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fact asserted, but the action of the court is in accordance with the presumption that

there was such evidence.

The judgment is affirmed.

HELLRUNG v. CONTINENTAL INS. CO. OF
CITY OF NEW YORK. (No. 16626.)
(St. Louis Court of Appeals. Missouri. June
21, 1921. Rehearing Denied June 29, 1921.)
1010(1)-Findings of

1. Appeal and error

"$1,000-On the brick building and additions adjoining and communicating, occupied as dwelling and stable purposes, situated on premises known as No. 1508 North Seventeenth street, city block No. 594, Saint Louis, Missouri.

"$100-On the frame stable building, sheds, fences and outhouses situated on the above." The policy further provided:

"This policy covers said building, with its additions and extensions (whether of same or other material), attachments, connections and appurtenances," etc.

On the premises described plaintiffs had a two-story brick building, the upper story becourt sitting as jury binding on Court of Ap-ing used for dwelling purposes and a part of peals if supported.

In an action tried by the court sitting as a jury, its findings on any question of fact, if supported by substantial evidence, is binding on the Court of Appeals.

the lower floor for stable purposes. The remainder of the lower floor was an inclosed driveway. The said driveway and the remaining portions of the building used for stable and dwelling purposes were all under 2. Insurance 163 (2)-Evidence held to sus- one roof. The driveway communicated directtain finding shed was addition to brick build-ly with a large frame structure in the rear, ing within policy description.

In an action on a fire policy, evidence held sufficient to support the trial court's finding

as a jury that the frame wagon or shelter shed

destroved was an addition "adjoining and com-
municating" to the brick building coming with-
in the description of the policy giving insur-
ance amounting to $1,000 on the brick building
and additions adjoining and communicating.
3. Insurance 146(1)-Construction of par-
ties on fire policy may be shown.

The construction the parties themselves places on a contract, as a fire policy, may be shown as an aid in its interpretation.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

"Not to be officially published."

which was termed a wagon or shelter shed which plaintiff's used as a shelter for their This large frame shed as stated, adjoined the wagons and at times also for horses. brick building, was attached thereto, and was directly in communication therewith by means of two large doors 9x12 feet leading from the shed into the driveway. There was the brick building to the shelter shed. On the a stairway leading from the second floor to same property, but entirely detached from the brick building, was a frame stable or shed which was sometimes used as a stable and for storing feed and grain.

A fire occurred which destroyed the detached. frame shed or stable, also a part of the large frame wagon or shelter shed referred to, and did some damage to the brick building.

'Defendant asserts under the descriptive clause of the policy the $100 item on frame stable building, sheds, fences, and outhouses

Action by J. F. Hellrung, individually and as executor of the estate of Frank Grimm, against the Continental Insurance Company of the City of New York, a corporation. From judgment for plaintiff, defendant ap-covers all the frame structures on the proppeals. Affirmed.

Leahy & Saunders, Clarence A. Barnes, and David W. Voyles, all of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

BIGGS, C. This action on a fire policy be ing tried before the court without a jury resulted in a judgment for plaintiffs for the full amount of the policy together with $110 as a penalty for vexatious refusal to pay and $100 attorney's fees, from which the defendant has prosecuted an appeal to this court.

The main question in the case is whether the policy by its terms covered a certain building belonging to the plaintiff which was demaged by fire. The descriptive clauses of the policy are as follows:

erty, including the large wagon or shelter shed referred to, and that its limit of liability for the damages to the small frame shed and the large wagon or shelter shed is $100.

Plaintiffs answer that the large frame wagon or shelter shed which is attached to and immediately adjoins the brick building is included in the first descriptive item of the policy, which provides an insurance of $1,000 on the brick building and additions adjoining and communicating.

[1, 2] The cause being an action at law and tried by the court sitting as a jury, the finding of the court on any question of fact, if supported by substantial evidence, is binding on this court. The court below decided, after hearing all of the evidence, that the large frame wagon or shelter shed was an addition adjoining and communicating to the brick building and came within the descrip

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(232 S.W.)

The judgment should be affirmed.

PER CURIAM. The foregoing opinion of BIGGS, C., is adopted as the opinion of the court.

tion of the policy which gave to the plain- | below erred in allowing damages for vexatiffs insurance amounting to $1,000 on the tious refusal to pay an attorney's fees and brick building and additions adjoining and that the defendant was justified in litigating communicating. There was ample evidence the question. in the record to warrant the court in reaching this conclusion. This large wagon shed referred to was an addition to the brick building attached thereto immediately adJoining it and in direct communication with it. There were no other additions of any character to the brick building, and this frame shed is the only addition that could have been referred to in the description. The second item of $100 covered the frame stable building, which was also destroyed and which was separate and detached from the brick building.

The judgment of the circuit court is, accordingly, affirmed.

ALLEN, P. J., and BECKER and DAUES, JJ., concur.

CO. (No. 16658.)

(St. Louis Court of Appeals. Missouri. June 21, 1921.)

1.

Master and servant

285(4)-Negligence

as to structural iron worker held for jury. In an action by a structural iron worker board and stick at the end of an I-beam, while injured while holding in position a measuring another worker undertook to straighten a flange at the other end of the beam by striking it with a sledge hammer, evidence held to carry the case to the jury, as it warranted a finding that the superintendent who directed plaintiff to take that position was negligent. in that he should have foreseen the danger of injury from striking the board.

[3] The court would be warranted in SIMICK v. STUPP BROS. BRIDGE & IRON reaching the conclusion it did without considering certain parol evidence admitted over the objection of the defendant. Some of this evidence was clearly admissible in order to show what was intended by the parties. Plaintiffs offered the testimony of the agent of the defendant who wrote and signed the policy and prepared the description. This agent's testimony shows clearly that it was intended that the large frame shelter shed adjoining the brick building was covered by the item of $1.000. The construction of the parties themselves place upon a contract may be shown as an aid to its interpretation. Tetley v. McElmurry, 201 Mo. 382-391, 100 S. W. 37; Laclede Construction Co. v. T. J. Moss Tie Co., 185 Mo. loc. cit. 73, 84 S. W. 76. Furthermore the evidence tended to show that the defendant company charged the usual rate for frame structures, which is higher than that charged for brick buildings. This was doubtless because the frame shelter shed was attached to and adjoined the brick building proper. This fact indicated that the brick building and frame shed were covered as one structure and that one was not considered separate from the other.

In the case of Manufacturing Co. v. Insurance Co., 167 Mo. App.. 566, 152 S. W. 408, the Kansas City Court of Appeals, in construing the language of a policy almost identical with the language of this policy, held that the description which covered a one-story frame building and its additions adjoining and communicating occupied as a factory covered, not only the main building, but also a lumber shed and paint shed 13 feet distant and other buildings used as a part of the factory but entirely detached from the main building. The additional buildings in this case were in no wise attached to the main building.

We think the judgment was clearly for the right party, and in view of the decision of the Kansas City Court of Appeals referred to it could not be said that the court

2. Master and servant 201(10)-Injury while doing structural iron work directed by superior held not caused by negligence of fellow servant.

a

structural iron worker, to hold in position a Where the superintendent directed plaintiff, measuring board and a stick at one end of an I-beam, while another worker undertook to straighten a flange at the other end of the beam by striking it with a sledge hammer, the fact that an injury resulted when the latter missed the beam and struck the board cannot

be deemed to show that the accident was the result of the negligence of a fellow servant, but the negligence must be deemed that of the superintendent.

3. Master and servant 291(3)—Instruction held inapplicable and improper.

In an action by a structural iron worker, injured when a measuring board which he was holding while another worker hammered an I-beam straight, was struck, an instruction declaring that it was the duty of the defendant to exercise ordinary care to furnish plaintiff a safe place of work, and reasonably safe appliances with which to work, and if plaintiff exercised ordinary care for his safety, and defendant failed to exercise ordinary care to furnish such place and appliances, defendant was

liable, is fatally erroneous because it did not

predicate liability upon the negligent direction
of the superintendent, and permitted recovery
for the failure in any respect to furnish safe
place of work and appliances.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
232 S.W.-16

4. Master and servant 293 (18)—Instruction | along the beam, on the upper surface there held erroneous. of, in order to determine the distance between the flanges. Upon the occasion in question the measuring board was thus placed on the beam with one end thereof even with one end of the beam, and plaintiff was directed by defendant's superintendent to stand near that end of the beam, hold the measuring board with one hand, and with the other hold a "stick" or board firmly against

In an action by a structural iron worker injured when the measuring board which he was holding at the end of an I-beam, which another worker undertook to straighten by hammering, was struck, an instruction allowing recovery upon a finding that the work was being done under defendant's direction, in unsafe and improper manner, was erroneous.

Appeal from St. Louis Circuit Court; the end of the beam and the end of the measFranklin Ferris, Judge.

"Not to be officially published."

uring board, while another employé, one Reader, struck a flange at the other end of the beam with a sledge hammer. The evidence

Action by Joseph Simick against Stupp Bros. Bridge & Iron Company. From a judg-shows that while plaintiff was thus holding ment for plaintiff, defendant appeals. Re- the measuring board and stick, in obedience to said directions, Reader, in undertaking to strike the flange with the sledge hammer,

versed and remanded.

M. U. Hayden and John P. Griffin, both of struck the end of the measuring board, causSt. Louis, for appellant.

Wm. R. Schneider and Fred J. Hoffmeister, both of St. Louis, for respondent.

ALLEN, P. J. This is an action for personal injuries sustained by plaintiff while in the employ of the defendant corporation as its servant. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $954, from which defendant prosecutes this appeal.

At the time of plaintiff's injury he was engaged in holding in position a "measuring board" and a stick at the end of an "I-beam," while another employé undertook to straighten a flange at the other end of the beam by striking it with a sledge hammer. It appears that plaintiff had been working for defendant for about a year prior to his injury, performing common labor, but he says that he had not previously done work such as that in which he was engaged when injured. Owing to plaintiff's lack of familiarity with the English language, he had no little difficulty in testifying.

It appears that the I-beam at which plaintiff was working was about 15 feet long, and was lying, upon one edge or face, on supports 2 or 21⁄2 feet high. The upper and lower faces, as it lay, were about 4 inches in width, consisting of comparatively thin strips, 7 or 8 inches apart, connected by a narrow "shank." At the ends of the beam certain flanges or "angles" had been riveted thereto, to be eventually used for holding the beam in place. It appears that, after being riveted to a beam, these flanges are sometimes not at right angles to the beam, or the flanges on one side of the beam, at each end thereof, are not the correct distance apart, and when this occurs they are hammered into the proper position by a sledge hammer. This work was being done at the time of plaintiff's injury. In doing such work it was defendant's practice to use a "measuring board," about the length of the beam, which was placed

ing the stick or the measuring board-apparently the former-to strike plaintiff's body, whereby he was injured. The testimony in plaintiff's behalf is that he suffered a frac ture of three ribs and internal injuries.

Expert witnesses for plaintiff testified to the effect that while it is the custom of those engaged in structural iron work to straighten the flanges at the ends of I-beams by striking them with a sledge hammer, it is not usual or customary, in doing such work, to use a measuring board and a stick, or either, for the purpose mentioned above; that it is customary to use a "square" to determine when the flange is perpendicular to the body of the beam, and to measure the distance between flanges by using a steel tape. And testimony of these witnesses tends to show that a measuring board is not customarily used, for the purpose mentioned, be cause of the danger of striking the end of the board with the sledge hammer.

[1] It is urged that the evidence failed to establish a prima facie case for plaintiff, and that the trial court consequently erred in refusing to peremptorily direct a verdict for the defendant. This contention, we think, cannot be sustained. The evidence was such as to warrant the jury in finding that the defendant, through its superintendent, was guilty of a negligent breach of duty owing by it to plaintiff, in that the superintendent directed this work to be performed in a way that was not reasonably safe. It is not disputed that the superintendent directed the precise manner of doing the work, directing plaintiff where to stand and how to hold the board and stick in position. It is said that the superintendent told plaintiff to stand, not opposite the end of the beam, but at one side of the beam near the end thereof; but plaintiff's testimony is that he was standing in the latter position when injured. And it would appear that a reasonably prudent person, in the position of the superintendent, would have foreseen the dan

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

ger of injury to plaintiff, while holding the board and stick in place, through an inadvertent striking of the end or corner of the measuring board by the workman wielding the sledge hammer at the other end of the beam.

which the evidence tended to establish, is broader than the evidence, and permits a recovery as for a failure in any respect to furnish a reasonably safe place and reasonably safe appliances. The appliances were not defective, nor were they in themselves unsafe when properly used. And if plaintiff's place to work may be said to have been rendered unsafe, it was by reason of the said orders or directions of the superintendent. The jury should be required to find, not only that such orders or directions were given, but that the giving thereof was negligence, i. e., a failure to exercise ordinary care in

[2] It is argued at some length that plaintiff's injury was due entirely to the negligence of a fellow servant, i. e., the negligence of Reader, in permitting his sledge to strike the end or corner of the measuring board. We think that this argument is without merit. Indeed, we cannot say that Reader's failure to strike the flange accurately, and miss the end of the measuring board, was due to neg- | the premises. ligence on his part, rather than to inadver- [4] Plaintiff's instruction No. 2 is faulty tence or human frailty which defendant ought reasonably to have anticipated as a natural and probable result of doing the work in this manner. In this connection it may be noted that one of plaintiff's expert witnesses, one Burgdorf, in stating why a measuring board is not customarily used in such work, said: "Naturally the man (the striker) is not accurate enough with his sledge hammer to hit this (illustrating with a model) every time on the proper place-he will strike up here and hit." Because of the everpresent danger that the workman wielding the heavy sledge hammer might strike the end or corner of the board, however careful he might be, a jury could with propriety find that defendant was negligent in ordering the

in that it allows a recovery upon a finding by the jury that the work was being done, under defendant's direction, "in an unsafe and improper manner." Likewise plaintiff's instruction on the measure of damages is subject to criticism. But we need not dwell further upon the instructions, as the errors or imperfections therein will doubtless be obviated upon another trial.

The judgment must be reversed and the cause remanded. It is so ordered.

BECKER and DAUES, JJ., concur.

work to be done in this manner, and direct- WULFERT v. MURCH BROS. CONST. CO. ing plaintiff to take the position which he occupied when injured, and that plaintiff's

(No. 16643.)

injuries were directly due to such negligence, (St. Louis Court of Appeals. Missouri. June as the proximate cause thereof.

[3] The instructions given for plaintiff are complained of in many respects. Plaintiff's instruction No. 1, which is assailed, is as follows:

21, 1921.)

Master and servant 104, 220(1)-Risk of working without goggles held assumed.

Where a building laborer of experience was directed to cut a hole in a brick wall for a

"You are instructed that it was the duty of girder, his employer's failure to furnish gogthe defendant Stupp Brothers Bridge & Iron gles for him was not a breach of the employCompany to exercise ordinary care, and to fur-er's duty, and the danger of being struck in nish plaintiff Joseph Simick a reasonably safe the eye by a flying particle of mortar caused place to work and reasonably safe appliances by the use of a hammer and chisel was an orwith which to do his work. And if you find

from the evidence that plaintiff exercised ordinary care for his own safety, and that defend ant failed to exercise ordinary care to furnish plaintiff such reasonably safe place and appliances, and that the injury to plaintiff complained of resulted from such failure on the part of the defendant, then your verdict must be for plaintiff."

This instruction authorizes a recovery for plaintiff upon a finding that plaintiff was exercising ordinary care; that defendant failed to furnish plaintiff a "reasonably safe place to work and reasonably safe appliances with which to do his work"; and that plaintiff's injury resulted from such failure on the part of the defendant. Obviously the instruction is fatally bad. It does not predicate liability upon the specific negligence

dinary risk incident to the work in which he was engaged, and the employer is not liable for his injury; he not having requested the employer to furnish goggles.

Appeal from St. Louis Circuit Court; H. M. Hartman, Judge.

"Not to be officially published."

Action by Charles Wulfert against the Murch Brothers Construction Company, a corporation. Judgment for plaintiff, motion for new trial granted, and plaintiff appeals.

Affirmed.

W. H. Douglass, of St. Louis, for appellant. Kelley, Starke & Moser, of St. Louis, for respondent.

BIGGS, C. On the 22d of April, 1918, while in the employ of the defendant, plain

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tiff received an injury to his eye alleged to have been caused by the negligence of the defendant and for which he brought this action for damages which resulted in a judgment in his favor for $750.

Upon the filing of a motion for a new trial the same was sustained by the lower court, the cause assigned therefor being the giving of a certain instruction on behalf of plaintiff. Plaintiff thereupon perfected an appeal to this court claiming the giving of such instruction was not erroneous and that the verdict and judgment in his favor should stand.

While not conceding that the action of the court in sustaining the motion on the ground assigned was improper, the defendant here asserts that in any event the action of the court was correct inasmuch as plaintiff's evidence failed to convict defendant of negligence and therefore its demurrers to the evidence should have been sustained; this being one of its grounds for a new trial.

In view of the fact that we have concluded that defendant's contention in that regard is well taken, it will be unnecessary to consider the propriety of the giving of the instruction referred to.

While in the act of chipping or cutting a hole in a brick wall with a chisel and hammer, a particle of brick or mortar flew from the place where plaintiff was chipping and struck him in the eye, thereby causing his injuries.

The charge of negligence is a failure on the part of the defendant to furnish plaintiff a reasonably safe place in which to work and reasonably safe tools and appliances, in that the defendant knew or by the exercise of ordinary care could have known or should have anticipated that particles of brick or mortar were apt to strike plaintiff in the eye while cutting a hole in the wall as directed by defendant, and had defendant exercised ordinary care for the safety of plaintiff it would have provided him with goggles or furnished him with other means of protecting his eyes from flying particles, but negligently failed to do so.

Plaintiff, the only witness in the case, testified that he was 51 years old and had been a building laborer for 25 years; that he was employed by defendant in the first part of March, 1918, until the 24th day of April, 1918; that on April 22d he was instructed by defendant's foreman to cut a hole in a brick wall of a building in which defendant was making alterations so that steel girders could be inserted therein to hold up a balcony; that these holes were about 10 inches square and 9 inches deep; that the foreman instructed plaintiff to take a chisel and a hammer and cut the holes in the wall and to procure the tools from the toolroom; that plaintiff was doing the work on a ladder

set against the wall as the holes were 12 or 14 feet from the floor; that after completing one of the holes and while working on the second a particle of brick or mortar flew out and struck him in the eye.

It appeared from the testimony of plaintiff that the wall was an ordinary brick wall, and that when he was cutting in the bottom of the hole he would be over his work, but that when he was cutting the top he had to get down on the ladder to cut up and would therefore be beneath his work; that particles of brick or mortar would fly from the hole as he was chipping and strike him in the face, especially when he was cutting the top of the hole; that when he was cutting from the top of the hole he usually closed his eyes to keep particles from striking him; that while he was cutting these holes he was not furnished with anything to protect his eyes from the brick or mortar; and that a pair of goggles would have protected him.

Plaintiff testified that there were no goggles in the toolhouse for him to get, that the day he was injured was the first day on this particular work that he had done any chipping of holes, and that he did not know that he was going to do so until directed by the foreman.

It appeared, however, that plaintiff had worked around construction work for 25 years and had frequently cut holes in brick walls similar to the one on which he was working when injured. He testified that there was no particular difficulty in doing the work which was accomplished by hitting the head of a cold-chisel with a hammer and chipping off pieces of brick and mortar. Plaintiff was thoroughly familiar with that kind of work and did not require any instruction from anybody. He had often before cut such holes in brick walls and had used a cold-chisel and hammer for the purpose. He testified that he knew that pieces of brick and mortar would chip off and that he did not know which way they would be likely to fly, but that he fully understood that particles would fly when being chipped and that no one knew which way they would go.

Plaintiff further testified he did not request that goggles be furnished him, and that he had not used them before, and that he had no complaint to make of the character of chisel and hammer furnished him, as they did their work properly.

Plaintiff made no complaint to the defendant or any one about the manner of doing the work or failure to furnish the goggles, and, of course, he fully appreciated the fact that he would be injured by particles of brick or mortar striking him in the eye. It appeared that plaintiff was not inexperienced in doing this character of work, and that at the time he was not under the direc

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