*1 Sampson Gillespie. Guthrie, Appellant, v. William
(2d) 886. One, May 18,
Division 1928. *2 Gibbany, Mc-Kmght Charles E. K. D. appel- J. Cross.and W. lant. *4 Stapleton
J. W. E. P. Cummins for re- Roberts, and Cook & spondent. *5 damages personal
ELLISON, is an action for for in- Cb—-This plaintiff (appellant) juries master-and-servant case. The had —a which, $9000, for on defendant’s motion for a new verdict below trial, being against weight was set aside as of evidence. charge appellant’s petition in is that re-
The ultimate place gist provide him with a work. spondent- failed to safe of The assigned case, facts, of his is that he was to work on a scaffold on the respondent, repairing in the roof of a house. Ow- furnished collapsed appellant ing to structural the scaffold fell to defects ground breaking leg sustaining serious, painful his permanent injuries. scaffold; respondent’s
The was that he did not furnish the defense appellant employed another workman named scaffold, roof; as well fix fellow-servants to erect the as as to duty place work; it to make their own was their of that re- they spondent supplied good materials, securely them with failed together consequence supporting structure, to fasten in which injuries it appellant’s broke. Hence is claimed were the result it negligence fellow-servant, negli- of his own and that of his or the part gence disputed of one of them. It was not of the scaffold by S'wope. gave way together which nailed The controverted questions had fact were ivhether hired re- been spondent job work completed, on the before any part duty in whether it was of his to assist the erection scaffold. years general day sixty old, laborer,
The was a about injuries January, at the time he received in 1924. re- spondent seventy-eight years farmer, was a retired about old. He business, way, made it a in a buy and remodel small residence properties Albany Gentry County. On the occasion figures repairing part house, this the main case he ivas of which square story whs about high. sixteen feet and about a and a half put work done, outside, to be was to in new sills and foundation roofing paper. Swope, blocks add a neAvroof who had assisting days been for several before the date accident, trades, described as “a Jack all and the himself doing master carpenter of none.” had Tet he further said he been work, put or it, and around” at that work “helped had competent years so, fifteen himself and that he considered build a scaffold. day On was hurt work progressed had point put where was time to paper roof. says *6 morning building lumber, part
that set he .about from' the scaffold get of which respondent’s he from barn about was directed lot to get four away. leaving blocks As he was to this lumber the re- spondent carpenter Lundy up exchange went town with a named to glass. Lundy going some window was to work inside the house. Swope got back first and went on scaffold. then to work the About appellant the along merely-as spectator. came a stood around respondent Lundy Presently the town in riding returned from (cid:127) the respondent automobile of -a man named Siddens. The then as- Swupe leg sisted putting up scaffold, one remained at hand until it was completed.
At juncture, before, Swope respondent or a little informed the high the put roofing was paper wind too him alone. on respondent So appellant Swop.e hired the to assist at that work. The completed. Being scaffold practically then was what asked if any appellant work the did with reference to the construction the scaffold, Swope replied, I any never “He done can recollect of.” appellant’s appellant The adult son present, also was and the ' get building sent him a home to hammer —whether use d,owln nailing scaffold or in disputed. They paper was would nail edge paper.' lath over Appellant high couldn’t reach enough top taller, to nail who lath, end of was Swope, one stepped weight over nail it for him. Under their combined down, splitting a cross-string’er penny broke where sixteen spike eight through, penny pulling Only was driven nail out: place. these two nails were at this used S'wope’s
The carpenter, Luridy, testimony part. corroborated He respondent get said up when he and town went window glass appellant scene; yet appeared had not when they Swope practically returned had completed scaffold, as near- ly as he could remember. He then when saw the ivas asked he first appellant, recall, and he he was not answered couldn’t but after his town, until return had for about an from where he been hour. appellant The there, and his son were both and the.former came (Lundy) the house time twio and talked him while he engaged was appellant wearing inside. The not then was nail apron working and had outside, no was hammer. as could be told Lundy from the sound hammer of his did not and saw. see any do work scaffold, would did say not any. do He did not hear the between conversation work, when did know the latter hired to but he they talking outside, from and this after he had returned town and was at work in the house. appellant, ex- offered all evidence foregoing was injuries. Neither concerning his physician testimony of
cept the the stand. his son took appellant nor morning of the accident respondent testified that on and the o’clock. He about seven reported the house at about'eight o’clock. The and foundation finished the sills *7 Lundy yet had not come. that time. appeared on the scene about Lundy, with back get After came respondent to him. he went The glass, window he Lundy for up town ivent and before he and Swope roofing operations on with engaged appellant to work paper. said roofing He put on the is, scaffold and —that to build the scaffolding get to go his barn over to told of them to b<e both hammer. When his appellant then sent for materials, and that the of about an absence (respondent) from after returned town he upright up except leg, one one or all hour the scaffold ivas —the crosspiece broke. The that later to which was nailed the part scaffold at working particular this Swope and on nailing The up on crosstie. Swope on a ladder the time. wias building way in any in respondent specifically he assisted denied testimony got town, effect of his back and the scaffold after he from any except anything time to direct deny at was to that he did get the tell them where to Swope build it and to appellant and to material. August in Lundy admitted that
On the witness cross-examination respondent January talked to the appellant was hurt in he after the unwilling go into details of attorney, and that he was to and might didn’t told them he the accident with them. He said he have facts, remember the detailed but his recollection the conversation preferred tw'o was that he answered a and then said he assigned not to talk. reason he for his reticence was that he good an operation, was not condition because of and also that he injury parties controversy. didn’t to do want to either to the respondent’s neighbor, friendly intimacy He was the on terms with him and him had sold his house. respondent
On cross-examination of showed that four days or five signed after the accident the a witness written state- containing following: ment
“I, my T. Sivope, Albany, Missouri; F. state that residence is day employed Gillispie the 31st I January, 1924, ivias W. W. of Albany, Missouri, put paper dwelling to a roof on Northwest Albany. Sampson assisting doing Guthrie was me in work. The first work that we did was to build the scaffold to do order the work on Sampson the roof. I am not sure that Guthrie assisted me in building all scaffold, I know but do that he helped part me it. I know make the latter and last also that some- up I it I building, one be! while nailed am tlie cl positive was, who it and it was same scaffold that later broke. not Sampson present . . . Guthrie was all that time when the Mr. employed being prior built, help and he was scaffold was me ’’ up I nailed before the scaffold that broke. only say he meant contended statement to that the present being built, the scaffold was not that while work; employed
he was was not hired practically completed; any that if he did until the scaffold was only laying’ walking scaffold it was w'ork assist board the. up. thereon all after was nailed admitted on cross-examination that was well he acquainted Lundy with man whom he Siddens with rode town house, narrated; back from to the as heretofore and that al- though Albany Siddens lived close was accessible sub- poena, had him he not asked to attend the trial as So far witness. see, however, only proba- we possibility, can there bility, anything that Siddens could have known about the case. When Lundy back from town out drove he let them of his *8 twenty-five car about feet from the house and there is no evidence n thathe remained longer necessary If, than was to do that. in that interval, appellant helping Swope brief whether was noticed build scaffold, the as or says, not, was as his says, testi- mony value; would have otherwise not. been Furthermore there nothing indicating in is the record Siddens not equally was available as a for appellant. witness the, gave At close of the asked appellant case and the court two instructions, jury, and told in substance, numbered if appellant employed building was not to in assist of the scaf- so, then, fold and did not as do him the respondent, between it duty was latter’s to safe; see that the scaffold was reasonably injured it appellant if was not safe consequence, was in their verdict him. No theory liability pro- should be for other was pounded. Respondent’s if appellant Instruction No. said was employed building to work with in the scaffold from materials by respondent, and if the materials were furnished suitable and suf- ficient, collapse but the of the scaffold was due to their failure nail together respondent. it properly, then the verdict be for should by clear So it seems below w'as turning the-case treated both sides as employed or not the was whether granted did A assist in the trial erection scaffold. new against weight because verdict was the evidence—on that issue, necessarily. ruling In so court announced its conclusion was induced the fact failed to take stand n ruling in his own behalf. "Was reversible error? think We not. support the' some substantial evidence There was at least
I. inquire. far court will order, and that as this circuit court’s pass weight appellate courts do not It fundamental reviewing courts on motions for the action trial of the evidence (State & v. Ry. ex rel. A. T. S. F. Co. a new trial 1075; 268 Mo. has Ellison, it scrutiny trial is less strict when a new been said granted refused, when has than it been has been appellate will interfere. instance an court seldom the former 1), Ryan (Mo., 71, 80; Div. 276 S. v. v. Feehan W. Stafford [Lamb 2), Div. (Mo., 637.] argues trial conclusion cannot But the court testify confessedly induced stand it ivas failure because only gave at behalf, whereas that circumstance his own -most cordd presumption, and not evidence which the court to a rise against weighing testimony. him in This throw into the scales that) (if will presumption is true it view is erroneous. It such a be missing adversary’s case, link in cannot supply (Diel unproven independent of a fact treated as evidence otherwise Ry. App. F. State ex rel. Detroit Mo. Pac. Ellison, J. & M. Ins. Co. 187 S. C. measuring credibility p. 122); can' be considered in probative presented. force of the evidence say unnecessary the inference siieh instances to the
It is rises dignity presumption. simply permissible An inference is (4 Phrases, from adduced and as true & deduction facts taken Words (2 S.) p. jury p. 3579; 1059); and that a Words & Phrases court or unexplained may an unfavorable conclusion from the refusal draw has testify vital to his case of which he party to on issues especial It is a that the is well established. circumstance knowledge, may of fact consider. triers' has *9 cases, invoked in fraud frequently
The rule has been most belonging (Frohman to that branch of our law v. been referred as to 460); Lowenstein, application 303 260 W. but its 339, 361, Mo. S. (Mo., v. of that class. Kaster to controversies limited [Sanders 133, 135; 57; 22 J. 10 S. C. sec. C. L. 1), Div. W. R. are, 909, 919, furthermore, There 36; sec. Ann. Cas. 1914 A. note.] failure many personal injury in which this has held cases court in employees prejudicial as raises a of a railroad to call its witnesses 983; (Sullivan Co., 48, 66, N. I. R. 308 Mo. v. G. & R. S. ference Co., 175, 194, Mo. 162 W. St. L. & S. F. R. S. Name v. R. 174) ; Reyburn Ry. so, Co., Mo. 187 Mo. S. W. v. Pac. Lazarus, 139 W. agency (Bryant 606, 612, v. 235 Mo. S. also, cases party quite duty much under to call 558); a as and it’would seem person. produce to a third testify to as he would be himself point is made Tlie further the unfavorable men inference be drawn because Section tioned cannot Revised Statutes repairing buildings requires any all used in the scaffolds safely enjoins supported, upon persons kind to be well and all to, prevent engaged injury employed thus caution to those on the work. is said the statute is to proof It effect of the make mere prima-facie collapse a scaffold negligence evidence the master’s (citing Prapuolenis Goebel Construction 368, 213 App. v. Adams, 717, 721, 1130) S. W. Stafford proof plaintiff and to transfer the burden of from the to defend argues Appellant able, by ant. that since he was virtue of the stat ute, prima-facie to without testimony, make a case his owm he was obligation ought under no penalized take stand not to be failing so to do. may For the of the case it be purposes the burden de- conceded upon acquit negligence volved himself a after prima-facie had been made that showing the relation of master and servant him appellant, existed between that the fur- by respondent, appellant’s injuries nished resulted from the fall of the scaffold. But the burden wmson to establish by these initial facts —and whom could he have done it than better by argument himself? so this can avail appellant nothing And even admit, if benign we do a not, presumption we raised party may law in impunity favor of a with entire be made a cache helpful for the concealment of facts.
Houghton (Mo., 1), Jacobs Div. appel- cited lant, is not in foregoing. conflict ivith the In that ease mother against probated note estate her deceased son. At trial in the appeal circuit court on she offered the note in evidence and taking stand, relying rested without presumption on the accorded negotiable instruments. The administrator had theretofore indicated through opening the elaborate statement of his counsel his defense would ivas without note consideration. The circuit court sustained to her evidence, wlrongfully demurrer effect, holding, in destroyed prima-facie her silence her case. This court reversed cause, saying remanded the in these circumstances the mother ivas duty speak under no and that no unfavorable inference could be But drawn. meant by that was that what. ivas she under no was. duty speak stage at that of the ease. The administrator had mere- ly expected prove, indicated what he and the under con- weight sideration was not the of the evidence but the substance of it. If the put administrator had on evidence the mother had still refused to testify, court had and the set aside verdict her favor against weight of the evidence on that account, ap- we prehend ruling would have been as here. *10 disposes
What of another contention applies to arid has been said by duty take the stand made no appellant, viz., that he was under was an respondent because tendered fellow-servant defense respondent burden. We carried the affirmative on which the defense shall, later. hoivever, to this revert statute, Section assignment
II. The the scaffold next is under that 6802, duty of general non-delegable it the re- law, was the spondent appellant a rea- to use ordinarv care furnish as master upon work; since is
sonably which to safe fall injured scaffold, ivas of an unsafe conceded he respondent no entrusted the it makes difference that Swope building the ap- of the scaffold to and even to notwithstanding. himself; is pellant respondent liable theory appellant on which submitted This is not below, ground a point presented verdict but the case granted. not if a trial respondent would new were [State for stand A., Ry. Ellison, 232, 186 S. & F. Co. v. Mo. l. c. ex rel. T. S. general disposed briefly. 1. c. contention can be 1076.] established; proposition premise is, course, well stated against hold the is available cases defense of fellow-service uniformly despite co-employees scaffold, for responsible the construction of (Forbes Dunnavant, Mo. 95 W. Wil the statute S. Van v. Swift Ransom, liams v. 234 Mo. Bibber 69) ; Co., & S. W. it makes no difference during present part was building did not broke, the scaffold which later since he direct the work and engaged had and his fellow-servant furnish their own Ry. place of work. v. K. C. Terminal 156 Co., [Adair S. W. 920.] final Appellant’s assignment III. is that the cause should be undisputed Swope reversed because the evidence shows w'as a vice- principal appellant. the fellow-servant of This contention. likewise, urged was not made at the trial and is theory present that it would an insurmountable respondent if barrier to a the case verdict are Prapuolenis cited Geobel Construction cases retried. The (Mo. 795), l. c. Koch (279 and Curtie v. supra Mo. l. c. 1045. It is said the record this case shows App.), 282 W. S. only a carpenter laborer, common and that help Swope. This, he hired admitted light foregoing authorities, as a taken establish mat superior boss ap law servant straw over ter pellant.
1149 We are unable to hold with two on this contention for place, party by reasons. In first appeal is on bound his trial theory. Wright Contracting Co., Louis 109 491, 502, [St. unjust would S. It to is- be foreclose here on an 6.] developed that sue was neither nor tendered at trial. Further- more, the record as stands carpenter does not show was a it (if such experience of skill and as to a conclusive warrant inference proper all) would be at outranked he the work hand; at testimony and there was no direct point. Appellant’s statement, engaged appellant “help” does not neces- sarily signify an employment as an inferior servant.
In place, by appellant the second two cases relied on not do position. Prapuolenis sustain his In the car- case it was conceded penter general and a laborer could and were be fellow-servants taking though certain forms, simply down timber the laborer was passing on detached laborer, point boards another and the of carpenter previously decision was that the had constructed the scaf- they fold on working, unassisted by laborer —the thereby exact fact which the denies the case at bar and only of taken the realm of raising out of facts issues law. admitted likewise, case, In the had Ourtie-Koch the defective scaffold been built S'pringfield before the laborer was It is true the of Court employed. Appeals says early opinion part decisive, in the is fact yet giving later on in reasons for its decision it sets it out one of them. theory of seems the Ourtie-Koch case to be that the status employee by or fellow-servant not—is be determined —as authority. capacity training, scope
his rather than of his or agree repeated We cannot with it. The decision refers to the oft that “those fellow-servants who are so definition are related they in their can observe associated work that and influence each report delinquencies correcting to a common other’s conduct and argues and from that that if one servant has not power,” the knowl edge capacity judge they the conduct another be cannot think fallacious. comparative This is fellow-servants. we may knowledge, age experience two servants and often strong value, ques is a evidential but the circumstance ultimate alleged vice-principal’s authority tion as to extent represent 311 88, v. Fulton Iron Mo. Works, 77, the master. [Funk 566; App. 407, Transit 399, Bien v. St. Louis p. 601, p. 39 C. J. sec. and sec. (2 Ed.) p. ; 748 4 Master & Servant Labatt, R. C. L. sec. secs. 4199; N. C. & St. L. R. R. pp. 4196, Wheless, Co. Rep. 746, Am. Tenn. 317.] brought into have been questions which
IY. There remain two granting the maintains order respondent. He case sus- cannot be if action even the court’s trial be affirmed new should two refusal of because the ground specified, it tained unnecessary "While instructions, and was error. numbered already our indicated assignments, have since we to consider these yet beyond court, reach of this nisi is ruling conclusion that the they on retrial. will be encountered *12 shall do so inasmuch as we substance, that jury, the No.' 3 told Respondent’s Instruction as by Swope without the though was constructed even the scaffold of such was latent and yet therein if the defect appellant, sistance of of exercise the discovered not have been nature that it could for him. should be part, verdict ordinary respondent’s their care on correctly re trial court ruled think it that the learned We clear theory wrong. hypothesizes It jecting whole is this instruction. Its If was is so he scaffold. this Swiope fact alone built the the latter was afterward as the vice-principal when the instrumentality. completed as a work signed on the scaffold 104 367, seq., 379 Co., 205 Mo. et v. Roundtree Construction [Combs 369, Co., 279 l. c. 213 Const. Mo. S. 77; Prapuolenis S. W. v. Goebel Swope’s infirmity of in the arose out W. l. c. structure 795.] ought it, had, which negligence constructing a fact of committed; and was instant dereliction had, have notice the the master, respondent, however the was to his notice to him notice (Mo. App.), Box Co. short v. Columbia the time. [Bodenmueller negligence vice-principal, or the re 237 S. W. of 881.] it, sult of is latent defect. 4 Respondent’s Y. as follows: refused Instruction up- plaintiff’s jury “The court case is based instructs the that the he, not fellow- on the plaintiff, fact that witness you in further instructs this connection servants, the court upon proof plaintiff to absence such prove of burden of relationship.” following respondent support In of cites the the instruction servants, engaged which all of a common master in the
cases hold fellow-servants, bur- employment prima-facie same and that the are proving den him who of the relation rests on non-existence 532; Co., 61 Bless- asserts it: L. &I. M. R. R. Mo. McGowan v. St. Prosser, 413; ing Ry. v. v. Co., St. L. K. & 77 Sheehan C. N. Mo. 55 App. Co., Mo. 102 Mo. 569, 574; v. Const. Bambrick-Bates Shaw (Mo. App. 671; App.), Ryan v. Board Publication Christian 199 S. 1031. may
On felloiv-service fact of related as to whether the authority general weight shown under Missouri denial affirmative. harmonizes wdth is in foregoing decisions Works, Tudor Iron 167 Mo. 221; v. 67 W. 462, 470, S. [Kaminski Howd, 113, 118, 752; Pecher v. Mo. Hoover v. Western Mining Co., App. 326, 332, Coal & 465; S. W. Sheehan supra (55 l. Prosser, App. 575).] c. contrary But to the O’Maley Tractor 209 Mo. App. Bennett 619, 626, likewise, which, 144. For the cases are discordant — see elsewhere— 1173, p. 939, 1180, p. p. 998; C. J. sec. sec. sec. 1214, 197, p. Ed.) Labatt, (2 R. C. L. sec. & Master Servant 1913A, p. p. 981, Ann. Cas. sec. note. ruling
Defending (1) the trial court’s asserts: (.See. 1919) the scaffold statute heretofore mentioned R. S. respondent acquit burden negligence, cast the himself respect defense; (2) even fellow-servant that since'the appellant’s petition proof negligence counted of the mas- (i. e., ter alone that the defective ap- scaffold was. tendered to the pellant completed structure) safe, as a issue of fellow-service injected facts, into the case therefore on.new it was affirmative defense on carried the proof. burden points On of these Prapuo- the first refers tous
. *13 supra (279 l. 213 case, 368, lenis Mo. W. 795), l. c. c. S. the case, supra (113 App. 1131) 721, ; Stafford Mo. l. c. 88 S. W. l. c. we goes but do not the of understand doctrine these cases further require respondent persons protected than to account to by the falling theory for the statute on consistent with of negligence. already freedom from As said'the burden still on among ease, to establish other of bis elements which respondent one was that furnished the scaffold. The invoked for purpose the fellow-servant rule of showing he did not furnish the scaffold and responsible for its construction; foregoing and under the cases the statute did not put the burden him on that issue. theory respondent's On the other point second will be seen — —it good authority
from is appellant’s position the texts there cited he, appellant, the burden was on since not brought the fellow-servant issue into case. But appear it does not to be in accord with law Fundamentally, of this State. the fel special application low-servant assump rule is doctrine of negligence tion of risk. is ordinary of fellow-servants of one by implication hazards as which servant assumes his contract employment. Co., R. of v. H. & St. J. R. 109 380, Mo. 19 362, [Parker 802; 1119, & Co., S. W. 18 L. R. A. Dixon v. A. R. 413, C. R. 109 Mo. 423, 19 792; 39 645, p. 540; S. W. L. A. C. J. 412, 18 Labatt, R. sec. 4 Ed.) (2 1395, p. Master & Servant sec. And uMLe there are 4014.] holding assumption some eases of is a must risk defense be
1152 contributory negligence, such affirmatively proven pleaded and like 1107; 495, 479, 156 Co., v. Mo. as: Fisher Central Lead 423, S. W. Co., App. 415, Mo. 166 McDonald v. 183 Cent. Ill. Const. 690, App. 1087; 681, Campbell Co., v. & Lbr. Mo. Hoosier Stave authority in this yet overwhelming Weight of 845; 125 W. S. may be shown under a contrary, the defense State is 167; 270, 279, S. W. general 173 Mo. McNair, denial: v. Curtis 266, 94 S. W. Co., Dakan v. & Son Chase Mercantile 196; 364, 411, 125 S. W. 944; L. F. R. Mo. George & S. R. v. St. 803; 487, 229 Mo. S. W. Works, 287 Harbacek v. Fulton Iron 298 W. (Mo., 2), Div. S. Dixon v. Const. Co. Frazier-Davis (Mo. 561, 562. Pringle Carthage Quarry 199 W. App.), Co. S. Em holding are that in suits under the Federal There decisions Liability of risk an affirmative defense ployers’ assumption is Act Q. (Adams & R. by v. O. C. R. pleaded the defendant K. which must be Ry. & L. 535, 553, 229 Halt v. C. C. C. St. Co., 287 Mo. S. 152) ; that, it, take is be (Mo., Banc), 279 W. but we Co. S. risks, extraordinary such as permits cause certain the Federal act cir negligence given servant master, assumed be (Hoch Ry. Co., L. & S. F. Mo. cumstances v. St. 1047) ; assumption affirma kind of risk this wffiichmust avoidance, tive nature confession defense L. & pleaded defendant. St. established [Patrum 168 W. Ry. Co., F. S. S. 622.] precise question, appears And decisions on so cases, decisions on the re- proof in fellow-servant burden analogous ques- pleading, lated and the decisions respondent’s conclusion, risk, view. Our tion of all sustain assumed correctly therefore, Instruction de- respondent’s refused law; approve the form not the instruction. clared the we do says (appellant) on the fact that he plaintiff’s It “the ease is based” fellow-servants; and reads as if the employment Swiope him was a common conceded there *14 on a building retrial. scaffold. This can remedied IÁndsay Seddon, granting a new trial affirmed. The order CC., concur. adopted opinion by C., foregoing EnnisoN,
PER CURIAM:—The opinion judges concur. All of as the of the court.