Opinion
December 2, 1927.
1. CERTIORARI: Facts. In a certiorari directed to a court of appeals based on an alleged conflict in opinions this court looks to the opinion of that court for the facts to be considered.
2. ____: Negligence: Safe Place: Act of Fellow-Servant. On certiorari this court must accept as true a statement in the opinion of the Court of Appeals that the evidence at the trial showed that neither plaintiff nor his fellow-workmen "had any control over the lights or over other conditions which contributed to his injury," and consequently decisions of this court relating to the liability of the master for the negligent act of a fellow-servant have no application to the case.
3. ____: ____: ____: ____: No Proof. The primary duty to furnish a safe place to work rests upon the master, and before the fellow-servant rule can be invoked as a defense it is necessary for the master to prove that the acts of negligence of which complaint is made were the negligent acts of omission of the injured servant's fellow-workmen; and where the opinion of the Court of Appeals states that the evidence is not clear as to just which of the master's servants, agents and employees failed to perform the usual acts conceded to be necessary to make the place safe, and further states that the evidence makes it clear that neither plaintiff nor his fellow-workmen had any control over the conditions at the place of injury, its holding that it was the master's duty to make the place reasonably safe, and that, under the circumstances, the negligent failure of plaintiff's fellow-servants to make the place safe, if indeed it was their acts of omission that made it unsafe, will not excuse the master's negligence, contravened no prior decision of this court.
4. ____: Untimely: Motion to Transfer. An application to this court for a writ of certiorari to quash an opinion of the Court of Appeals, made three months after that court has overruled a motion for a rehearing, is not made within reasonable time. And the fact that the applicant, promptly when said motion was overruled, there by motion asked that court to certify and transfer the case to this court on the ground of conflict of its opinion with controlling opinions of this court, does not excuse the delay or alter the situation. There is no constitutional or statutory authority for such a motion to transfer, in the absence of a determination by one of the judges of that court that he deems the decision contrary to previous decisions of this court or of another court of appeals.
Corpus Juris-Cyc. References: Certiorari, 11 C.J., Section 133, p. 146, n. 74; Section 355, p. 200, n. 31. Courts, 15 C.J., Section 511, p. 1079, n. 42; Section 518, p. 1093, n. 64. Master and Servant, 39 C.J., Section 445, p. 322, n. 33; Section 646, p. 543, n. 37.
WRIT QUASHED.
Frank M. Lowe for relator.
(1) As the facts stated in the opinion show this was a travelling circus having no permanent abiding place and the character of the work necessarily changing, when the respondents held that it was defendant's duty to make the place reasonably safe for plaintiff to labor, without any qualification or exception to the rule, they refused to follow or be bound by the last controlling decisions of this court to the effect that where the work of the servant renders the place of work more or less dangerous, the master is not liable. Crawford v. Bolt Nut Co., 278 S.W. 377; Britt v. Crebo, 199 S.W. 157; Leavengood v. Lead Co., 179 Mo. 229; Bradley v. Tea Coffee Co., 213 Mo. 320; Haggard v. Coal Co., 200 S.W. 1072. (2) Respondents refuse to follow or be bound by the last controlling decisions of this court to the effect that where the plaintiff was injured through the act of a fellow-servant, the master is not liable. Bradley v. Tea Coffee Co., 213 Mo. 320; Leavengood v. Lead Co., 179 Mo. 229; Crawford v. Bolt Nut Co., 278 S.W. 377; Purcell v. Shoe Co., 187 Mo. 276; McDermott v. Pacific Ry. Co., 30 Mo. 115; Haggard v. Coal Co., 200 S.W. 1072; Schaub v. Ry. Co., 106 Mo. 90. (3) In holding in this case that the duty of furnishing a safe place for plaintiff to work was a continuing, non-delegable duty, when it was conceded that there was a custom known to the plaintiff and relied on by him that it was the duty of plaintiff and his fellow-servants to make such place safe, respondents refused to follow or be bound by the last controlling decisions of this court to the effect that where a master promulgates a rule or custom to govern and control its business, the following of which on the part of its servants would protect them in their work, the master has performed his duty and could not be held liable for the act of a fellow-servant in failing to follow such rule or custom. Francis v. Railroad, 110 Mo. 395; Yoacum v. Lusk, 223 S.W. 56; Forbes v. Dunnavant, 198 Mo. 193. (4) When respondents determined as stated in their opinion, that they found no evidence covering the point as to whose duty it was to place sufficient lights to render the place reasonably safe for the performance of the labor in which plaintiff was engaged, and refused to reverse the case for failure of proof, they refused to follow and be bound by the last controlling decisions of this court to the effect that a plaintiff cannot recover on mere speculation or conjecture. Crawford v. Bolt Nut Co., 278 S.W. 377; Kramer v. Power Light Co., 279 S.W. 47; Goranson v. Mfg. Co., 186 Mo. 300; Mathis v. Stock Yards Co., 185 Mo. 434; Yarnell v. Railroad, 113 Mo. 580; O'Malley v. Railroad, 113 Mo. 325.
Atwood, Wickersham, Hill Chilcott for respondents.
Not only does the decision in this cause not conflict with any ruling or decision of this court, but is in harmony with and supported by numerous decisions of this court declaring the law under similar facts. Soltesz v. Belz Pro. Co., 260 S.W. 990; Reynolds v. Barnes, 253 S.W. 140; Lampe v. American Ry. Exp. Co., 266 S.W. 1009; Ward v. Ice Co., 264 S.W. 80; Gaines v. Pierce, 264 S.W. 93; Krajcovic v. Provision Co., 260 S.W. 825; Milzark v. Nat. Biscuit Co., 259 S.W. 832; Frey v. Packing Co., 260 S.W. 500; Gilbert v. Hilliard, 222 S.W. 1027; Jablonowski v. Mfg. Co., 251 S.W. 477; Bodenmueller v. Box Co., 237 S.W. 879; McNulty v. Portland Cement Co., 249 S.W. 730; Schuh v. Am. Car Foundry Co., 241 S.W. 641; Chambers v. Hines, 233 S.W. 952.
Relator seeks to quash the record of the Kansas City Court of Appeals on a second appeal in the case of John E. Reynolds, Respondent, v. Al. G. Barnes Amusement Company, Appellant, wherein respondent's judgment for $7,500 was affirmed. The conflicts alleged relate to the law applicable to acts of fellow-servants.
Looking to the opinion for the facts, as we must in this class of certiorari proceedings, we find this statement by Judge ARNOLD:
"On the second trial the evidence consisted largely of the testimony produced on the former trial. However, some witnesses were introduced by defendant who had not testified before. We have examined this evidence and find that it does not change the material facts shown in the former trial, which were set out in detail in our former opinion, and which we do not deem necessary to repeat herein. Reference is made therefore to our former opinion for a statement of the facts which is adopted as the statement of facts herein."
Turning to the first opinion, written by Judge TRIMBLE and reported in 253 S.W. 140, we read statements of facts pertinent to the conflicts here alleged as follows:
"The defendant owns and exhibits a traveling circus. Plaintiff claims he was an employee thereof engaged in carrying seats out of one of its tents preparatory to defendant's removal from its show site in Kansas City to its next stand or place of exhibition, and that while doing that work he stepped into a stake hole and broke his leg. He brought this suit, based on negligence and also wanton, brutal and malicious failure to thereafter care for and aid him, and prayed for $25,000 actual and $25,000 exemplary or punitive damages. . . .
"There was ample evidence, and indeed it was conceded, that it was the custom for all working places about a circus to be lighted, for a light to be on every wagon being loaded and for all holes made to be filled up or covered over and for none to be left open . . .
"It would seem that the failure to have sufficient light and the leaving of a hole unfilled when it was the custom to have light and to fill all holes, would combine to bring about the breaking of plaintiff's leg, though the ultimate and principal cause of the injury was the leaving of the unfilled hole. . . .
"However, there was evidence of all the above-mentioned charges, and the jury could well say that they all combined to help bring it about. It is true, no one affirmatively and expressly testified to seeing this particular hole made by the pulling of a particular stake under the superintendence of any of the superiors, but the evidence is that the menagerie tent was down, its stakes had been pulled, no hole was there before that, the pulling of stakes and the taking down of the menagerie tent was done under direction of the supervisors, the stake hole was that of a menagerie tent stake, and from these facts the jury could find that it was a hole left in the ground by the removal of one of the menagerie tent stakes in the taking down of said tent. . . .
"It is conceded that it was the custom to at once fill or cover all holes made by the removal of tent stakes, and hence it was defendant's duty to leave no unfilled or uncovered stake holes. . . ."
The opinion by Judge ARNOLD here sought to be quashed states plaintiff's general charge of negligence to be defendant's failure to furnish plaintiff a reasonably safe place in which to work, including the charges of failure to fill the stake hole and failure to furnish sufficient light; and as to the evidence thereon, states:
"There was testimony in plaintiff's behalf that the only light thrown upon the immediate locality of the injury came from one or other of the tents. We find no evidence covering the point as to whose duty it was to place sufficient lights to render the place reasonably safe for the performance of the labor in which plaintiff was engaged. Certainly none tending to show that plaintiff had any control over the lights, or over other conditions which contributed to his injury, nor any which tended to show that his fellow-workmen had control over them."
Portions of the opinion particularly complained of as in conflict thus immediately follow:
"In this situation it was defendant's duty to exercise ordinary care to see that plaintiff's place of work was reasonably safe. This was a continuing non-delegable duty. [Koerner v. Car Co., 209 Mo. 158, 107 S.W. 481; Scheidler v. Iron Works, 172 Mo. App. 688, 155 S.W. 897.] There was substantial evidence to the effect that lights were not furnished either to light the locality of the injury, or to place at the hole made by the removal of the stake. As to whose duty it was to furnish these lights does not specifically appear. But under the general rule, it was defendant's duty to make the place reasonably safe for plaintiff's labor. It follows that if the lights were not furnished by defendant, or if furnished and the foreman failed to use them, there was still the negligent act of defendant.
"It was defendant's duty, under the circumstances in evidence, to use reasonable care to see that the lights in question were so placed as to render plaintiff's place of labor reasonably safe, and a failure so to do was negligence. The fact that the omission may have occurred through the fault of its servants and agents charged with said duty will not release defendant from liability. And this observation applies as well to the question of filling and tamping the stake hole as to the failure to furnish sufficient light. [Lampe v. Am. Ry. Exp. Co., 266 S.W. 1009, and cases therein cited.]"
In the light of the facts thus appearing in the two opinions we are unable to discover any conflict between the opinion here attacked and the controlling decisions of this court. The cases cited by relator are ruled on facts wholly different. For instance, the particular acts of omission pleaded No Conflict. as negligence in this case were not necessary or customary in such work, the existence of a contrary custom the observance of which would have rendered plaintiff's place of work reasonably safe being clearly shown, and hence, Crawford v. K.C. Bolt Nut Co., 278 S.W. l.c. 377, and other cases cited in Paragraph 1 of relator's points and authorities as applicable where the place of work is temporary and transitory, are not here applicable. Nor are such cases as Bradley v. Tea Coffee Co., 213 Mo. 320, and Francis v. Railroad Co., 110 Mo. 395, and other like cases cited under points two and three. These are cases where the master promulgated rules which the servant alone or in company with fellow-servants violated and was injured. The above statement of facts clearly shows that plaintiff had nothing whatever to do with the negligent omissions complained of, and that they were directly attributable to other employees of defendant working under the immediate direction of defendant's supervisors and their superiors. Furthermore, even if as the opinion indicates, the evidence is not clear as to just which of defendant's agents, servants and employees were guilty of the omissions complained of, we must accept respondents' statement that neither plaintiff nor his fellow-workmen "had any control over the lights or over other conditions which contributed to his injury." Consequently, the cases cited under paragraph four of relator's points and authorities are also without application. The primary duty to furnish a safe place to work rested upon defendant. Before the fellow-servant rule could be invoked as a defense it was of course necessary for defendant to prove that the acts of negligence complained of were the acts of plaintiff's fellow-servants and this, under the facts disclosed by the opinions, defendant failed to do.
The writ should be quashed for the further reason that it was not applied for within a reasonable time under our ruling in State ex rel. Berkshire v. Ellison, 287 Mo. 654, and subsequent cases. Instead of making application within thirty Untimely days from July 13, 1925, when the motion for Application. rehearing was overruled, appellant waited for more than three months, filing his application for writ of certiorari here on October 24, 1925. It is true that on July 13, 1925, after the motion for rehearing was overruled by the Kansas City Court of Appeals, appellant there filed a motion to certify and transfer the case to the Supreme Court on the ground of conflict with controlling decisions of this court, but we find no constitutional or statutory authority for such a motion by counsel. Section 6 of the Amendment of 1884 of Article VI of the Constitution lodges the power to certify and transfer cases to the Supreme Court on this ground solely on the determination of one of the judges of the court that he deems it to be contrary to a previous decision of one of the Courts of Appeals or of the Supreme Court. This motion might well have been summarily stricken from the docket, as was done in Barnett v. Building Co., 177 Mo. App. 477. Opportunity for counsel to point out conflicts is amply afforded in a motion for rehearing, and stay of mandate pending application for our writ should be obtained by timely application to the Court of Appeals therefor. In the Berkshire case we said the application for stay of mandate "should shortly follow the overruling of the motion for rehearing," and the limit of reasonable time within which application should be made here for writ of certiorari was there held to be thirty days from the date of the overruling of the motion for a rehearing. No explanation or excuse is given for the unusual delay in this case.
For the reasons above stated our writ of certiorari heretofore issued is quashed. All concur, except Graves, J., who dissents.