*1 holding thereon. In so is that court not in previous . conflict with ruling of this court.
It improvidently follows that our writ was issued and should quashed. Ferguson Ilyde, It so ordered. GC., concur. PER foregoing adopted opinion Sturgis, C., CURIAM:—The opinion as the All judges of the court. concur. L. Oil & Appellant, v. Wilma Stein, Battenfield Grease Com pany. 345. 39 S. W. One, May 21, 1931.*
Division Term, 31, 1931; Opinion March at October motion filed *NOTE: May 21, Term, April 1931. rehearing at overruled *2 J. C. Cowgill James t& Popham appellant. *3 Downing respondent. &
McCune, Caldwell *4 plain- damages, the death $10,000 C.—Action ELLISON, defendant. alleged negligence by the occasioned husband, tiff’s in- her set aside motion overruling plaintiff’s judgment From a The deceased appealed. has leave, she with nonsuit, taken voluntary apparatus electric certain replacing repairing and engaged was entangled became when he plant manufacturing respondent’s injury. fatal resultant motor, with electric running from an belt in a of Sec- violation unguarded, charged belt petition evidence is substantial there 1929, and 13222, Revised tion common- assigned also pleading contends Appellant fact. general a answer recovery. The ground as a negligence law assumed negligence contributory pleas coupled denial, regards risk. As the statute, respondent asserts the con- evidence clusively showed the deceased did not come within its terms and protection, because he was an independent contractor and not a person "employed” at plant and "engaged (his) ordinary duties.” With respect to the common-law negligence the contention is that the deceased was an invitee and assumed the risk of known dangers or guilty of contributory negligence as a matter of law. The deceased was thirty-eight years old and expert electrician of twenty years’ experience. He was in business for himself. He originally installed the motor figures which in this case. work His included the wiring of houses, buildings, hotels, and electrical work generally. He usually had a jobs number of on hand, and on the day of injury had other work besides of respondent. He furnished his own tools and materials and worked at pleasure his own and at his own hours. He regular printed had forms, statement heading: which bore the "In account with Oscar F. Stein, Electrical Construction Repairs (telephone and street numbers). All bills due payable when the work is completed.” He used these in rendering respondent statements to and other customers for Avork done and materials furnished. For his time he charged per $1.25 n hour,and monthly earnings were from $250 to $300. paid by He was check on each bill respondent. rendered This form payment not used respondent paying wages workers in plant generally. The deceased had been doing jobs of electrical work for respondent off and on for four or years. five Indeed, it seems he was called to do all the work respondent had in his line. Sometimes he came for an hour, sometimes day for a half, and a and there would be intervals of four or five months jobs. between He did not work at any certain time, but came and pleased. regular went as he started work at seven p. o’clock a. M. five-thirty worked until m. There was no evi- respondent dence whatever that retained attempted to exercise any power of work; control over his Law, witness testifying for appellant, that he any said had never heard officers give Stein instructions of any nature about how to do' the work. February 14, 1924,
On Stein respondent’s came to the plant and commenced pipe along to run conduit large east wall of a room on first floor to switch box in the southeast corner of the room. The room was about seventy-five 100 feet feet, and a working number of men were therein. The switch box was fas- against eight tened the east wall about feet above the floor and *5 served the electric motor already mentioned, opposite which stood SAvitchbox about and a half three feet the from east wall. thei motor was about three and high, feet
one-half and the belt ran from a pulley shafting upward thereon northward to ceiling. near the the but, There was evidence that motor and belt as guarded, were tending contrary. stated, the also evidence to testified)
Immediately (so was Mr. before accident Stein Law reaming in the switchbox for the conduit to enter. He was a hole right two-by-six standing piece foot a which was with his on cross against wall and three and one-half feet above the floor. the east flange top of on the at the the motor some three His left foot was away from the wall and about the same distance feet and one-half flange rounded and four inches This three or the floor." above partly belt and motor was run- astraddle the width. He was vibrating. His face was toward north and the switch- ning and right him worked slightly so that he back over south box shoulder. fall; but produced saw deceased start to who
No witness away, him was then sixteen feet passed just Law, who had pulley, turned, and saw deceased fall- snap off the belt heard mptor boxing. With his on chest belt and ing down on the guard with pinned the end thereof under deceased said) (so he and other head, and Law resting on injuries badly His get him loose. were a guard down tore after He died few minutes fractured skull. and a arm lacerated hospital. being taken Appellant’s first contention is that she prima-facie I. made out a per se under Section negligence Revised
case resnonrlent maintains the contrarv. asserting' the deceased did met.
come protection within the statute, because an independent he was contractor. This raises questions: two as proper first to con- statute; struction of the and the second as to the by shown nature the relation evidence to have been sustained by respondent. deceased the section involved follows: belting, machines, machinery,
“The shafting, gearing and drums in all manufacturing, mechanical and other establishments in this state, placed dangerous as to be employed when so therein ordinary engaged duties, safely while or thereabout their shall be possible.” securely guarded (Italics ours.) (a) highly It is well settled the statute remedial and should liberally meaning. construed to its true effectuate intent theory appellant proceed even cited (cid:127)But the cases person injured when a an establishment covered the statute upon thereof, cause of a violation he must seeks found his action came, “employed provisions person its and was show he within (his) “engaged ordinary duties.” therein thereabout” *6 (St. App.), L. Ct. Wagner Corp. Poppen in Elec. Thus, employ of the defendant plaintiff in the (2d) 199, the was working press was not press. The power punch operator of as an ex The latter summoned foreman. he properly and calied stand one side and plaintiff to to doing the pert. foreman directed plain so the While the machine. expert howsthe fed observe fingers were of his hand, and three slipped tiff and thrust out Appeals of The Court press. unguarded punch of the off the cut adopt a strict authorities, to the liberty, under at held it was not used “ordinary as duties” words interpretation the of narrow came plaintiff interpreted, so the if but that even statute, in the facts. purview, its under the within 144 S. 405, 240 Mo. Lead American North In Cole v. 210 Mo. Bakery Co., Heydt Huss v. from quoting W. “It section, this court said: of this speaking 108 S. W. Legislature to intention the it was clear that perfectly only servant, which master and governing law change common the reasonably place and safe servant to furnish required him duties, and to establish. perform his which to instrumentalities duty upon the master.” higher standard a much thereof instead 320 Mo. Mfg. Co., & Bros. Macaroni v. Viviano Guidice In and. mechanic was a plaintiff 965-6, the 8 S. W. just had factory. Hie macaroni the defendant’s man in maintenance large pipes and system steam aof completed installation partitioned was which drying room fans in motor-driven injured. when testing apparatus was it, and rest of from off employees the other of all the duties guarded, but fans were con The defendant enclosure. enter them require did not statute protection within not come did plaintiff tended extraordinary anof performance in the time at the he was because only em statute covers being theory duty, the defendant’s work by employees ordinarily performed in engaged duties ployees production. This plant operating machinery about ing with or plaintiff me work the saying the contention, overruled court other extraordinary regards the might been doing have chanic Mm,. point this Speaking ordinary as to it employees, but all protection to “affords statute opinion declares discharge of their machinery working with ordinary duties.” W. 250 S. 70, 78, Mfg. Co., Brass Louis v. St. Simon In intended statute “the is that made statement 74, 76, manufacturing plants, machinery machines appliances, all cover such establish- employed all protection its extend and to them.” or about machines, with the working at whether ments, W. 252 S. Belting Co., v. Schultz Albrecht In factory, operator the defendant’s a machine plaintiff, changing from his work clothes to his street at the end clothes day. By direction company years two he some customarily had kept hanging the latter from the under side *7 they shelf protected where by were un- burlap curtain. An' guarded rapidly revolving and shaft was located ten inches obliquely above the shelf. plaintiff open When the curtain threw get to entangled clothes it became wrapped and around the shaft,' carrying his arm with it. aAs result he lost the arm. argued The defendant guarding applicable, statute was not be- plaintiff cause engaged “ordinary was not at the time in his court, quoting duties.” This done, after the statute as we have duty guard said: “It is evident to that does not arise under language this shafting, placed etc., unless the is ‘so dan- to be gerous persons employed (establishments described) to therein’ ‘or ” .engaged while ordinary thereabout in their duties.’ Then after discussing meaning “ordinary” opinion of the word con- question tinued: “The thus becomes one whether was duty using in the by line the shelf as directed the foreman.” question It was held the jury, was one fact for the and that issue having plaintiff’s submitting been omitted from instruction the case the statute, under the cause was reversed and remanded. foregoing by appellant.
The decisions are cited There are others along (Mo. line, as, Leming the same v. M. E. Div. Head Lbr. Co. 1), clothing 281 S. W. deceased, 444. of the an There caught projecting revolving cleaner, oiler and on a screw from a set shaft, whereby injuries. line he sustained fatal The court said it ‘‘ guarded, was the set screw could have been and added: The clear: deceased) only question (the that is even debatable whether Head engaged performance duty employ incident to his revolving ment at the time he came in contact with the shaft ’’ screw. point— are still other cases that come even closer to the
iBut there they 13222,- fact decide it. The of Section Blevised 3 considering, which we are in substance was Section Factory Latapie-Vignaux v. Act, 1891, page 159. In Askew Laws Saddlery 91 Co., 496, 499, Mo. S. W. court had before the! act, of the same now Section Revised Statutes it Section requiring hatchways, and well holes to be covered elevator shafts freight guarded. plaintiff attempting The start a elevator unguarded shaft. was held had fallen down the It the statute working openings protection around the and not language operators. said: The court “The for elevator pro- accompanying the other section, together with the context and clearly act, demonstrates that the lawmakers had visions of the large safety employees in factories.” provisions mind (The places” appearing words “other establishments title by factories simply to than application given a broader have been cases.) later 1,W. S. Rothschild, 221 Mo. In Glaser v. under section same Cas. S.) 17 Ann. (N. R.L. A. invitee, not an plaintiff, en Court Banc. construction pit elevator open falling into injured been employee, had a whole Viewing act as the statute. recover under sought to “invariably except two: 28 sections of its that all observed the court mentioned,” and therein institutions employees of the refer “the related expressly the title to the fact called attention employees.” hours work safety, health and employment, protected act reached was conclusion invitees. Mfg. Wagner Elec. In Mansfield cited referred case last 401, the Glaser-Rothsehild of facts set another applied thereof principle approvingly *8 same act. the involving section still another the App.), (St. L. Ct. Hemp & Co. In Behre work japanning certain to do employer by his was sent plaintiff fell engaged he so While the defendant. premises of on the for and right basing his sued, He injured. hatchway and was through a on Appeals, Court of Louis St. statute, and the to recover “has statute held the supra, Rothschild, Glaser authority of defendant.” of the except employees person to application no in involved statute guarding 13222, the Getting to Section back Box v. Columbia in Strode of it said court case, this instant danger subject was 25, “the 22,W. 158 S. Co., intended law was and and drums’ gearing shafting, ‘belting, from agencies.” particular by these injury to prevent in that insists appellant cases Missouri Notwithstanding these construction the liberal law purpose humane of the view it covered to hold case in this ought it, we accorded heretofore “employed” the word that fact called is Attention deceased. engaged, or occupied, busied means sometimes section used so manner; and certain in a employed is time one’s say toas arrange- contractual regardless of the presented argument is establishments in or about doing work anyone is ment, at occupied actually thereof, and the conductor designated pro- within come ought to work, he of that line in a task be dan- as to placed machinery so if the statute tection of him. gerous to The interpretation. fairly bear will statute But the section language, The it. forbid act context title establishment in or about employed person Ait. excludes itself than something wore ceptaiply engaged ordinary duties independent particular job. contractor aon When associated with the idea of service, employ the word means hire or use make (Webster’s of the services of New Dictionary); International implies control the employer over the means and manner of doing the work. & (3 Ser.) p. Words Phrases 203;,3 (1 [3 Id. Ser.) p. 2372,] general In opinion our underlying purpose law was to¡ premises render industrial through safe for those who continuity of constantly service are brought dangerous proximity exposed machinery. There would not be the same reason for such requirements in favor independent of an controlling contractor only his own movements and occasionally called special work. general doctrine is said to be that statutes of that character do independent not cover contractors. A. L. pp. R. [43 note.] Kanz v. J. Neils Lbr. Co., Minn. N. W. 36 L. S.) (N. A. 269, and some the decisions reviewed in
R. the note appended report of that case L. Ei. may A. seem to run just counter to the conclusion stated, they but where do they are to be differentiated because of a difference the statute or some controlling reason, they other or else are wrong, in opinion. our Two of cases cited are Missouri decisions. We summarize them. Mining
In Rich Hill Fell v. Coal App. 216, the de- owner of a coal fendant mine contracted with M to mine the coal. engineer The defendant was to furnish the hoisting machinery. cage provided was not spring The elevator with a catch in obedience now to what is Section Revised 1929, requiring operator” agent every “owner, shaft mine to furnish such equipment. cage fell and the plaintiff, an employee of the *9 injured. independent M, contractor was It was held he could re- ground statute, cover the on the under that inasmuch as the defend- control of operating ant owner had reserved the machinery, to that of master extent relation and servant the existed between it and fact, says for plaintiff. the the opinion, But there would be liability. no Mining Hill Rich Coal 110 31, In 19 Mo. Leslie S. 308,W. W to contracted with mine the coal
the defendant in one of its obligation itself of relieving the mines, provide without but suf props enjoined by the statute, now ficient timber Section 13673, agent owner, “the 1929, on operator.” Statutes or Revised In duty W that was by expressly contract fact, the continued further provided, The statute now defendant. Section the any injury that “for persons Statutes or Revised property willful violations of this by any act ... right occasioned a party injured,” to the accrue etc. shall plaintiff of action W injured contractor was independent employee of the the caving props. lack of It roof, due to mine held in of the he could. 8Í4 against saying require- owners, statutory
recover the court safety ment “was secure of the intended to the health and employed mines, employed,” no whom and that matter necessarily therefore “the relation master and servant is not principles governing nor of law that relation.” involved, Marshall, App. in Tomlinson v. Mo. So, case, a later laundry 236 W. owner of a leased to F. In- S. the defendant it equipment mangle, was a the rollers of which were cluded caught unguarded. employee F, lessee, An his hand between injured. against rollers It was held he could recover guarding statute, under the Section Stat- the owner Revised making Revised in view of Section utes person, being firm or any corporation, owner, a misdemeanor it any occupant designated by establishment agent, or lessee any employee thereat, therein or article, and “violate or aid provisions” violating (Italics article. abet or ours.) extending discussion, already this too long, of the Mis-
Without
bearing
it will
statute,
on the
be observed that
cases
even the
souri
paragraphs
few
last
harmonize with
reviewed
those
decisions
plaintiff
proposition that a
on the
cited,
recover under
earlier
employee
somebody.
employed
He
must be
must be
statute
“ordinary
have
the establishment
duties.” Whom
which
question with
we are not
is a
concerned in
may sue
this
he
case.
employee
independent
or an
(b)
the deceased
Was
contractor?
conclusively shows he was the
the evidence
latter. He
think
We
his own
conducting
business of
with the
usual
indicia of
engagements
enterprise. He made
where,
business
working
whom he chose. While
and with
at the re-
spondent’s plant he came and went at
pleasure,
his own
using
adopted.
his own tools
materials. He
bringing
respondent had no control
over his work
own methods
job
When
done his bill
result.
was due.
except as
Louis,
S. W. 611, 617,
v. St.
McGrath
In
633, 639,
Ullman,
quoting Crenshaw
independent'
“an
...
is that
contractor
down
laid
rule
representing
an occupation,
in the course of
service
renders
one who
only
work,
as to the result of his
and not
employer
will of
’’
accomplished.
also
it is
See
C. J. sec.
by which
means
as to
note;
3, p.
A. L. R.
R.
L. sec.
1316; C.
p.
*10
(Mo.
758;
Dry
banc.),
Co.
S. W.
Goods
Peck
Geo. B.
v.
Coul
(St.
App.),
L. Ct.
291 W.
Co.
S.
Security Const.
Aubuchon
189.
idea,
negatives
respondent
that the
this case
in
evidence
All the
as to the method and manner
deceased
over the
any control
had
point out
attempt
does not
work;
appellant
doing
tbe
a whole
argues tbe circumstances
contrary.
sbe
But
tbe
“general”
tbe
was witbin
deceased
that
an inference
tbe
support
would
respondent
tbe
respondent.
It is insisted
employment
tbe
pipe and
tbe conduit
to install
deceased
permitted tbe
have
not
reserving
plant
in
some
tbe
without
be used
apparatus to
electrical
all
This does not follow at
put in.
should be
bow it
over
control
employee. Tbe
an
make tbe deceased
as would
any such sense
in
retain control
in the result
could
interested
converting
progress of
work without
tbe
during tbe
even
that
over
into that
master
and tbe deceased
itself
between
the relation
68;
p. 1319;
4, p.
R. C.
sec.
L.
J. sec.
C.
servant.
[39
Butler,
note; Jackson v.
p.R.
A. L.
City,
tbe but an inde employee was not tbe deceased and that may, re contractor, nevertheless, sbe pendent tbe tbe death of under tbe statute cover first, au reasons: on for two deceased—this 187 S. (Mo. 1), Div. W. Crawford thority Meenach plead not tbe defense respondent did tbe second, because affirmatively up contrary, tbe set contractor, but independent re appellant says confessed tbe risk, which of assumed defense tbe and servant. master that of lation crossing in pedestrian was a street a case Meenacb In tbe (a) discharging pas- car was street place where close to Louis St. automobile and billed. defendant’s tbe struck and was sengers, this court set out tbe opinion In its bis death. sued wife Tbe 322, 326, provid- pages Laws Paragraph 2, Section last standing to passing cars street approaching ing substance every operator of motor vehicle tbe pr discharge passengers, receive approaching a necessary, and when stop; if down, slow shall give timely down and slow highway shall tbe out pedestrian guilty of negligence defendant tbe bolds opinion signal. Tbe warning, through tbe speed, without driving excessive at an says: leaving car, “Tbe tbe but street were people where space of one of said instead Meenacb struck automobile fact that tbe mere neg- of tbe defendant of tbe conduct relieve does passengers imposed upon law him to tbe reason obvious tbe ligence, Paragraph (aforesaid), in Section mentioned duties tbe perform *11 816 protection only passengers getting
for the of not who were might ear, safety who be off the but also of all evidently con- it.” This referred to the of the section n cerning pedestrians. obscure, The decision somewhat but does is meaning by appellant. have the attributed to it It is au- not not may damages thority statement vio- for the -one recover protection. not enacted of a statute lation question pleading. petition alleged The (b) On the “employed” by respondent plant, at its and that deceased was employee” injured. as an his duties The performing “was he general contained a denial. answer Under that plea respondent was entitled to show the de- independent was an ceased contractor. [Baker County Milling Co., 1089, 1108, 323 v. Scott Mo. (2d) 494, S. W. If was that he not an employée, he was- 501.] employee if an gave he was not death cause of action no under the guarding Any statute, we have tending held. evidence show legal asserted cause action never had existence is admissible general Brennan, 324 565, (2d) under a v. 23 S. W. denial. Mo. [Nall though this is presented And true the facts af be 1056.] they if character, and insofar as only firmative are adduced plaintiff’s negative cause of action by way and not of confession Rush, 156 120; v. Mo. and avoidance. S. W. [Jones (St. App.), Rid. v. Ill. Cent. Co. L. Ct. S. W. Connole (K. 909, 912; App.), Prewitt v. Witte C. Ct. 26 S. (2d) 1020, W. 1023.] by pleading did the waive that defense
Neither assumed general under a (Guthrie It could have been made denial v. risk. 1137, 1151, (2d) 886, 892); 6 S. W. in Gillespie, and was not (Adair consistent with a denial of the cause of action Ry. Co., 282 C. Term. Mo. 220 S. K. 823). Furthermore, ap W. its broader assumption risk, risk, or incurred plication the doctrine may cases, applied but other limited to master-and-servant not 1412; 45 where contractual. C. J. C. especially J. relations, [5 St. L. & S. F. 1043; Co., Mo. p. Tinkle sec. Rd. Fillingham v. St. L. Transit 110 S. W. Licensees and invitees App. 573, 316.] (45 premises going on the of another J. risks in C. certain assume why apparent no reason is 244, p. 837), and 798, sec. 203, p. sec. general connection with denial. pleaded be- may that defense main defense that -the deceased not waive here did plea contractor. independent but employee not an (cid:127) appellant that she made a remaining contention III. negligence, and should not have common-law ease prima-faeie been nonsuited for that Conceding reason. petition her stated a cause of action on theory, and that it was a part °f her trial theory, passing by question
whether it was the duty common-law of the respondent guard (39 the belt C. J. 523, p. sec. 402; 18 R. C. L. see. 94, *12 p. 591; Kuhn Lusk, v. Mo. S. W. 638), we are of the opinion that her evidence did not go entitle her to jury. going respondent’s
The deceased in plant as an independent work, contractor to do invitee. The respondent would be injury him by any liable occasioned unsafe condition of the premises work, encountered in the which was known to it but un him; known to but injuries was not resulting liable from condi obviously dangerous tions known the deceased to be so. As to guilty these contributory he negligence, or, accurately, more risk. assumed the He knew the belt was unguarded, he knew the running great speed motor was '‘at and with terrific force,” as the petition yet position says, and he took three feet’a/bove the floor upon flange with one foot the rounded of the motor and the other against wall cross-piece three feet away, legs with his rapidly moving belt astride and his body twisted, while he not a He was servant ordered respondent worked. go did; expert following where he he was an his own devices. He knew he to cope would have with. Under conditions the au charged liability thorities the cannot for the un Lehman, 294 result. v. Mo. 579, fortunate [Main S. 91;W. 318 Mo. Vogt Wurmb, 279; S. W. Hydraulic Goetz v. (2d) 9 W. 606; S. Co., Press Brick Cash v. Sonken- (2d) Calamba 927.] affijrmed. judgment Seddon and Ferguson, GO., concur. foregoing opinion by PER CURIAM:—The Ellison, C., adopted judges All opinion of the court. as the concur.
Sterling al., Appellants. P. Hunter Lee Hunter et S. W. 359. One, May 21,
Division 1931.* Term, Opinion filed -at October March motion *NOTE: rehearing April Term, May overruled at 193L