 55 |
| Parties | WILSON W. A. WILLIAMS, Appellant, v. A. M. RANSOM, F. E. RANSOM and MRS. SARAH RANSOM, Partners Doing Business Under Firm Name of F. E. RANSOM & COMPANY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John G. Park, Judge.
Affirmed.
N. F Heitman for appellant.
(1) Plaintiff's case is bottomed on this statute: "All scaffolds used in or for the erection of any kind of building, shall be well and safely supported, and so secured as to insure the safety of persons working thereon, against the falling thereof." R. S. 1899, secs. 6447 and 6450. (2) Said statute applies to Williams's case because the scaffold that fell and injured him was, at the time, being used in and for the erection of the building. Said section did not apply in the Forbes case, 198 Mo. 193, because the scaffold in that case was not at the time of Forbes's injury being used in and for the erection of the building. Casper v. Lewin, 82 Kas. 604; Vignaux v Company, 193 Mo. 1. (3) At common law the duty of preparing scaffolds could be delegated to servants and their fellow-servants. Said duty could be assumed, or not assumed by the master as he saw fit. If assumed by the master, he was liable. If delegated to a servant or fellow-servants, at common law, the master was not liable. Whalen v. Church, 62 Mo. 326; Steward v. Ferguson, 164 N.Y. 553; Tower v. Reber, 11 Mo.App. 203; Huth v. Doyle, 76 Mo.App. 671; Chambers v. Company, 129 F. 561; Conners v. Company, 29 F. 629; Ackerson v. Denison, 117 Mass. 407; Rabson v. Leighton, 187 Mass. 432; Meyer v. Company, 187 Mass. 586. (4) Under the statute there is a fixed rule by which to determine when the duty may be delegated, and when not. When the statute applies at all, the duty cannot be delegated to a fellow-servant. When it does not apply, the duty may be delegated. The statutory duty applies to a certain class of scaffolds. What is that class? "All scaffolds used in or for the erection of any kind of building." The scaffold in the Forbes case did not come within the statutory class, and hence there was no statutory duty attaching to the scaffold in that case. This distinction is drawn in the Forbes opinion. Vignaux v. Company, 193 Mo. 1; Casper v. Lewin, 82 Kas. 604. (5) The fellow-servant doctrine is a branch of the assumption-of-risk doctrine. When the assumption-of-risk doctrine falls, the branch falls also. The two doctrines are inseparable, because fellow-service is founded on assumption of risk. Whalan v. Church, 62 Mo. 326; Adams v. Company, 95 Mo.App. 111; Bluedorn v. Company, 108 Mo. 447. (6) Since the statute applies, neither assumption of risk nor fellow-service were defenses. Only contributory negligence was a defense. To violate the statute is unlawful -- is a misdemeanor. For plaintiff himself to violate the statute would defeat him. It would be unlawful for plaintiff to assume the risks arising from Hodge's or McLaughlin's misdemeanors in violating the statute. Stafford v. Adams, 113 Mo.App. 717; R. S. 1899, secs. 6447, and 6450; McGinnis v. Printing Co., 122 Mo.App. 227; Bluedorn v. Railroad, 108 Mo. 447; Blair v. Heibel, 103 Mo.App. 621; Stafford v. Adams, 113 Mo.App. 717; Groves v. Wimborne, 2 Q. B. (1898) 402; Stewart v. Ferguson, 164 N.Y. 553; Lore v. Company, 160 Mo. 608; Henderson v. Kansas City, 177 Mo. 493; Sachowitz v. Company, 78 Mo.App. 144; Curtise v. McNair, 173 Mo. 270; Wendler v. Company, 165 Mo. 536; Marino v. Lehmairer, 173 N.Y. 530; Harvey v. McConchi, 77 A.D. 361; Sluder v. Railroad, 189 Mo. 107. (7) In instruction 1 for the plaintiff the court uses the statutory phrase, "so secured as to insure the safety of persons working thereon," and yet the court gave instruction 11 for defendants, in which the court says: "The defendant did not insure the safety of the plaintiff." In the one instruction the court adopts the theory of insurance established by the statute; in the other, the court denies that theory. Here was a direct conflict, which confused and misled the jury. Instruction 11 was error. It was prejudicial. R. S. 1899, sec. 6447 and 6450; Bluedorn v. Railroad, 108 Mo. 447. (8) The refusal to give plaintiff's instruction 4 was prejudicial error. Smith v. Fordyce, 190 Mo. 25. Instruction 4 is based on Tabler v. Railroad, 93 Mo. 79. The substitution of the ladder for the half trestle by order of the foreman was a violation of said Secs. 6447 and 6450 and is like the substitution of the rope for the chain, by order of the foreman, in the Tabler case. The allegations of negligence in the first count of the petition were broad enough to admit the theory embodied in instruction 4. In fact, the bulk of plaintiff's evidence related to the theory of that instruction, and yet the court refused plaintiff the benefit of said theory. This was error. Wendler v. Company, 165 Mo. 536; Bluedorn v. Company, 108 Mo. 447; Akerson v. Denison, 117 Mass. 407; Harper v. Railroad, 47 Mo. 567; Rabson v. Leighton, 187 Mass. 432. Huth v. Doyle, 76 Mo.App. 671, decides that a servant to whom is delegated the duty of repairing a ladder used by another servant in his work, thereby becomes vice-principal. Hodge prepared this ladder without braces under the direct order and design of the foreman. Consider that plaintiff was always driving the nails with the maul, while Hodge and the laborer were preparing the ladder scaffolds; that all this was done under the superintendence and direction of the foreman; that plaintiff never himself assisted to put up a ladder; that in the nature of things he would be driving the nails in the east header while the ladder scaffolds were being put up; and that the foreman knew all this. Consider Conners v. Company, 29 F. 629, and it becomes clear that the court erred in giving instructions 12 and 8, which supposed that plaintiff himself aided in putting up the ladder which fell. There was no evidence to support this hypothesis. (9) This statute, Sec. 6447, is remedial and ought to be liberally construed in favor of the servant. The guiding rule is: "Look at the old law, the mischief, and the remedy, and let the construction be such as to promote the remedy, and suppress the mischief." The mischief was the deplorable loss of life and limb from the falling of scaffolds. The Legislature recognized that the act of constructing and maintaining scaffolds for use in the erection of buildings, was an act which, from its very nature, was likely to cause injury, unless a high degree of care was exercised. Scaffolds can be put up so as not to fall. They must be so put up, intended the Legislature. A scaffold is plainly an appliance, when used in or for the erection of a building. The duty of supplying appliances is on the master, not on the servant. The Legislature used the phrase: "So secure as to insure the safety of persons working thereon, against the falling thereof." This language means what is says, and it plainly says that the master must insure the servant against the falling. Not against everything, but against the falling. This was a reasonable exercise of legislative authority. The word "insure" must be given its plain, ordinary meaning. State v. Standard Oil Co., 194 Mo. 148, and 218 Mo. 1; Casper v. Lewin, 82 Kas. 604; Henry v. Evans, 97 Mo. 47; Henderson v. City, 177 Mo. 493. (10) Hodge testified that he made the ladder without braces in accord with the direct order and design of the foreman. In doing so Hodge was a vice-principal. Kennedy v. Company, 215 Mo. 688; Huth v. Doyle, 76 Mo.App. 671. Hence it was error to instruct that it was plaintiff's duty to brace the ladder, as was done by instructions 6, 9, 10, 16, and 17. This was error, even at common law, under Huth v. Doyle. Much more was it error under the statute. The plaintiff whose duty it was to finish nailing the nails on next to the wall header would be engaged in that, and would not know the dangerous manner in which the ladder was put up by other people, to-wit, Hodge and the laborer to whom this duty was committed, and they were viceprincipals under the statute (Secs. 6447 and 6450). Conners v. Company, 29 F. 629; Stafford v. Adams, 113 Mo.App. 717.
Pierre R. Porter for respondents.
(1) The demurrer to the evidence should have been sustained. (a) The evidence at the trial was undisputed that the defendants provided suitable materials for the scaffolding and entrusted the duty of erecting it to the plaintiff and his fellow-servants as a part of the work which they were engaged to perform. (b) Under such a state of facts, defendants, at common law, could set up the defense of negligence of a fellow-servant. Herbert v. Wiggins Ferry Co., 107 Mo.App. 299; Steffenson v. Roehr Co., 136 Mo.App 225. (c) And the statute does not deprive defendants of this defense. Forbes v. Dunnavent, 198 Mo. 193. (d) The New York statute has been similarly construed. Hutton v. Holdrook Co., 139 F. 734; Rotondo v. Smyth, 92 N. Y. (App. Div) 153. And also the Massachusetts statute. Ashley v. Hart, 147 Mass. 573. (e) A statute in derogation of the common law must be strictly construed. Jackson v. Railroad, 87 Mo. 422; Hutton v. Holdrook, 139 F. 734. (b) The statute does not abolish the defense of assumption of risk. Cordage Co. v. Miller, 126 F. 509. (g) It was plaintiff's duty to assist in the erection of these ladder-scaffolds, and he had frequently done so at other times. (2) There was no error in the instructions. The court committed no error in giving or refusing instructions. Even if it did, since the demurrer to the evidence should have been sustained, all assignments of error predicated upon instructions given or refused must be considered immaterial. Forbes case, supra. (a) Instruction 1, given for plaintiff, and 11, given for defendants, are not in conflict. The...
To continue reading
Request your trial