*1 20 145 Company, App. 520, Food v. Cereal case Kidd preferred attempt recover dividends while the law in an suit going concern.
company was ruling majority opinion, so therefore, that the follows, It preferred stockholders are not entitled to far as it holds company process liquida- is in when it surplus share remanded with error; be reversed and tion, is and the case should modify conformity judgment directions to court to its dissenting opinion. Appellant. Iron Works Company, Warren Hall Fulton (2d) S. W. 81. One, September Division 1930.
Joseph C. McAt&e appellant. Gerritzen, Eagleton D. A. Waechter
Al. F. Mark and James respondent. *3 to this court certified LINDSAY, case has been C. This request one of and upon the dissent Appeals, St. Court of Louis opinion be majority ruling judges, who deemed of the dissent, suggested and The court.
in conflict with decisions instruc- upon an majority opinion ruling of the conflict, to the refer here for cause is but the plaintiff, respondent; given for tion ap- by ordinary jurisdiction obtained in ease determination “as VI Article 1884 of 6, Amendment of pellate process.” [Section of State Constitution.] by plain- injuries sustained damages personal action for It is an employ defendant in the May 19, 1925, while he tiff on large ladle from a being poured foundry. Molten metal was its opera- nothing to do with plaintiff had a small ladle. The into short distance engaged work a other time was tion, but at the caused mentioned, metal molten During away. operation stood, and ground where small ladle to splash from the same, injuring and burning ankle, right foot He had a verdict, returned ten jurors, of the in the sum of $1970, appeal and the judgment entered thereon. petition alleged The work pouring metal molten from the large ladle into the small being ladle was done by de fendant near plaintiff was, where and that “while defendant was so doing, certain molten metal and thereof, encrustation known falling into said small caused molten metal therein 'scab/ splash up and out and plaintiff, burning injuring him, directly all of which proximately negli resulted from the ’’ gence and carelessness of negligence the defendant. The pleaded in particulars two (1) submitted was, to the jury, that defendant failed to ordinary exercise care to furnish a reasonably safe place in wurk, that, which being while the poured metal was from large likely, into small one it wras to be caused fly and to injure strike and plaintiff and danger, he was not reasonably safe; (2) ordinary adopt failure to exercise care to reasonably and use a that, safe method of metal, while so doing provision no made for back “scab” wras said and preventing falling the small and no workmen or device w^as purpose, furnished for without precautions reasonably safe, said method likely injuries which to cause all of aforesaid,- knew the exercise of care could have known. risk, general plea assumption
answer denial, was a with a reply general was a denial. majority adopt opinion We statement facts found in the which under Appeals giving Court of the circumstances re- for the injured, and the nature *4 spective subject, parties upon that as follows: helper, and had been employed a molder
“Plaintiff was as injury was received. when his weeks defendant’s service three wurking, practice was he was it particular plant which large con into a cupola, of poured out a molten to be metal large pounds. 20,000 having capacity tainer or a ladle point possible to the conveyed by crane as near ladle was then a point, such molds. At into the placed was be where the metal ones ladle, the smaller large emptied from the the metal was During men. by two each, held pounds seven feet above six or large would be ladle top of the process the grasp ladle w7ould carrying the small ground, men and the beyond sides, top extending across it a bar whereupon large ladle shoulders, height their it to the raise operated device a mechanical by means of to tilt would be caused employee. by another chilled, cooled molten metal agreed that as “All witnesses By top. over the formed iron impurities in the from the a scum scum evidence this was described as ‘scab’ or slate which hard. formation became Plaintiff himself testified customary employee was for an termed a ‘skimmer’ to follow the crane, using paddle, hold back the ‘scab’ the metal while being poured large from was ladle into the small one. De- evidence, contrary, per- fendant’s was the ‘skimmer’ duty only being when metal emptied formed such the small ladles into molds. day (though question
“At o’clock in the afternoon two filling o’clock), the usual time for small ladles was three two men, Donaldson, Richt and carried one the small ladles to the large time, twenty Plaintiff, standing ladle to be filled. large ladle, it, feet back turned toward know, informed, had be did nor he been that the metal was to undisputed poured. It duties part that was no part to assist or take character of work. this “Richt, called witness for that when the as a testified filled, holding, small which he and Donaldson were became half large portion of the ‘scab’ fell from the ladle into the small him, one, causing splash whereupon him and burn the metal Donaldson, momentarily hold, also, did thereafter. he released his part poured out and ran fell, When the ladle its contents plaintiff’s foot, producing on of which injury account brought. action was “Defendant’s witnesses admitted that the dropped, small ladle was and that was burned in by him, the manner narrated but any denied that ‘scab’ or large scum came out of the al-
though it was disclosed by such large witnesses that had ladle thirty been filled for minutes when attempted, and that a considerable ‘scab’ or scum during had formed period time, which had been observed the foreman who was present at the operator scene activities. The testify, did however, that sometimes the ‘scab’ All did fall. agreed witnesses no present plain- ‘skimmer’ was at the time injury, tiff received his falling.” to restrain the ‘scab’ from point The defendant makes no the evidence was insufficient jury. to make a assigned case The errors relate other matters. assigned The first error is the refusal of the court sustain de- discharge
fendant’s motion to because of the objec- admission certain over defendant’s *5 tion. Reilly, physician, by defendant, and
Dr. was called testified plaintiff he made an with reference to the examination of the many injuries. testimony, permanence His in extent and his testimony respects, was sharp physician conflict plaintiff. called On cross-examination and objection, without Reilly Dr. was paid asked who him for his services making the examination. He said: “The H. Mastín & Company.” T. He was then asked T. who H. Mastín & Company Objection was. was made and overruled. The witness answered: “They are in- an company.” surance excused, witness The was and immediately there- after announcements were respective made closing counsel Thereafter, case. discharge defendant asked for because of the admission of testimony mentioned. The court did refusing not err in discharge jury. As just has stated, testimony been Reilly contradictory of Dr. was testimony plaintiff injury as sustained, to the and tended injuries. minimize effect of such The question was not improper. irrelevant or were entitled to know in whose interest the witness made the examination, paid and who him services, for his everything credibility which affected the witness, weight given and the testimony. to be to his [Snyder Wagner Mfg. Co., 284 285; Electric Mo. Jablonowski v. Modern Cap. Mfg. Co., 312 173, 196-201; Schuler v. Co., St. Louis Can (2d) 18 S. W. l. c. 46.] assigned
Error is giving next Instruction 1. That instruction is as follows: you
“The court instructs the if find and believe from 19, May the evidence on or about plaintiff was in the employ engaged in and was duties in defendant defendant's
foundry County, Missouri, in St. Louis place working near where was the defendant engaged pouring was metal from a ladle to a small and that said metal some of while beinsr poured splashed working to where was and burned and injured him, if you pour- further find from the evidence that in ing provision holding said metal the defendant made no back (if you the incrustation known scab find there was metal) being poured scab on and that without said metal holding falling preventing the scab without into back you pouring and if further find that said method of the small reasonably likely safe and not the metal persons thereabout, to cause to be struck and burned injured thereby, then knew or the exercise thereof, and that defendant care have could known making any pro- there without negligent said metal falling it from preventing scab or back the vision find) plaintiff was burned (if and that so you the small (if negligence injured of said proximate result a direct and you is en- you find), so court instructs then *6 titled your to recover and verdict must be favor of against and defendant.” is case here because of the diverse views in the Court Appeals upon this instruction. The contention is that the instruc- tion, authorizing while a verdict for ele- leaves out an require ment essential case; to not that it does plaintiff’s injury falling to find that was caused incrus- large ladle, during tation “scab” or from the ladle into the small pouring printed operation. agrument, suggésted it is require finding it splash does not a molten that metal from the holding small ladle caused man the small let to go of it. It must be conceded that the instruction is not as definite might evidence, upon as it be. question There is conflict the- large of whether fell As scab ladle into the small ladle. stated, before for plaintiff there was evidence that scab did fall splashed into the small metal that some of the him holding ladle, causing one men small burned go, thereupon go to let let metal the other man and molten splashed upon plaintiff. had that no scab Defendant require instruction does fell into the small ladle. The a find, pouring to that defendant metal from ladle into therewith, requirement finding that small and connected is further incrustation or scab on the metal. The instruction there was holding being requires finding poured, without that metal was scab, falling preventing” without it from into back the “and dangerous metal ladle; small that said method or the exercise reasonably safe; knew defendant un- have known it was care could negligent pouring said metal without safe; defendant “preventing making any provision for back scab burned falling ladle;” that into the small from While negligence. of said proximate result injured as the direct and might be, we think the as it not as definite the instruction is they defendant, must find to understood that must have that scab fell into the small metal, and on the was scab find there terms, require express not, does instruction It is true the ladle. but, ladle; small into the scab fell jury to find that prevent scab failed to finding defendant requirement aof to return that in order ladle, we think falling the small from necessary find it was jury understood plaintiff the a verdict average As small ladle. men fall into the scab did “prevent” failure to intelligence, they understand would happening keep meant failure hypothesized, occurrence find Dictionary), they were New International (Webster’s announcing cite cases for defendant happen. Counsel did whether it cover purporting instruction an the rule directing omitting some him, but a verdict for tbe whole ease which is not cured requisite right recovery, error element covering all elements proper instruction because, in instructions would be case, such cases the *7 Railways 773; Co., 271 S. W. Hall [Heigold v. United conflict. instant Co., 351; other In the 260 and & Coke cases.] v. Coal given purporting asked or for defendant case no instruction asked case. Defendant plaintiff’s all the elements to cover refused properly court which the instructions withdrawal certain erroneous, an omitting held to be instruction is not give. The to assuming a fact about case, or as plaintiff’s essential element in evidence. the is conflict which there dissenting opinion attention is called to v. Hart Dunsmore
mann, 256 S. 1031, W. and in Jaquith the brief for appellant, Fayette Plumb, Inc., 89, R. 254 S. W. cited, Heigold is also the supra. cases, Hall In dissenting opinion and the the view is ex opinion pressed majority sustaining instruction, that the this opinion in conflict with the of this is court in the case. Dunsmore required finding In the Dunsmore case the condemned instruction hypothesized acts, wholly negligence, that certain constituted but it jury require plaintiff’s injury failed the to find that to the resulted negligence; upon ground and from such it was instruction the That is not here. This was held erroneous. true instruction ex plaintiff’s pressly requires finding injuries, directly the and proximately, negligence of defendant. in resulted Jaquith grounds (1. bad c. in the case was held on several struction 93). imposed the instruction the One was that duty merely in keep to floor a safe condition —not to absolute the in condition. keep care to a safe Another was exercise require jury clearly find that did not the to the instruction by a: floor. was caused hole in plaintiff’s on foot the the fall of a tube openings alleged there were holes or It was Jaquith supplied instruction in the in The omission the floor. by objection have said as what case, met, the what we to in this find, finding they had to that defend jury understand would the falling into the small ladle. prevent the scab failed to ant Jaquith the instruction case objection to Another directing a verdict whole case cover the to purporting pass upon plea of require the not it did case, issue was no such negligence. There contributory provisions Under the evidence. or in the pleadings either judg 1919, not to reverse the we are Statutes 1513, Revised Section against court the trial committed for error except ment of the action. The affecting merits materially appellant admirable, but we think that 1 is Instruction form 28 substantially it, presented
as the would understand plaintiff. necessary recovery elements Objection 2, Instruction which submitted is made theory negligent provide plaintiff place a safe failure to objection against same is made Instruc- which work. The sort against con- what Instruction we have said tion as that cerning substantially applies Instruction 2. Instruction complaint urged Another is that the verdict of awas quotient verdict, and figure therein stated was arrived jury by stating respective figures, adding them, their dividing the total by In filing ten. the motion for a new trial defendant filed the affidavit of one composing jury,
men wherein the affiant stated that when the case was jury, submitted to jurors “the took their respective figures as to the amount of liability damages should be assessed defendant, added together, them by twelve, thereby divided total reaching quotient $1970.” *8 juror by The a affidavit made who sign did not the verdict. juror The affidavit of state, the does not or even indicate that what jury respect did in the the mentioned, was prearranged the result of a plan, agreement or, that there was an in advance to return a verdict quotient for the so to be found. The affidavit juror does ground reversing judgment, afford not the under the rules Weaver, stated Admr. v. 77 App. 665; Jobe’s Mo. Kolb v. St. Louis App. 150, 102 Co., Transit cases by the cited on the point defendant. 46 C. 150, See also J. v. Coffman, and Pratte 33 71,Mo. Sawyer v. Hannibal & Co., St. Joe Railroad c.Mo. l. as to general juror a impeach the rule that the cannot verdict returned. Another grant error is the refusal of the to assigned court de- ground fendant a trial on newly new the discovered evidence. employment plaintiff course of his as to examination Avhat had, injury, concerning ability work, since his his to he tes-
tiffed he the had worked while for Polar Wave lee & Company, employment Fuel and had left that because required, he was unable to the work do there on account injury he the had sustained. Defendant with filed trial affidavit of charge the motion for new the man in Company, & work of Polar Wave Fuel had Ice while employment to effect been, employed, there left that him, work there and for he was no that reason because there by kept employed company. longer appears It could not be case, plaintiff’s before trial that more than four months deposition by deposi- for defendant and in the was taken counsel given inability his work the reason for leav- had to tion Company. & Ice Fuel Under ing employment the Polar Wave diligence. lack showed a of due the circumstances the motion for a trial Complaint the refusal to sustain tbe new stated, ground without merit. is discharge assigned to the refusal the court Another error is jury during argument and because of a statement jury to the argument, During the of his counsel. course plaintiff’s made testimony as counsel, to the after reference matters, by plaintiff, and suffered to the tend ^le Pain injuries, as the result ing disability to show his obliged keep $3,000. We have been you we ask said: “Now Counsel for defendant keep in this court.” it to that amount discharged. stated: The court be objected, asked nothing with objection. They have do that.” “I will sustain the discharged and be again asked that defendant’s counsel The not return verdict do The court refused to so. did. may noted petition; and it be asked in the full amount for the is excessive. urged appeal the verdict also, on is not rep- counsel be did ask that counsel Defendant’s considering also dis- things considered, rimanded. These greater matters, lodged, court in trial cretion effect, any, if and see the trial court observe opportunity of the say counsel, we cannot by plaintiff’s what was said regarded as discharge jury, is to be the court refusal of error. reversible complaints substantially made all the foregoing covers The GG., Ellison, Seddon affirmed. judgment is appellant. concur. foregoing opinion, PER written our former CURIAM: The adopted D.
Commissioner, late James the opinion Lindsay, *9 judges concur. court. All of Mary City Rusow, Appellant, and St. Louis-San of Rich Hill Railway Company. (2d) 30 W. S. 983. Francisco September One,
Division 1930.