Lead Opinion
Preliminary to a consideration of the case on its merits, it is necessary to pass upon a question • which arose over the abstract prepared and filed by appellant. After the abstract was filed, respondent in due time filed objections to it, claiming that it did not appear that the testimony was set out in full; then, that it appeared in the abstract that instructions numbered 1, 2 and 3 had been given at the instance of plaintiff, and that defendant had excepted to the giving of these three instructions;
By agreement of counsel’ we advanced the latter appeal and heard it along with the'appeal in No. 14120, the latter being on the case on its merits.
It is therefore necessary to first consider the appeal from the action of the trial court in refusing to allow the amendment to the bill of exceptions. If that action is correct, the propriety of the action of the court in giving any of the instructions, is not open to us, it neither appearing in the bill of exceptions at. whose instance the several instructions were given, nor that exception was saved to the giving of any.
It is well to state here, that at the argument of the case, counsel for respondent, having his attention called to Rule 11 of our court, did not press the objection that the bill of exceptions failed to state, in
In the circuit court the motion for the correction of the bill of exceptions mmc pro time, which motion was verified by one of the counsel in the cause, was read in evidence. It is averred in this motion that the bill of exceptions, as it now exists, is not a true and correct transcript of the proceedings had in the trial of the cause in the court, in that it failed to show at whose instance the several instructions were given, and in that it appears by the files in the case that when the judge of the court was considering the defendant’s motion for a new trial, and before the court overruled that motion, plaintiff and defendant filed with the court their respective arguments in favor of and against the granting of a new trial in the cause, and that it appears by those briefs that instruction No. 1 was given in the cause at the instance of plaintiff, and that plaintiff admitted by implication in his brief, that instruction No. 1 was so given, and contended that it was properly given and that defendant had objected to it as error, and that both parties admitted thereby, in this cause, “by implication, the fact that the said instruction was objected to and an exception was saved to the giving thereof by the defendant at the time the same was given; and that said instructions Nos. 2 and 3 were likewise given at the instance of plaintiff and over the objection and exception of defendant, made and duly saved at the time said instructions were given;” that these briefs ever since, the motion for a new trial was under consideration, have remained among the files of the court “and constitute a part of the papers or files of said cause, and .are papers and files in this cause which furnish a proper basis for the mmc pro tunc entries sought herein.” Other averments, not here deemed material, are in the affidavit of counsel.
The motion for new trial in the main case was read in evidence, which, among other things, assigns as a ground that the court erred in “the instructions given to the jnry of its own motion,” and that the court erred “in the instructions given to the jury at the instance of plaintiff.” The brief signed by counsel for plaintiff appears to be in answer to a brief by appellant on the latter’s motion for a new trial, and defends instruction marked No. 1 as correct, and concludes with the statement that defendant had asked and the court had given at its request, “a whole mass of instructions in this case,” and states that “even if there were any omissions in plaintiff’s instruction, w’hich there was not, yet it would have to be read in connection with those given for defendant.” Defendant also introduced in evidence the memorandum of its counsel in support of the motion for new trial on the main case, which memorandum was with the files in the case, and particularly criticizes the first instruction
At the end of the hearing, as before noted, the court entered an order to the effect that “the court having heard and duly considered the defendant’s verified motion heretofore filed and submitted herein; to correct and amend defendant’s bill of exceptions in this cause, by nunc pro .tunc entries thereof, as of date October 3, 1913, and. being now fully advised of and concerning the same, doth order, that said motion be, and the same is hereby overruled.” To this counsel for defendant duly excepted.
In the view we take of this effort to correct the original bill of exceptions by nunc pro tunc entries, we think it is entirely immaterial to determine at whose instance any of the instructions were., asked or at whose instance they were given. It stands admitted that no exceptions appear in the bill of exceptions to the giving of any of these instructions.. That being so, it is entirely immaterial who asked them — at whose instance they were given. But learned counsel for appellant undertakes to overcome this difficulty by showing by the matter set out in the briefs, which it appears wére submitted to the court in considering the motion for a new trial on the main case, that on the part of defendant this instruction No. 1 was attacked and that instruction defended by counsel for respondent. It is also claimed that as it appears by the motion for new trial, filed in the main case, that the action of the court in giving instructions of its own motion and in giving the instructions at the instance of plaintiff was challenged, this is sufficient matter of record to warrant an entry showing which instructions were given at the instance of plaintiff, and which by the court of its own motion, and that .exception' had
A very strong case and a leading one in our State on the right of the court to make nunc pro tunc amendments is that of Missouri, Kansas & Eastern Railway Co. v. Holschlag,
There have been many decisions by the Supreme .Court and by the Appellate Courts of our State as to the power of the trial court to make amendments nunc pro time. Thus in Coy v. Landers,
Probably the last decided case is by our own court in Thaler v. Niedermeyer,
We are aware that there are many cases, of which Grubbs et al. v. Cones et al.,
The briefs of counsel, even if marked filed — and that is not the case here — are in no sense parts of the record. Our statute (Revised Statutes 1909, sections
The fact that-counsel on either side of the case argued pro and con on the propriety of an instruction ,by no means establishes the fact that exception was duly saved to the giving of that instruction. That is ■hardly sufficient to show at whose instance the instruction was given, although morally, not legally, we may be satisfied that counsel would hardly argue against .an instruction which he had himself asked, or ¡that opposing counsel would attempt to argue the correctness of an instruction given,at the instance of his adversary. ' Our reports, both Supreme and AppeL late, are full, of cases in which counsel have argued at great length on the propriety of the ruling of the court ¡on the admission or exclusion of testimony, or the giving or refusal of instructions, and have assigned the ¡action of the court on these matters on motion for new trial.- But it has often turned out, on investigation of the record, that inasmuch as no exception had been saved to the ruling complained of, it was not before'the appellate court for examination. That is equally applicable in the trial court. It does not follow that in that court, any more than in our court,, that ’because counsel argued for or against the particular proposition that exception hád been duly saved to the action of the trial court on that. Furthermore, granting that counsel did object to a given instruction, that is not sufficient. Objection without exception saves nothing. It follows that it is impossible for us to hold that any of these instructions are before us as having been challenged. We must treat all-of them as having been, acceded to by the respective coun
Opinion on the Merits
ON THE MEEITS OF THE CASE. (No. 14120).
The facts in this case> so far as concerns the accident, are sufficiently set out in the report of the case of Bryan v. United States Incandescent Lamp Co.,
The plaintiff here was severely burned as the re- • suit of the fire which followed the explosion on the-occasion referred to, and there was testimony tend-' ing to show that he was permanently disabled in one hand as the result of the burns which he then received. At the time he was an employee of defendant, engaged at its establishment in doing electrical work. His immediate superior was one Bryan, a Mr. Ferguson being over both of them, and at the time of the explosion which resulted in his being burned, he was engaged in some work connected with the apparatus located and being operated in the room in which the explosion and fire «occurred.
At a trial before’ the court and a jury, the verdict was rendered in his favor in the sum of $5000. Judgment followed, and defendant, interposing a motion for new trial and saving exception to that being overruled, duly appealed to our court.
It follows from what we here have held on the failure of the effort to amend the bill of exceptions, that this case is before us without the instructions which were given in the cause open to review. They must be accepted as having been given without ob-'
Error is assigned by learned counsel for appellant in that an instruction for a nonsuit asked by plaintiff at the close of plaintiff’s case and again at the close of all the evidence in the case'was not given, it being contended, that the evidence established without conflict that Bryan and plaintiff are fellow servants; that the Dual Capacity Doctrine is established in this State.
Taking up this assigned error, a careful reading of the evidence does not lead us to the conclusion arrived at by the learned counsel for appellant, that the evidence shows without conflict that plaintiff and Bryan were fellow servants. The jury had before them the testimony as to the respective duties of •these two employees of defendant, and even conceding that there is a conflict as to that, there was substantial evidence to show that plaintiff was the subordinate in his employment and in his duties to Bryan. It is true that in some of the work in which they were engaged, they were participants in the doing of the work, sometimes one doing it and sometimes the other; but there is substantial evidence to the effect that in the work plaintiff was doing at the time of the accident he was engaged under the immediate direction of Bryan and did not occupy the position of a fellow servant. It is true that in our jurisprudence the Dual Capacity Doctrine is established (as see Fogarty v. St. Louis Transfer Co.,
That this plaintiff was directed and that his duties called him to perform this particular work in this particular place at that time by the employer, and that it was an unsafe place, in the condition in which it was, appear as facts in evidence in this case. Hence, primarily, the negligence of the employer in sending the employee into an unsafe place to work does not exculpate the employer from liability, even if Bryan was in some respects a fellow servant in that employment at that time and place. Therefore, on the evidence in this case, we cannot hold, as a matter of law and as contended for by learned counsel for appellant we should, that Bryan and plaintiff were fellow servants. That was a fact for the determination of the jury under the evidence and under proper instructions, and we find that the jury were distinctly and properly instructed by the court on that point. Thus the court instructed the jury that even though they found from the evidence that plaintiff was subject to the orders of William E. Bryan when performing his duties with respect to the business or operations, which were carried on in the room in which plaintiff ■received his injuries sued for in this case, “yet if you further find and believe from the evidence that there were, parts of the business therein carried on, or services therein performed, at which they both worked together in the same manner, performing like services, each in view of the other and with full opportunity of seeing how the other did such parts of such work in said room, the plaintiff and said Bryan were fellow servants in the carrying on of such parts of the business, and therefore, if you find and believe
Certainly that instruction is as favorable to the defendant as it could possibly have asked, and the question having been so distinctly put to the jury its finding is conclusive on us.
It is further urged that plaintiff was guilty of contributory negligence and that for this reason the demurrer or instructions for nonsuit should have been given. To prevent any misapprehension, we note here that exception was duly saved to the refusal of the court to give these instructions of nonsuit at the close of plaintiff’s case and again at the close of the whole case. Here again we are met with the fact that the question of the contributory negligence of plaintiff was fully and accurately submitted to the jury in one of the instructions given. On the evidence, in this case that was a question for the jury. The trial court on that evidence could not have found and declared, as a matter of law, that there was contributory negligence. The cases in which that has been done by the appellate courts are rare. On the evidence here before us we most certainly cannot do so.
The result is that we find no reversible error in the case, as that case is before us. The judgment of the circuit court is affirmed.