Sterling v. Parker-Washington Co.

170 S.W. 1156, 185 Mo. App. 192, 1914 Mo. App. LEXIS 703

• Court: Missouri Court of Appeals
• Decided: November 3, 1914
• Status: Published

Opinions

ALLEN, J.

This is an action instituted by one James Sterling to recover damages for injuries sustained by him while in the employ of the defendant corporation as its servant.

On December 16, 1911, at tbe December term of tbe circuit court of tbe city of St. Louis, a verdict was rendered in favor of plaintiff for $7054 and judgment entered thereupon. Within due time the defendant filed its motion for a new trial, which motion was continued and remained undisposed of until the April term, 1912, of said circuit court! In the meantime, to-wit, during the month of March, 1912 (the exact date not appearing) plaintiff died. On May 9, 1912, at the said April term, the court sustained the motion for a new trial, but on the same day set aside and vacated such order. Thereafter, on May 20, 1912, at the same April term, a stipulation in writing, duly entered into by counsel of record for plaintiff and defendant, was filed in the cause, suggesting the death of plaintiff, James Sterling, and consenting to the revival of the cause in the name of May Sterling, theretofore duly appointed administratrix of plaintiff’s estate. The pertinent provisions of this stipulation are as follows:

“It is further agreed that said administratrix may be substituted as a party plaintiff in the above entitled cause, and that said cause shall at once be revived in the name of said administratrix - as plaintiff. The defendant, however, reserves the right to make the same objections to the revivor of this cause that it could have made if said revivor had been made pursuant to statute, instead of by stipulation.”

Upon the filing of such stipulation an order was duly entered by the court reviving the cause in accordance' therewith. Thereafter, on August 7, 1912, at the .June term, 1912, of said court, defendant’s motion for a new trial was overruled, and thereafter the defendant duly perfected its appeal to this court.

At the time of plaintiff’s injury he was in the employ of the defendant at Muskogee, Oklahoma. On March 22, 1909, in the course of his duties as defendant’s servant, he was engaged in removing a certain “bushing” from a valve, working with a hammer and chisel. As the result of a blow struck upon the head of the chisel, pieces broke off from the sharpened or cutting end thereof, one of which, it is said, flew into plaintiff’s eye causing injuries resulting in the total loss of the sight thereof.

The negligence alleged in the petition is that defendant negligently furnished plaintiff for his work a certain steel chisel which was not reasonably safe for use for said purpose, in that it “had been negligently tempered by defendant’s agent and foreman having charge of keeping its tools in repair and furnishing’ them to its employees in such a manner that it was brittle, which made said chisel reasonably unsafe for the purposes for which it was intended to be used, because of danger of pieces of said chisel breaking off when it was struck by the hammer, as it was necessary that it should be struck when used for said pur: pose.”

The answer is a general denial, coupled with a plea of assumption of risk.

The evidence discloses that plaintiff had been in the employ of the defendant for some time prior to going to Muskogee, Oklahoma. Plaintiff’s testimony is to .the effect that he went to the last-mentioned place in January, 1909, expecting to be made foreman over defendant’s plant located there, but that upon his arrival one Oolglazier, defendant’s superintendent, changed the plan and made one Winlan (or. Wennland) foreman, and directed plaintiff to work under Winlan and to do whatever the latter told him tó do; that a part of Winlan’s duties was to temper the. chisels and other. such tools used in prosecuting defendant’s business at this place; and that on the ■day prior to that upon which plaintiff was injured, Winlan told plaintiff that he would be away on the following day, and furnished plaintiff with certain chisels which plaintiff says he had previously seen Winlan sharpening and tempering; that plaintiff took one of these chisels on the following morning in order to remove the hushing in question, and that by the first blow struck this chisel with a hammer, which plaintiff describes as being a light blow, the cutting end of the chisel was shivered, pieces flying therefrom, one of which entered plaintiff’s eye.

On behalf of plaintiff there was testimony corroborating his own to the effect that he was not foreman of the plant at Muskogee, but that Winlan was, and that it was the latter’s duty to temper tools of the character here in question; and expert testimony going to show that the chisel, which was in evidence before the jury, was too highly tempered and consequently brittle and fragile. There was also'evidence tending to show that the improper tempering of the chisel came about by reason of the use of common soft coal supplied by defendant and tised in the tempering-process, and expert testimony to the effect ' that blacksmith coal, or charcoal, should have been used therefor; that when, common soft coal is used to furnish the heat fof such purpose the tool which is being tempered becomes covered with a coating, so that when it is placed in water and drawn therefrom, in the tempering process, the colors cannot be distinguished so as to enable one to tell when it is being-properly tempered; and also that the sulphur in such coal has a tendency to “bite” the steel of which the tool is composed “in such a manner that it crystallizes or draws the carbon away from the steel.”

On behalf of defendant there was testimony, contradicting that of plaintiff, tending to show that plaintiff, and not Winlan, was foreman of defendant’s plant at Muskogee, Oklahoma, in which he was injured, and that it was plaintiff’s duty to temper and sharpen the tools with which he performed his work.

The foregoing- is, in substance, the case made. Any further details of the evidence, necessary to be touched upon, will he referred to in the course of the opinion.

I. The first point made by learned counsel for the appellant is that there was no proper revivor in the name of plaintiff’s administratrix. It is pointed out that under section 5438', Revised Statutes 1909, only actions “other than those resulting in death” are revivable. It is said that it must affirmatively appear that the action was one for injuries which did not result in -plaintiff’s death, and that an amended petition should have been filed embodying such an allegation, and such showing made.

’ As to this appellant relies upon Schowen v. Railway, 164 Mo. App. 41, 148 S. W. 135. But the last-mentioned case does not deal with a situation such as is here presented; for there, while the case was pending and prior to á.verdict and judgment, it was revived in the name of the administrator, who filed an amended petition repeating the allegations of the original petition respecting the. cause of action, alleging the death, the ' appointment of the administrator and his .substitution as plaintiff, but containing no averment that the death did not result from the injury caused by the .negligence pleaded; while in the instant case the death of plaintiff occurred after the verdict had been had and judgment entered thereupon, and the cause of action merged in such judgment.

In this immediate connection (and whereby we may also dispose of certain other questions raised in the premises), we may say that appellant contends that the judgment, though written in the record on the day upon which the verdict was rendered, viz., December 16, 1911, is not to be deemed entered until the motion for new trial was overruled, to-wit, August 7, 1912, three terms of court later." While it is true that a judgment .does not become final so long as a motion for a new trial is pending and undisposed of, and the time for taking an appeal or suing out a writ of error is to be reckoned from the overruling of such motion (see Walter v. Scofield, 167 Mo. 537, 67 S. W. 276), it cannot be doubted, we think, that when, as here, a judgment is at once entered upon a verdict, there is a judgment in the case, and the cause of action is then merged in that judgment. The judgment, however, remains under the control of the court, during the term at which it was so rendered, even though no motion for a new trial be filed, subject to being vacated or set aside; and a motion for new trial will carry it over from term to term until the court acts upon the motion. That the law recognizes the existence of the judgment from the date of its original entry appears from the fact that it constitutes from the day of such entry an inchoate lien upon the defendant’s property — subject of course to be defeated by the setting aside of .the judgment — becoming a consummate lien in the event' the motion for a new trial is thereafter overruled, and such lien then relating back to the date of the original entry of the judgment. [See Walter v. Scofield, supra, l. c. 548; State v. Taylor, 183 Mo. App. 441, 166 S. W. 1071; Millar v. Transit Co., 216 Mo. 99, 115 S. W. 521.]

But we think that the question', raised pertaining to the revival is not here a live one, but is foreclosed by the stipulation entered into by the parties through their counsel. That stipulation provides that the cause may be revived in the name of the administratrix — the defendant however reserving the right to make the same objections thereto that it could have made if done “pursuant to statute.” No objection whatsoever was made to reviving the cause at the time, but on the contrary it was done by consent, pursuant to this stipulation; though the defendant attempted to reserve the right of objection above mentioned. Appellant’s position is that this stipulation did not relieve plaintiff of the duty of making an affirmative showing that the injury was one not resulting in death. But we think that this is not tenable. Taking the language of the stipulation in its broadest significance, as we think we should do where objection is raised for the first time on appeal, it may. be regarded as meaning that if every step be taken which the law requires to be taken in order to revive the cause "pursuant to statute,’! the defendant nevertheless attempts to reserve the right to object thereto. And though it is difficult to see what right of objection could be reserved under such circumstances, the stipulation should, we think, be so construed. In reliance upon this stipulation plaintiff omitted to take the statutory steps to revive the action; and it may be assumed that in the absence of such stipulation all of the requisite steps would have been taken, "pursuant to statute,” whatever they may be.

II. It is also urged that the power of the court below to enter judgment on the verdict in the name of the original plaintiff expired at the next (April, 1912) term of the court after the rendition of the verdict, under the provisions of section 1922,. Revised Statutes 1909 (see secs. 1922-23). This section reads: "After a verdict shall be rendered in any action, and after an answer of confession in any suit brought, if either party die before judgment be actually entered thereon, the court may, within one term after such verdict or answer, enter final judgment in the name of the original parties.” But this statute has no application here. It has reference tó a situation where a verdict has- been rendered upon which no judgment has been entered in the trial court. Here a judgment was immediately entered upon the verdict. The point has been expressly ruled in Millar v. Transit Co., supra, l. c. 103.

III. It is also urged that inasmuch as the plaintiff died in March, 1912, the court had no power on May 9, 1912, to vacate the order which it had previously made on the same day sustaining defendant’s motion for a new trial, the cause not then having’ been revived. But if the court had no power to take any steps whatsoever during the period mentioned, as appears to be contended, then it had no power to make the order sustaining the'motion for a new trial which it immediately proceeded to set aside. Either it had no power to make any .order affecting the motion for a new trial, and hence none was in law made, or if it had the power to sustain the motion for a new trial then it had the power also to set aside such order on the same day. There can therefore be no merit in this contention.

IY. Another question should be disposed of before coming to the merits of the case proper. It is contended that, inasmuch as the cause of action arose in Oklahoma, it is to be governed by the laws applicable to that jurisdiction, though no suggestion appears to have been made as to this below. But it is clear that under' the circumstances our courts will follow their own precedents in applying the principles of the'common law relative to the reciprocal rights and duties of the parties arising out of the relation of master and servant. Nothing was shown whatsoever below as to the laws existing in the State of Oklahoma at the time in question. No statute of that State or decision of "its courts was pleaded or put in evidence. If there was any statutory law in force in ■Oklahoma at the time, touching the matter in hand, we could not take judicial notice of it. And if one, for his rig’ht of recovery or defense, relies upon the law of a sister State as declared by the adjudicated precedents of the courts thereof, the decisions thus relied upon are required, under our rule of practice, to be •both pleaded and proved. [See Ginnochio v. Railroad, 155 Mo. App. 163, 134 S. W. 129; Kavanaugh v. Royal League, 158 Mo. App. 234, 138 S. W. 359; Morton v. Royal League, 100 Mo. App. 76, 73 S. W. 259.] There is here no question touching the right to apply the statute law of the forum, as in Davis v. McColl, 179 Mo. App. 198, 166 S. W. 1113, referred to by appellant; and much of what is there said is without application in the instant case. Other phases of the question need not be discussed.

V. It is insisted that the court erred in overruling appellant’s demurrer to the evidence. As to this it may be said that plaintiff’s evidence undoubtedly tends to support the general allegation of the petition, to the effect that defendant negligently furnished him a chisel which was not reasonably safe for use. But it was, of course, necessary for plaintiff to establish, prima facie, the more specific allegations of his petition that the chisel had been negligently tempered by defendant’s foreman in such a manner that it was brittle, whereby it was rendered not reasonably safe for the purposes for which it was intended to be used.

It was appellant’s contention throughout the trial of the case that Winlan was not defendant’s foreman at all, but that plaintiff was the foreman, and charged with the duty of tempering and sharpening such tools. As to this there was a sharp issue of fact below, which was resolved by the jury, whose verdict is now conclusive thereupon.

The contention is here made, however, that the evidence shows that Winlan had left defendant’s employment the day before the injury, and that if plaintiff was not foreman there was at the particular time no foreman over him. Plaintiff’s testimony is to the effect that Winlan laid out these chisels for plaintiff’s use on Sunday, the day before that upon which plaintiff was injured, telling plaintiff that he would be away on the following day and directing plaintiff what to do in his absence. If in point of fact Winlan did not return, but severed his connection with the company, as is claimed, plaintiff’s testimony indicates clearly that he knew nothing of this at the time, but that he was following Winlan’s directions on the next day as he had been instructed to do by defendant’s superintendent.

The further contention is that the evidence entirely failed to show that Winlan tempered the particular ■ chisel which broke. It is unnecessary to rehearse in detail the testimony respecting this matter. Plaintiff’s- evidence is to the effect' that it was Winlan’s duty to sharpen such tools, and that he saw Winlan previously sharpening a “bunch” of chisels which Winlan placed upon a work bench on the Sunday above mentioned, telling plaintiff that they were for his use and that on the following day plaintiff took from this lot of chisels the one which broke. Upon the whole the testimony was such as to justify a finding by the jury that this particular chisel was in fact tempered by Winlan and given to plaintiff for his use.

It is said that plaintiff was perfectly aware of and assumed the risk of any such injury. But, under the case made by plaintiff, there is no room for defendant to escape liability upon the ground of assumption of risk, for, while plaintiff assumed the ordinary risks incident to the employment, after the master had performed its duty, he did not assume any risk arising from the negligence of the master, under the well established rule of decision in this State. [See Crader v. Railroad, 181 Mo. App. 526, 164 S. W. 678, and authorities cited.]

And plaintiff’s evidence tends to show that he was so far inexperienced in such matters that he was unable to tell that the chisel was improperly tempered by looking at it, or without making such tests as would not be required or expected of a servant under such circumstances, and that he was wholly unaware that danger lurked therein.

Beyond doubt plaintiff’s evidence tends to establish the negligence charged, however much countervailing testimony there may be on defendant’s part; and hence the demurrer was properly overruled. [See authorities cited in Crader v. Railroad, supra.]

VI. The first instruction for plaintiff is bitterly complained of in several particulars, and hence we set it. out in full, as follows:

“If the "jury find from the evidence in this case-that on the 22nd day of March, 1909, the defendant was doing certain construction work in Muskogee, Oklahoma, and that at said time and place the plaintiff was in the employ of defendant, but was not defendant’s foreman, and was not entrusted by defendant with the duty of tempering or sharpening tools;

“And if the jury further find from the evidence that on said day in the course of the discharge of his duties as the servant of defendant it became necessary for plaintiff to remove a certain bushing from a valve, and that, in order to properly do said work, it was necessary for him to use a hammer and chisel;

“And if the jury further find from the evidence that when plaintiff attempted to use said chisel, as he was holding the same in his left hand with the sharp end of the chisel on said bushing, he struck the same with the hammer which he held in one hand, said chisel broke and that a piece of said chisel was thereby caused to fly into plaintiff’s right eye and to injure the same so as to destroy the sight of said eye;

“And if the jury further find from the evidence that said chisel had been tempered by one Wennland, and that said Wennland at the time he tempered said chisel was a foreman employed by defendant and was entrusted by the defendant with the duty of tempering and sharpening such tools as were furnished by defendant for plaintiff’s use in discharging his duty as defendant’s servant, and that, in tempering said chisel said Wennland used what is known as common coal instead of using blacksmith’s coal in making the fire in which to heat said chisel while tempering said chisel;

“And if the jury further find from the evidence that the use of blacksmith’s coal was necessary for said purpose, in order to properly temper said chisel, so as to make it reasonably safe and suitable for the purpose for which it was intended, and that the use of common coal, instead of blacksmith’s coal, for said purpose, caused said chisel to be brittle so that it would be likely to break off when it was struck with a hammer when being used in the ordinary manner;

“And if the jury further find from the evidence that said chisel at the time it was furnished by defendant to plaintiff, for his use (if you find from the evidence that it was so furnished by defendant) was, by reason of common coal instead of blacksmith’s coal having been used in tempering said chisel, not reasonably safe for the use for which it was intended and to which plaintiff was applying it;

“And if you further find from the evidence that the defendant knew, or by the exercise' of ordinary care would have known of the said condition of said chisel before furnishing it to plaintiff, and that defendant was guilty of negligence in using common coal instead of blacksmith’s coal in the tempering of said chisel, and that defendant was guilty of negligence in furnishing said chisel, so tempered, to plaintiff for said work;

“And if the jury further find from the evidence that as a direct result of the negligence of defendant, as aforesaid (if you find it was so negligent) said chisel was caused to break and injure the plaintiff;

“And if the jury further find from the evidence that at the time of and prior to his injury plaintiff was exercising ordinary care for his .own safety, then the plaintiff is entitled to recover.”

This -instruction is assailed upon the ground that it raises a new issue not made by the pleadings, and is broader than the petition, in authorizing a recovery upon the theory that the use of common soft coal in the tempering process was negligence. The petition contains a general charge of negligence in furnishing plaintiff with a chisel not reasonably safe, followed by a more specific charge that the chisel was negligently tempered by defendant’s foreman in such manner that it was brittle, which made it “unreasonably unsafe” for the purposes for which it was intended. The last-mentioned allegation, though more specific than that which preceded it, nevertheless merely charges a negligent tempering of the tool by the foreman, whereby it was rendered brittle and unsafe. The evidence respecting the use of common coal instead of blacksmith’s coal tended to sustain the latter assignment of negligence, for it tended to show in what particular the foreman was negligent in tempering the tool, and was the only evidence of any particular act of negligence on the part of the foreman in such tempering process.

And we think that it was not necessary for plaintiff to specifically allege that common coal was negligently used, in order to permit the introduction of this evidence and justify the court in instructing along this line. Under our Code “only substantive facts necessary to constitute a cause of action or defense” need or should be pleaded (Sec. 1813, Rev. Stat. 1909); and a party is not required to state evidence in his pleading (Sec. 1918, Rev. Stat. 1909). The evidence relating to the use of common coal appears to have first come into the ease, at the trial, through a letter written to plaintiff by Winlañ long after plaintiff’s injury, which was referred to by plaintiff in the course of his cross-examination and which, upon being’ produced at defendant’s request, was read in evidence by defendant’s counsel. Later other evidence was introduced by both parties touching this matter. And with this evidence in the case, we think that the court was warranted in instructing the jury as to this particular act of the foreman in connection with the tempering process. In this respect the instruction appears not broader, but narrower, than the petition, in that it confines plaintiff’s right of recovery to one act alone on the part of the foreman, in proof of his alleged negligent tempering of the tool.

It is contended, in effect, that the instruction authorizes a recovery as for negligence on the part of the defendant in furnishing improper coal at its plant for smithing purposes, and in this way changes the issues made by the pleadings, which related only to the foreman’s negligence. But an examination of the instruction will reveal that it do^s not authorize a verdict for the furnishing of common coal by defendant to its foreman, but for the use of such coal in tempering the tool.

The contention that there is no evidence tending to prove that the foreman used common coal instead of blacksmith’s coal is disposed of by what we have said above. There was ample evidence on this score.

The instruction is further said to be vicious in that it singles out particular facts, giving them undue emphasis, and is a comment upon the evidence. But we think that the well known principles thus invoked, and which under other circumstances might well apply to an instruction such as this, have here no application. Plaintiff had specifically alleged that his injury was due to the negligent tempering of the chisel by defendant’s foreman, not resting his case upon the more general allegation that the defendant had negligently furnished Mm a tool which was unsafe by reason of being improperly tempered, which the defendant knew or could have discovered by the exercise of ordinary care. [See Crader v. Railway, supra.] The only specific act of negligence on the part of the foreman in tempering the tool which the evidence tended to establish was in using improper coal for such purpose. With the pleadings and evidence in this shape, it does not seem that the instruction is subject to attack upon the grounds just mentioned. It merely submitted plaintiff’s case upon the theory that the only evidence adduced to establish the specific negligence of the foreman, alleged in the petition, was that pertaining to the use of common coal in the tempering process. We think that this was not error. Respondent asserts that it would have been error under the circumstances to have done otherwise, i. e., if the instruction had followed the language of the petition and authorized, a recovery if the jury found tliat the chisel “had been negligently tempered” by the foreman, “in such manner that it was brittle.”’ But that question is not before us. We feel satisfied, however, that no reversible error ■ was committed in narrowing the right of recovery as above indicated, and that this instructioi thus submitting the case is not subject to the criticism that it unduly emphasizes particular facts,, or that it comments upon the evidence.

The instruction is said also to be erroneous in requiring the jury to find that the use of blacksmith’s coal was “necessary” for the purpose of tempering. But we think there can be no reversible error in this. Plaintiff’s evidence goes to show that the use of blacksmith’s coal was at least reasonably necessary for the tempering process, as appears from the testimony of plaintiff’s expert witness. And at most the use of this term merely cast an unnecessary burden upon the plaintiff.

VJI. Complaint is made of tlie refusal of an instruction offered by defendant which sought to have the jury told that if they believed from the evidence that plaintiff’s eye was not struck by a piece of steel flying from the chisel, then the verdict should be for defendant, even though plaintiff was struck in the eye by some other substance. But the refusal of this instruction could not have been prejudicial error, in view of the other instructions in the case. Not only did plaintiff’s main instruction, quoted above, require a finding that a piece of the chisel flew into plaintiff’s eye, but an instruction given for defendant told the jury that they could not “presume or infer negligence nor that the chisel was defective from the fact that it broke or splintered and that plaintiff ivas thereby injured,” and that plaintiff must prove that the chisel was not safe, etc., and “that plaintiff was injured in consequence thereof.” [See Dales v. Railway Co., 169 Mo. App. 183, 152 S. W. 401.]

VIII. The further contention is that the verdict is excessive. We think that the verdict, upon its face, cannot be said to be so excessive as to warrant interference by this court. Plaintiff lost the sight of one eye altogether and his evidence is that the sight of the other eye had thereby become greatly impaired.

But it is said that “the future loss of earnings were improper to allow in the verdict as reinstated by the court on ruling on the motion for new trial in August, 1912, after plaintiff had died.” But the verdict was not “reinstated” by overruling the motion for a new trial. The verdict was rendered on December 16, 1911, and judgment entered thereupon on the same day. And we do not see that plaintiff’s death, some months later, could operate to affect the amount of damages which the jury at the time of the trial were lawfully authorized to assess.

IX. It was contended below, and is complained of here, that defendant was surprised by'the appearance in the case of the evidence relating* to the use of common coal; and a new trial was asked upon the ground, among others, of newly-discovered evidence touching this matter, and affidavits were filed in support thereof and a counter-affidavit by plaintiff. But we shall not discuss this matter further than to quote from the memorandum of the learned trial judge, handed down in overruling the motion, as follows:

“I think the record will show that the defendant must have known before trial the kind of coal used would be one of the elements of the case, because they introduced themselves evidence on that subject. And the affidavit of the plaintiff’s counsel shows that the deposition of James Sterling, the plaintiff, was taken by the defendant, and filed, as early as the 25th day •of May, 1911, in which the defendant’s counsel asked specific questions about the coal that was used, showing that they anticipated that that question would arise in the trial of the case. The affidavits filed by the defendant as to newly-discovered evidence do not show any new evidence, but simply cumulative evidence; and in my judgment are not sufficient to warrant a new trial. Besides, there was no affidavit of surprise made, as required by law, during the trial of the case; and a request for continuance, in order to procure such evidence; but the case was submitted to the jury on the evidence adduced by both sides as to the use of coal.”

As we perceive no reversible error in the record the judgment should be affirmed. - It is so ordered.

Reynolds, P. J., and Nortoni, J., concur.