*1 APPEAL 219 MISSOURI Clay Products Co. such, The stat in this case. as is evidence shown intoxicating liquor except carrying “about ute does not person,” only carrying per excepts it “on the but signification much narrower its which is a term son,” person.” [State Scanlon, the term “about the than — language 1065.] c. —, 1062, l. Mo. 273 S. W. scope ought enlarged exception in its an in not to be ordinary terpretation meaning. with out of accord strictly exceptions in are statutes construed. rule, As Finding error in the record, no Commissioner judgment of the circuit court be recommends affirmed. opinion foregoing PER CURIAM:—The Sutton, adopted opinion judgment as the of the court. The

isC., accordingly court is the circuit affirmed. Daues, P. Nipper, & and Becker concur. JJ., J., Respondent, v. WALSH MILLER, FLOYD FIRE CLAY Corporation, Appellant.* COMPANY, PRODUCTS Appeals. Opinion filed March St. Louis Court 1926. Negligence: Negligence: MASTER AND SERVANT: General 1. Serv- Injured: Sufficiency ant Poisonous Gas Inhaled: of Petition. In an injuries alleged damages personal for to have been for caused action inhaled, charge petition general negli- by poisonous held to gence. Ipsa Loquitur: Res -: -: Evi- -: -: 2. -: — : presump- Sufficiency. held make out a case dnce: Evidence ipsa loquitur negligence under the res rule inferential where tive or gas producer escaped poisonous gas while in- into (cid:127) repairing it. side Assumption -: of Risk. -: -: -: -: In 3. injuries alleged damages personal to have been for action inhaled, poisonious did not held that assume caused performing. inhaling gas the work he was reason of risk TERM, 1926. Miller v. Fire Negligence. Contributory -: -: -: -: -: alleged damages personal injuries In an action for have been by poisonous guilty gas inhaled, caused held *2 quit- contributory negligence barring recovery promptly in not ting gas producer gas working when entered. the where he was the Jury Treating TRIAL PRACTICE: Informed Doctor Plaintiff

5. Charged Company for Refusal Trial Court to Services: Insurance Discharge Jury: Proper. damages personal In action for for in- jury properly discharge juries, to at the the trial refused the court request statement of defendant because a witness volunteered a company treating plaintiff charged the insurance the doctor services, indicating company thus the insurance would in- for any verdict, especially witness, demnify the defendant for where testimony physician’s assistant, gave the calculated to who was injuries plaintiff’s damages his the and reduce the minimize evidently by the of the witness came into case mere statement plaintiff’s any part design on the counsel. accident without Injured: Negligence: AND SERVANT: Servant MASTER Poisonous 6. Keep Fan to Out Gas Evidence: Electric Used Gas Inhaled: No Defense Was That Gas Producer: Admissible Where Entered. alleged injuries damages personal for for to have been In an action gas gas producer, by inhaling poisonous in a evidence that received repairs producer complete gas employees to went into other who by provided plaintiff were with an which had been commenced producer keep placed to which was out electric fan completing repairs held admissible workmen were while the gas, fact, producer, entered the was that no defense where the violating competent rule it not to such evidence repairs or made remedied defects or con- show that injury subsequent suit. to dition -: Conceded Facts: If Gas -: -: -: -:7. Through Testimony Dust Gooseneck and Leg: It Entered Producer Prejudicial. Way: Not No Other In CouldEnter an action That Gas alleged injuries personal damages have to been caused for for inhaling poisonous producer, where all the evidence producer if, fact, gas into the while came concedes pressure there, back forced into it was was at work testimony leg, gooseneck that there was and dust no get gas could into the which the other connection being objectionable witness the conclusion or in- as held not jury, province as vading and harmless defendant denied producer. any gas had entered 219 MISSOURI APPEAL REPORTS y. Miller Fire Ipsa Loquitur: Specific Negli-

3. -: -: -: -: Bes gence. injured by inhaling poisonous gas Plaintiff who was while gas producer ipsa loquitur at work in a held entitled invoke res rule, though specific negligence he undertook to show some part just defendant, permitted where what caused or escape appear. did not 9. DAMAGES: Instructions: Future Pain: Instruction Warranted damages personal injuries alleged Evidence. In an action for by inhaling poisonous gas, have been caused evidence held to war- plaintiff’s damages permitting rant instructions on the measure of recovery pain. for future BEMAEKS OF Jury COUNSEL: Comment of Plaintiff’s Counsel to on Proper. Master’s Failure to Produce Master Mechanic as Witness: damages personal injuries by plaintiff In an action for received gas producer, properly in a the court allowed counsel to jury produce comment to the on defendant’s failure to its master witness, though plaintiff deposition mechanic as a took his signed by was not the witness and defendant did not offer to read it *3 jury. to the Damages: DAMAGES: Excessive 11. Poisonous Gas Inhaled: Plaintiff Suffering Injuries Lungs to Heart and and Unable to Perform Hard damages $4000 Labor: Verdict for Not Excessive. In an action for injuries personal $4000 for a verdict of held not excessive where poisonous plaintiff, working who inhaled while in a injury ducer, heart, flabby slightly sustained to his the heart probably enlarged, permanent, condition was unable to earning capacity greatly perform hard labor and his reduced and medical attention. was in need of Conflicting Question -: -: -: Evidence: --: 12. for damages Jury. testimony In an action for where the as to lungs heart and the condition resulted whether inhaling poisonous from held, from other causes where the evi- conflicting, question jury. one dence References; Appeal Error, J., p. Juris-Cyc. 978, *Corpus 4 C. n. 4. 1076, 11; 64; p. p. 1100, J., p. 1059, Liability Damages, n. n. n. 20. 17 C. 80, 1129, Servant, J., p. Insurance, J., 81 Master and n. New. 36 C. 39 C. 8; p. 976, p. 981, New; 69; 1020, 60; p. 959, p. 22 n. 922, n. p. n. n. Trial, 1194, Cyc., p. 1490, 5; p. 1186, 8; p. 38 n. 35. n. n. 26. n. Court of Audrain the Circuit County.— Appeal Gantt, Judge. Ernest 8. Hon. 593 1926. v.

Affirmed. Rodgers

Harry E. £ Barrow Wiehe, Barrow Buffington appellant. &

(1) overruling mo- defendant’s The court erred petition require plaintiff more defi- to make his tion to ipsa (a) of res The doctrine nite and certain because: pleaded apply loqmtur case character of does not County petition. Co., Louis Gas Brauer v. St. App. Sepple 88; 125 Mo. Co., S. 519; 238 W. v. Gas '(b) 981. 223 Plain- Co., Nomath Hotel Gas Co. v. S. W. plead not entitled to tiff’s evidence showed that loquitur. rely ipsa Klebe v. on the doctrine of res Distilling 492; Mo. Co., 207 v. Construction Removiteh McAnany App. Shipley, 189 Mo. 396. 43; 264 Mo. v. Co., permitting plaintiff (2) The court erred 396. intro- subsequent repairs by defendant. duce evidence App. Mahaney 38; 108 Mo. v. McMahon, v. Schermer (3) 200. 108 The court erred in Railroad, Mo. admit- testimony part evading prov- ting jury. McAnany Henrici, v. 238 Ill; Mo. ince of Publishing 134 v. 87; v. Mo. McClosk Railroad, Sanders 262; Railroad, 196; v. Mo. 107 Mo. Castanie Co., Livery Thompson 498; 214 Mo. v. Rail- Co., v. Walton Garnery, App. App. Bank 550; Mo'. road, discharge refusing (4) erred The court jury jury made evident to the it was insur- indemnify any company defendant for would ver- ance Printing against Trent it. Mo. rendered dict *4 refusing (5) App. The court erred defendant’s 452. requested plaintiff’s at close evidence demurrers (a) evidence, at of all the because: the close in chief proven against negligence was actionable No injury. claimed it liable for Nichols make Ry. Trigg Chicago Co., 681; 225 S. W. Land Alton v. v. & Distilling Kliebe 236; Co., 187 Mo. v. 207 Co., & Lumber App. Co., v. Lumber 188 347; Pruett Mo. Rus- 480; Mo. Krampe Brewing Railway 590; 245 W. v. Co., S. v. sell App. 219 Mo. —38. APPEAL REPORTS,

594 219 MISSOURI v. App. Co., Mo. Removitcli v. 281; Construction Assn., 59 Mfg. 803; Co., 264 213 S. 43;Mo. Zasemowick W. v. Brewing v. 141 Mo. McGrath Talbot, 682; Ass’n. v. guilty (b) Plaintiff was Co., Transit 197 Mo. 97. . quitting negligence barring recovery promptly in not going out at bottom thereof. Mc- (c) v. Transit Mo. Co., 197 97. Plaintiff as- Grath inhaling sumed the risk of reason work performing. . Patrum v. 259 Railroad, Mo. 120. 'prove (d) negligence alleged failed to Plaintiff petition. (6) giving plaintiff’s court erred in The 3 Nos. 5 each instructions and and of them for the rea- they improper pleadings son that were under proof. McAn'any Co., v. Power 248; Cook W. S. v. App. Shipley, 396; Ward v. Fuel 264 S. W. Ellison, 195 80; 724; State v. S. W. v. Stid Railroad, (7) The permitting plain- 236 Mo. 400. court erred in argument jury tiff’s counsel to the charge produce ,a defendant with failure Kretschmar as Railroad, v. witness. Atkinson (8) S. W. 485. permitting plaintiff’s The a erred court counsel to make inflammatory, highly intemperate prejudicial ar- gument jury. State v. Burns, 228 S. W. (9) 763 and cases cited. The verdict is excessive passion prejudice. Brady the result of v. Railroad, 540; McGraw App. O’Neil, Mo. 123 Mo. 701; Ostertag Railroad, 261 Mo. Cape 479; Barrie v. Girar- W. 112 S. deau, Hollingsworth & Price Gatson and Frank for re-

spondent. is an personal SUTTON, C. This action for in- juries. petition alleges that defendant is now, and all at hereinafter times corporation mentioned, a organized existing duly under and virtue of the engaged of the State of Missouri, laws in the manu- products fire clay facture brick and other fire at County, Vandalia, Audrain process Missouri; that' in *5 Clay Products Co. Fire Miller v. and has, manufacturing the defendant brick said fire

of and installed mentioned, herein had at all the times gas producers for operate of number and maintain purpose or manufacturing gas burn which with of the products; clay that fire other and said fire brick cure producers ais in said manufactured the so received poison deadly dangerous inhaled or when highly effect body deleterious has a human the into upon said system which of inhaled, human gas and its dangerous properties said deadly body times upon all at defendant, human effects the exercise knew, or well mentioned, herin ordinary said known; have care should iron interlined shell a round steel ducers consist of shape inverted in similar brick, fire somewhat with eight in at feet of a and are about width cone, frustrum eight top in bottom feet at the about width top length under- bottom; ten feet in about cone-shaped separate shell an ash from said neath and eight pan about two feet in diameter and through feet about deep said center ash which situated, top pan passes pipe is fastened a hollow at of which cone-shaped cap commonly called, and here- hood through and that hood, referred to as a blast after pipe pipe said blown, steam-laden air is hollow said footing having standing in on concrete base and upward position, extending upright into the above- cone-shaped shell about three said hol- feet, described pipe being, about twelve inches diameter; low cone-shaped top shell is covered a cast iron said through through feeding which coal is fed an automatic cone-shaped large located above said shell; device that a revolving automatically poker, operated, is inserted top a hole about two feet diameter covering producers; producers sup- said said are by upright pillars support ported upon which a track producers operation said revolve when in poisonous gas; manufacture said noxious gas producers fed into said the coal the manner afore- APPEAL MISSOURI fire fire, therein said said is heated and burned being the coal said blown or sucked forced, *6 cone-shaped by air inducted into and shell steam-laden up- through pipe said iron that stands fire a hollow producers right gas about an from the side of said height extending top even of the down thereof and entering air and from the steam-laden below, said.shell passing through pipe said into and and hollow pressure burning said or suction of coal virtue of apparatus gas pro- as that said turbo-blower; known a operated by in arranged ducers and manu- maintained defendant facturing poisonous gas and said noxious are pairs groups, gas pairs or or which said from groups producers, passes of as out of manufactured, producers large goose- each a. or of elbow pipe large neck and is or hollow stored restrained upright gas pro- tanks stand near side of said top gas producers ducers and extend above of said a twenty tops of distance fifteen or feet and below producers gas said distance five six feet; that large large there are number of said steel or iron they tanks and are connected one with another means pipes, of hollow two or three feet in diameter; that the gas gas producers said manufactured aforesaid, passes into thence these tanks as aforesaid, and is thence way forced in some unknown to into large pipe or conduit and there into distributed numer- firing gas ous kilns where said is used in burning brick; he said is explain unable to describe or more fully poisonous gas produced how said is gas in said producers explain and is unable to how said poisonous gas gas producers is conducted from said into said tanks or how or in what manner it is restrained therein further than above any, detailed, what, if provided means or methods are prevent or in use to gas flowing producers said back into said machinery use; not in that all of said connected with producers storage said and the said tanks, conduits extensively and are containers involved compii- and Clay Products Co. operating the and manner of that the mode eated and storage con- gas producers, and said conduits tanks, appliances con- and therewith tainers and connected wholly un- poisonous trol and restraint said in or knowl- no known to and that he has skill edge operation working all but that thereof, and produc- machinery appliances in use said and storage and conduits, tion tanks, of said and the storing, transporting restrain- containers used ing fully completely con- the same were under operation of and that the defendant trol knowledge personal all then had and has now within appli- machinery working said works storage used conduits and containers ances, tanks, gas producers manner and connection with said storing, gas, transporting restraining mode of said *7 highly dangerous, gas and poisonous well knew said was permitted and noxious if be to unrestrained might beings where human come in contact could and or inhale the their therewith receive same into duty that it is and of bodies; defendant, was agents employees charge machinery in of and said used degree production thereof have and to exercise handling in the manufacture restraint, of care of and danger gas reasonably commensurate with the to said escape; apprehended prior be from its that on or day employ of he was in March, 1923, 28th of de- working under the orders fendant directions of and master but defendant’s mechanic that his duties were merely pieces repairing appliances, those of broken equipment, and tools used connection with said de- clay products enterprise fire fendant’s and he had no practical knowledge machinery scientific there by enterprise especially used defendant in its said and machinery, storage tanks, conduits and containers production poisonous in the used and restraint of said gas; day that on said 28th March, he was ordered by gas pro- master said mechanic to enter one of said desig- and remove cone-shaped cap ducers or hood, APPEAL MISSOURI v. Fire given the as- and nated blast bood, therefrom, as a gas producer mechanic that said surance of said master gas gas gas said enter was free of and that no could confidently upon said assurance that he relied ducer; given said blast so him and in order to remove necessary the above- remove hood it was for to might poker revolving he enter order that described gas producer through poker hole into the as said he described; above the aid of co-worker re- with poker chain moved said with a manner di- block, by gas rected said master mechanic, and said entered producer by placed through means of a ladder the hole poker said he removed; en- any no trace tered said evi- proceeded perform dent that he to his and re- work of moving the blast hood in the manner directed said mechanic; master had been at about two work suddenly, warning, hours when without no way any fault or carelessness or manner, the said chamber of the became filled with poisonous gas; said noxious that he was overcome poisonous quickly said -and noxious so that it was impossible get gas producer through him out finally his own efforts and he was rescued therefrom having completely workmen after been overcome having body great quantities after his inhaled into gas; poisonous gas per- said that said noxious gas producer mitted enter said de- negligence failing fendant’s carelessness properly gas; restrain said and that aas direct result *8 negligence of the per- and carelessness of defendant in mitting suddenly, unexpectedly said to and without warning escape gas producer into said in such an ex- tremely through unusual manner, and no fault or care- plaintiff, per- he lessness has sustained serious and injuries; injuries manent reason of his his seriously impaired health has been and affected; that ability capacity earning his greatly impaired; work and his have been has suffered and will in y. Co. Products body and great pain anguish of both future suffer and much lose, the future mind; that he has and lost, will necessarily incurred time from his work; he has and expense necessarily for incur much hereafter and will and attention. care, medical treatment jury, a there The cause was tried verdict judgment plaintiff for sum of four and thou- appeals. dollars, sand and defendant plant, The manufactured fire brick at process making brick, fire used as gas, the bricks burned. This fuel which were with appearance yellow is colored smoke, was made at plant burning pro- from the coal is known as twenty-one gas, thirty-seven ducer and contains from per poisonous monoxide, cent carbon which a substance, is being may and when inhaled a human in death result may suffocation, and if death does ensue neverthe- permanent upon system. less have a deleterious effect plant consists three units two with by goosenecks, legs, unit ducers each connected dust cylinder and conduits. Each is a steel lined tapering with fire brick lower with the half to a cone shape open upper at the bottom. The diameter eight half is about feet and the lower half smaller due to shape. height its cone over all is about ten feet. Un- separated cone-shaped cylinder derneath and from pan a distance twelve inches is resembling an ash eight about bowl feet diameter and about two feet deep. pipe passes A hollow the center of this pan perpendicular cylinder ash and runs in shell height top to a of about three feet. On of this hollow .pipe placed resembling is a blast hood or twier some- Through top what the of a pipe mushroom. the hollow air striking steam-laden blown the under evenly of the blast hood is throughout side disseminated provides coal bed top draft the fire. The top placed is covered an iron feeding thereon is an automatic coal device which dis- coal tributes from a bunker above said feed- *9 APPEAL 219 MISSOURI Clay Products Co. top ing in There is also device to the fire below. poker producer opening through auto- an which poker matically operates This the fire below. and stirs kept provided hole is a door is closed when with which operating producer opened is at times when sup- cylinder part producer is shut The of the down. ported upon hung or track which the to a circular producer operation. The revolves detached pan ash chanical device for bowl is also made-to revolve other me- purpose relieving the fire of operation. top producer ashes while On large pipe connected with it is a the form hollow gooseneck elbow which runs to and is connected at large upright its other end awith round steel tank leg height termed a dust about fifteen feet and about gooseneck six feet In diameter. is door operating opened is closed down when when not. In the tank mentioned and a few feet above where the gooseneck large flat-topped weigh- enters it ais valve ing approximately a ton, a stem with in the middle of it extending up through top to and of the center of .the tank. this slightly diameter of the valve is less than the leg. diameter of the tank or dust When the operation is in making gas this valve is top from raised its seat to the of the tank and when the producer is shut down the valve is lowered and rests in its seat. The valve is raised and lowered means rigged chain block or hoist or fastened to the rafters building and also top attached to the of the stem. made in passes goose- neck into leg this tank or dust and then to another sim- leg ilar tank or dust which is called the leg, common dust by reason of producers the fact that the are installed in pairs and are equipment identical in from legs each of the dust attached immediately to each of producers runs into this leg. common dust From leg this common dust runs into a smaller and cylindrical connected conduit called the downtake and downtake into a tunnel there MAECH TEEM,

Miller v. Fire where is several and kilns distributed to the various burning lighted brick. and used in the *10 producer question the other here, and plant, periodically and down, ducers in the were shut producer in the dust a the when was shut down valve goose- leg seated, be and the door would lowered opened, of dust at the neck a door the extreme bottom dragged leg opened, out the fire or cleaned producer. or the the seated When valve lowered upper gas, leg remain filled half of the dust would with leg the half of dust a short whereas lower the would emptied gas' by time be the circulation of air. producer After shut valve down, lowered, the the leg opened, gooseneck the dust and doors the fire dragged pan removed so as ashes from the to leave open space the the twelve inches of bottom of between producer pan, producer begin the and the ash the would day day to cool and after a to a half’s and a time it employees go would cold that be so defendant’s could required any purpose. inside itof pressure producers A back occurs times the at operating by accumulating are reason of soot the or walls of tunnel the conduit to the brick kilns and producer likewise when shut one is down and its twin operating. purpose or function of the valve in the leg gas being dust is to control the of the flow manu- producer producer factured in the live when one is dead operating, gas ultimately and the other so the that flows into and the tunnel to the brick kilns and ac- cordingly prevented flowing into the or dead producer through any openings down of its out in- building. plaintiff The evidence for the tended to show when the in which the received in- the juries which edge he sues was the installed, beveled rough leg on place the valve the dust had small on might prevent seating it properly, which it from and that this was called super- to the attention of the assistant plant intendent at time; APPEAL MISSOURI Products Co. was shut or three before down two weeks injured; so been burned hood had blast replace necessary one; it was it with a new painter by no knowl- op- that he had trade; was a edge concerning construction or the details of the employed machinery equipment eration of the gas, manner in manufacture of the as to the conveyed confined, controlled, legs, that he conduits, tunnels; dust employ inwas of the defendant as machinist- helper; nothing that he was not machinist and knew operation being producers, about the his work simply repairing pieces machinery; that of broken though helped producers, he to install one help legs nothing to install the dust and knew injured day *11 about that them; he was he a and Taylor workman fellow rected the name of Dan were di- producer the master mechanic to enter the and pursuance remove therefrom the blast hood; that in Taylor poker such order removed the automatic producer by and entered the means of a ladder poker Taylor the hole; he and worked there about an hour suddenly half when the came in on ' them, he was overcome the before he was get producer; able out of the that he taken was out of producer by the the assistance of fellow workmen; that he remained in an unconscious condition for about a though persons half hour; that could and sometimes producer enter and leave the the at bottom, the custom- ary way to enter and leave the poker hole. There was evidence tending defendant show leg valve and the dust properly were skillfully installed, that when the valve was seated it prevent would escaping leg from the dust producer, into the plaintiff that at the time the injured leg the valve of the dust had been lowered. 603 Clay Products

Miller v. Fire Co. employees the valve were not The lowered who at disclosed their names duced as nor witnesses, were the trial. assigns upon refusal of error assignment predi-

demurrer to the evidence. This proof plaintiff (1) grounds made no cated on the to-wit, specific negligence petition, alleged negligence (2) failure to that no actionable warn, proved against (3) defendant, inhaling gas assumed reason the risk performing, (4) work he was recovery guilty contributory negligence barring a promptly quitting en- assignment against tered. This be the de- must ruled négligence. petition charges general fendant. The presumptive in- evidence makes out clear case of ipsa loquitur negligence ferential rule. under the res suggestion There is no merit in as- contributory negligence guilty sumed the risk or was Independence, [Myers City as a matter of law. v. — —,Mo. Ash 816; 189 W. v. & Tiernan S. Woodward — Printing Ferguson Mo., 199 Ful Co., —, 994;W. S. v. — App. Daugher ton Iron Works, Mo. 259 —, 811; S. W. — ty Granby Mining App. v. Neosho Mo. Co., —, 207 S. Mayne City Rys. 253; W. v. Kansas Co., 235, — 386; Soltesz v. S. W. J. H. Belz Provision Co., Mo. Littig Heating 260 —, 990; S. W. v. Urbauer-Atwood Co., Mo. 779; 237 S. Cook Atlas Portland W. — App., Cement Mo. —, 1027; W. S. Jewell *12 City Kansas Bolt & Nut 231 Mo. 132 Co., 176, W. S. 703; Koerner St. Louis Car c. 141, l. 157, 107 Foundry 481; S. W. Kettlehake v. American Car & App. Co., Mo. 552; S. W. Nelson Zam (Minn.), boni 943.] 204 N. W.

Defendant insists refusing that the court erred discharge jury to jury when it was made evident to the company

that an indemnify insurance would de- any against fendant for verdict rendered Ait. witness produced on behalf of the defendant, who was as- APPEAL 219 MISSOURI Co. Products

Miller v. concerning physician Vandalia, testified sistant ato Taylor to the plaintiff and visit of his fellow workman injured, plaintiff day physician’s on the office injuries, on cross-examination of his treatment following by oc- counsel, witness ' you put A. names down? I And their “Q. curred: your day you I did that? A. did. book, On Q. did. charge, you? You A. I did. Q. Q. You made no charge? charge. much- Q. A. made a How made I charge you you did given them for the information had charge Maryland A. for the them? I made Company. you charged Casualty Q. them some- Oh, Maryland thing Casualty Company? for the A. Be- Maryland Company Thereupon Casualty cause the —” objected, objection defendant’s counsel was sus- tained. Afterwards defendant’s counsel moved the court discharge jury because the had witness named the Maryland Casualty Company against as one she whom charge Taylor. made a for the visit point Counsel also stated at the time that in of fact the Maryland Casualty Company indemnity carried insur- covering liability for the ance in this case. discharge The jury. court the motion to overruled ruling There no error in this of the court. The in- charge physi- formation that a had been made Taylor against cian’s book for the visit company evidently the insurance came into the case any design mere accident part and without plaintiff’s counsel. conveying The statement infor- mation made witness an answer that was responsive question propounded. question did not call the information which the witness vol- give. objection unteered to made counsel was promptly sustained the court. Besides, the witness given testimony had plain- calculated to minimize the injury tiff’s damages, and reduce his we see no rea- why son was not jury entitled to have the employer know the witness’ service and pay company of an vitally insurance interested re- *13 MARCH TERM,

Miller Fire v. why dueing plaintiff’s damages, the defendant the jury and keep from the was information entitled to this plain permit company the the to strike thus insurance Mfg. Wagner [Snyder Electric tiff from ambush. 911.] 310, l. c. W. S. George produced plaintiff, that a testified Marsh, gassed Taylor plaintiff few hours after were producer, mechanic, Kretschmar. was master who supervising charge the work man, maintenance in of and repairing producer, the in ordered the hood the blast producer go into to the witness another workman complete repairs the had been commenced plaintiff Taylor;. other when the witness purpose producer of com- workman went for the into the repairs pleting gas oozing leg the was from the dust they 'through gooseneck producer; the into the placed producer keep to an electric fan in the the they superintend- out worked; while assistant plant brought testimony ent the fán to them. placing electric fan in the relation the keep the out com- ducer to while the workmen were repairs pleting objected to, the hood blast was assigned urged and its admission is as error here. It is testimony the court admission violated the competent it the rule that is not to show repairs or remedied defects or made conditions subse- injury quent the in suit. think the We rule invoked ought apply here. The made not defense in this case court defendant in the below was that no producer leg from the dust fact entered while engaged plaintiff there, work gassed, not fact and that not and could leg. escape dust In it this, view competent to and we do show, not understand that de- not, contends it was that when fendant the workmen repairs complete into the on went gassed, after hood a few hours blast gas coming into the there was leg.

gooseneck from the dust In order that APPEAL 219 MISSOURI Clay Products Co. concerning testimony before might get this fact *14 it any him, to was shape jury value be of the in to a fan necessary jury that was should that the know they keep gas placed producer that out so the in to the in why remain might workmen could the understand any perform se- producer their without work the consequences to themselves. rious ruling upon assigns the the error The defendant testify Harvey permitting plaintiff’s to court witness gas producer there there the was that was no except way gooseneck gas get into the no could producer leg; when the from the dust was closed get way gas no to into the down there was except by leg pressure through goose- back the dust there was no other connection which the neck; that urged gas get producer. could into the It is that this objectionable testimony because it conclusion province jury. of the and invaded the witness the We' are to see harm unable what have could resulted from permitting testify. the to witness thus All the evi- dence concedes that if in fact into the came while the atwas work it there, was forced pressure producer gooseneck back into the the leg. and dust assignments of error made defendant in re- plaintiff’s predicated upon

lation to instructions, the assumption erroneous ipsa doctrine of res lo- may quitur not be invoked necessarily case, are against ruled the defendant from already what has been said. suggestion

There is no merit in that ipsa loquitur was not entitled to invoke res be rule, specific cause he undertook to negligence show some on part Metropolitan [Price defendant. Street Ry. 435, l. c. 932.] S. W. Plaintiff proof rough made place there awas on the beveled edge leg of the valve the dust at tire time of its instal lation this was called to the attention of de fendant’s master mechanic, but it not conclusively did

Miller v. permitted appear or caused that this was what per- leg. escape caused dust Just to from the what escape appear. it "Whether mitted the did escaped properly seat reason the failure valve, condition or from defective valve some leg, These not shown. were or dust seat, valve knowledge peculiarly of the defend- matters within knowledge knowl- means of had no ant. edge escape concerning in fact them. That the question plaintiff’s evidence is to be can be no if there evidently jury it. believed believed, complaint there is no merit Likewise, damages per- instructions on measure pain. ample recovery for future There ev- mitted upon predicate idence this feature the in- *15 struction. 'assigns upon ruling

The error defendant permitting plaintiff’s in the court counsel to comment argument jury upon in his to the the failure the de- produce fendant' to Kretschmar aas witness. There ruling. no error in was The failure of the defend- produce proper ant to Kretschmar as a witness was argument. matter comment Kretschmar was the defendant’s master mechanic or maintenance man plaintiff injured. at the time the was It was Kretseh- duty inspect keep repair proper mar’s to machinery equipment condition the of defendant’s plant. The performing work that was at the injured time he supervi- was was under Kretschmar’s possession sion. Kretschmar must have been in of sa- lient facts material to issues on trial. He knew ought to have known the condition of the valve and dust leg gas escaped, from which the plaintiff’s at the time of injury. He doubtless also whether knew or not escaped fact leg from the dust and entered the while atwas work there. His whereabouts was known to the defendant at the time of the trial. Though his relation to the employee defendant as an had been severed at the time of the trial, nevertheless APPEAL REPORTS,

608 219 MISSOURI v. friendly expected de- reasonably to tbe to be be would testimony. He disposed it in Ms to fendant and favor It peculiarly the defendant. to therefore available duty produce him aas witness to the defendant’s to complaint inference unfavorable without suffer legitimately to do so. its failure drawn from be deposition not excuse took his fact produce him aas witness. to the failure signed deposition nor the witness, never deposition signature con- waived. his What appear. offer The defendant did not to does not tained obligation plain- jury. There no it to the was' read deposition unfriendly jury the of an read tiff credibility. Notwithstanding avouch his witness deposition, peculiarly available to witness was thereby not excused defendant, defendant was produce [Brigham obligation from the witness. City Growers’ Ass’n Zollmann Produce Co., Fruit v. — l. 911, 918; Mo. 220 W. c. McCord v. —, Schaff, S. — — Fuerstenberg 216—, 320; Kram, S. W. Mo. Mo. v. Reyburn App. 143; Missouri S. Pacific —, W. 575, 174; c. S. W. Murrell 565, R. l. Co., — City, —, L. & R. Mo. Kansas St. C. S. W. 969.] c. l. complaints are made relation to Other the ar- jury gument rulings counsel to the carefully have court thereon. We examined the complaints relate, record which these and we find no substantial merit them.

The defendant insists that the verdict is excessive. plain- shows that at the time The evidence of the trial rapid suffering from action; heart tiff was that he at rest the heart action was at the rate beats per and that after minute, exertion the rate was 140; flabby slightly enlarged; that heart was probably permanent; condition of the heart is lungs were lesions striae in there and the ex- pansion right lung of the was curtailed; great pain and continued to' had suffered injuries; suffer from his perform he that was unable to hard labor; that 1926. Y. v. Cobb. N. Life Ins. Co. earning capacity greatly

his he was reduced; subject fainting need attention; medical that he was sinking spells; account these attacks that on engaged several his times work fell ladders while painter; twenty-five years as a that he old at the time injury. testimony conflicting of his as to whether lungs the condition of heart and resulted from injuries conflicting his or from causes, other but the ev- jury. idence was for the We see no cause to disturb the verdict for excessiveness. judgment

The Commissioner recommends of the circuit court be affirmed. foregoing opinion

PER CURIAM:—The of Sut- n adopted opinion ton, C., is as the of the court. The judgment accordingly of the circuit court is affirmed. Nipper, Danes, J.,P. and BecJker& JJ., concur.

NEW YORK LIFE INSURANCE COMPANY, Cor

poration, Appellant, v. MARIE GEORGIA CAN Respondent.* ADA COBB, Appeals. Opinion April 6,

St. Louis Court of filed 1926. Policy: Misrepresenta- INSURANCE: Life Insurance: Fraudulent 1. Procuring: May Brought Cancellation: Suit Be tions Within Con- Though Equity. Period After Insured’s Death: testable A suit in equity may after the death be maintained of the insured -within policies -period alleged cancel life insurance contestable misrepresentations procurement of the insured in the fraudulent adequate remedy thereof, has no at law as insurer defense to an expiration policy period. brought after the such on action Policy -: Suit -: -: Cancel -: -: Though Death of Period After Insured: Not Contestable Pre- Within 1919, providing Revised Statutes cluded Statute. Section obtaining policy misrepresentations a life insurance shall misrepresented actually matter con- it unless not invalidate preclude equi- loss, the institution of an does not tributed insured, proceeding but within death the con- after the table App. Mo. —39.