Adair v. Kansas City Terminal Railway Co.

1919. TERM, Yol. Ry. Co.

Adair v. K. C. Terminal by filing disguise fit to has seen petition an anomolons alien title and with an Prayerand that ac prayer. canse on remand To now' sacrifice, plain substance form. would count, by properly petition en may, tiff amend his advised, if so por by striking titling extraneous the cause and out .the prayer. tion judgment remanded and the is reversed cause proceeded inwith accordance with the views herein

to be expressed. Small, Broivn and consur. GG., by opinion foregoing Rag-

PER CURIAM:—The opinion adopted All the of the court. as the C., land, judges except absent. Woodson, concur J., Appellant, CITY v. KANSAS ADAIR, HERSCHEL COMPANY; O’HA H. P. RAILWAY TERMINAL & LAKE, O’HAGAN Partners, et al., GAN Corporation. 10, April One,

Division 1920. Railway Company Employee of AND MASTER SERVANT: partners Injuries. had Personal Where Excavation: Its Contractor: railway company tunnel a steam to construct with a a contract station, employed power connecting union house with its pouring excavation as in the work labor-foreman inspectors railway present concrete, company performed seeing properly purpose that the contract competent gave laborers, directiоns who at times use of instructions, end, required to their conform nothing tended in such interference which did but bring plaintiff’s injury, con- defective about caused wise to until it hard- hold the the wooden walls to concrete struction of plain- ened, between there was no relation master servant company, him it is not liable to railroad tiff and the appliances supply injuries him with due to a failure to safe a safe in which to work. SUPREME COURT OF MISSOURI. K. C. Terminal Estoppel by Pleading Assumption -:2. -: of Risks: In- (Sec. 1807, 1909) pro- consistencies: S. Waiver. The statute R. many vides a defendant forth answer defenses set may railway company, have; he and counterclaims as and a sued by employee partners the it the of with had whom contracted for excavation of a tunnel and the concrete walls construction of (sued jointly independent contractors); therein with does such not, having authority pleaded after that it exercised no control by plea matter, special plaintiff in the its further full that had knowledge voluntarily the of situation and the risk of assumed estop plea employment, his to .its itself assert other the rela- exist, of master tion servant between it аnd did not special plea plea but should said be considered as a employment by had assumed the partners, risk his might was made in order that it in it was available case ruled plain- at the trial that relation of master and servant between railway having exist; but, company tiff did replied pleas object to having both failed to were inconsistent, necessary special appeal it is rule on that the to plea destroyed the other. Against ¡Action by1 3. NEGLIGENCE: Partners: Admissions! One. Testimony by tending establish to de one admission partners usually fendant tools furnished were not those supply used and that the failure to them had some connection employee’s all; against injury, with their if admissible is they subsequently made the one before formed themselves into corporation, against company. a also is admissible such 4. -: -: -: Harmless Error. admission one An partner, against partnership in an action the members aof employee damages personal injuries, their for based on their supply place gafe perform failure a him with in which to his action, work, is material his failure con- cause if such material, injury;, though if, tributed his but ad- been mitted, there evidеnce au- still would have been no substantial thorizing jury, a submission of the case to its exclusion harmless error. Ten-penny -:

5. Scaffold: Use Nails. the situation Where directing labor-foreman, footing, was one of unstable and the in work, assuming a a law was not as matter of careless foot-board, position ten-penny nails driven on the the use of through upper security timber, 4x4 corner enough depending upon points reaching into foot-board their far adjoining up stepped support men hold when timber used, usually twenty-penny foot-board, when were nails knowledge used, ten-pennies reason were without the Vol. TERM1, 1919. v. K. C. Terminal exhausted, labor-foreman, twenty-pennies

of the was that were was, negligent case, act. view other facts of this Injury 6. - — : Unsafe Place: to Foreman: Act Subordinate. duty ser- of the master furnish which his a safe non-d'elegable, applies vants are to all situations to work laborer, servant, whether he or common be foreman charged by employment of his with no control terms injury. resulting in conditions his Special Authority. -: -: servant -: and General A special authority direct the work and be vested represents action master, thаt extent have no can the. negligent servant under him acts of a subordinate authority resulting injury; control in his the master has but although employees, in among distribute the work jured directing general servant is foreman of certain servants work, part particular com if the master negligent act mitted to and that servant’s said servants foreman, injury is liable. resulted master Negligence Car- of -: 8. Excavation: Foreman Concrete: , penter. days experienced plaintiff, in Three before the accident carpenter bridge pouring, work, a but not excavation and concrete experienced employed partners, work, and not was in .wood n engaged superintendent, one of whom laborers was as foreman of in trench, of a used as tunnel excavation which was to be a in excavated, steam; carrying it, sheet- to construct after it was piling along towas to its walls and then concrete driven be in, poured which, hardened, be would become walls when proceed, superintendent plaintiff the tunnel. The to directed concrete, holding gang, forms the wooden for construct work, protested nothing such he knew аbout .that thereupon superintendent furnish him told would him negligent competent carpenter it, it was the act to do furnished, constructing scaffolding carpenter on so injury. directing work, which caused stood co-employee Held, carpenter rec- so furnished not a plain- under defendants to work ommended and furnished ego, direction, the master tiff’s but was the master’s alter necessary also, Held, show it was not liable. every ignorant detail. that he Inspec- Request Others Supplies: -: for Certain Furnished: twenty-penny carpenter get told the tion. Where the foreman “toeing” support the corners nails for the foot-board storekeeper beam, upright carpenter 4x4 went repre- storekeeper, twenties, and asked act of the giving supplies, him distributing sented the master alone in (cid:127)136 SUPREME COURT OF MISSOURI. v, K. C. Terminal ten-penny master; instead, nails was the act of the and since the

carpenter employed very to do the work for the nails used, duty inspection were to be not rest the fore- did man. Injury

10.--: to Foreman: Intervention Fellow-Servant. service, carpenter, particular intervention of a furnished for a respects if in even some fеllow-servant or subordinate of job, duty f'reman does not relieve the master from the appliances furnishing safe secure the structure which injury 'allure caused to the foreman. Entirety: 11. JUDGMENT: Reversal to Some Defendants. Where parties may rightfully severed, the interests be rights another, respondent dependent of one are not on those jointly, and the errors committed them do not affect trial judgment, appeal, some, on reversed affirmed as and the cause remanded as to the others. Appeal B. from Thomas Jackson Cirenit Court.-—Hon. Judge.

Buchner, Affirmed remanded part; part. Reversed Beery Prince, G. W. E. A. E. Harris, J. N. J. appellant. fo-r Westfall

(1) considering In a demurrer to the evidence giving peremptory of the court should instruction, give consideration all the evidence and all reason able inferences drawn- to he therefrom most favorable plaintiff. Frankel v. Hudson, 2-71 495; Mb. Foundry, Trebbe v. American 179; Steel S. W. (2) Meenach v. 187 Crawford, W. 879. S. Orders given been twenty-penny fastening to use the nails which, piling, line timber size of nail cus was tomarily purpose. for this used Instead of defendants providing twenty-penny nails furnished ten- penny duty nails. pro was the of thе defendants proper appliances vide material suitable for purpose securing safety of servants, their fail injuries ure liability therein entailed that fol by neglect., lowed reason of such failure or Stoddard Craig 514; v. Mb. Railroad, 65' v. App. Railroad, 54 Mo. 137 282 1919. TERM1, Yol. Ry. Co. Adair v. K. C. Terminal App. Scheidler Mill 159 639: 523; Co., Mo. Gale v. (3) App. Wherea 688. v. 172 Mo. Works, Iron possible in complains of subordinate workman as sufficiency construction, of method vice-principal employer’s employer or sured employer sufficiently and such safe method em proceed such theretofore, as his order to reiterates insufficiency injuries ployer due for. is liable Railway, 52; complained 61 Mo. Row v. McGowan of. App. Rountree v. 463; Combs Pac., land Mo. 20 Mo. v. Const. Bloomfield v. Wurster 367; Mo. Co., Const. 205 App. Mo. Co., Ilerdler 118 v. Stove 136 254; Mo. Co., though (4) Railway, Even 107 66. v. Mio. ; Sullivan might by the discovered been defect have fastening making manner of the an examination showing that yet, line there is no evidence timber, glaring patent man of com that a or so the defect was prudence that it was so it, not have used mon would injury, dangerous or that immediate to threaten suppose might be not not reasonable to n safely care; skill used exercise de if knew of the circumstances, such even complained not), (which not did fects necessarily preclude did recovery, but whether or not he negligence guilty leaning against tim line question jury. fact determined ber Doyle Co., Combs v. Mo. Trust Rountree, 367; v. (5) Mo. there were furnished Where, however, co-employees materials were, proper which to construct scaffold, purpose for the which made the scaffold when con improper place doing structed unsafe for the employed person if then work, master act negli to furnish such materials, - gence person appointed such so for the master act discharge duty in employees which he owed to his negligence master, for which responsible. the master was Combs Rountree, 205 3617; (6) Co., Mo Swanson Elevator 22 N. D. 563. positive duty provide It is the master a reason 138 MISSOURI. COURT OF SUPREME

iA,dair Ry. v. K. Terminal Co. shifting ably place place although' is safe tlie to work temporary. equally settled well it is Likewise, duty is agent employee part any of this whom negli delegated, vice-principal, whose becomes Mo. gence Co., Tel. 231 is liable. v. master Corhv (7) Mo.^App. Under 562. 417; Co., Jarrell Coal 154 v. furnished law the workman evidence twenty-penny nails and ten-penny nails instead shoring constructing the in workman who used them furnishing vice-principal defendants was a providing in which materials required Railway, Mo. Bowen 53; 112 work. v. Russ Railway, (8) introduced v. 95 Mo. 278. ,the paragraph evidence third the answer Ry. the defense Co., Terminal which tendered defendant, (cid:127) assumption Assumption being a mat risk. of risk necessarily fol conduct, ter contract, railway corns defendant defense, lows this charged, pany the relation of admitted, and effect railway; master and to exist defendant servant between plaintiff. implication necessary pleading A allegation. Burt 264 Mo. Nichols, 1; the same as v. Railways, v. Mo. Fish Rail United 227 v. 423; Johnson way, party 263 Mo. 106. must abide A statements pleading’s absolutely and is made concluded own by the statement therein Weil contained. v. Posten, Kelsey, Knoop (9j Mo. 102 77 Mo. “It 284; ‍​‌‌‌‌‌‌‌​​‌‌​‌​‌​​‌‌​‌‌​‌​​​​​‌‌​‌‌​‌‌‌​‌​​​​​​​‍291. pleadings the Missouri courts that the the doctrine party are where con admissible evidence, tain admission or statements interests.” Knapp Meriwether v. Go., 617; & Mo. Hendrick Ry. (10) App. Co., 159 Mo. of the defendants, 190. One CUHagan, sorry Mr. Patrick stated, “that supply twenty-penny nails exhausted, hаd become duration, that it was for a short time but they gave workman, had asked for them Russell, ten-penny prove nails.” him offer Plaintiff’s objection. was excluded on defendants’ statement A state party litigant, made is pertinent ment Vol. TERM,

Adair v. K. 0. ag'ainst competent issues and Ms is admissi interest againt are as that there ble that defendant; fact compe other not its the case does effect defendants tency. (11) And 345. 2'31 Mo. Sullivan, Forrister v. competent where such is a statement or admission against against party defendant it is admissible also principal, he co-defendants, for whom vice notwithstanding fact that it made after the this was complained Railway Co., occurrence 57 of. Maleeek Railway Co., McDermott v. Mo. Mo. 87 1; Lathrop H. R. Bell Moore, S.- W. John J. respondent City Company. Railway Terminal Kansas

(T) assumption plea of is contended that the It of City Termi risk amended Kansas of answer Railway Company nal an admission that constitutes appellant employee City an Kansas Terminal was Company. plea Railway in the this submitted that pleadings in the all the and evidence answer, view taken that the relation case,*cannоt as an admission of master and servant existed between Herschel Adair City Railway Company. The Terminal Kansas assumption ap allegation say risk does not that pellant employee Company; was an alleged alleges injuries merely that arose but of the employment risks of the gaged. in which was en plea injury follows was caused Then negligence fellow-servants and then follows a allegation plaintiff, direct to the effect that petition, time his amended mentioned was ’Hagan employee not an &Lake was defendants employee the Terminal an manner whatsoever of ’Hagan independent Company, and Lake and that 0 were Certainly allega in view of these direct contractors. contended it cannot be there'was an admission tions employee appellant an was the Terminal Company. 1807, R. 1909, Sec. defendant Under S. many by answer as defenses forth or counter may set SUPREME COURT OF MISSOURI. v. K. C. Terminal .Adair claims have. evidence course, Of if the employee established that Adair the Terminal posi Company, company in a then been would have advantage plea assumption tion to take of risk. Boyle respondents Hogsett O’Hagan Lake. & & (1) There is of fasten no evidence that method adopted ’Hagan ing lining to-wit, timber Lake, & by ’toe-nailing twenty-penny nails, end, at either (2) reasonably safe.. Plaintiff straw duty boss or It was his to see this work foreman. properly lining done. He tim leaned knowing ber without ever whether laborer had nailing knowing it or not—in fact, finished without even negligent whether it was nailed at all or not. He was Kelly App. of law. as matter Co., Railroad v. 105 Mo. (3) 365; duty was of the master to cause this instantaneously sheeting, place, spring section of into fully ready built with the fastened and timbers walked on. The master cannot liable be held process event this case the section because appear construction, and it does not the men had nailing'or .fastening'the lining even finished timber. Bradley Railway Co., v. 138 Mo. 302; Hahn, Armour v. Bradley 111 U. S. 318; v. & Coffee 213 Tea Co., Mo. App. Kelly Henson 320; Armour, v. 113' Mo. 618; v. App. Railroad, 105 M6. v. & Anderson 365>; Granite O’Hagan Co., Const 178'S. W. Even Mr. 7371 if himself building liability had been the section there be no could plaintiff because the work was not finished. But himself agent delegated duty be,en was the to whom had overseeing vice-principal only this work-—he was the рresent; duty it was his to see that the master’s orders Kelly App. were carried out. v. 105'Mo. 365. Railroad, (4) negro plaintiff’s' gang, laborer worked plaintiff’s plaintiff under direction, and whom was di recting very plaintiff’s injury, moment at was of vice-principal. course not Plaintiff himself was the 141 1919. TERM, 282 Yol. y. K. C.o. vice-principal Mo. present. 234 Dnnnavant, v. Forbes Railway Rail Bowen 55 112 Mo. v. Co., 53; Russ ; v. Railway, way, 85 Buril 588; Mo. 9'5Mo. Moore v. 278; 482, Rope Even under the state Mo. ará 217 Co., v. negro plaintiff’s exist, the counsel to claimed facts plaintiff, most a laborer was fellow-servant negro negli negligence (if guilty for whose gence, deny) be liable. we the master would not which Railroad, 234 Parker Dunnavant, v. Mo. v. 55; Forbes App. 234; Mo. Henson 151 Mo. Co., 1Ó9 v. Stove 408; (5) Bradley Railway con 138'Mo. We Co., v. plaintiff did not the risk of master’s cede assume negligence negligence. part was no on the .There ordinary plaintiff assume the master. But did usual and engaged. risks incident work in Pryor, v. Patrum 259 817; Railroad, Morris 198 S. W. v. Mfg. Pulley Co., Blundell Mo. 552; Mo. 122; App. Halloran Co., 172; v. Standard Oil Mo. Foundry Grieb, Mo. Leitner v. 104 Mo. Co., 470; (a) App. 173'. also assumed And the risk leaning against part unfinished section of sheet ing. (b) arising likewise assumed risk And any. negligence there from the laborer, if (c) likewise And assumed the risk arose neglect his own failure see that the from master’s Kelly plaintiff’s orders had been carried out. the (6) App. Mo. so-called Railroad, 383'. admis v. excluded, O’Hagan properly ’(a) was It sion of Patrick purport regarding .did not matter which be O’Hagan knowledge, personal nor had an admission ten-penny given merely he the but nails, had Russell sails, “they” (b) given ten-penny the had Russell any-' purport O'’Hagan admission that did not given authority ten-penny had Russell nails and negli prove it did not tend immaterial, as hence was (c) gence. proven had it would If been admitted have “they” negligence, no as there was evidence that no (whoever be) Hhey” knowledge what ten-penny do the intended to Russell nails, H2 SUPREME COURT OF MISSOURI. v. K. giving negligence in possible conld hence there be no im ten-penny was the offer Russell, and nails to (7) Frye no In material. Mo. Railroad, been received have event admission could so-called except ’Hagan At against anyone himself. Patrick O Osteopathy, Mo. Carson v. kinson v. 365; School ' Frye App. Railroad, Yards Mo. 444; Stock Co., 167 200 Mo: 405. injuries personal

BROWN, suit C.,- This damages $20,000. for which the laid are at upon petition tried The amendеd which City Kansas Ter substance, the defendant states, owning corporation railway Railway Company minal ais properties, operating, among railway other Depot; City P. that the defendants IT. Kansas Union O’Hagan O’Hagan, Thomas A. Patrick Lake were injuries partners, doing at the time the were inflicted O’Hagan style the name and & Lake, under business corporation of same name that the and quently subse organized corporate persons, same represented partner being assets stock ship. injury, the time It also that, states employed by O’Hagan & Lake company, railway tunnel construction of a steam employers do directed the work sub supervision ject railway orders of the com gave pany, agents came plaintiff obeyed, prosecution, for its directions although nothing the terms rela knew about existing railway company between tion em ployers. peti- injury alleged in the circumstances sufficiently appear in the statement of facts

tion will which follows. railway company (1)

The answer contained (2) plea negligence general contributory denial, a. (3) facts in- evidence, sufficient jury, cover plaintiff’s any, acts was due if Vol. TERM, K. C. Terminal di- or fellow-servants those he controlled whom risk of (4) rected as out that it arose foreman, employment plaintiff engaged and of in which (5) knowledge, that which he full had notice and was an accident time and at the employee employee O'’Hagan & Lake and was not company, which he was railway on work being co-partners engaged at the time work of said independent under con- as contractors done them part- company, railway and of tract with the said nership direction, control and sole and had absolute railway company not have or exercise did employees. authority over its or whatever control pleaded (1) gen- partners answer The defendant negligence, (3) assumption contributory (2) denial, eral any, negligence, that, (4) if consisted of of risk and under others who were acts fellow-servants- .of supervision fore- control as the direct performance same work. man in the of the replied general denial. The developed in so far neces- evidence,. facts The questions at here, issue sary to the determination of the follows: are as August partners 1.4, on were,

The defendant as such constructing for the de- accident, date 1913!, connecting company railway tunnel a steam fendant Passenger power-house Station its Union with its Kansas railway company inspectors City. purpose seeing job the contract for the on the competent performed the use of labor properly gave purpose, directions at times for that of a ditch ‍​‌‌‌‌‌‌‌​​‌‌​‌​‌​​‌‌​‌‌​‌​​​​​‌‌​‌‌​‌‌‌​‌​​​​​​​‍feet wide The-work consisted seven end. n deep, according feet nine seven from plaintiff' ground, concrete. lined surface employed labor-foreman aas boss pouring concrete. Until three about of excavation Drake had been .days foreman accident before the engaged erecting carpenters tem- charge the. of. necessary: putting structures porary wooden 144 SUPREME COURT OP MISSOURI.

A,dair v. K. C. Terminal Co. carpenters lining. concrete At that 'time Drake and his portion work, been removed to another the long, the was which several feet thousand ’Hagan, employers, of his told Patrick was charge doing. the work Drake had take which been objected, saying nothing abоut Plaintiff that he knew Hagan him that one of men that work. 0 told Drake’s experienced the do work, it, who was would could negro given him. This laborer named man, Russell, accordingly gang was and remained transferred to his with him until occurred. the accident putting forms for

This consisted of in wooden work lining the concrete of the tunnel and sections was done length. wall about twelve feet The consisted of outer composed planks sheet-piling, long, about ten feet sharp- three inches thick and ten or twelve inches wide, .ground at the the ened gether against and driven into bottom close to- perpendicular side of the excavation,* edge. edge These, set,- when constituted the outside this' was done the form. floor concrete When poured of the tunnel was between them allowed constituting in- harden, wooden structure ner walls the form constructed inside them and was pressure all so as to braced, withstand poured them the concrete to be between and rein- which bars, with steel when hard- would, forced become lateral tunnel. walls ened, proceeding from south to north, and the west wall being under construction was of the sеt at the section completed against time section it. south of This by setting piles driving was done of the two at the plies north end. Between these and the north completed four-by-four square section, timber inches' piling and nailed was extended at each end about top. intervening planks piles feet from two ground along into were then driven the line of this “line stick, was called timber,’’lbecause it served along piling sheet of to line the outside of it. VoL .1919. TERM, Ity. v. K. line piling the preparing' panel In to receive this ten-penny timber with had been ends fastened at through top, say, nails “toed” in that is driven at the points entered the timber so that the comer of only fastening. pile This in front of it. This twenty-penny previously nails. had narily been Ordi- done with perpendicu- practically it would stand driving piles excavation, lar wall of the men stand would to bé filled upon top rest- the line timber or a or board of the bank they upon ground saw ing timber, and the line as the piles driving the with indicated, the and situation fit They passed tim- to also and on this wooden maul. fro doing time of the their work. At the occurrence ber question the near the cave of earth there had been adjoining having panel, earth fallen the the south end the and the excavation, into bottom the against observing leaning timber and this there stood taking position progress he work. On timber and found it put knee that had upon leaning he was While solid. seemed weight, stepped way gave under his workmen on it. precipitated, pulling with the and out, the nails he was injuries receiving ditch, the bottom of the timber, to upon that complained examination, out, It turned of. ten-penny piles toed line timber had been proceeding Before fastened. otherwise nails and not ’Hagan by Mr. 0 directed with the work twenty-penny get nails for some to told Russell had supposed had done. Russell purpose, been that for gone where house, the tool the stores that had kept, them, asked part were for structure they storekeeper that out that were was told brought given smaller nails, size, in the manner dis- indicated, without used back closing plaintiff. the fact plaintiff, evidence that offered effect O'’Hagan, injury defendant Patrick

after the sorry superintended him stated to that he was the work, SUPREME COURT OP MISSOURI. v. K. C. Terminal twenty-penny for supply the occurrence and that the had becоme a short exhausted, nails it was duration, for them but had asked time, Russell given ten-penny him excluded nails. This was objection “Mr. court on defendants O’Hagan’s binding any not statement would the other defendants in rea- ease, the further testimony son that the dis- shows, without substantial pute, charge of that himself was' go work, was the man should determine when he .and with what nails he testi- use, ahead should it, mony wholly offered not tend to immaterial, and does prove negligence, issue the case.” prove, by

He also offered ex- whose witnesses perience competency questioned, were reasonably customary employed by and usual method engaged careful foremen contractors, workmen the same line was, work, to secure a line timber upright, twenty-penny use, addition to nails, upright a cleat nailed beneath it. This evidence was also excluded the court. also, prove defendant offered to witness carpenter

who worked as had for defendant on the same job in the that, same work, two months about before O’Hagan, superintending Mr. time, that the work, .then sup him not instructed to use cleats for the port of the line timbers under similar circumstances, needless because was wastе time and material. was excluded the This court “for the reason that plaintiff way was in connected, no with it, offer preceding for months is two the time oc the accident ’ ’ curred. plaintiff’s At the close evidence defendants jury asked instructed to find them, thereupon gave court an instruction natime upon demurrer to the evidence for all the defendants, plaintiff which the suffered nonsuit to with leave judgment set same aside, which move TERM, Yol. Ry. Co. v. K. the same

duly set which, from after motion entered, appeal taken. overruled,. aside was this way the merits To the discussion I. clear dispose one or two of this case it convenient to questions To ascertain us the door. which meet inquire parties into the rela real we first are must existing between tion there is but While defendants. Master respect with the defendants, divide we muiT Railway rights, In classes. first into two their Company. ' Railway City Terminal these Kansas co-partnership Company stands alone; other is composed ’Hagan other three defend & O Lake ants. plaintiff, ‘some of witnesses testi as well as his respect that with received

fied employed ’Hagan injury he was &_.Lake, O1 way nothing any testimony in the there is tends his, scope employment. give rela a broader them tion alone. of master and servant between existed company, railway the work for whom sure, To be inspectors ground, being on the done, had conform to directions. was instructed to their very suggested was not a usual is not proper avoiding other defects method of hidden and might endanger safety utility com pleted there is no of evidence structure, shadow any such interference tended in the record that reading way bring the accident. A careful about argument appellant points made there impression that he us in the con on confirms malees no This own of that character. ohr tention accords testimony tending no- there is conclusion master and servant between them or relation show the company in the any that done course act of that might supervision exercised any as owner over it have injury to- extent to construction, contributed complained of. COURT OP MISSOURI. SUPREME - v. K. C. Terminal appellant we insists, as understand however, argument, railway company, pleading,

his by that the estopped has denying from relation of master itself upon, and servant, and alsо the corollary insists that wrong- whatever done detriment done or his permitted fully by it. although

He reasons' railway] as That follows: company pleaded by general only its answer, not de- way special by nial but that no such defense, relation as that master between and existed being servant plaintiff, for defend- and that work done O’Hagan ant under Lake, & contract with written independent charged capacity were that contractors including rwork, with the entire absolute sole railway! authority control or that thereof, it, company, authority exercised control or mat- no pleaded alleged injuries specially ter, it also that employment arose out of a risk knowledge by voluntarily assumed contract appellant argues by plea, service; plea was founded contract, nullified he was O’Hagan working for Lake & itself employer, therefore hable as to afford him -a reason- performance ably safe for the reasonably appliances perform safe which to it. reasoning

This is too recondite and abstruse re- simpler process reasoning. itself commend to our prescribed Even in pleading absence of rules of Statutes, Section 1909, Revised effect 1807, may set many defendant forth answer as defenses and counterclaims we have, would be inclined as interpret together pleas meaning to appellant these as two employ-

had assumed the risk incident to the Ó’Hagan employment ment & Lake, men- light provision tioned the answer. In we quoted may attempt have and do construe we It as an separate defense, set ‍​‌‌‌‌‌‌‌​​‌‌​‌​‌​​‌‌​‌‌​‌​​​​​‌‌​‌‌​‌‌‌​‌​​​​​​​‍forth be available in case the employment found, should be a matter of fact jury, or as a matter of law the court, to create Vol. TERM, . (cid:127) Ry. K. Co. Terminal C. railway com- relation of master and servant between having to pany failed plaintiff. al- objection alleged inconsistency these make proper reply we legations both, having seen these determining whether one relieved from are destroys pleas of them sur- so, the other if and, vives. any tend- evidence think that there was not

We do company part railway ing liability on the show injury-complained of. on of the account testimony appellant, offered trial, II. Patrick prove the defendant the accident that after sorry mighty O’Hagan for he “that was told supply sorry he that occurrence, that exhausted, twenty-penny nails had become but at duration, it for a short that was ^Partner, they- had asked that Russell for them the time objected gave ten-penny nails.” The him defendant ground it that on of this evidence admission binding upon any defendants, would other not be of the ground inwas and on the further that charge when the man determine go wha.t nails he he should ahead with it should wholly testimony im- offered was use, that negligence prove material and did not tend to by court, issue in the case. was excluded appellant excepted. which action implied, testimony, if That this admissible, ’Hagan twenty- admission, Mr. O if direct particular penny should have been used nails purpose, temporarily without that the contractors were gave supply work- nails, Russell, such ten-penny instead, man and that them, nails sent nails had some use these smaller the work' the connection speak- the accident about which was Ripon ing is evident. That material time, at the it was pleadings made can no the issue there be doubt. admissible That was therefore the defend- it equally made it should ant who certain, SUPREME COURT OP MISSOURI. Adair v. K.

have been logically admitted this reason follows. For ruling’ upon before trial court in' motion aside set practically the nonsuit. All this is admitted argument, determining so it must included whether taking the court committed error the cause jury thereby from the forcing the nonsuit toas all determining In defendants. we con- still are this important question fronted with the whether not this or competent against admission is as other defendants, co-partnership O’Hagan members of the Hake. & co-partners As The were identical. their interests alleged ground interest liability each the entire covered plaintiff. origin, It in was indivisible remedy. origin spoke In amount its each acted responsible all. for. In amount each was for all. As apportioned remedy by not be in could court -admittedly .partnership the action. It a matter, unadjusted, parties undetermined are all record well as to the as entire cause of action. The question as to arises whether the each admissions against the interest of alike have effect as evi- all against the others. dence question

This an in It old this State. was before Armstrong court in Mo. Farrar, 627, this v. which was by against joint a suit the heirs a testator de- purposes setting lands, for the aside the visees incapacity. court held will admission quesion relating of one of the defendants opinion by against In in its evidence all. admissible examination of after an said, this court J., Hartón, disposed “We are to de- numerous authorities: Phillips, part in Starkie from rule down laid ‘If the Greenleaf. It is' thus stated Greenleaf: Mr. parties joint in in suit, interest matter wheth- have plaintiffs made defendants, er admission against general, They in all. stand to evidence' one, is, respect, in similar to relation in this other, each ” copartners.’ existing n Vol. TERM, K. again Robinson, It was in Hurst v. before this court distinguish, in 13 Mo. a case 82, wbicb we are unable case the from In that facts, one now before us. partnership long has been while this dissolved, corporation. speaking court, been converted into through principle “The involved said: J., Ryland., question, attention, demanded the this has heretofore In of this court. consideration received the question Armstrong 627, Farrar, 8 Mo. this case of many up, the court decisions, review of came express after a depart unwillingness rule laid from the their Phillips, is thus down in and G-reenleaf. Starkie joint parties have inter stated ‘If the G-reenleaf: plaintiffs or de est matter in whether as suit,, general, evi is, made one, an admission fendants, respect each dence stand all; copartners. existing in relation to that other, similar court of this still adhere views given We consequently in the no error admission we see case, and of in the below.” court this evidence Railway again question in this court The came before proceeding 142 which was a 670, o. v. Mo. Fowler, C damages of in the condemnation for the assessment of in each of tenants common, land. The defendants were damage stipulated that the It an undivided half. equally to each. The court, be should assessed Mac holding in of one admission J., eareane, against well said: “It is was admissible both, contenants prove parties in if State, law, settled joint least this plaintiffs in in interest whether as suit, matter general, one in evidence defendants, is, or an admission against [Armstrong v. Mo. 629; Hurst Farrar, all. stipulation legal 83.] effect of the Robinson, Mo. objection party which waived all evidence is that each against partiеs placed the other. was admissible respect joint position in owners in the themselves damages not on trial should assessed, be permitted position, claim their as tenants be shift common, in prevent order of evi- in introduction MISSOURI. SUPREME COURT OF Ry. Co. y. K. owner-ship competent

deuce which joint. if the would be though complain, We do not.think can defendants stipula- admissions of the absence of Rothan, against the other- tion, would not have been admissible 'I i defendant.” general question before the This came afterwards which was court Schierbaum v. Schemme, 157 Mo. 1, proceeding by against devisees heir certain legatees portions specific estate to ’s the testator Henry deceased, for Schemme, construe will one incapacity important question in this and fraud. An admissibility court certain related to statements against contestees. beneficiaries as other opinion all the J., an exhaustive Vauliant, judges in which Number concurred, of Division One leading of this and he examined the other authorities including, already the cases to we have re states, the conclusion ferred, came rule stated Armstrong supra, ap Fаrrar, while “it is correct as plied joint longer regard no to cases to be interest, applicable legatees ed as correct rule devisees separate rights holding Judge under a common will.”' recognized the fact that the contest involved Vauliant might the existence of will, so whatever be it carried it the reshlt, interest all beneficiaries regard design, say privity without their of interest or ing: “These confessions are not confessions separate others, have a interest. like the joint partners, case of where the confessions of one be used both.” It will seen that case, qualifying while Armstrong v. Farrar far as it fso might apply having separate to those and distinct inter subject ests in the common litigation, only of not leaves unimpaired the doctrine established the court in supra, Hurst v. Railway Robinson, supra, v. Fowler, expressly recognizes but soundness. its again This court made this distinction in Meier v.

Buchter, 197 Mo. a68, suit “to set aside the will of Theodore charging Albert Thomas, undue influence TERM, Yol. Ry. Co. K. Terminal, proponents— conspiracy product

fraud —the a between of trial incapacity.” testamentary that case In admis- testimony of statements court had excluded after court, This some the contestees. sions made of quoting “It will be supra, said: Schemme, Schierbaum v. ‘joint dif- having aon a interest’ stand seen that devisees footing than devisees ferent do those admissions (cid:127) necessary to not have no interest. In this case is such Because, judically interpret ‘joint phrase interests.’ case under certain in the Schierbaum rule conditions, mechanically applicable not would not be be should applied petition al- the facts in this case. Here leges, conspiracy between substance, there was elementary law all it is defraud, -the contestees tending that conspiracy there has been evidence to show when any con- the admissions one of exists, of spirators touching, along conspiracy, the line subject-matter, admis- in furtherance are thereof, sible. retrial Therefore, in the of this case should if there fairly tending, testimony privity be introduced to show design contestees, will concoction Mrs. Riddle and is Buchter, Timmer, our Kirchner, opinion any introduction after the if evidence, tending privity there be, the establishment of suсh design, introduced, admissions of one conspirators accepted.” should be agree upon

It will be seen that all cases the doc- expressly supra, trine held Hurst Robinson, liability partnership where action is founded partner the admission is evidence all. This doctrine too well in reason founded shaken. In such a case the interest of each is It extends identical. only recovery, to the entire but covers the entire ground liability. identity The same interest existed Railway supra, agreement Co. v. Fowler, made purpose principle for the trial, and the same applied. supra, In Meier v. Buchter, the interests of the parties joint, were several and not but cause action lay conspiracy required to commit fraud,

154 COURT MISSOURI. SUPREME OF _ K. v. C. Terminal

Adair ap- “privity support, design” of it, to rule plied upon ground. Osteopathy, 240

The case of Atkinson v. School Railway Frye Carson Mo. and 338; 377; 200 Mo. v. Co., respondents, Mo. Stock Yards 167 cited Co., 444, application subject trans whatever this have no to apply exclusively but made action, admissions agent long injury do disinterested after so any part gestae. constitute the res this think was error in exclusion оf We there testimony and it reason, should be consid- that, for determining question real ered the case—that say nonsuit forced should —whether permitted testimony If, be to stand. had this intro- been as have duced there would been-no substantial offered, evidence authorize submission of case excluding jury, then the it was error harmless. about III. The work which the was em digging ployed was the a ditch from seven feet to nine deep converting per seven wide, feet into a tunnel the transmission manent steam. sides perpendicular.

of the excavation were The en tire structure was several thousand feet Act.hSent length. completed The tunnel in sections In twelve feet. seven section, feet wide long, consisting feet all the material, twelve of timber of various dimensions and crushed rock cement, although handled It used. was, small hole, place. busy natural that, the evidence shows, perpendicular walls earth should cave and thus removing necessitate continuous the debris until retaining sheet-piling, 3:-by-10 wall 12 or inches, long, completed or keep 10 feet should piles heavy These back. were driven into in the ground footing. They further secured a concrete placed by 4-by-4 and held were line line at timbers average ground elevation near surface place by nailing held in These timbers were end —one Vol. TERM, Ry. Co. K. C. completed adjoining, pile form last pile purpose other set for end_ two included, space so the under construction. section The bottom, top by the earth, at the bounded at the the end eight at and each line timber seven feet above, or panel piles nailed, the it was constituted to piling being continuous or which was filled section with They with the the accident. were driven at time of employed' It was men the work. mauls wooden necessary to men stand somewhere these should tops piles. ground so uneven, The the the strike depth, according to the varied in ditch, evidence, that the cave, place where been a the time at the and had there leaning and "the timber stood line the directing removing It about earth. the men below the could these the men evident that under circumstances they upon to the bank ditch ‍​‌‌‌‌‌‌‌​​‌‌​‌​‌​​‌‌​‌‌​‌​​​​​‌‌​‌‌​‌‌‌​‌​​​​​​​‍so stand drive, upon on the and line timber sometimes stood sometimes upon plank, laid and of which was thе timber one end upon the solid and men earth, the used the other necessary way place going as from foot timber as place. line had At time of accident the timber to panel position, completing, placed in to be filled been sheet-piling, intervening line were men proceed ready the work. The line timber with had ten-penny ends, as we stated, at the have with been nailed top, in at the stood nails toed top ground place had with in, where the caved directing leg’sleaning against the timber, excavation stepped upon it a workman when timber below, the excavation with other fell bottom debris, suffering going fall in- it, jury complained of.

Although direct evidence nails there was that these in its insufficient secure the timber were runway purpose men, scaffold its for the use necessary not deem we to consider it detail. do always with-twenty-penny nails, been done had before proved up pur time sufficient for the SUPREME COURT OE MISSOURI.

A,d.air By. v. K. pose. “ten-penny use, The words nails” are in common description and no more definite indicate needed instrument describe. The evidence excluded paragraph referred in thе last insuf their admitted purpose ficiency it. the result demonstrated support upon the scaffold re which men were quired long, with nails three into work, inches driven through' 4-by-4 upper comer of a timber, depending, upon enough points reaching their far into support hold vertical use, under such was itself standpoint an evidential fact be considered from the general experience connection with the evi entire bearing question, jury dence from winch the might negligent well have act found natural accident was the and reasonable result. footing, nothing situation was one of unstable and there is testimony jury required in the from could'be as a of law to find that the matter was careless in as position suming against leaning he did in over the timber observe direct a shoveler in the bottom of the trench. The matter consideration responsibility alleged negligent is fix far'the con we struction have described. appellant contends

IV. that the we conditions place requir- have described in rendered which he was to work unstable unsafe, ed we evidence, already definitely support bim have shown, tends in his stepped upon the laborеr contention. Had who the tim- weight whose ber and under was wrenched from fastening injured and fell into the trench been meaner evidently complained he his fall could have perform non-delegable duty failure master to place reasonably performance safe for the furnish upon his work. Had the timber fallen laborer work- ing in bottom of the ditch the defendant would have ground. applies been liable same This rule charged by in all which the cases servant is terms employment resulting with no control of conditions in 1919, Yol. OCTOBER TERM, K. Co.' injury. Telephone 417.] [Corby 231 Mo. Co., excepts protection participate in a com- from its all employment duty. are mon which includes this These respect all with common master. fellow-servants suggested phase in principle Another is same frequently repre- the facts of this case. The master performed where sented his work posi- occupy He'may having authority it. to direct general special without tion with reference to matters direction, he authority. respect under his With those represents ac- have no can whom he master, negligence acts whose tion of those with reference to authority; come within the limits of his own ex- general principles will Keeping we mind these and defendants amine the relation between liability'of action. the latter this reference to days be- until three tends show evidence employed by been fore accident had engaged in the of laborers defendants as 'a foreman initial the trench which constituted excavation of younsr phase He was this tunnel. in the construction of experience work. He in constructive man of some employed bridge excavation, principally work, been operation, experience had considerable pile-driver, does show the evidence but experience carpenter of timber the kind or had Up have time we with this accident. connected consisted had for. these defendants his work indicated, pouring, solely he concrete excavation and necessary carpenter part which was taken in the no reception prepare of its concrete for the to the trench charge lining. During Drake had been in time 'all that hélpers carpenters doing gang the wood аnd their of a of ’ ' ' ' world prior that to on evidence tends show that to day tunnel removed to another section the Drake was of proceeding.- At the the was that time same work where section this where accident excavation on occurred O’Hagan nearing completion.'The defendant Patrick SUPREME COURT OF MISSOURI. Adair v. K. capacity;

represented in the contractors defendant general superintendent told He of the work. gang, and employment, his Drake’s with elsewhere lining proceed ready, when with the trench protested gang. forms his own with this nothing avoid that and to he knew about the work, give objection O’Hagan would he Mr. told carpenters about know him one of who did Drake’s fur to do it. He him the man told whom would purpose he was nish this Russell competent O’Hagan under man. Mr. anything legal obligation use reasonable care avoid authority coming which general within line his dangers employment incident to the would increase plaintiff him work to of the but was interested the cost promptness be done in it could with which self compliance well with his contract. This is Illustrated testimony plathiff excluded offered previously use of cleats forbidden the he had court that support timbers, because of these line the direct time and material. Both a useless waste of both would be per profit accrue his were elements of these under do not wish to be contract. We formance his holding in the committed error the court stood testimony, nothing indi rejection for there is safely properly could not be timbers cate that twenty-penny supported nails, the use of supe give greatly length them greater would support piles which constituted hold rior merely to illustrate the interest of but structure, duty servant; his his in connection master of both the elements cost and safe which covered interest question suggests ty, to what risk extent the imposed upon might servant latter protection from the former. the master’s. interest authority had the his the master 'distribute That unquestioned, employees among all au- work thority exercise over others emanates subject him direction and con- from alone Yol. 282 TERM', v. K. may prepare place trol. He direct shall thereby his which others work that one becomes representative respect. im- becomes in that It therefore portant inquire to Russell sustained to what relation respectively. and defendants assigned

The evidence to that was tends show he question particular duty in be the defendants to the nothing cause the about the work and knew notified them that opinion, in their fact, while Russell was,

competent pro it in to such manner as to do respect safety responsibility tect them to the their respect that in Rus others. insists this ego sell was them as the alter selected whom duty say devolved, defendants that was he while-the co-employee and furnished the de recommended plaintiff in the direction of the fendants work under duty. performance his Adair declined When incompetency, O’Hagan do the work on account Mr. his legal perhaps might formulate the did, same well, and following proposition in form: “Mr. Adair concrete competency responsible men of the conduct charge. employ will a man do this I put gang, him how do in Adair’s not know he does or the fellow-servant will the subordinate where he be injured position acts, are of all liability.” stand between me proposition to us. recommend itself does not

This carpenter work affected this conduct In so far as the employed safety there other those including plaintiff, the best occupations, who declined for responsibility, the master’s it was assume reason represented respect Russell that in think work. We responsible the master extent that to the the master perform- pertained in so far as acts, for his assigned because which was duties to ance plaintiff. purpose ignorance For the avowed such'liability unnecessary show enforcing of plaintiff every detail. Had. ignorant the work the same it under circum- himself master .undertaken SUPREME COURT MISSOURI. OF

iA,dair Ry. v. K. Terminal Co. C. might have stances and for the same reason, questioned performing' have his method it and even protested against creating fel- it without the relation of good low-servant between why we can reason them, see no and principle apply the same between should representative. and master’s these With principles in view we will the various acts out consider controversy which this arises. twenty-penny

The knew that nails al had ways been used this work. As a man reasonable he put up known, have should had matter been him, ten-penny reasonably that were not safe nails for purpose. got ipady When he for the work told go place and him Russell, directed where the kept supplies get defendants and such twenties for purpose. attempted Russell to do so. He went to the storekeeper twenty-penny and asked the for nails given ten-penny and was nails instead. This was the privity act of the master himself. There was no of em ployment storekeeper between the be Russell, and nor storekeeper plaintiff. storekeeper tween the represented appli distributing

the master alone ances and materials to be used in He the work. charged knowledge ap with the of the master that these pliances necessary prosecution were in its safe O’Hagan, admission Patrick to which we have re preceding paragraph, ferred is an admission through knew, defendants him, Russell had been given appliances inferior unsafe timber, secure the appliances instead of that were suitable safe given which he had asked. The reason was not that’ he failed them, had ask for nor was it that the contrac they tors did not know use ap were to plied, very did know that first item of car (cid:127) penter work for which nails were to be used was the securing erection this stick. Russell em ployed very thing them plain to do that because the how do it, did not know tiff we do not see that duty inspection circumstances these under Yol. TERM, 1919. v. K.

imposed upon performed the him. So Russell far as duty performed expert that construction he for the and not master as a co-servant responsibility. furnishing un declined the the master suitable nails for tie work the act of alone. directly

It will be seen that this case comes within principle Mass. Dennison, stated v. Arkerson approved quoted 412, l. us in Bowen c. Railway 277, 95 Mo. l. c. Construction Co., Combs prepara Co., 205 Mo. l. c. 887, follows: “When appliances of to as tion neither entrusted is -nor. negli may guilty of sumed be them, the master held though appliances gence, furnished, are if defective even employed preparation in the workmen themselves are in Russell, them.” That of even if, the intervention of respects, some fellow-servant or subordinate he plaintiff,, not from the of the relieve the defendant does appliances duty furnishing to secure the struc safe plaintiff, injury failure ture its caused.the to Works, v. Iron illustrated Scheidler well 172 Mo. employed App. 688. In that case the upon galvanizing he iron work a tower .which top swung fastened at the himself from hook of the the n helper Needing to such a he. tower. hook sent his was .none house where there tool defendant helper defendant’s The then be found. went shop re to be made. On and ordered one blacksmith shop get too turning it blacksmith it he found might cool blacksmith hot to handle and asked if gave permission, The in a tub it of water. blacksmith gave to the did return he it workman and he so. On his it, use him it. The workman- undertook to for who sent cooling it brittle, made so but the sudden inflicting precipitating him the roof below, broke, Ap injury he shed. St. Louis for Court opinion may peal be touch “Whatever said: said liability ing it is master, of a certain that the fellow- exception not does obtain service where thereto Mo.—11 282 ...... SUPREME COURT OF MISSOURI. v. K. pertains non-delegable duty master,

breach responsibility escape may in sneh cases he not obligation. through perform authorizing another to non-delegable Among master duties furnishing ser ordinary the. end of care exercise perform appliance for the reasonably vant with a safe ’’ engaged. undertaking in which he is ance liability injury by unsuit master for an caused able unsafe material the construction of a scaf frequently been declared fold as this case has courts, [Swanson Co., 563; D. Elevator N. v. Hayes, Supp. 234.] N. Y. Richards said that the action from we have ‍​‌‌‌‌‌‌‌​​‌‌​‌​‌​​‌‌​‌‌​‌​​​​​‌‌​‌‌​‌‌‌​‌​​​​​​​‍what follows refusing nonsuit to set aside the trial court Railway City Terminal Kansas Com the defendant to pany right. the instabil been have Whatever entirety ity this court with reference judgment respect, established; on is now that, rightfully appeal, parties may interests of jointly, not errors them severed where the do affect rights dependent another, on those of one are judgment be as to and affirmed as reversed some [Stotler l. 107, 200 Mo. c. 149- Railroad, to others. just many Missouri authorities In the cited 50.] case refer further collected, informa we were point. judgment tion on nonsuit as to that accordingly defendant is affirmed. judgment of the circuit

For the reasons stated court reversed other defendants, proceedings cause court for further remanded to opinion. accordance with opinion foregoing PER CURIAM —The Brown, adopted opinion of C., as the the court. All judges concur.

Case Details

Case Name: Adair v. Kansas City Terminal Railway Co.

Court Name: Supreme Court of Missouri

Date Published: Apr 10, 1920

Citation: 220 S.W. 920

Court Abbreviation: Mo.