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102

88 SOUTHWESTERN REPORTER.

(Mo.

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the entry was not broad enough is without merit.

But the further contention is made under this head that the entry shows Mr. Morrow's compensation was to be paid out of the permanent school fund, and that therefore the contract was invalid. It will be seen that the written contract does not provide what fund Mr. Morrow's compensation should be paid from, but such fund is wholly left to be regulated by the application of correct principles of law. The county court, however, did order that it should be paid out of the "permanent school fund"; thereby meaning either the "county public school fund" re ferred to in Rev. St. 1899, $ 9824, or meaning the account which was carried on the county books as the “permanent fund” of Watson Seminary. It matters little which fund was referred to, for they are precisely the same in contemplation of law; i. e., the permanent fund of Watson Seminary, held by the county, which resulted from fines, penalties, and forfeitures since the repealing act of 1859 aforesaid, became ipso facto and eo instanti by that repeal a part of the public county school fund. The county court properly placed the burden of protecting this fund upon the fund itself, and this arises from the following propositions: The public school fund does not belong to the county in a technical sense. It is a trust fund, and the county court is merely a trustee to carry out the policy defined by the lawmaking power in relation to the fund. Ray County v. Bentley, 49 Mo., loc. cit. 242. It may not divert the general county revenue to its protection, and, on the other hand, it cannot apply the school fund to the payment of ordinary county debts. Knox County v. Hunolt, 110 Mo., loc. cit. 75, 19 S. W. 628. But it is fundamental that, conceding the right to make the contract in question, the burden of protecting the trust fund should fall upon the fund itself, on well-recognized equitable principles. And so it has been held by this court. For example, Township Board of Education Boyd et al., 58 Mo. 279, was a case of this sort. The Martins purchased a school section in Washington county, and gave their note, which remained unpaid; and the county court claimed waste upon the land, and, demanding additional security, obtained an injunction against the Martins, and two of the justices of the county court (Boyd and Johnson) signed the injunction bond. The injunction being dissolved, judgment was ob. tained against Justice Boyd, as surety on the injunction bond, in a certain sum of money, which he paid. Whereupon the county court, by its order on the county treasurer, reimbursed him out of the funds pertaining to the school township. Relators, constituting the board of education, thereupon demanded an order directing the treasurer to reimburse their township school fund, thus depleted, out of the county treasury, in the sum so paid to

Boyd. On refusal of the court so to do, a mandamus was sued out, which being refused below, an appeal was taken here, and the judgment was affirmed on the ground that “the unreasoning procedure by mandamus is unfitted to solve" a case so full of doubt. Whereupon another suit was instituted, in the name of Washington county, to recover the sum of money so paid from the members of said county court. Washington County v. Boyd, 64 Mo. 179. And it was held that the plaintiff could not recover. It was said, among other things, that the court was a mere agent of the state for the management of a trust, and that: "It is authorized to sell lands, to lease them, to receive and sue for the purchase money, and, if there be danger of loss of a debt contracted for the purchase of these lands, the court, we think, might resort to those extraordinary remedies provided for creditors generally. It might sue by attachment; and, if the purchaser is stripping the land of its timber, and thereby endangering the security for the debt, must the agent of the state stand by and witness this spoliation, and trust to the criminal law to indemnify the township by the fine imposed against persons committing the waste on such lands? Five hundred dollars is the extreme penalty, while the timber destroyed might be worth five times that amount. As careful and honest agents, they will guard the interests of their principal as if the property were their own; and, as long as they are actuated by an honest purpose to subserve that interest, to hold that they must answer, out of their own means, for any costs or expenses honestly incurred in the endeavor to protect that interest, would tend far more to jeopardize these funds, than to hold them entitled to remuneration for such outlays when they have been judiciously and honestly made." It was held furthermore that the money paid out by Boyd should have been repaid him, and that it was properly repaid, and that, if it had not been repaid, he could have sued, and recovered it from the school fund of the township interested in that particular fund.

The direction of the county court in the entry complained of that the expense of preserving the integrity of the school fund held in trust should be placed as a burden upon the fund itself, instead of making the contract illegal, in our opinion, placed the burden directly where it belonged; and, had that provision been in the written memorandum signed by Morrow, it would not have rendered the contract invalid.

2. But it is said that the second contract made in February, 1898, while void as to the county, is binding upon Mr. Morrow. That the second contract is void in toto appears from two propositions. One proposition is that there is no record entry evidencing the action of the county court. The other proposition is that, in the teeth of section 6759, Rev. St. 1899, the contract was not made upow

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a consideration wholly to be performed or Iæuted subsequent to the making of the contract, but narrates in set terms that it is Dade "in consideration of services rendered god to be rendered by W. H. Morrow,” etc., to tbe Watson school fund matter. It will be noted that Mr. Morrow had been in the employ of the county court for a year and six months, in and about the matter in hand, at the time the second contract was made. We are referred to no principle of law that renders a void contract between two persons capable of contracting, and not performed, Toid as to one, and enforceable as to the other. Tbe new contract abrogated in terms the former contract, and we are asked to give Effect to that provision in the new contract, and, having done so, to hold that the contract has no further efficacy, so far as Pike county is concerned. Such conclusion, it seems to me, would be a solecism in the law. A contract in a form forbidden by law is absolutebroid—in other words, is of no legal effect

- and all its provisions are afflicted with the same vice; and courts would not be so unfair and unjust as to pick and choose between the parties to such contract, and enforce it as to one, and not as to another. The second conteation of appellant is therefore disallowed.

3. The next assignment of error is that the Terdict is excessive. No express time is mentioned in the contract when this fee became due. It is payable on condition of performing certain services, and the law will read into the contract that the amount became due #bed the services were rendered. Those services were consummated when the final decision was rendered in the mandamus case in this court. This, under the showing made in the record, was on the 28th day of March, 1859. When money is to become due under a written contract, and no rate of interest is provided, the interest runs at 6 per cent. from the date the money is due. Rev. St. 1899, $ 3705. The circuit court gave judgment for $1,553.61; thus allowing $303.61 as accrued interest up to the date of judgment, November 15, 1902. Computing the interest on the principal sum of $2,500 from March 28, 1899, op to the date of the payment on August 9, 1899, and crediting the payment of $1,250, and computing interest on the remainder unal the date of judgment, shows the amount for which judgment should have been given on the 15th day of November, 1902, to be $1,560.28 So that the judgment was for too little, rather than for too much; but, as this is an error in appellant's favor, the cause cannot be reversed on that account.

The judgment, however, is erroneous in form, as it is a general judgment against Pike county, instead of being a judgment to be paid out of the public school fund of the wounty benefited by the services of Mr. Morrow. It is accordingly modified so as to be satisfied out of the proper school fund, and, te modified, is afirmed. All concur, except MARSHALL, J., not sitting.

BLUNDELL V. WILLIAM A, MILLER ELE

VATOR MFG. CO. (Supreme Court of Missouri, Division No. 1.

June 15, 1905.) 1. MASTER AND SERVANT-MASTER'S DUTYSAFE APPLIANCES.

A master must furnish reasonably safe appliances, considering the character of the work, but they need not necessarily be the latest ar best.

(Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, 88 172, 173, 180192.] 2. SAME-ASSUMPTION OF RISK.

A servant assumes the risks that ordinarily and usually are incident to the business being conducted by the master.

[Ed. Note.–For cases in point, see vol. 34, Cent. Dig. Master and Servant, 88'538, 550.) 3. SAME-RISK OF MASTER'S NEGLIGENCE.

The risks assumed by a servant do not include subsequent negligence of the master.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, 8 541.) 4. SAME-KNOWLEDGE OF DANGER.

Where a master fails to furnish safe appliances, and the servant knows, or by ordinary care could know, that the appliances are not reasonably safe, he is not obliged to refuse to use them or quit the service, if he reasonably believes that by the exercise of proper care he can safely use the appliances.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, 88 574–592.] 5. SAME-OBVIOUSLY DANGEROUS APPLIANCE.

Where an appliance furnished a servant is obviously so dangerous that no reasonably prudent man would try to use it, or if the danger threatens immediate injury, the use of the appliance is contributory negligence.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, 8 708.) 6. SAME-INSUFFICIENT FORCE FOR WORK.

Where plaintiff was employed by defendant to erect an elevator in the latter's building, and before going to work he asked for a helper, but was told that one could not be furnished him until the afternoon, and the manner of doing the work was left entirely to plaintiff, who was an expert, he assumed the risk of doing the work without a helper.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, $ 566.] 7. SAME-APPLIANCES-EVIDENCE.

Where plaintiff, on going to work to put in an elevator for defendant in the latter's building, found a ladder lying close to the materials which were to be used in the construction of the elevator, but it was not shown who put it there or to whom it belonged, there was no showing that the ladder was one of the appliances which the master had furnished. 8. SAME-SAFE APPLIANCES-LADDERS.

It was not negligence for a master to fail to provide a ladder with prongs or safety hooks at the bottom, though the ladder was to stand on a granitoid floor.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by William H. Blundell against the William A. Miller Elevator Manufacturing Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Wm. H. Clopton, for appellant. Thos. G. Rutledge and Seddon & Holland, for respondent.

MARSHALL, J. This is an action for $10,000 damages for personal injuries alleged to have been received by the plaintiff on the 17th of May, 1899, while in the employ of the defendant, and engaged in the work of erecting a hand-car freight elevator in a building (No. 21 South Third street) in the city of St. Louis. At the close of the plaintiff's case the court sustained a demurrer to the evidence. The plaintiff took a nonsuit, with leave, and, after proper steps, appealed to this court.

The Issues. The petition states that the defendant is a domestic corporation, and that on the 17th of May, 1899, the plaintiff was employed by the defendant to erect an elevator in a building on the west side of Third street, in the city of St. Louis; that, in order to properly do the work, it was necessary for the plaintiff to ascend a ladder from the basement to the second (first) floor; that he requested the defendant to furnish him the usual and necessary laborers or helpers to assist him, together with necessary tools and appliances, but that defendant "willfully, carelessly, and negligently failed either to furnish said helper, or to furnish him with the necessary and proper tools and appliances to enable him to properly and safely do said work, in this: that the ladder furnished by defendant, and which he was directed to use and did use, was not so constructed as to prevent it from slipping or giving way when placed upon a granitoid flooring or any smooth surface; that, in doing the work, he ascended the ladder, resting the base thereof on the granitoid floor of the basement; that the ladder slipped and fell," and he sustained the injuries com: plained of. The answer is a general denial, with a plea of contributory negligence and of assumption of risk.

The case made is this: The plaintiff was engaged in the business of constructing elevators, or, more properly speaking, doing the millwright work in the erection and construction of elevators. He had been engaged in that business about 25 years, and prior to the accident had worked for the defendant many times, and also for other persons and companies that were engaged in such business. The day before the accident he applied to the defendant for work, and was told that he would be employed the next morning. Accordingly, on the next monring, when he presented himself for work, he was employed to put up a hand-car freight elevator in the building No. 21 South Third street. Said elevator was to extend from the basement to the first floor, a distance of 10 feet. When employed, one of the officers said to him: "Pick up your tools, and come with me, and put up a hand-car elevator.” Accordingly the plaintiff went to his tool chest and picked up such tools as he thought he would need, and then asked where the helper was. The officer answered: "Well, they are busy just

now, and I can't let you have a man until noon time." The officer of the defendant then accompanied the plaintiff to the building, and pointed out to him some materials that were lying on the floor of the building, and told him to go ahead and put up the guideposts that run on each side of the platform, and he would send a man to help him at the heavier work upstairs. The hatchway had not been completed by the carpenters who were engaged in the construction of the building, and the plaintiff first proceeded to complete the hatchway in the floor of the first story for the elevator. After so doing he went into the cellar, the floor of which was made of granitoid. He made a hole through the granitoid for one of the posts to rest in, and set up the post. He then went up to the first floor of the building, and found a ladder 12 feet long, which was lying with, or in close proximity to the materials intended to be used in the construction of the elevator. He placed this ladder in the hatchway; the lower end resting on the granitoid floor of the basement, and the upper end extending above the floor of the first story. The end of the ladder which rested on tue granitoid was rounded. The plaintiff then get onto the ladder for the purpose of completing the work of setting up the guidepost, and while so engaged the ladder slipped, and he fell and was injured. Respecting the ladder, the only testimony in the case is that of the plaintiff himself, who testified as follows: “Question. Now, you don't know whom this ladder belonged to, do you? Answer. I don't know. It was lying there with the ele vator material. That is all I know about it. Mr. Hackman told me that was the material I was to use, and the ladder was lying there. I supposed it belonged to Mr. Miller, but I wasn't sure about it, and don't know now who it belonged to. Question. And you took this ladder and put it down to the basement floor? Answer. Yes, sir. Question. The lad. der itself was perfectly sound, was it? Answer. It looked to me to be sound; yes, sir. Question. Was it sound? Answer. From all appearances, it was sound.” The plaintiff says he placed the foot of the ladder at a distance of about 242 or 3 feet from the wall; that the reason the ladder slipped was be

it was not equipped with prongs. "Question. Now, when you picked this lad. der up and took it down there, you saw, didn't you, that there was no fastenings or anything of that kind on the bottom of it? Answer. There was no iron on the bottom of it. Question. You saw that yourself? Answer. Yes, sir.” The plaintiff further testified that he was familiar with the use of ladders, and understood how to handle them. He further testified that at no time prior, when he had worked for the defendant, had the defendant ever used or furnished a ladder with a prong or fastening attached thereto, to keep it from slipping. The testimony showed that the building in which the ele

cause

rator was to be constructed was in process and used without protest, and wbich he bed! construction, and that there were other lieved could be used by the exercise of care med and carpenters engaged in doing other and caution. Fourth. If the master fails in For on the building; some of them making his duty, and if the servant knows, or by te staircase between the first floor and the the exercise of ordinary care could know, bezement.

that the appliances furnished are not altoThe garanien of the plaintiff's case is that gether or reasonably safe, the servant is the defendant willfully, carelessly, and neg- not obliged to refuse to use the appliances, Igently failed to furnish the plaintiff with or quit the service, if he reasonably believes # beper, and likewise furnished him with a that by the exercise of proper care and cauLaller that was not so constructed as to pre- tion he can safely use the appliances, notrent it from slipping when one end thereof withstanding they are not so reasonably safe; Fis placed upon a granitoid floor.

and if he does so, and exercises ordinary care The learned counsel for the parties hereto and caution, and is injured, he does not bare collated a great number of decisions of waive his right to compensation for injuries the courts of this and other states bearing received in consequence thereof, nor is he won the question of the assumption of risks, guilty of negligence. But if the appliance aud the duty of the master to his servant. furnished is obviously so dangerous that a It would serve no good purpose to attempt to reasonably prudent man would not attempt reconcile the adjudications upon the subject to use it, or that it cannot be safely used of assumption of risks. The prior state of even with care and caution, or, otherwise adjedication will be found fully discussed in stated, if the danger of using the appliance the following Missouri cases: Fugler v. is patent, or such as to threaten immediate Bytbe, 117 Mo. 475, 22 S. W. 1113; Stein- | injury, and the servant uses the same, he baiser v. Spraul, 127 Mo. 541, 28 S. W. 620, is thereby guilty of contributory negligence, 30 S. W. 102, 27 L. R. A. 441; Winkler v. St.

and the master is not liable, notwithstanding Louis Basket Co., 137 Mo. 394, 38 S. W. 921; his prior failure of duty. Fifth. The master Bradley v. Railroad, 138 Mo. 302, 39 S. W.

is not an insurer of the safety of the place 703; Hamman v. Coal Co., 156 Mo. 232, 56

or of the appliances furnished, and his duty S. W, 1091; Pauck v. St. Louis Dressed Beef

is discharged when he has exercised ordinary Co., 139 No. 467, 61 S. W. 806; Grattis v.

care in this regard. Sixth. There is a vast Railroad. 153 Mo. 380, 55 S. W. 108, 48 L. difference between the doctrines of assump2. A. 599, 77 Am. St. Rep. 721; Connolly v. tion of risk and contributory negligence. St Joseph Press Printing Co., 166 Mo., loc.

The first rests in contract, and the second dt. 43, 66 S. W. 268; Minnier v. Railroad,

arises out of the negligence of the servant. 157 Mo., loc. cit. 112, 66 S. W. 1072; Holmes

The result to the person injured is the same 1. Brandenbaugh, 172 Mo., loc. cit. 66, 72

in both cases, but the underlying principles W. 530; Haviland v. Railroad, 172 Mo.,

are radically different, and should be carehe cit. 112, 72 S. W. 515; Curtis v. McNair, | fully borne in mind in every case. The 173 Jo., loc. cit. 279, 73 S. W. 167; Parks y.

maxim, “Volenti non fit injuria," cuts off a Railroad, 178 Mo. 108, 77 S. W. 70, 101 Am.

recovery where the injury is caused by one Št. Rep. 425; Mathias v. Kansas City Stock- of the risks incident to the business which yards Co. (Mo. Sup.) 84 S. W. 66.

the servant assumes when he enters the The rules deducible from these cases may employment. The right of recovery is cut be briefly stated to be as follows: First. The off in the second case under the rule of law Laster is entitled to conduct his business in

that prohibits a recovery where the neglihis own way, and with such appliances as he gence of the person injured contributes therees fit, subject to the qualification that the to. aspiance shall be reasonably safe, consider

Cases very similar to the one at bar have be the character of the work to be done, but arisen and undergone adjudication in other seed not necessarily be the latest or best ap- jurisdictions. In Borden v. Daisy Roller Mill giance for doing such work. Second. The

Co., 98 Wis. 407, 74 N. W. 91, 67 Am. errant, in entering the service of the St. Rep. 816, the plaintiff was engaged in Daster, assumes the risks that ordinarily putting up some millwright work in the dead usually are incident to the business being fendant's flour mill. When so doing, he was codected by the master, and the wages paid obliged to use a ladder. While he was standBoude compensation for injuries received ing on the ladder, it slipped and fell, and he trom zneb risks. Third. The risks thus as

was injured. He sued the master, alleging Fened by the servant do not include subse- the ladder to be defective for want of spikes great negligence of the master, but cover in the ladder to prevent its slipping on ely the risks that ordinarily and usually at- the floor. He recovered in the trial court. teed the doing of the particular business the That court instructed that the master was zuster is engaged in, in the manner, place, liable because the ladder was not equipped ed with the appliances employed and used with such spikes. The judgment of the cirby the master at the time the servant enters cuit court was reversed by the Supreme the employment, or such as are afterwards Court, where it was said: “A ladder is one of Fuployed by the master, and which the the most simple contrivances in general use. kertant had actual or constructive notice of, The danger attending such a use is a matter

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of almost common knowledge, and is partic- and a full knowledge of existing defects, it ularly within the knowledge of men engaged does not necessarily follow that the master in such work as that in which plaintiff was is liable for injuries sustained by reason employed when injured. Under all the cir- of the use thereof. In considering the apcumstances, in view of the very simple char- plication of the rule just stated, due regard acter of such a tool, the ease with which must be had to the limited knowledge of plaintiff could have informed himself as to the employé as to the machinery and strucwhether there were points on the bottom of ture on which he is employed, and to his cait, the obvious danger which would naturally pacity and intelligence, and to the fact that suggest to such a person the necessity of the servant has a right to rely upon the familiarizing himself with its character in master to protect him from injury, and sethat regard before using, and to guard lecting the agent from which it may arise. against its tendency to slip on the floor, and

* In cases, however, where persons many other things that may be mentioned, are employed in the performance of ordinary clearly the court was not warranted in find- labor, in which any machinery is used, and ing, as a matter of law, that the officers and any materials furnished, the use of which agents of the defendant, whose duty it was requires the exercise of great skill and care, to act in this behalf, in the exercise of or- it can scarcely be claimed that a 'defective dinary care, ought reasonably to have appre- instrument or tool furnished by the master, hended that some person who might use the of which the employé has full knowledge ladder in and about defendant's work might and comprehension, cannot be regarded as be injured as a natural and probable result making it a case of liability within the rule of its condition. This is an essential test of laid down. A common laborer, who uses actionable negligence.”

agricultural instruments while at work upMarsh v. Chickering, 101 N. Y, 396, 5 N. on a farm or in a garden, or one whose emE. 56, was an action for damages for per- ploy in any service not requiring great care sonal injuries received by the plaintiff in and judgment, and who uses the ordinary consequence of the slipping of a ladder used tools employed in such work, to which he is by him in lighting the gas lamps in front accustomed, and in regard to which he has of defendant's building. Previous to the ac- perfect knowledge, can hardly be said to cident the plaintiff bad spoken to the de- have a claim against his employer for negfendant's superintendent, and insisted that ligence, if, in using a utensil which he the ladder ought to be hooked and spiked, knows to be defective, he is accidentally and the superintendent promised to have it injured. It does not rest with the servant done, but failed so to do, and the plaintiff to say that the master has a superior knowl. told him that unless it was done there would edge, and has thereby imposed upon him. be an accident. On the occasion of the ac- He fully comprehends that the instrument cident, the plaintiff bad lighted seven of which he employs is not perfect, and if he the lamps. The night was stormy. Sleet, is thereby injured, it is by reason of his own rain, and snow were falling, and a high wind fault and negligence. The fact that he noprevailed. In attempting to light the eighth tified the master of the defect and asked lamp, the ladder slipped, and the plaintiff for another instrument, and the master was injured. The plaintiff recovered in the promised to furnish the same, in such a trial court. The Court of Appeals reversed case, does not render the master responsible the judgment, saying: “The right of the if the accident occurs. . . Even if it plaintiff to maintain this action is founded be considered that a right of action exists in upon the alleged negligence of the defendant this case in favor of the plaintiff, under any in not furnishing a proper ladder for the circumstances, we think that the evidence use of the plaintiff in the work he was en- would not justify a recovery, for the reagaged to perform. It rests upon the prin. son that the defendant did not fail in furciple that it is the duty of the master to nishing a proper ladder for the use of the the servant, and the implied contract be- | plaintiff in lighting the lamps. The rule is tween them, that the master shall furnish that a master does not owe to his servant proper, perfect, and adequate machinery for the duty to furnish the best known or conthe proper work.

As a general ceivable appliance. He is only required to rule, it is to be supposed that the master furnish such as are reasonably safe and who employs a servant has a better and suitable such as a prudent man would furmore comprehensive knowledge of the ma- nish if his own life were exposed to the chinery and materials to be used than the danger that would result from unsuitable or employé, who has claims upon his protec- unsafe appliances.

The defendant tion against the use of defective or improper

has procured a ladder which ordinarily materials or appliances while engaged in the would be regarded as safe for the purpose performance of the service required of him. for which it was used. The plaintiff had The rule stated, however, is not applicable used it for a long time without any accito all cases, and where the servant has equal dent or danger, and on the very night of knowledge with the master as to the machin- the accident it had been placed in position ery used or the means employed in the per- and used several times successfully. That formance of the work devolving upon him, it failed at last for any reason does not es

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