*1 2 3763, II. Section Eevised provides Statutes 1929, Missouri
if, upon appeal by a convicted case, in a criminal “the judgment reversed, be Supreme Court trial, shall a new direct that defendant absolutely discharged, be according to the circum stances of the case.” In the case evidence, instant was, such as it produced by the wholly State was Appellants circumstantial. pre strong sented a According defense. to the circumstances of this case justice we do not believe that the ends of would be best served directing a new It accordingly trial. judgment ordered that the the trial appellants discharged. court reversed and the Cooley and Westimes, CC., concur. by Fitzsimmons, C., is opinion foregoing PEE CUEIAM: The judges All of concur. court. opinion
adopted as Independence Com and Furnace Stove Dodd v. Elmer William (2d) Corporation, 114. S. Appellant. pany, W. Two, 1932. June Division 8, 1932; Opinion Term, 1931, April *NOTE: motion filed at October rehearing April Term, filed; motion June 1932. overruled at 66:3 *2 Harris & Koontz and John H. T'hioe appellant. *3 Rogers respondent. Mosman, & & Burns Buzará
Burns *4 injuries in tried damages personal for for COOLEY, C. Suit recovered Plaintiff Independence. County at of Jackson Circuit Court $10,000 Since appealed. defendant judgment for verdict and name in the has been revived cause has died and the plaintiff trial the of his administrator. contracted he prove to tended alleged his eAodence Plaintiff inhaling dust a result employ as in defendant’s
tuberculosis while plaintiff process manufacturing generated in defendant’s employed, and bis canse of action is upon based defendant’s al- leged failure to furnish him an respirator for his while use engaged in work, required by statute, Section Revised Statutes Section 13254, sufficiency Revised 1929. Statutes petition questioned. is not gen- Defendant first answered During denial. eral the trial plaintiff and after had offered his evi- dence in chief the defendant by leave of court filed an amended answer which, general denial, after a pleaded plaintiff that the had the risk guilty assumed and that he contributory had been ‘‘ negligence in that he protective had failed or refused to use a device answering requirements respirator of the required by the Stat- utes of the State Missouri.” operated
The defendant manufacturing plant .a Independence, at' Missouri, where it manufactured, among things, parts cast-iron castings stoves and furnaces. emerged from the molds they rough had cast with surfaces and with sand and perhaps adhering them, other substances to remove which and to polish they smooth castings subjected process were to a called blasting.” process “sand In that projected fine sand con- through compressed against siderable force air a hose the surface cleaned, acting cutting the sand in air stream as the agency. polishing blasting The sand was done in a small room about eight square purpose. feet maintained for the following:
Plaintiff’s evidence tended to show the He was between twenty years age employed nineteen and when October, 1925; strong healthy was then and had he never had illness; any any lung serious his father and mother trouble or were tuberculosis; family history no evidence healthy showed and the put blasting work at employed defendant he was sand when room; previous experience such work blast he had had no sand work any factory nothing and knew about of the kind work nor process generated great given do; blasting the sand deal he was get face within much that had to -his a foot and dust, so working casting upon which was in order half or two he feet even when become dust laden it. The air the room would to see working air circulation was ventilation and designed produce fan happened, frequently order, he had was out of as often when it breath;” nothing get “go my was told out to he stop work and might upon him and did not himself work have effect the about the just having any on his health until before effect know that it ivas 1926. inferable from the evidence that November, It is “quit work,” *5 blasting composed, largely process was by the sand generated dust sand, perhaps with other substances finely powdered mixed least, at action of the air driven sand. eastings ground off the given or a “helmet” “mask” to was plaintiff work put to When use he did use as a protection from the and dust. sand It was a headgear hoodlike canvas designed, as we understand record, pulled to be down over the head and to come down to or over shoulders, wearer’s string with a about the neck and draw.it awith opening window-like about four long inches a and two and half inches wide in front of eyes the wearer’s a smaller one at back, both openings being finely with screened wire. Ac- meshed cording helmet, good evidence the ev'en when in con- dition, would prevent inhalation dust the wearer be- only cause not through would dust come the screen but it would come through the canvas and also Moreover, from beneath it. it soon be- came worn get and defective. part “The canvas front holes would in it which permitted through the sand to come and strike me on th" face.” He eight used that during helmet about months the last half although of which just time it described, was the worn condition three being months before with a furnished one he had com- new plained to going defendant’s foreman him who told put right away try new sand blast “to to make out with in.a eight it until the new blast was At the sand installed.” end of about months a room new and better sand blast was installed and constructed plaintiff a first. In was furnished new helmet like the a short túne it worn, developing, put too a became holes and defendant leather covering part over the canvas covered the wearer’s face except like for said helmet, respects This second all the first Exhibit 1. covering, as leather was introdimed eAÚdence as It will and is referred to the record be referred to hereinafter from in- proved substantially protection inefficient a Ex. P-1. It as did like reasons. While holes halation had the first and for dust as edges developed they through leather “around the not wear as with through under the canvas worked the screen” and dust the first. employment November, 1926. Some Plaintiff left defendant’s lungs in his began feel a sensation quitting months before two illness. He symptoms of heartburn, as which he described doing. quit the work he him to who advised physician consulted complained quitting, haAÚng, weeks before three some after
This he did of the hel- condition of the defective foreman toAmin defendant’s device Avasfurnished no that he evidence Plaintiff’s met. him from protect above described helmet equipment other than inhaling dust. it furnished show that tended to evidence Defendant’s fitting over deAúce rubber respirator, the helmet addition sponge. offered containing It a moistened nose and mouth fur- to have so claimed respirator 1 the Exhibit as its evidence trial, Ex. D-l. herein, nished, as at the be referred AAÚiichwill if it Avas respirator Ex. D-l was an It is conceded that *6 contends, plaintiff’s
furnished recovery defendant herein was un- authorized, only negligence since the submitted was defendant’s al- leged failure to furnish an respirator. Plaintiff’s evidence to show tended that when he left defendant’s employ he had contracted tuberculosis and that it the resulted from inhalation of the dust employed. while so At time the trial stage. admittedly disease had an reached advanced Physicians testi- opinion fied that in their it was then incurable and that he could not years. stated, live more than five As above he has since died. conflicting was as to The evidence the cause of the In dises.se. his question says: statement here defendant “The of the cause was a very great dispute matter between witnesses appellant for the respondent.” the witnesses its Appellant in its that demurrer I. contends brief that showed the evidence evidence should have sustained by inhalation plaintiff’s caused tuberculosis “could not have been that not show did evidence or sand dust” and because the sand might which condition prior employment to his he had tubercular toAs dust. by inhalation have been “inflamed increased” tuberculosis pre-existing claim that a it was not latter he contrary, inhaling On the aggravated by the dust. had been had not he had employment his proved prior that claimed and dust sand inhalation or not On the issue of whether disease. him cause did could and plaintiff’s evidence by shown the extent itself appellant conflicting, as was the evidence contract disease de sustain therefore court could in its admits statement. ground. murrer on that Appellant charges
II. error in main Instruction proof, that included matters of was no matters there pleaded, and “failed to include defense” matters covered which should have been referred to in the latter, appellant As to the instruction. us “matters
nowhere advises what covered appel defense” were If omitted. We discover no material omission. negligence, contributory lant refers its affirmative defense of was since appellant submitted another instruction. But did alleged not re see fit to call our to the omission are attention we may quired record for speculate what it or to search the as to point appellant’s “Points specifications under it. The other vague argument printed its equally from are Authorities” they we learn that as follows: are telling part the instruction The first refers to that recovery, jury wherein the what must be found to authorize facts facts, employed required find, among factory “required by to work said defendant defendant and and use said generated sand so dust,” etc. complaint part this of the instruction seems to be that it was not shown that “required” plaintiff to work for Appellant says: it at all. job “If accepted this was the work which him. was offered nothing There compelling about it.” Of course defendant did not *7 compel plaintiff to work for it—and the statute under which this brought action was passed protection for the of workmen doing penal word, or of course, enforced labor. too, And the “re- quired” was not used that sense the instruction. But “if he accepted job this was the work which was offered him” required place to do it at the equipment and with the furnished him defendant. This criticism of the instruction is obviously with- out merit. objection that the instruction pleaded included matters not upon jury
is based the contention that the instruction told the it was ‘‘ duty plaintiff adequate an respirator defendant’s to furnish in good ’’ plaintiff’s petition charged condition, only- whereas it was that adequate furnish “an respirator,” defendant had failed to there good allegation respirator that a not in being no condition had been requires employer in furnished. The statute circumstances such good “adequate furnish and maintain condition shown to as here required jury The instruction respirators.” to find approved among recovery, facts, that as a condition to defend adequate good respirator “an plaintiff furnish con ant did reasonably prevent dust, inhalation him of such if as to dition so argues respira there was no evidence that any.” Appellant good That if furnished, appellant was not in condition. is true tor, if which it claimed it furnished. But the instruc respirator means one, D-l, to refer to that Ex. been understood not have tion could jury in another told the instruction peremptorily the court Ex. D-l or duplicate had furnished that defendant if found good “in be for defendant. The words con must verdict thereof, the Ex. P-1 referred to only have defendant in could dition” meaning respirator within the of the statute was an sisted only evidence, was the fur according device which, adequate if good or it had been. The condition nished and objection. in without went concerning its condition evidence probably superfluous condition” were good “in words qualifying prejudicial insertion cannot be deemed their circumstances under the error. plaintiff accepted that the pleaded employ Defendant
III. knowledge of the conditions under which he was full “with ment knowledge dangers full incident there employed to be risks incident “all thereto.” thereby It re assumed to” and an instruction to the effect that if when refused court quested and the accepted employment plaintiff place “the at which work he was to of work the kind he was to do and did thereafter do was demon- strated him surrounding and that he knew of all the conditions employment dangers, any, if thereto,” incident ver- for the defendant. In its brief appellant complains dict must be says instruction, refusal of that it there assumption “defined (sic.). risk in appellant’s not included answer” justify submitting There was no evidence to proposition plaintiff danger contracting knew the tuberculosis inhaling other disease from dust in the or course his work. Defend throughout strenuously trial, denied yet, ant and does that such inexperienced follow inhalation dust. An result could boy could scarcely But, to know it. be assumed more to point perhaps, arising risk from not assume a negligence. servant does master’s protection statute ordinance enacted for Violation of the lives engaged occupations employees which, and health without the required by statute, they safeguards injury, are liable to negligence, if violated the statute the did not assume the *8 negligence. v. Brown such (Mo. App.), risk incident 259 S. [Hall Mfg. Co., App. 234, 219 Mo. 871; 1023; v. Gille 271 S. W. Mabe W. v. County Coal Co. Arnold 254 (Mo.), 850, ex rel. Adair S. State W. Co., 199 Mo. 853; 286, Constr. v. Murch Bros. 97 S. W. Butz 895; Johnson, etc., (Mo.), (2d) Shoe Co. S. v. W. Grott 790.] ignored employer’s negligence requested The instruction or as properly It was refused. sumed non-existence. its charged requested in refusal of defendant’s Error is IV. f in j. preserved Instruction f refusal of is not and instructions trial, hence for review. Instruction for is not here new the motion place of had “in its business” j that if defendant the effect was to plaintiff D-l so and P-1 Ex. and knew plaintiff’s use'both Ex. and for devices,” of he not could recover. to use said refused either “failed or confusing. If it meant us somewhat appears to That instruction adequate respirators that fur so were both devices declare that it compliance the statute been nishing have would of either Ex. P-1 was plaintiff’s evidence according to clearly incorrect because only that if both devices were If it meant adequate respirator. not an recovery precluded to use either failure plaintiff’s furnished got full respirator, defendant benefit an Ex. D-l was telling jury if that by separate instruction hypothesis that use was furnished thereof duplicate Ex. D-l or a j have mere construed, Instruction would So recover. could refusing it. in nowas error There repetition. court refused an instruction and requested Defendant V. “noxious dust” used the words that in substance K, lettered inherently harmful rea- are dusts as “only meant the statute component of the elements therein and does son not mean dust may be harmful reason of the amount thereof or the manner of handling same,” jury that if the found that the dust complained of “was so harmful in itself only, if all, at handling reason of the manner the same, in such employ- ”ment, could recover. In Instruction 1 the court had harmful, defined noxious dust as dust “hurtful or to em- ployees using same,” required further to find that it plaintiff. applicable part was harmful the statute reads: “. . . processes in all of manufacture or labor referred to in productive this section which are poisonous of noxious or dusts ade- quate respirators shall be employer furnished maintained good condition and without cost to employees, and such em- ployees shall respirators any use such all times engaged at while productive work poisonous of noxious or (Italics ours.) dusts.” Appellant argues that the word “noxious” as used in the statute itself,” regardless means harmful quantity “deleterious or may constancy continuity inhalation; that be inhaled effect, substantially thing it means same as the word “poisonous” Appellant, however, correctly says'that there used. something word “noxious” was “intended to mean or would not statute;” substance, have been used in the further in that there generated dusts manufacturing processes are not in their are nature, inherently harmful, is, poisonous nature deleterious health, constantly “if continuously but which are breathed for that harmful.” reason by appellant
The construction of the statute contended for would is,” substantially “noxious, “or” “that other words make mean making descriptive ad- say, poisonous” dusts, thus is to synonymous. jectives effect "While “poisonous” “noxious” ordinary may its is as a dis- “or” sometimes be so used use the word *9 generally corresponding an to alternative junctive “that marks ” also, 1124, J. [See, C. sec. or that.’ ‘either,’ 1.] as this ‘either [46 1039; Threshing 1037, 273 W. Case Machine (Mo.), S. v. Combs State 122 W. 148, Appellant’s S. construc- 122 Tenn. Watson, 86.] v.Co. adjectives descriptive practically super- of said would one tion render presumed will be to have intended Legislature not fluous and the in a meaningless words statute. using superfluous or sought construing the evil to be a statute reme Moreover, in thereby should he con be conferred to intended benefit and the died statutory scope and tenor of the the whole from plain It is sidered. legis part forms a question section of which provisions safeguarding regulations for the lives provide to purpose lative which, safety such without occupations of laborers health injury or disease. Such statutes be liable to they would regulations, 672 language
should be construed so far as their view permits with the of effectuating purpose. may- their beneficent It is conceded that dust generated be in manufacturing processes though inherently which, not poisonous may injurious its chemical composition, be to constantly. employees they health of compelled if are inhale it to Why Legislature attribute employees to the an intent such exclude safety regulations from language the benefit of these it used when the legislative act, in the only understood its ordinary sense, not does compel rather but forbids such narrow 1 construction Appellant 6826, cites 6798 and 1919, Sections Kevised Statutes Sec- 13261, 13234 covering tions Revised Statutes as field protection inherently poisonous. from dust 13234 Section re- quires employers using generate machines “dust, smoke or gases” provide poisonous for such machines hoods with connected dust, etc., fans, etc., carry prevent off such suction its inhala- regulations provides by employees. protecting tion Section operations manufacturing employees from dust therein referred apply process that it would to the here to, it is at least doubtful literally 13234, if If construed, apply. Nor Section involved. does might they requirements of Section 13254 apply, nevertheless did safeguards additional health of further and as sustained Section either nothing repugnant employees. We see may also, as show- It be observed sections. other above-mentioned recognizes legislative supra, Section ing purpose, that may inherently nature, poisonous be deleteri- though it be not dust, continually protect employees inhaled seeks health if ous to specified. in the therein danger inhalation situations from the contention as to the construction appellant’s agree with We do K properly Instruction refused. hold that the statute Dictionary New International in Webster’s defined “Noxious” is “harmful,” synonymous “hurtful,” meaning terms. as injurious Dictionary it as “harmful Century defines New deleterious; being; unwholesome.” We think physical well health or 1. Instruction sufficiently defined it was assigned testimony in the admission of certain is YI. Error its witness doctor who had called examined Defendant as follows: Maryland Casualty Company instance month at the employment and had amade writ plaintiff left defendant’s or so after testifying before him company. Tie had while to the report ten apparent not read from it it while he did report of that copy testifying from it in his examination using it and effect that he testimony in his it is setting chief out sufficient to Without in chief. plaintiff. unfavorable to favorable say it was *10 report mentioned the which were facts significant rather Some unfavorable, plaintiff than to others less least favorable, or at more
673 jury by there chronicled were mentioned to the the-witness testimony his in chief. Plaintiff then on cross-examination asked report paid witness to whom had been made and who had for the objected. then; examination. Defendant court out'of the hear- ing jury, objections of the on heard defendant’s which were ground casualty that the company revelation the name of the would incompetent, tending immaterial, prove irrelevant and to no issue prejudicial to defendant. that the Defendant offered to'admit ‘‘ being by paid witness is called and is dn this hear- the defendant ing,” objected but revelation of name of com- the insurance pany immaterial, being fact that was called the witness interest, paid being possible his sufficient disclose company policy that “the has a involved'in further insurance dollars, question fifty sum of ten suit in thousand whereas the is physical very thousand dollars—the condition seri- rights ous and this introduction of this evideneé the defend- highly prejudiced.” ant will be objection then, jury,
The court overruled the before the Maryland report had his Casual- witness answered that he made ty report Company, company paid had him for the and for testimony of that plaintiff. examination of It is the admission his objected particularly challenged as erroneous. Defendant also that is hearsay but report plaintiff of the itself to the introduction report from its admission had testified in chief since the witness " n (cid:127) be considered error. cross-examination cannot on Maryland objection in its From defendant’s statement fact that at' no policy “involved” and the Company had a Casualty argument in this court or in its brief or trial court either in the time in, company fact interested suggest that said it contend or was did defense, may be assumed that said company it conducting the record, v. Mod contestant. Jablonowski real, if not the [See in fact a 89, At 173, 279 S. and cases Co., 312 Mo. W. Mfg. Cap cited.] ern n least in the outcome of the suit interested that it was appears it issued, of defendant. Defendant had policy it extent paid called and the defendant “is witness that the fered to admit truthfully have and could not not admit hearing” it did in this examination and paid for the procured it had admitted testifying which on cross- the witness report from by. relation We think his (naturally) he stood said examination report written time he made the at the interest parties ship which the testified, was a matter least, he largely at which, from testimony. Under weigh his properly in order know t.o entitled Mfg. Co., Wagner Electric v. Snyder facts similar somewhat Cap v. Modern in Jablonowski quoted 911, W. 223 S. 310, Mo. 89, was'said: W. 279 S. l. c. Mo. Co., supra, Mfg. *11 “ is argument ‘It not suggested, counsel, either brief or in of oral that, casualty company insurance is taking not the burden of the of right defense this the case, perfect as it has . . . to do but the trial of such upon jury eases the merits entitled know the is everything credibility that of weight affects the and the witnesses given including testimony, only their their interest not in the subject-matter, but parties who or lose profit are to the goes only verdict. This not to contractual relations reference subject-matter testimony, of friendships their their ” . . enmities . In Jablonowski ease evidence this character was held rele- impeachment vant and as In case admissible evidence. this there were testimony between the witness’ in chief some inconsistencies and the report testifying. in the from which faets stated he was But while identity company of the of the insurance proof report may competent impeachment not been was made have as we in- are competent to think that it was under the clined circumstances of this Snyder Wagner Mfg. principle announced v. upon case Elec. Moreover, it was prejudicial we think Co., supra. defendant. only $10,000, a moderate sum in view of the The verdict evidence injury. nothing We find in the record to as to indicate part jury. on the The verdict passion prejudice sup- is In view all which we evidence. hold that ported substantial question justify does not the evidence reversal of the admission judgment. VII. considerable relative to There was evidence the construc system ventilating sand and equipment tion blast room and the thereof, appellant complains permitted that it to show respects to it was similar in those such rooms in other factories. allegations petition effect plain There were reasonably place safe in which to tiff was not furnished work but ground to the of recovery. that issue was submitted as ventilating construction, etc., bearing equipment, as to had a evidence question quanti or not in harmful upon of whether there dust it could whether On that issue not matter con room. ties blast rooms or was similar to that of sand not. Since struction place reasonably submitted, safe was not of a issue proffered its prejudiced exclusion of evi not have could question. dence on indefinitely stated, complaints, rather relative some other There are rejection evidence, deem which we unneces- admission to the they are without substantial opinion merit. In our sary to discuss. judgment record. in the the circuit reversible error no findWe Fitzsimmons, GG., concur. Westhues affirmed. is court adopted C., Cooley, opinion foregoing CURIAM: The PER judges concur. All of of the court. opinion