페이지 이미지
PDF
ePub

board 212 feet long. He became unconscious, brick layers, which, when they were used by and fell from the third floor, a distance of the brick layers on a floor, were removed about 30 feet, and received the injuries com- from that floor and taken to the next floor plained of. The building in question was above, on which they would place their treswhat is known as a slow combustion build- tles and materials. ing, with its interior frame work made both Plaintiff testified positively that on the of steel and wood, that is its joists and gird-third, fourth, or fifth floors there was no ers were steel and wood and with columns temporary flooring between the girders, exabout 15 feet apart. The building when com- cept a plank run, over which to run wheelpleted was to be seven stories high, its ex- barrows, usually three of such runs, one terior walls of brick but at the time of the through the center, the others on the sides; accident the brick work had only been com- nothing else in the rest of the space between pleted to the fourth floor and the brick ma- the girders, except joists about 16 feet apart, sons and hod carriers were working on that and 8 by 14 inches, the girders about 14 inchfloor at the time plaintiff was injured. The es square, the space between the joists about girders of the building were laid about 16 4 feet, 2 joists between each girder. Plaintiff feet apart and joists were laid in between testified that under the direction of his imthe girders, about 4 feet apart, on the remediate foreman, he was on the third floor spective floors. There was an engine and using a plumb line, hanging down over the hoist at the rear or east end of the building, floor above to get measurements for timbers on the first floor, used for conveying material on which he was working; that he was in a up through the building, and on the second stooping position, measuring, when something floor there were some boards over the engine came down from above and hit him on the to protect the engineer below. There was an back of the head. It was a piece of wood, he open space along the north wall of the build- thought, about 2 feet long. It knocked .im ing, about 51 feet from the front, left open to unconscious and off of the girder. Plaintiff be used as an elevator shaft but not inclosed was sure that the object which struck him or caged in, and the plaintiff was standing came from the fourth or fifth floor. south of this when he was struck, this shaft,

On cross-examination plaintiff repeated or space designed for a shaft, being in the that he was positive that when he was hurt same condition as the rest of the floors; that the brick layers were at work on the west is, according to the testimony for plaintiff, all and north walls of the floor above; that open and uncovered, except as to the cover there was no covering over the whole on this for the engine on the second floor, and scaf- floor; that he was not sure what hit him ; fold boards on the fourth floor, which, ac- would not say that that made him unconcording to the testimony on behalf of plain- scious at once but was unconscious when tiff, covered only about one-fourth of the he fell, and did not know whether he became space of the fourth floor, or so much only so when he was hit or when he hit the first as was needed for the brick 'ayers to put floor; knew he had become so when he hit their scaffolds and materials on in the pros- the first floor, or between, and was so when ecution of the brick work. There also ap- he struck the first floor; was sure that the pears to have been runways to run a wheel- thing that hit him came from above; saw at barrow over, from one part of these floors before he became unconscious; thinks it was to the other when the brick layers were at a plank a couple of feet long; had had on a work. According to the testimony for plain- heavy woolen cap and the thing which struck tiff, there had been no permanent floors and him left no scar, just a sore spot. no temporary floors laid on either of the There was some corroborative evidence of floors above, and that evidence tended to plaintiff's testimony, and from even his own show that it was customary in buildings of witnesses, and from all of defendant's witthis kind to either lay a thick permanent nesses, contradictory testimony as to the floor on each floor as the building progressed, fact of the floors being covered. and then lay a thin finished floor over it All this testimony as to the covering of the when the building was nearing completion, upper floors was objected to by the defendant or to lay a temporary floor on the respective throughout the whole trial as a matter not floors as the building progressed, for the pro- covered by the petition, and objection was tection of workmen. Neither of these plans, specifically made on that ground when plainhowever, according to the testimony for plain- tiff offered and introduced the city ordinance, tiff, were here pursued.

here pursued. That evidence section 406, Rombauer's Revised Ordinances tended to show that in a building of this kind of the City of St. Louis 1912, p. 608. That -a slow combustion building—as it is called, section reads as follows: it is not practical to lay the permanent, heavy "It shall be the duty of the person or persons floor as the building goes up from floor to having charge of the construction of any buildfloor, as often times it would get wet and ex- of each floor above the second floor covered with

ing hereafter erected, to have joists or girders pand.

There was also evidence that there scaffold boards or other suitable material as the

some temporary flooring laid on the building progresses, so as to sufficiently protect joists and girders outside of the covering over joists or girders, or to protect the workmen or

the workmen, either from falling through such the engine on the second floor, and also the others who may be under or below each floor whereby accidents happen, injuries occur, and life A number of cases are cited in its support. and limb are endangered.'

In Mulderig v. St. Louis, K. C. & C. R. The assignments of error made by the Co., 116 · Mo. App. 655, 665, 94 S. W. 801, learned counsel for appellant are, first in ad-S04, Judge Bland, speaking for our court, mitting testimony as to a cause of action said: different from that alleged in plaintiff's pe

“The defendant railroad company contends tition; second, second, that in this action, based that as the petition does not allege that it vio

lated city ordinance 1753, it was error to adupon common law negligence, in permitting mit it in evidence for the purpose of proving plaintiff to introduce testimony tending to the company guilty of negligence in failing to show negligence under an ordinance not have a man stationed on the back end of the pleaded nor referred to in the petition, not the action is not based upon any ordinance or

train. The petition alleges negligence, generally. ir issue in the case, and which evidence statute but is as at common law. The authori. tends in nowise nor manner to prove common ties in this state are all one way that an ordilaw negligence, and in permitting plaintiff nance of a city, which forms the basis of an to recover upon such cause of action with action, must be specially pleaded and if not

pleaded cannot be introduced in evidence. (Citout a scintilla of proof of common law negli- ing cases.) But all of these cases hold that gence; third, in admitting testimony tending where the action is not based upon an ordito show that the defendant had not covered nance, but is at common law, and where the with scaffold boards each floor above the ordinance itself does not give a right of action,

a be second floor of the building under construc- ordinance is admissible for the purpose of provtion at the time of plaintiff's injury; and, ing negligence. The ordinance offered in evifourth, in admitting in evidence the ordi-dence furnishes no cause of action; it only nance which was the sole basis of plaintiff's roads operating trains within the limits of the

prescribes certain duties to be performed by railright of action.

city. It would be negligence to omit the perThese four assignments are practically on formance of these duties and we think, on the the same point.

authorities, supra, the ordinance was properly

admitted in evidence." [1] When the taking of testimony was commenced, learned counsel for appellant

[2] Learned counsel for appellant argues objected to the introduction of any evidence that there is no common law rule providing on the ground that the petition did not state for the putting in of floors as the work profacts sufficient to constitute any cause of gresses. Nevertheless, where an injury results action and did not allege any acts which con- from the failure to put in floors, and the stitute negligence. This was overruled,

overruled, statute or ordinance requires them, the omisplaintiff excepting. We think that objection sion goes to the establishment of negligence was properly overruled. A motion to make and the ordinance, doing no more than makthe petition more specific as to the negligence ing special, specific provisions, was not imrelied on, might have been proper, but no properly admitted, although not pleaded, as such motion was made, and after judgment, tending to show negligence. It is true that as here, we think the petition is sufficient. when a party alleges specific acts of negli

Section 7843, Revised Statutes 1909, pro- gence, he is held to the proof of those acts, vides:

but that is very far from holding that when "All persons engaged in the erection, repairing a party alleges negligence, generally, he canor taking down of any kind of building shall ex- not prove specific acts. ercise due caution and care so as to prevent in- In Bailey v. Kansas City, 189 Mo. 503, jury or accident to those at work or nearby.”

514, 87 S. W. 1182, 1186, it is said : The city ordinance referred to, and which violation of a duty imposed alone by a munici

If a cause of action is based directly on a we have quoted, is but a particularization 'pal ordinance, the pleading should set forth the of this part of the section. In point of fact, specific ordinance in hand because courts will this presents a case of negligence in failing not take judicial notice of its existence. (Citing to provide a safe place to work—actionable as a mere matter of evidence, no good reason is

cases.) But if an ordinance of a city is used at common law.

perceived why it should be pleaded; for to In Fisher v. Golladay, 38 Mo. App. 531, plead evidential facts is bad, and, on principle, loc. cit. 537, it is said by Judge Ellison, Now, the case under the fourth amended petition

the rule applies to ordinances. (Citing cases.) speaking for the Kansas City Court of Ap- is not based on the violation of a municipal ordipeals:

nance, but is based on the violation of a duty “The wrongful act complained of-the act. imposed by general law. Therefore, the objecwhich led to the injury-was carelessly selling tion, in the form made, was properly overruled.” and delivering to the plaintiff a deadly poison instead of the harmless medicine he called for.

In Bragg v. Metropolitan St. Ry. Co., 192 The contention of counsel presupposes that no Mo. 331, 91 S. W. 527, practically the same act of negligence can be proved except it be al- rule is announced as in the Bailey Case, suleged in the petition. This position is unten- pra. We therefore hold that all of the obable. The allegation in a pleading that the parjections made to the introduction of this testy, complained against, negligently committed the particular act which led to the injury, whose timony and to the ordinance were properly redress is sought, furnished the predicate for overruled. the proof of all such incidental facts and cir

The fifth assignment is to the rejection of cumstances, both of omission and commission, as fairly tend to establish the negligence of the proper testimony offered by defendant and primary fact complained of. This rule of plead-in refusing to permit proper cross-examinaing is abundantly established by authority. tion of plaintiff's witnesses. As our atten

[ocr errors]

tion is not called to these alleged errors in the jury that if they found plaintiff was the argument, it is not necessary to notice working for the defendant, and if they furthis assignment.

ther found that while doing this on the third [3] The sixth assignment is to the refusal floor of the building "a piece of building mato give a peremptory instruction, directing terial or other substance fell from some floor, a verdict for defendant. That instruction or location, above and struck plaintiff, by was properly refused. The testimony, it is reason whereof plaintiff was knocked, or true, is contradictory and conflicting but fell, from the third floor of said building to there was substantial evidence in the case the first floor thereof, and was injured; and entitling the plaintiff to go to the jury and if you further find and believe from the evithat being so, we cannot interfere.

dence that at, and immediately preceding, [4] The seventh and eighth assignments plaintiff's injuries, if any, the defendant failare to error in giving instructions 1, 2 and ed to exercise ordinary care to have the 3, asked by defendant, and in refusing in- joists or girders on each floor of said buildstructions 2 and f, asked by defendant. We ing above the second floor covered with scafmight decline to consider these assignments fold boards, or other suitable material, as because of the language of the motion for the building progressed, so as to sufficiently new trial. The only attacks in the motion protect workmen; that is, to make it reafor a new trial, made upon the action of the sonably safe for workmen and for the plaincourt on instructions, are the fifth ground tiff from falling through such joists or girdwhich is to the action of the court "in giving ers of said building and to protect workinstructions to the jury as asked by plaintiff, men, or make it reasonably safe for workduly objected to by defendant," and the men, or plaintiff, who might be under or besixth, "In refusing proper declarations of low the floors of said building from falling law asked by defendant."

bricks, or other substances; and if you furIn Raifeisen v. Young, 183 Mo. App. 508, ther find and believe from the evidence that 167 S. W. 648, it is held that a motion for such failure on defendant's part, if any you new trial must set out the reasons therefor find, to have the joists or girders of each so definitely as to direct the attention of the floor above the second floor of said buildtrial court to the precise ground of complaint. ing covered with scaffold boards or other

In Lampe v. United Railways Co., 202 s. suitable material to make it reasonably safe W. 438, a decision by our court handed down for workmen, or plaintiff, as the building April 2nd, 1918, being number 15,823, and progresses, was negligence; and if you furnot yet officially reported, the motion for ther find and believe from the evidence that new trial set out as its grounds, "Because such negligence, if any, directly caused the the court erred in refusing to give and read plaintiff's injuries sued for herein, then you to the jury legal and proper instructions re- will find a verdict for the plaintiff in this quested by defendant” and “because the case, providing that you further find that court erred in giving and reading to the jury the plaintiff at the time of his injuries was erroneous, illegal, and misleading instruc- exercising ordinary care for his own safety." tions on behalf of plaintiff and over defend- The court further defined "ordinary care," ant's objections thereto."

and rules for the measurement of damages, [5] We held in that case that the sufficien- if there was a verdict for plaintiff. cy of these assignments had been before our We find no error then in either of these Supreme Court in a number of recent cases instructions, which were the only ones given and had been discussed at length in Wampler at the instance of plaintiff. V. Atchison, T. & S. F. Ry. Co., 269 Mo. 464, Finding no reversible error, the judgment 190 S. W. 908. In the Wampler Case an as- of the circuit court is affirmed. signment somewhat similar to the one before us and now present was held sufficient in a

ALLEN and BECKER, JJ., concur. civil case, the rule, however, differing in criminal cases. But in the recent case of Kansas

(199 Mo. App. 380) City Disinfecting & Manufacturing Co. v. BALTER et al. v. CRUM et al. (No. 15077.) Bates County, not yet officially reported, but see (Sup.) 201 S. W. 92, an assignment in the (St. Louis Court of Appeals. Missouri. May

7, 1918. Rehearing Denied May 22, 1918.) motion for new trial, that the court refused

1. FRAUDULENT CONVEYANCES O 5 BULK proper declarations of law offered by plain

SALES-CONSTRUCTION OF STATUTE. tiff, was held not to be sufficient as an as- In construing the Bulk Sales Law (Laws signment of error in a civil case. Following 1913, p. 163), a statute penal in its nature, no this and in line with our own decision in the sales are to be included as coming within its

purview unless clearly within its terms, as sales Lampe Case, we must hold that these as- in bulk laws, being in derogation of the comsignments of error to the giving and refus- mon law, and of a person's right to alienate his ing of instructions is insufficient. It is not property without restriction, must be strictly out of place to say, however, that we have construed.

BULK in this case examined the principal instruc- 2. FRAUDULENT CONVEYANCES mm 5 –

SALES LAW-CONSTRUCTION AS WHOLE. tion given by the court at the instance of

The Bulk Sales Law should be read as a plaintiff and we find no error in it. It told ) whole for purposes of construction.

.

[ocr errors]

3. FRAUDULENT CONVEYANCES Om 47 - SALES, demanded or received from said vendor a

IN BULK LAW-LIVERY STABLE KEEPER— written statement of the names and addresses “" "STOCK OF MERCHANDISE”—“FIXTURES AND of all the creditors of said vendor, together EQUIPMENT.”

The Bulk Sales Law (Laws 1913, p. 163), with the amounts of indebtedness owing by applying to the sale, delivery, or other disposi- said vendor to each of such creditors; that tion of the major part in value or the whole of none of said vendees notified or caused to be a stock of merchandise, or merchandise, fixtures, and equipment, or equipment, pertaining notified any of the creditors of said vendor to the vendor's business, is without application of said proposed sale and trade or other disto sale of the wagons, horses, harness, etc., of position of said property, and that said venone engaged in the business of owning and oper- dor and vendees and each of them fraudulentating a livery and boarding stable; the words "stock of merchandise” meaning goods or chat- lý failed and refused to comply with any.of tels which a merchant has for sale, and the the provisions of the law pertaining to such words "fixtures and equipment” meaning fixtures and equipment, or either one, pertaining to sales in bulk, approved March 25, 1913 (Laws tures and equipment, or either one, pertaining to of Missouri 1913, p. 163); that none of said the vendor's business of merchandising. [Ed. Note. For other definitions, see Words vendees are innocent bona fide purchasers

and Phrases, Second Series, Stock of Merchan- for value; that the defendant Crum thereaftdise; First

First and Second Series, Equipment; er left the city and applied all the proceeds Fixture.]

of said sale of the property to his own use; Appeal from St. Louis Circuit Court; and that exclusive of the property so frauduGeorge H. Shields, Judge.

lently transferred to the defendants there was Suit by August Balter and Oliver J. Miller, no property of said bankrupt left for the pay

The trustee in bankruptcy of the estate of Cyrus ment of the claims of his creditors. N. Crum, against Cyrus N. Crum, Decker, prayer was in conformity with the relief proEckhardt, Kratz, and Jos. S. Caldwell. From vided by the Bulk Sales Law. Each of the judgment for the trustee, the defendants, oth- appellants, after unavailing demurrers, filed er than Crum, appeal. Reversed.

answers in which it was admitted that each Seebert G. Jones and Albert E. Hausman. of the defendants had bought certain specific both of St. Louis, for appellants. Henry

property from the defendant Crum and that Obershelp, of St. Louis, for respondents.

no notice, as required by the Bulk Sales Law of Missouri, had been given. The reply was

a general denial. A trial was had and resultBECKER, J. This is a suit predicated up- ed in a finding and judgment in favor of the on the Bulk Sales Law of Missouri (Session trustee in bankruptcy, one of the plaintiffs Acts of Missouri 1913, p. 163). The amended herein, and against each of the several appelpetition alleges that the defendant Crum con- lants here, defendants below, for various

, ducted a livery and boarding stable under the name of Crum's Boarding Stable, in the city trial and in arrest of judgment the said de

amounts. After unavailing motions for new of St. Louis, and owned and used in the said fendants bring this appeal.

, business many horses, mules, buggies, wag. ons, carriages, harness, and hay, oats, corn, dence in detail; it being sufficient to state

It is not necessary that we go into the evifeed, vehicles, goods, merchandise, fixtures,

that plaintiffs' testimony makes a case proand equipment; that said Crum had been adjudged a bankrupt and one Miller duly elect- viding the petition states a cause of action. ed and appointed trustee of said bankrupt In other words, the sole question before us on estate; and that such trustee had been duly appeal is as to whether or not the sales as alauthorized and directed to join in this suit leged in the petition are within the intendas party plaintiff for the benefit of all the ment of the Bulk Sales Law of Missouri. creditors of said Crum in bankruptcy. It was

[1] If our Bulk Sales Law is broad enough further alleged that in the early part of Jan- to include a livery and boarding stable within uary, 1915, said Crum was indebted to one its purview, then this appeal must fail; otherBalter, a plaintiff in the case, and to numer- wise the judgment must be reversed. The ous other creditors in large amounts, and that law in question, while not a criminal statute, for the purpose of hindering, delaying, and de- is yet penal in its nature, and it needs no cifrauding his, the said Crum's, creditors, he, tation of authorities that in construing statthe said Crum, sold and otherwise disposed of utes of this character no sales are to be inall of his said horses, mules, buggies, wagons, cluded as coming within its purview unless carriages, harness, and hay, oats, corn, feed, such sales are clearly within its terms. vehicles, goods, merchandise, fixtures, and Sales in bulk laws are in derogation of the equipment pertaining to his said business to common law and of a person's right to alienthe several defendants at much less than ate his property without restrictions and are their real value and otherwise than in the to be strictly construed. ordinary course of trade and otherwise than [2, 3] While bulk sales statutes are now in the regular prosecution of said Crum's common, most of them seem to apply only to business, and all as substantially one transac- sales of a “stock of merchandise" or a "stock tion and proceeding, and occurring substan- of goods, wares, merchandise, or stock of tially at one time; that none of said vendees / merchandise and fixtures,” but the Missouri

OwFor other cases see same toric and KEY-NUMBER in all Key-Numbered Digests and Indexes

statute applies to the "sale, trade or oth-, Law was enacted for the protection of perer disposition of the major part in value, sons who extend credit to merchants relying or the whole of a stock of merchandise, or upon their right to credit as ascertained from merchandise, fixtures, and equipment, or a financial report of such merchant's assets equipment pertaining to the vendor's busi- and liabilities and his past record with referness.” When our statute is read as a whole, ence to prompt payment or settlement for as in fact it should and must be, it is clear goods purchased, together with a reliance upon that the intent of the lawmakers was to regu- the fact that such merchant is a vendor of late the sale, trade, or disposition of stocks of merchandise, which of necessity presumes merchandise, and, in connection with any that such merchant keeps on hand a stock of such stock of merchandise, the fixtures or merchandise for sale, and which stock is not equipment or both pertaining thereto. The sold in bulk but to be kept up and replenished words "stock of merchandise" are here used from time to time as the sales made therein the common and ordinary acceptation of from may require. Credit extended in this those terms, and are intended to mean goods manner presupposes a continuance in the or chattels which a merchant has for sale, business of merchandising on the part of him such as is often referred to by the phrase to whom the credit is extended; but it often "stock in trade," and the words "fixtures and happened that merchants who had become equipment” mean fixtures and equipment, or involved financially would dispose of their either one pertaining to the vendor's business entire stock of goods to one or more persons of merchandising.

without notice of any kind to their creditors In view of the language of the statute it and perpetrate a fraud upon them, and our self, we hold that this law has no application Legislature undoubtedly enacted the statute to the sale of the wagons, horses, harness, under discussion to prescribe a practical methetc., of one whose business is that of owning od for sales in bulk which would give due noand operating a livery and boarding stable. tice and protection to all parties interested In fact in several of the states in which bulk and at the same time provide a remedy to desales laws somewhat similar to the one under frauded creditors in cases where sales in bulk discussion have been held' unconstitutional, it were made without complying with the rehas been on the ground that the law is spe- quirements of such statute. cial class legislation which is prohibited by We hold that plaintiff's petition fails to set the Constitutions of such states, and in the up allegations sufficient to state a cause of opinions of the courts it has been pointed out action under the Bulk Sales Law act. The that such statutes limit their operation to judgment is reversed. merchandise and do not include farmers, manufacturers, hotel keepers, mine owners, etc. REYNOLDS, P. J., and ALLEN, J., concur. See Off & Co. v. Morehead, 235 Ill. 40, 85 N. E. 264, 126 Am. St. Rep. 184, 14 Ann. Cas. 434; Block v. Schwartz, 27 Utah, 387, 76 Pac. 22, 65 L. R. A. 308, 101 Am. St. Rep. 971, 1 Ann. In re INCORPORATION OF UNIONDALE. Cas. 550; McKinster v. Sager, 163 Ind. 671,

COYNE et al. v. RUGH et al. 72 N. E. 854, 68 L. R. A. 273, 106 Am. St. Rep.

(No. 15406.) 268; Miller v. Crawford, 70 Ohio, 207, 71 N.

(St. Louis Court of Appeals. Missouri. E. 631, 1 Ann. Cas. 558; Wright v. Hart, 182

May 7, 1918.) N. Y. 330, 75 N. E. 404, 2 L. R. A. (N. S.) 338, 1. MUNICIPAL CORPORATIONS Eww12(12)—IN3 Ann. Cas. 263. And in the case of Wilson

CORPORATION-REVIEW-COURTS. v. Edwards, 32 Pa. Super. Ct. 295, and in In making an order for the incorporation of Spurr v. Travis, 145 Mich. 721, 108 N. w. a city the county court acts judicially, and the 1090, 116 Am. St. Rep. 330, 9 Ann. Cas. 250, in under Rev. Št. 1909, $ 3956, providing for ap

order is subject to appeal to the circuit court sustaining the constitutionality of a bulk peals from “judgments” of the county court, sales law it was assumed that it applied only and section 4091, providing the circuit court to merchandise and did not include farmers, true, though the circuit court has no original

shall hear such appeals de novo; and this is manufacturers, and others. The Supreme jurisdiction to incorporate a city. Court of the state of Washington, in constru- 2. COUNTIES 58 – APPEALS FROM COUNTY ing a bulk sales law which had been enacted

COURT-CONSTRUCTION OF STATUTE. in that state, held that the horses, wagons, under Rev. St. 1909, § 3956, appeal lies from

The right of appeal is purely statutory, and and harness of a livery stable keeper are not the county court to the circuit court “in all within the provisions of such statute requir- cases not expressly prohibited by law," and, ing every person who shall purchase "any while there are limitations upon the right in stock of goods, wares, or merchandise” in the courts may not deny or curtail the right ex

cases of ministerial or administrative acts, bulk to take a statement under oath of the cept when clearly without the statute. creditors of the seller. See Everett Produce 3. MUNICIPAL CORPORATIONS @ww12(12)—INCo. v. Smith et al., 40 Wash. 566, 82 Pac. 905, CORPORATION — OBJECTION – PARTIES ENTI2 L. R. A. (N. S.) 331, 111 Am. St. Rep. 979, 5

TLED TO APPEAL.

Owners whose property would become subAnn. Cas. 798.

ject to the burdens of municipal taxation have We are of the opinion that our Bulk Sales ) the right to object to the county court's order

[ocr errors]
« 이전계속 »