Simpson v. Witte Iron Works Co.

155 S.W. 810, 249 Mo. 376, 1913 Mo. LEXIS 79

Opinions

OPINION.

BOND, J.

(after stating the facts as above).—One section of the Factory Act was reviewed and held to be void because its subject-matter was not clearly expressed in the title of the act as prescribed by the Constitution. [Constitution of Missouri, art, 4, sec. 28; Williams v. Railroad, 233 Mo. l. c. 680.] The particular section of the Factory Act then in judgment was the one referring exclusively to the railroad platforms, passageways and other structures on their yards and grounds. It was known as section 20 of the Laws of 1891, p. 162, and is now found in the Revised Statutes of 1909, section 7844.

The body and substance of the original Factory Act, with slight alterations, is contained in the present revision [R. S. 1909, secs. 7827 to 7852 inclusive.] This court in the Williams case, supra, after disposing of the matter then in judgment by deciding that the plaintiff who had grounded her action upon the aforesaid section of the Factory Act, could not recover because “an unconstitutional act is no law at all,” proceeded to make some observations as to the applicability of another section of the Factory Act defining the duties of the Factory Inspector (Laws 1891, p. 161, sec. 16; R. S. 1909, sec. 7842) to the one held in judgment (Laws 1891, p. 162, sec. 20; R. S. 1909, sec. 7844), and intimated that no civil action could be brought for injuries under the section sued upon even if valid, unless a prior notice had been given by the inspector of the unsafe condition of the platforms, passageways and other' structures in and about the railroad yard to the persons in charge of the place. These remarks of the court were abstract from the matter in judgment, for that had been completely disposed of by the previous correct decision annulling the statute upon which plaintiff ’s cause of action'rested. They appertained to a snpposable case and are not authoritative nor binding on us. The point not then before the court has now arisen and demands judgment in the case at bar. It grows out of the existence of the section of the statute making it the duty of the factory inspector or his assistant to ascertain all matters of danger to the “health or safety” of employees and to notify the person in charge of the factory or .place to make necessary “alterations or additions” to obviate the reported dangers. That section concludes, to-wit: “The factory inspector or assistant inspector shall at once notify the person or persons in charge of such establishment or place to make the alterations or additions necessary within thirty days; and if such alterations or additions be not made within thirty days from the date of such notice, or within such time as said alterations could be made with proper diligence, then such failure to make such, alterations shall be deemed a violation of this article.” [R. S. 1909, sec. 7842; Laws 1891, p. 161, sec. 16.] The section on which plaintiff’s suit is founded is, to-wit: “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; if not possible, then notice of its danger shall be conspicuously posted in such establishments.” [R. S. 1909, see. 7828.] To determine the relation of these two provisions, regard must be had to their respective terms and purposes and also to the language, and general intent of the Legislature in the enactment of the entire Factory Act. The particular section in judgment in this case imposes a positive duty on the part of the employer to do two things: (1) To provide safe and secure guards when possible for certain agencies of motion and power '“when so placed as to be dangerous” to employees; (2) If that is not possible, then to post a danger signal as a warning to employees. [Huss v. Bakery Co., 210 Mo. l. c. 51, 52.] If these statutory directions are obeyed, then the employer is not liable for injuries occasioned by such agencies to such employees. If they are not obeyed, then the employer’s disobedience is an act of negligence, and he is responsible for any and all injuries directly caused by such failure, saving the defense of contributory negligence. [Lore v. American Manufacturing Co., 160 Mo. 608; Millsap v. Beggs, 122 Mo. App. l. c. 5 and 6.] The responsibility of the employer arises in such cases not only to the injured employee but to the State, for other sections of the act make his disobedience of any of its provisions (including the one under review) a misdemeanor punishable to the extent provided in such sections. [R. S. 1909, secs. 7846 to 7851 inclusive.] This double liability is imposed by the general tenor of the act and relates to every requirement contained in any provision of any valid section of the Factory Act. [R. S. 1909, secs. 7846 and 7847.]

If the employer is guilty of negligence per se' in violating the statute imposing personal duties on him, as is the law, then his negligence exists prior and independently of the report thereof by the inspector. The report of the inspector, if it should relate to the peculiar duties imposed by the statute under review, would only serve to call to the attention of the employer his own disobedience of the mandate of that section and require him to do the very things previously demanded and which he had neglected to perform, thereby violating a specific duty and committing a misdemeanor under other sections of the statute. [R. S. 1909, secs. 7846 and 7847.] And while it is true that his failure to comply with the requirements of the inspector would be a new and independent violation of the Factory Act, yet this second offense could not in reason relieve him from the consequences of the former. To rule otherwise would exempt the employer from liability, unless his omission to conform to the specific requirements of the section under review — although directly causing injury to one of his employees — is subsequently ascertained and reported to him by the factory inspector. Such a construction cannot be maintained on any logical ground and if adopted would not only emasculate the beneficent purposes of the section under review to afford greater security to the employee, but would leave him in a worse condition than at common law. For under that- rule the employer would be liable to an employee injured by being put to work at a place not reasonably safe, while under the statute requiring specific precautions he would not be liable for omitting these, unless informed of his negligence by a third party. The independence of these two sections is a necessary conclusion from the consideration of their respective language and terms. It is apparent on the face of the section relating to the duties of inspectors (R. S. 1909, sec. 7842), that its object was not to affect the obligation of the employer to comply with any other provisions of the Factory Act, but that it was solely designed to empower the inspector therein named to ascertain whether the “health or safety” of the employees was imperiled, either by the failure of the employer to comply with specific duties imposed on him in other sections of the act, or by any of the other matters referred to in the inspection section. After he has made the investigation prescribed, it is the duty of the factory inspector (in case he finds a condition existing deleterious to the employees) to require the employer to make “alterations and additions” necessary and remedy such condition within thirty days or by “reasonable diligence,” and the failure of the employer to comply with these requirements is a separate and distinct “violation of this article.” The evident purpose of this section was to enlarge the protection of employees afforded by other sections of the Factory Act, by making the continued neglect of his statutory duties by the employer an additional violation of the Factory Act affording in proper cases a basis for civil or criminal liability. It is, therefore, simply supplementary to other sections of the act, including the one on which plaintiff’s suit is based, and is in furtherance of the general purposes and scope of the Factory Act. The only relation of the inspection section to the one under review is to give it greater efficiency by adding to the previous duty of the employer the secondary duty of remedying his neglect under penalty as of a second violation of the statute. We, therefore, hold that the inspection section of the act is merely an additional safeguard provided for the employee, and that it does not either in letter or spirit affect his right to redress for the failure of the employer to provide for other safeguards provided by other sections of the Factory Act. And we further hold, that an injury to an employee caused by failure to guard machinery as prescribed in the section under review in this case is negligence per se and actionable independent of any notice of the factory inspector in the performance of his duties under the section relating thereto.

II. The decisive question in this case is, under what circumstances does the duty of the employer to guard the b.elting, shafting, etc., referred to in the section, supra, arise? Obviously, this must be determined by the language of the section as affected by the scope and object of the entire act, of which it is a subsidiary part. An inspection of the language of the section, supra, shows that the duties 'imposed by it upon employers with reference to the use of certain machinery are predicated upon the following language: “When so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties.” This phrase indicates that the Legislature had the rational motive of warding off the danger likely to occur from the location of certain agencies of power and motion, whose operation is necessary to the business of the employer, by requiring him to guard against the danger arising from their use to employees working about the place where they are situated. The Legislature comprehended that such engines would only be placed in a factory for the purpose for which they are made and designed, and that when so used they would, unless securely guarded, injure any employee who might come into contact with them. The Legislature also knew that the belting, shafting, etc., mentioned in this section have no intrinsic power to injure, such as is had by machinery containing on its outside spikes, saws or other things likely to hurt any one who should fall upon and against them, and thei'efore had no greater potentiality to inflict injury than any other furniture unless they are put to their proper uses as the originators or conduits of motion and power. We think, therefore, that the lawmakers in conditioning the duty to guard upon the phrase above quoted meant thereby that it should attach when the “belting,” etc., should be so placed in a factory that its normal operation would injure any employee who should approach near enough to be caught by its force or subjected to its activity. Such accidents are likely to happen to employees who are engrossed in work near such machines unless they are protected from the workings of the machinery by safe and secure guards. This thought is expressed with clearness, force and completeness by Woodson, J., in the dissenting opinion of Huss v. Bakery Co., 210 Mo. l. c. 67 and 68, to-wit: “The Legislature knew that the human mind and conduct were 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, oblivious to his surroundings, is liable to slip or take a misstep and fall into the revolving machinery, or thoughtlessly thrust his hand or other portion of his body into the gearing or other portion of the machinery; and if not ‘safely and securely guarded’ he would .in consequence thereof receive injuries of a serious character.”

In the case at bar the belting over which plaintiff: stumbled occupied two-thirds of the width of the passageway. It was in a state of absolute inertia and had no greater power to inflict injury on him than would have happened if he had stumbled over or against a guard rail of equal height — eighteen or twenty inches. These facts demonstrate that a railing around it would have been no less injurious to a man walking across it with his head turned in another direction— as the proof shows was the case — than the idle belt.

We do not think that the section under review imposed any duty upon defendant to surround this belt with a railing or other guard under the circumstances attending its presence in the aisle at the time plaintiff was injured, and that no cause of action arose in plaintiff’s favor under the section of the statute, supra, upon which his suit is based.

In view of this conclusion, it is unnecessary for us to pass upon the assignment of error as to the alleged contributory negligence of plaintiff.

III. The only point that need be further noticed in this case is whether or not the correct ad judication in Williams v. Railroad, snpra, that the provision relating to railroad structures was unconstitutional and void, affected the section of the article under review in this case. The rule on that subject is-this: If one section of a statute can subsist in unimpaired vigor and efficiency after the destruction of another, then they are not interdependent but are independent .provisions, and the unconstitutionality of the one does not affect the constitutionality of another. [Cooley, Const. Lim. (7 Ed.), p. 247; State ex rel. v. St. Louis, 241 Mo. l. c. 246; State ex rel. v. Cordon, 236 Mo. l. c. 170.] The very reason which induced the court to hold that the section of the Factory Act referring to platforms and railroad structures was unconstitutional, was that it was distinct and foreign to the other sections of the act and not pointed out in the title. If it was so dissimilar and unrelated to the remaining provisions as to warrant its exclusion on the ground that it referred to matters foreign to the subject of the bill, then its elimination does not affect the completeness or the enforceability of the section upon which plaintiff’s right of action is based. Besides the independence of these two sections is shown by the language of each. We hold the section under which plaintiff’s suit is brought to be constitutional and enforceable in all cases justly falling within its provisions.

Plaintiff in this case has not brought «himself within the scope and purview of that section. His action is solely based on it. Whatever may have been his rights at common law, he is not entitled to’ recover in the present action; and the judgment in this case is reversed.

Graves, Faris and Walker, JJ., concur in this opinion; Lamm, G. J., Woodson and Brown, JJ., dissent in opinion by Lamm, C. J.