249 Mo. 376 | Mo. | 1913
Lead Opinion
OPINION.
(after stating the facts as above).—One section of the Factory Act was reviewed and held to be void because its subject-matter was not clearly expressed in the title of the act as prescribed by the Constitution. [Constitution of Missouri, art, 4, sec. 28; Williams v. Railroad, 233 Mo. l. c. 680.] The particular section of the Factory Act then in judgment was the one referring exclusively to the railroad platforms, passageways and other structures on their yards and grounds. It was known as section 20 of the Laws of 1891, p. 162, and is now found in the Revised Statutes of 1909, section 7844.
The body and substance of the original Factory Act, with slight alterations, is contained in the present revision [R. S. 1909, secs. 7827 to 7852 inclusive.] This court in the Williams case, supra, after disposing of the matter then in judgment by deciding that the plaintiff who had grounded her action upon the aforesaid section of the Factory Act, could not recover because “an unconstitutional act is no law at all,” proceeded to make some observations as to the applicability of another section of the Factory Act defining the duties of the Factory Inspector (Laws 1891, p. 161, sec. 16; R. S. 1909, sec. 7842) to the one held in judgment (Laws 1891, p. 162, sec. 20; R. S. 1909, sec. 7844), and intimated that no civil action could be brought for injuries under the section sued upon even if valid, unless a prior notice had been given by the inspector of the unsafe condition of the platforms, passageways and other' structures in and about the railroad yard to the persons in charge of the place.
If the employer is guilty of negligence per se' in violating the statute imposing personal duties on him, as is the law, then his negligence exists prior and independently of the report thereof by the inspector. The report of the inspector, if it should relate to the peculiar duties imposed by the statute under review, would only serve to call to the attention of the employer his own disobedience of the mandate of that section and require him to do the very things previously demanded and which he had neglected to perform, thereby violating a specific duty
II. The decisive question in this case is, under what circumstances does the duty of the employer to guard the b.elting, shafting, etc., referred to in the section, supra, arise? Obviously, this must be determined by the language of the section as affected by the
In the case at bar the belting over which plaintiff: stumbled occupied two-thirds of the width of the passageway. It was in a state of absolute inertia and had no greater power to inflict injury on him than would have happened if he had stumbled over or against a guard rail of equal height — eighteen or twenty inches. These facts demonstrate that a railing around it would have been no less injurious to a man walking across it with his head turned in another direction— as the proof shows was the case — than the idle belt.
We do not think that the section under review imposed any duty upon defendant to surround this belt with a railing or other guard under the circumstances attending its presence in the aisle at the time plaintiff was injured, and that no cause of action arose in plaintiff’s favor under the section of the statute, supra, upon which his suit is based.
In view of this conclusion, it is unnecessary for us to pass upon the assignment of error as to the alleged contributory negligence of plaintiff.
III. The only point that need be further noticed in this case is whether or not the correct ad
Plaintiff in this case has not brought «himself within the scope and purview of that section. His action is solely based on it. Whatever may have been his rights at common law, he is not entitled to’ recover in the present action; and the judgment in this case is reversed.
Concurrence in Part
This case was assigned to me in division and came into Banc on a dissent. In Banc it was reassigned and written by Brother BoND. On what was considered in division the main question he adopts the view of the divisional opinion. In other matters on the scope of the Factory Act, he does not. For reasons apparent I refile my divisional opinion as a concurring one in part and a dissent in part.
In November, 1909, defendant was in the business of manufacturing engines in Kansas City. Plaintiff, for a fortnight in defendant’s employ as a. pattern-maker, on the 16th of that month, while in the line of his duty, was tripped up in the uncertain light of the early morning by an unguarded belt stretched a' little above the floor across an aisle or passageway of defendant’s factory. This belt connected an electric motor with a boring machine and, when in use, furnished motive power to the latter. Gravely injured in both elbows by his resulting fall, he sued, grounding his action on Revised Statutes 1909, section 7828, reading:
“The belting, shafting, machines, machinery, gearing and drums; in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments.”
From a judgment of $3750, defendant appealed to the Kansas City Court of Appeals. Having taken time to consider, that court was of opinion its jurisdiction was ousted because of a constitutional question. Whether that was so or not so, we are in no little doubt. But as our learned brethren of that
Said section 7828 was section 3 of an act entitle: “An act relating to manufacturing, mechanical, mercantile and other establishments and places, and the employment, safety, health and work hours of employees.” [Laws 1891, p. 159.] The issues seek a study of that act with some particularity. Its first section makes it the duty of the authorities of each city to appoint an inspector. This provision does not seem to have been carried forward as live law in revisions of our statutes, but a scheme of State inspection was substituted to add vigor and mettle to the execution of the law. The second provides for said inspector reporting to the Commissioner of Labor. The fourth prohibits employers requiring women to clean any part of a mill, gearing, etc., while in motion. The fifth requires well-holes, hatchways and elevators to be protected by trap doors, etc. The sixth provides for fire escapes. The seventh ordains that main doors shall open outwardly “when the inspector in writing so directs.” The eighth ninth, tenth, eleventh, twelfth and thirteenth are provisions not material here. The fourteenth provides that an inspector shall have authority to order a fan or some other contrivance to be put in where practicable to prevent the inhalation of dust or smoke by employees. The fifteenth gives the Labor Commissioner power, under given circumstances, to prevent over-crowding employees. The sixteenth (now - See.
“Whenever the factory inspector, or assistant inspector, finds that the heating, lighting, ventilating or sanitary arrangements of any establishment where labor is employed is'such as to be dangerous to the health or safety of employees therein or thereat, or the means of egress, in case of fire or other disaster, are not sufficient, or that the building, or any part thereof, is unsafe, or that the belting, shafting, gearing, elevators, drums or other machinery are located so as to be dangerous to employees, and not sufficiently guarded, or that the vats, pans, ladles or structures filled with molten or hot liquid, or any furnace, be not sufficiently surrounded with proper safeguards, or the platforms, passageway and other arrangements around, in or about any railroad yard or switch be such as to probably lead to injury or accident to those employed in, around or about any such establishment or place, the factory inspector or assistant inspector shall at once notify the person or persons in charge of such establishment or place to make the alterations or additions necessary within thirty days; and if such alterations or additions be not made within thirty days from the date of such notice, or within such time as said alterations could be made with proper diligence, then such failure to make such alterations shall be deemed a violation of this article.”
(Note: This is the section held in judgment in this case and also in the Williams case, infra.)
Section 20 (now Sec. 7844, R. S. 1909) required platforms, etc., around railroad yards, switches, freight houses, etc., to be “located, placed and arranged so as to insure, as far as possible, the safety of employees from injury or accident.” (Note: This was the section mainly dealt with in the Williams case, infra.)
(a) Of the first question. In administering written law it is not uncommon to find this or that part,
Now, an examination of the Act of 1891 demonstrates beyond all cavil or doubt that its provisions
In this connection we must allow some weight to the fact that the constitutionality of the Act of 1891 in some of its general features is settled. (Transit in rem judicatum.) It is a thing adjudicated. This is emphatically true of section 7828, now held in judgment. [Lore v. Mfg. Co., 160 Mo. l. c. 622.] In Lohmeyer v. Cordage Co., 214 Mo. l. c. 690-1, the constitutionality of that section was taken as settled and no longer so subject to reagitation as to give this court jurisdiction. True, in the Lore and Lohmeyer cases, the point now in hand was not raised or ruled, for the Williams case had not then been decided. But we take it the fact is not without stiff significance that in the twenty-one years this law has been upon the statute books, its constitutionality, in general outline, barring its railroad features, has been ruled, at least bn broad lines, more than once and in many other cases reaching our appellate courts, has been assumed as no longer an open question. Indeed, we do counsel for appellant the justice of saying that, as we construe his brief and argument, he does not labor to maintain the view that the whole law perished by construction when its provisions relating to railroads were declared unconstitutional, because of a neglect in making its title an accurate and constitutional in
(b) Of the second question, viz.: Is a thirty-day notice from an inspector necessary before a manufacturer could be held guilty of a violation of section 7828 (3 of the original act) so as to create a civil liability on behalf of an injured employee? And herein of the Williams case in that regard.
(Note bene: Observe, it is civil, not criminal, liability that is at issue on this appeal. Therefore, we should not undertake to decide whether a crime could, or could not, be committed until a notice has been given and thereafter thirty days elapsed. The maxim in that behalf is: A court has nothing to do with what is not before it. Nihil habet forum ex scend.)
It should be held, then, that the question of the necessity of the thirty-day notice before civil liability attaches is not precluded by the Williams ease but is open.
To a consideration of it, we pass.
In the second place, as was permissible, the Act of 1891 has both a civil and a penal side. The one looking to a civil duty, for the negligent breach of which a civil liability arises, the other looking to a public duty, the violation of which would be a criminal offense to be visited by the rigors of a criminal prosecution and punishment. We would naturally expect, then, that some of its provisions look to the civil and some to its penal side in order to make all of them effective.
In the next place, section 3 of the original act (now 7828) prescribes a duty to guard and fence dangerous machinery, including belting in given circumstances, or to post a notice when a guard is impossible. By necessary implication, when a statute is silent in that regard, as is this, a negligent breach of a duty imposed by it for the benefit 'Of persons, followed by injury to any such person, creates a civil liability for such resulting damages. [B]. Inter. of L. (2 Ed.), p. 85, et seq.; Willy v. Mulledy, 78 N. Y. l. c. 314; Rose
“In every ease, where a statute enacts, or prohibits a thing for the' benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong-done to him contrary to the said law.” [Comyn’s Dig., Action upon Statute, F.] All of which is agreeable to the maxim: Ubi jus ibi remedium. That the right of action for a breach of duty imposed by statutes of the character we are considering is actionable, springs from the general proposition just announced. [Vide Willy and Rose cases, supra.]
In the next place, in the exposition of section 7828 it has been held uniformly that its violation is “negligence per se.” [Lore v. Mfg. Co., 160 Mo. l. c. 622; Colliott v. Mfg. Co., 71 Mo. App. 171; Millsap v. Beggs, 122 Mo. App. l. c. 6-7.] Now, what does “negligence per se” mean, other than that it is negligence in, of, by or through itself, as a matter of law and without anything more? The very term imports that meaning. Section 7828 prescribes a simple, plain duty by employers to their laborers. It says nothing about notice to an employer by an inspector. It is as definite and certain as it could well be made by the lawmaker in order to be efficient and effective; for, if he had left off the use of general language and gone to enumerating, he would have weakened a general law and fallen foul of the maxim expressio unius. ITow could á notice from an inspector aid the law, or the employee for whose weal it was passed? On its face it is directed (not to an inspector, but) to an employer. The law by its own vigor and own letter, lays the burden of the immediate duty of obedience upon the employer. It speaks directly and with emphasis to him. To hold that before it becomes operative, a notice from some inspector is necessary to impose the civil duty, in order to jog the
When we held, as said, that a violation of the section was “negligence per se,” that ruling, by implication, precludes the idea of such adventitious aid as a notice from an inspector. In that view of it, the question of notice has been heretofore impliedly ruled against appellant.
In the next place, when the lawmaker desired the interference of the inspector and a notice from him to impose a duty in the first instance, he was astute to that end. He said so in express terms and left nothing to implication. Thus, by the seventh section of the original act it is ordained that main inside and outside doors should open outwardly — when? “When the in
In the next place, it is a rule of interpretation that all parts and provisions of a law should be read together and every word, phrase and provision be given some effect, if possible, and all provisions harmonized, if possible. Turning now to section 7842, relating to a thirty-day notice, an examination of its terms with its context shows that such notice filled an appreciable office in connection with the penal features of the statute. It provides that if the notice is given and thirty days elapse without obedience, such failure to obey the notice and to make the additions and alterations required thereby should be taken itself as a violation of the act. When we read in another section that any violation of the act is denounced as a misdemeanor, we see at once that a disobedience to the notice may have reference to the penal sanction of the law and thus have a function left to it. Furthermore, in this connection a careful analysis of section 7842 shows that the lawmaker had in mind that the employer should or may have already acted in obedience to the law before the inspector appeared, and that his action may have fallen short of what the law required, or be ineffective in some particular. In that event the notice would be a spur in his side by furnishing a basis for a new misdemeanor by disobedience. The inspector
Again, when we read in other sections that grand juries, prosecuting attorneys and inspectors are charged with a duty to enforce the law, it is not unreasonable to look on section 7842 as leveled merely at the enforcement and execution of the statute as a public act having penal provisions. In this view of it, section 7842 has little or nothing whatever to do with the civil mandate of the law or civil liability on the part of the master for a violation of the duty prescribed by section 7828, but looks to the penal side of the act.
But we have pursued the matter far. The sum of it all is that, on the manifold grounds suggested, it, should be held that a notice from the inspector under section 7842 was not a condition precedent to a right of action in plaintiff under section 7828. That conclusion is buttressed upon adjudicated cases elsewhere, interpreting and construing statutes of sister States requiring dangerous machinery to be fenced and so worded as to be more open to a construction favorable to the view of appellant’s counsel than are our own statutes. In many States there are laws prescribing such duty upon the master, also creating the -office of inspector and prescribing his duties. Usually these statutes are long and intricate. We have examined many of them and will not swell this opinion by reproducing or analyzing their provisions. In construing them courts have taken the view that notice from an inspector was not necessary to impose the duty of obedience upon the master or give a right of action to the injured servant. The student in case law, with a prying mind in that behalf, may consult the following as in point: Rose v. King, 49 Ohio St. 213; Willy v. Mulledy, 78 N. Y. 310; Carrigan v. Stillwell, 97 Me. 247; Pauley v. S. G. & L. Co., 131 N. Y. 90; McRickard v. Flint, 114 N. Y. 222; Arms v. Ayer, 192 Ill. 601;
Finally, the Williams case, supra, on which appellant puts reliance, was ruled on the strength of a Massachusetts case. [Foley c. Pettee Machine Works, 149 Mass. 294.] A re-examination of the Massachusetts statute show's that the decision in the Foley case took color and substance from its peculiar wording. In the Massachusetts statute, the phrase “the opinion of the inspector,” was interwoven with the section creating the liability in such a way as to make the inspector’s “opinion” a condition.precedent to a violation of the law or a right of action. [Vide that statute, copied into the Williams case, pp. 683-4.] That statute, for reasons of its own, made the opinion of the inspector a sine qua non. There are some cases in Michigan, construing a statute similar to that of Massachusetts, running to the same effect. In the Michigan statute a guard was made necessary “when deemed necessary by the factory inspector.” [Kerr v. Mfg. Co., 155 Mich. 191.] Those cases do not construe statutes worded as ours, hut substantially variant. Hence this division of the court fell into error in following the Massachusetts doctrine in the Williams case and that case should he no longer followed on the question of notice, but be taken as modified as herein stated.
The point should be ruled against appellant.
II. It is assigned for error that a demurrer was overruled to the evidence, that a certain instruction was given for plaintiff, that certain other instructions were refused for defendant, and that improper testimony was admitted and proper evidence ruled out.
Plaintiff, as said, was hurt early in the morning. He was hurrying down a factory aisle to “register in” for work at a “register clock” provided for that purpose. The light was uncertain at that hour of a winter morning and the belt was in the shadows of surrounding objects. It had been in use for about one week and there is evidence tending to show that plaintiff did not know it was in use. There was a space of two or three feet of the aisle not occupied by the belt. There was another aisle plaintiff could have used, tut there was testimony to the effect that the aisle he did use was in customary use to the master’s knowledge. At the instant he tripped and fell, the belt was stationary — that is, in the sense only that the motor was not running. If this belt had been out of reach over the head of plaintiff and had burst while in use and injured him, or if it had been disconnected from the machine and lying in a heap on the floor, we would have had a different case to deal with. True it was not in motion at the instant, but we are not prepared to narrow the scope of the statute to dangerous unguarded machinery and belting merely while in motion. The factory was a live factory, the hour of the accident was a business hour, the machine run by the belt was a going machine' — i. e., one that had been used and was intended to be used. That the belt was not in motion at the instant of time was a mere incident of its use. It is evident enough that
“Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists ■only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions, from admitted facts thus occurring than can a single judge.”
Now and then a jury has been called, in sneering irony, the “Apostolic Twelve.” But there is another view by Valliant, J., I have been fond of referring to. [MacDonald v. Railroad, 219 Mo. l. c. 483.] And another, the animated pronouncement of Brougham (Present State of the Law, February 7, 1828) viz.: “In my mind, he was guilty of no error, he was charged with no exaggeration, h¿ was betrayed by his fancy into no metaj)hor, who once said that all we see about us, kings, lords and cpmmons, the whole machinery of the State, all the apparatus of the system, and its varied workings, end in simply bringing twelve good men into a box.”
Complaint is made of plaintiff’s instruction number one. We will not reproduce it; for we find no fault with it.
It is argued that the court erred.in refusing one out of the six instructions refused for defendant. But
The point is made that the verdict is excessive. We find plaintiff was seriously injured in both arms. The injury was of such sort that we ought not to cut down the size of his recompense.
Assignments of error relating to the admission and exclusion-of testimony are also overruled. We think them without substantial merit.
On the whole record, the judgment should be affirmed.
