*1 421 ap- It is in whom court title. Lasswell, W. D. the trial decreed plaiiitiff’s parent declaration us that the tidal court refused evidence ground law that there was no substantial nuinbei’ed do possession years. Plaintiff’s learned counsel continuous ten thirty-year statute. not claim under the showed title acquired a title under that she There is no substantial evidence ten-year of Limitation. Statute judg- Let its right of this case-.
The trial court found the solution ment All concur. be affirmed.
George Company, Timmermann v. St. Iron Louis Architectural (2d)
Appellant. S. W. 791. One,
Division December 1927. *3 Ti’Arcy Ne-un, cO A. Habig Leahy Franlt and John P. appellant. *4 respondent. & Eagleton M-emsley,
Mark D. Allen Marsalek *6 damages is an action to LINDSAY, recover person- C. This alleged injuries plaintiff, the al sustained to have been caused plaintiff negligence of defendant. was the structural iron injury engaged time was in worker, and at the connecting an top upright beams, ends of two iron iron beam to the or columns, in building, spoken Building, the Irene the construction in the city St. The two columns Louis. were about twelve feet in resting top the height. The of them was beam fourteen or fifteen as a ten-inch n long, beam, flanges feet and was described of which top or six inches wide. It was to be were five bolted to the ends of question plaintiff in upright columns. At time sat upon beam, making was one end connection with the column alleged, It was and the under end. evidence to show, tended pieces plank it was the custom to brace the column ground adjusted against at the timber, made fast column, upright, being done; of work hold it while this sort was ap- it pears also that the materials for such braces available. were In this upright no were set to hold the column in position, instance braces directing Zeis, work, Arthur Avhowas one was holding the upper column at the end of which was at work, for the keeping steady upright position. it purpose Plaintiff testified would braced, that he asked whether the column and Zeis said engaged, something happened he would hold it. While so to a der- building, go and Zeis rick, column, also use in the let fifty derrick, away, over which was about went feet and at carrying over, time the column fell with it the beam on this which resulting injury. sat, engaged fabricating was business of The defendant and in- stalling buildings. iron used in the structural work erection of One contractor for the erection of the Wm. C. Bartels Irene Building, furnishing and had sublet to defendant the contract for doing work, work, called for as iron materials, re- building. quired plaintiff’s and is the erection being Zeis, directing work done plaintiff, contention that employed as a foreman. by defendant Defendant’s contention do the work of installation of undertook to the structural independent contractor, 'employed and that iron, sharply claims constitute most con- respective These Zeis. as- ease, enter into several the numerous issue tested including error, the claim that was error to refuse signments of *7 to the evidence. demurrer defendant’s subject, to a statement of the evidence reference
Before thereon, may questions properly raised he pleadings, and some urged petition, amended on which the case was made. It is action, tried, to facts sufficient to constitute cause of fails state by objection demurrer, any not raised man- That or by verdict, defendant’s motion in until after arrest of length, at some and objections are stated some The to judgment. intermingled with them claim that the evidence is there extent defendant; part on the but the substance negligence not show' did petition pleads only, is, that the counsel conclusions the claim constituting petition of action. The is a cause not all not facts and alleges plaintiff engaged while in the be desired. that could injured through employment for scope of his and line following. particulars in'the Then negligence fol- defendant negligence statement devoted to the on the paragraphs five low that, charges paragraph negligence, The first part of defendant. plaintiff required upon large and to sit "ordered 'hor- defendant knew', known, or could have when defendant that said izontal beam by supported, likely and reason braced, or thereof was was not beam injure In plaintiff.” second paragraph fall and and to tilt alleges a failure to furnish reticent, plaintiff pleader, less somewhat required work, that, he w'as w'ork place in which to to on a a safe resting perpendicular two .beam, beams,'when de- horizontal ordinary by care, the exercise could have knew or known fendant braced, supported secured, by not or or were and that said beams injure likely plaintiff. to fall and The third reason thereof were alleged knew', or paragraph known, that defendant could have aof Louis, general prevailing vicinity, in St. at time, custom supports means prior thereto, to brace said beams leading prevent ground, from said to to braces beams said beams moving shifting construction, or while the course of from wholly disregarded duty respect, in that
its and failed to brace said alleges paragraph fourth that in the beams. The absence of braces beams, employees defendant its to caused one of to secure hold beams, plaintiff one of and assured he would continue to hold same, reasonably plaintiff and that it be safe for would con- to rely tinue work on said horizontal beam. and caused assurance, upon notwithstanding, employee, said who charge Avork, negligently W'as and control of the the. released warn, perpendicular beam and failed to same, hold failed to plaintiff thereof, consequence negligently as a thereof left said' “wholly unbraced and unsecured.” The fifth unsupported, beams alleged to warn paragraph merely failure the fact danger secured, not braced or of the of their fall- the beams were or ing. specifications of the existence of the to brace custom beams, holding, letting go column, then and of the were jury. not submitted to sufficiency objection petition,
An coming after ver although dict, made, is permitted favor, to be. with and is viewed sustained, intendment, “if be reasonable or fair im if stated, the facts liberal plication from most construction, allegation may got at Storage inference.” & essential [Ice 238 Mo. 702 v. Kuhlmann, Co. l. c. cases thereafter While cited.] petition subject meagerness is criticism of state somewhat allegations ment, taking together, yet, there the statement the negligently place furnish failed to safe within *8 plaintiff required to Avork, upon large which to and that AA7as Avork supported by perpendicular beams, horizontal beam and that de íavo perpendicular leading fendant failed brace the beams to braces ground, preA7ent shifting moving, them to their from brace, the said likely that reason of failure to beams were to tilt injure enough plaintiff. fall and There is stated to dis fairly tinguish petitions petition this from the in the cases relied on Light In v. K. & Co., counsel for Kramer C. defendant. Power charge upon ruling AA'ent, W. AA'hichthe AATas, S. the that the de 43, step “negligently placed caused said to driven and fendant enough reasonably make it pole said not far to safe.” There Avas any fact, shoAAÚnghoAA7 step that case an to state far omission the was required pole, safe, driven to it allega to be into the make enough, that it not driven Avassaid to be tion Avas far the statement legal conclusion, and not the tender of an issue of In fact. made, go allegations farther, case show and to instant to mean - necessary prevent falling, it to brace columns to that was their did them at In Cooperage and that not brace all. Sabol v. defendant allegation Co., “pile (bar AArasthat the Mo. material” 527, staves) “insecure, upon plaintiff,, fell was so rel Avhich that was there In danger Hopkins probable falling.” it American Car & (Mo. Foundry Company, App.) allegation 295 S. W. “piled
merely pile of AA7as an that a steel bars insecure manner.” complaint petition, there also further As that after mentioned, paragraphs negli specifying of each statement allegation gence, an as there is not after each the direct ánd plaintiff proximate injured, but, only, result 'thereof the there is allegation proximate that “as a after all of direct them, re plaintiff, placed negligence,” while so sult the aforesaid argued injured; merely that this statement is at'work AAras and it is "catch-all;” attempted apply does spec to each of the not several negligence-; and that ifications such a statement should have been serially specifications. after each of said This was made not neces allegation sary. immediately preceded The which specifica the five allegation which tions, and the referred to and followed, included all pleaded specifications, all negligence. five of them as causal acts of objection merit, is without and is overruled. Coming contention, peremptory to the chief instruction given, should been we do not find plain have the claim made that employer, ivas, negli tiff’s Zeis or defendant, whoever he was not gent. suggested, It is somewhat it vaguely, contributory
negligence part plaintiff on the to work on the hori dangerous obviously was, zontal beam as when the upright were not beams braced. The testi- suggested the bracing accident he the beam before fied it. hold The case upon would was tried he said Zeis to which plaintiff, made, reference has been petition amended answer. The defendant defendant’s the sec- denial general plead filed, contributory undertook to answer, negli- of its part ond part This a conclusion. merely stated answer was gence, but sustained; the demurrer was plaintiff; by the defendant demurred answer, and general stood amend its its offer denial. did law, a matter of under the said, evidence, must be If it foreman, aas independent was an employed against made no ease then and the contractor, should have been sustained. to the evidence The evidence demurrer be considered. The is to issue introduced upon that de- Bartel, made to proposal, the contractor, written fendant’s furnish- iron work called for in plans to install materials *9 acceptance of its bid the Bartel. This building, was dated injury 1923. Plaintiff’s occurred on January 25, day third of and Zeis were both The members of May, 1923. the Iron plaintiff said that on The the third May Union. of Workers’ he was defendant, Architectural Iron Company, working for and that Zeis work; directing the that he had job known was on Zeis four or began working with him about years, 1, March five with until Zeis the time of time worked his from that injury, except in that of days; course this or three time two he had for worked in jobs, Louis, some St. on several neighbor- Zeis others in under got all of his in all of them orders and ing towns, directions from Saturday every pay received his Zeis; he from that Zeis in an en- it; on that had his name he did which velope, know where eei“- work in Zeis came used from. equipment tain He testified as began which under he to work with the circumstances Zeis—that him notified a secretary of the union worker was wanted, on the began work, Zeis thou at aiut which he went and work job at with Zeis. employed by at the time
Zeis testified tiiat accident he was Company, foreman, Iron in Architectural as the St. Louis the con- Building; work in struction of iron the Irene that he from received hour; wage of an company salary $1.50 or had he known Company, Architectural Iron people, long the St. Louis for a time; years employed by or and for twelve more had been them to go jobs them; take for out and care these that he also in worked capacity concerns, the same for or more paid one other on hourly jobs. put respective an for the on basis time he Vic- company tor Iron Works was another mentioned this connection. money work, to pay Zeis said this the men was sent to him paid them; Friday of defendant, from the and he- office on eve- Saturday morning ning giving or he would call up, the amount of time week, that was and that he did so for on the Building- Irene job; salary on he $1.50 this received an hour. The evidence frequently engaged tends show that Zeis at the same time on jobs defendant, or, several for the for defendant and Victor Iron Works; put job that if he in two or on a more hours of defendant on day, pay a certain he would receive for those hours from defendant, put if on day he two or more hours time such for the Victor Works, pay Iron he would for receive his that time from Victor testimony, Iron Works. testimony Ilis to some extent the for kept time, tended to show that Zeis his own and the time simultaneously engaged men going on jobs, various forward defendant; for money and that the amount called him at np the end the week was made the sums of the time the men each, job, request report showing on or severally the amounts at- job Zeis, on on tributable to each then hand. his cross-examination, jobs often, always, gave testified on these he but not defendant job cost, an estimate what the is, would cost of installation. Simon, He Mr. president, said defendant’s would tell him the .amount tonnage given and he would make an job, mind, estimate give opinion cost; an to ivhat it would that most of jobs, these Building, give and on the Irene method defendant amount of cost. said estimate lie that if the job, when com- pleted, cost less-than amount of estimate, given he was cost, difference between estimate and the actual a bonus; if estimate, the cost than the paid was more the the ac- giving tual clear that opinion cost. seems his estimate or *10 as to wages cost of included his own at installation, $1.50 hour, an always and he the amount of the that received sum of his wages, and frequently more. He that testified defendant him furnished with a book, keep time, time in which to that so defendant could enter proceeded books, Building job. so
it on their and that he on the Irene engaged The evidence to the effect Zeis was all the struc- jobs period during' long had a tural-iron-work defendant of years, Emery except secretary, Defendant’s in one two instances. Paul employed installing Simon, that Zeis was not testified foreman for jobs they being iron work work had, Zeis, on the various iron but that tonnage job, price installing told the amount of in a would set it, price they give if did suit w'ould it to and that someone only building given mentioned, however, one to another else. He period years during the mentioned. This witness identified a every by employee kept defendant as a record of each and book twenty It said to contain a list of employees, the concern. departments company, all of the number of each and hours in; man put he that the amount for each was totaled into a said testimony lump appears from his that the sum each week. name list, did of Zeis was on that but it not include name practice The witness also testified that was the of Zeis or others. near, say up money wanted, end the week to how much he to call jobs engaged, during which he was on of the several on each kept show, explained, week, bool?:was as the witness and.the paid up the sum of a certain week was made Zeis at end referring amount called for sums, several each Zeis particular job. whether, when the cost exceeded Asked company, estimate, paid the witness the excess installing the cost of the iron about instances testified that two company Zeis, made work .exceeded the estimate n company paid excess—and occasions the: defendant that on these gave finish unless we he said “he would not the work added pro- Zeis, rebuttal, what he examination him wanted.” given been to him book, which he said had defend- duced a time given year. every him book he said such book ant. He year 1917, for the and was said, was a book intended produced, he 'secretary had given year because the no books 1923, him for the year. bearing The account of the book in of the last named date May 11¡ giving January, ran to question began 1923, they worked, including employees the hours names various gave cov- Zeis testified he books Timmermann. n bookkeeper; 1923 1917 defendant’s ering period between books, on these and also employee appeared as name own that his good deal of examination 1923. There was during weeks president including witnesses, and cross-examination bring others, out the fact company, the defendant secretary accident to the of Timmermann’s given notice had that defendant company which defendant Company, Casualty Amsterdam New notice, Zeis was men- insurance; policy carried a
433. foreman; given tioncd as a the notice was too late under policy, Casualty Company, that the terms of the under a reserva- right, in defending undertook to defend or tion assist the suit brought by ag’ainst-defendant, attorney Timmermann and that its conducting as entered associate counsel and was report Casualty the trial for defendant.' The Company produced, nor did defendant’s admit that Zeis officials was men- .foreman, expressly tioned as nor making therein admit their a re- could, port. apparently The officers of defendant not remember much upon subject, making this and were indefinite as to claim to the CasTialty Company, appears what claim contained. or Casualty Sluggett, attorney Mr. Company, for the in charge early stages; of this its case, later, defense Mr. Moser was engaged by Sluggett. Mr. prior also testified that to engaged attorney, filed an time he suit or he was examined a permitted physician, X-raj'- pictures taken, upon request to be attorney Mr. Sluggett, Casualty Company. for the In his testimony rebuttal, testified an occasion he when secretary company, had conversation with the of defendant concern- ing spoken Taylor work on of the of as one jobs, job, Avenue doing it, and to the the manner effect Simon decided Mr. upon done, particular how the work should be on that occasion, and directed. that was done he independent an
Under the contention that Zeis was contractor, [Gayle citation is made to numerous v. Car cases. Missouri & Found 427; 177 Mo. v. ry Co., Co., 276; Fink Missouri Furnace 82 Mo. Lan 460; Co., Long Mutual Life Ins. Mo. caster Conn. v. Moon, 107 Gayle v. opinion Mo. In the Car Foundry Co., Missouri 334.] & page test for the at there is set out the determination general rule question is, as follows: “The that one who has con competent exercising with a and fit independent tracted person, employment, work, to do piece itself unlawful or attended according danger others, with to the contractor’s own methods, and being control, except subject without his as to the results of his wrongs for the of such work, will not be answerable contractor, his sub-contractor, servants, prosecution or in the committed of such' independent An is one who contractor renders work. service in the occupation, representing employer the will of only of an course work, and not as to the to the result of his means which it is accomplished.” involving In ancl in question this all the cases this difficulty recognized determining found of there is often in the' given person agent employee, "is an case whether a when question them, principal. ordinarily, In determined attending of all facts and circumstances consideration trans only action, reached, could be after all weighing the conclusion given indisputed, If facts in the case the circumstances. are may determine, law, court as a matter of the relation of inde- pendent exists; disputed the facts are prop- but -where contractor question jury proper under instruc- course to leave er *12 Corpus page “Each Juris, In 31 it is said: case 474, tions. must depend facts, ordinarily on its own no one feature of the rela- together. Ordinarily determinative, but all must be considered tion is question is one of fact.” bearing question ease, upon In the instant the facts are not undisputed. testimony in the There is conflict the relation defendant and Zeis and to the circumstances between from which In evidence, is inferred. the state of the relation we can- independent not say, as a matter of that Zeis was an law, contractor: The manner in -which ho did this work for and the basis testimony paid which he was as set forth in his and in the by testimony officers, is no defendant’s means conclusive that he independent Avasan contractor. The inference that Zeis was an in- dependent employee, necessarily contractor and not an does arise testimony, employee under that for he could have been of de- wages fixed, in fendant whose Avere the manner testified to him, supported some measure admission of defendant’s of- question jury proper ficers. The Avas for under one instructions. assigned upon Error is the admission of testimony given certain plaintiff. On direct examination the Avasasked to 1 Avorking May he -was Objection state íAATho for on 1923.” wras OA>-erruled, working made and and he ansAveredthat he Avas for de
fendant, Company. -St. Louis Architectural In a simi Zeis in his lar manner direct examination Avasasked wjlom }le employed mentioned; on the date he, that, employed by lie was ansAvered defendant. The objections, over objection the statement of each assigned was a mere conclu- general contested issue. upon a rule AA'itness is that sion facts, not conclusions opinions, except must state Avitnesses opinions. are allowed to experts state However, where those cases pursued method of examination was case, same this defend- officers of defendant the two testified like Each of fashion, ant. an employee Zeis was not stating it as conclusion defendant. of each of these on in the Thereaftei*, sides, examination both question relation borne of the testimony Zeis to the de- covering, as has range, indicated, been fendant, only a Avide took of, the iron Avorkin installation of, time Irene Build- including period years, over facts ing, generally, and cir- many jobs specifically with mentioned. connected Un- cumstances jury had before them a testimony, lengthy history der and defendant acted. Zeis under Avhich conditions
435 Emory Simon, secretary, defendant’s of cross-ex- the course “Q. amination testified: As Zeis fact, you a matter of considered very trustworthy employee, you? A. did.” Immediate- didn’t I ly thereafter work, he said he was wheth- anxious to have do the er foreman or not. He said told work was he never let .Bartels Zeis, and that when urging Bartels defendant a letter wrote the woi’k be hurried, hurry he told it. Zeis to
In view of foregoing, all the hold there was not such error as we demands a reversal this case for the sole reason that permitted Zeis were early in the part their examination make general 233; Barnes, statements v. 300 Mo. referred to. [Price Tranbarger v. Railroad, Co., 250 Mo. Cusack Co. v. 261 59; Lubrite 729; S. W. Co., App. 122; v. Johnson Construction 188 Mo. Deere Plow Co. Sullivan, 455; Montgomery Ry. W. Co., Mo. v. S. App. 17; Mo. Kirby v. Coal Co., App. Mo. 600.] Complaint is plaintiff’s case, 1, covering made Instruction *13 and authorizing recovery. This instruction is as follows:
“The jury you court instructs if that find and believe from day evidence that May, 1923, on the 10th of was the. employ of engaged defendant and scope that within line and while find, employment of you if do for said so sitting
a horizontal beam on which was did forward, causing plaintiff to and move therewith move tilt thereby; you ground injured be and if further fall to if prior to time the beam fell as aforesaid, find that at and when supported secured, or find, braced, was not or you so same do plaintiff’s place of unsafe and dan by thereof work was that reason you reasonably if further find that the gerous and de safe: knew, by ordinary part or of care on its could exercise fendant you fact, fact, known if find it to be a said beam was have of the aforesaid, secured, braced, you find, if do so supported or place under furnishing said of work the circumstances afore ordinary said, you find, if failed care do so the defendant to exercise guilty negligence, was caused and that aforesaid beam of plaintiff was caused therewith to tilt and move forward and to fall (if negligence part you of of reason the aforesaid guilty negligence failing support brace, find defendant of secure, beam), plain your said then verdict must be favor against tiff and the defendant.” provide
The safe charge instruction submits the of failure to place specifications 2 paragraph to work of the- as embodied
negligence beam. It does not failure to brace question custom brace existence question holding beam of the beams, of the or the omissions, letting go of it. These Zeis 436 objection matter's, Defend made. in the
some other are included length. has The first ref at considerable objections ant’s are stated ‘‘ catch what is- termed counsel petition and to erence made. has been reference to that allegation. Sufficient all” question to submit the objection is, the failure of the chief substance ques beams,- and omission brace custom to of existence letting and his beam, he would hold of assurance tion .the hypothet thereby is to submit there1 omission urged it. It go of is recovery. necessary authorize to be found to ical facts all submit necessary that the shall It is not these cases enough sub charged. if those negligence specified acts allegations petition, supported are within the mitted are liability on the evidence, of such character and are substantial v. Gas may predicated thereon. part of the defendant be [Gannon 923; & 216 511; L. P. S. W. Co., Co., 145 v. Union E. Mo. Meeker Ry. 671; Spaulding Co., W. v. Street Ellison, ex rel. v. S. State 223 129 App. Mo. 607.] question of a custom to brace to submit the of existence
The failure infirmity for still reason. The another beam, was not a fatal plaintiff’s part cause not a substantive of the custom was existence very Hogan opinion case recently in the decided of action. In the ruled in 297 “It has been Fleming, v. S. W. l. c. said: character, that, inasmuch as is not substantive this State custom necessary merely evidentiary negligence, it is not of defendant’s pleaded.” that such shall custom among utterance, supporting
Numerous cited them cases are 36; Payne, 246 Telephone Co., App. Brunke v. Caldwell v. Mo. 536; 312; Lusk, v. Mo. Railway, S. W. Mo. Cassin Gordon men, prudent 678. the conduct The custom as indicative of *14 change character, supplant or the rule probative it did not but by necessary law. It was negligence not. of established substantive fact. hypothetical that submitted as a beam, holding question of Next failure to submit the Zeis is the acts letting submit these did go and then it. The failure to of negligence which erroneous, acts of make instruction since the recovery. ground The fact that hypothesized, were constituted i!, go and then Zeis, in the beam let braces, the absence of held contradictory hypothesized. The instruction was not facts of the negligence theory was fail- that the upon submitted the case all, beam at and that such defendant, master, ure of to brace the injury. a sufficient proximate was -That was failure cause of Kroger Grocery Co., 310 right Mo. basis of recover. [Bender Co., 488; 443; v. St. Louis Car Co., Car 240 Enloe v. Mo. Koerner plaintiff a reason- duty 209 furnish Mo. The of defendant 141.] ably non-delegable continuing place safe which to work was duty, and a question negligence submission of tbe of the defend- ant, failing so, enough. to do was If had theory upon defense holding* based the acts of letting Zeis go and then beam, of the upon it was incumbent defendant to ask an instruction thereon.
An additional may observation be made. That directing Zeis was being by work plaintiff, done dispute. dispute is not in is as to the doing relation under which he was so. Plaintiff’s theory was, evidence that directing Zeis was employee, the work as an foreman defendant. theory Defendant’s is that Zeis was an independent contractor, and as directing such was the work. That theory was submitted 4, under defendant’s Instruction and resolved against question plaintiff defendant. The employee whether was an defendant was 1, submitted Instruction and also defendant’s Instruction against and that also was settled defendant. Under those findings it follows, plaintiff that inevitably, employee, as such being was directed vice-principal; who stood as defendant’s negligence Zeis, negligence was defendant, and a failure to discharge a continuing non-delegable duty provide plaintiff reasonably place safe in which to work. objection
Another is, to the instruction that there was a failure to make requirement sufficient finding plaintiff employed by defendant, required defendant to work where he did. The finding required was, employ “wras of de
fendant” scope and in employ “the line and sitting” ment was on the beam. The instruction could framed, have been better the matter under we do think immediate consideration it could have jury. Upon the misunderstood contention that the in- been sufficiently question submit the did not whether struction defendant, a employed by reference to defendant’s Instructions pertinent. They are follows: you you that if find and court instructs believe from evi “The injured plaintiff w*as he wras not the em dence at the time your ploy verdict must be in favor of then defend against plaintiff. ant and ‘‘ you jury if find and believe The court instructs the from the witness, with the defendant contracted Arthur evidence building Zeis, evidence, in the mentioned in to erect the steel work according work proceed that said Zeis wrasto vdth said Arthur being subject and without to defendant’s con to his own methods except work, trol as to the result of his *15 alleged
employ of of and injuries, Arthur at the time his at employ defendant, your said time then verdict not the must be in favor of defendant.”
438
Under these is 3 have by it seen that defendant would Instruction only disposed defendant, using the of the for issue case verdict stating plaintiff employee defendant, an of. and whether the was language substantially plaintiff’s issue in as used same the But, hypothesized facts instruction. defendant Instruction independent if an con- which, constituted Zeis found, would have again tractor, directed ver- employee Zeis, and and facts; that, plain- if finding’ dict for defendant such so general upon question employment tiff’s instruction was his 3 defendant, complain defendant well since his Instruction cannot merely point, was plaintiff’s instruction on that converse of his hypothesized Instruction 4 he the facts desired included, constituting independent contractor, to as Zeis an said Instruction not with of the others. Plain- inconsistent either tiff’s instruction, respect is much under consideration like instruction in Vaughn Davis, sustained 221 S. 782. See also W. Llywelyn (Mo. v. Lowe, App.) 539, 239 S. W. and cases there cited. urged is further on behalf that the verdict is here against weight prejudice and is the result of evidence, passion. weigh We are further not authorized to the evidence than warranting determine that for there evidence cause;
submission of find in nor, do we the record trial, with such occurrence or incidents connected as saying that the verdict was the warrant us result of objections presented were These the trial prejudice passion. trial, good new and overruled we find no in motion for a court of error therein. convicting the trial court reason $15,000, which was for is ex urged finally verdict, It is that the years injury, age, of his At the tim:e cessive. came, testimony good was that when beam and in health. Iiis iron, heavy; down, it it that he lie with and that was came ground; leg get down on the threw his left over chest; ]ie heels, and came on alighted down on an(^ forward, get up and fell tried ^uees ^ twenty- bed home remained up; was taken get and could at up in a chair. He treated sit began to days and then three Hospital, by at Dispensary and Barnes University Washington injury surgery. most serious was to specialist orthopedic X-ray an im showed specialist testified right h.is foot. The heel; forming the oscalcis, the bone pacted fracture together” support that a “jagged were fragments of the bone arch, with braces way strapping, under was tried improve, and the did massage, the condition packing and equal pos made the bones relation of opened and the foot plas- put in a away, and the foot excess callus was cut sible. The
439 which cast, usual, ter removed a than on ac- had to be little earlier developing count of skin infection underneath the cast. plaintiff plaintiff
He and trips testified that had 45 to him made for physician, plaintiff treatment. Another examined the who. eighteen short time trial, before the which was after months the oc- of injury, plaintiff’s right joint currence testified that ankle stiff, movement; per and limited almost cent in to-and-fro atrophied; that muscles and between the ankle knee were that the arch of left breaking foot was left down, ankle a condi- plaintiff’s tion of strain of because unnatural method of walk- ing, foot; injury right due that the condition of defend- foot, probably grow worse; ant’s would that the condition the stiff- permanent; plaintiff ness was that could not climb or do structural foot; Plaintiff work. testified that suffered constant pain he his lift; going' up that he could climb or that or down stairs and especially holding down, support he had to things; himself on to during eighteen injury that months since his he done had alto- gether only days twenty-five jobs work, there; of odd here and night, pain, every he had constant in order to relieve somewhat water, pain, he had to bathe his feet hot and then in water ice and rub them with alcohol. testimony physicians
The tended to show also that from the injury condition, plaintiff nature of the would continue suf pain. plaintiff injury fer earning wages at the time his n contention, day. $12 per support In the verdict is ex cessive, counsel for defendant have cited v. American Mahmet Radia tor Co., S. W. $15,000 wherein verdict for was reduced $10,000 court, in trial appeal rcmittiiur reduced injury $7500. The this court to that case was that right fingers injury, were, crooked, hand and left so drawn grip anything, any could not or do contracted he work with ease, earning per $31 In that about them. week at injured. plaintiff, steady In he was the case this time em ployment testimony earned more than twice that and the sum, showed steady employment prior injury. for some time to his It plain is testimony wholly incapacitated from he for labor of the great disadvantage employed, kind in which was and at a he for most labor; compelled kinds will crippled other to walk un manner, pain throughout will probably natural suffer his life. circumstances, considering jury Under the an op- had personally, portunity to observe the we cannot find that so show jury against the verdict- is excessive as to that the acted laxv, passion prejudice, rules from and conclude that we opinion cannot our jury substitute this case. Ellison, judgment
results is affirmed. Seddon and therefore that the CC., concur.
PER foregoing opinion adopt- isC., CURIAM: The Lindsay, judges ed as opinion All of the concur. court. Collector Appellant, J. Moss Company, Allen, T. Haston Tie County. Oregon S. W. 482. for the Revenue One, December 1927. Division Appeals. .Springfield Court Transferred appellant. W. D. Green and J. Orr Will E.