author: BURGESS, J.

text:
    JOHN BURKARD v. A. LESCHEN & SONS ROPE COMPANY, Appellant.
    Division Two,
    March 9, 1909.
    1. MASTER AND SERVANT: Negligence of Foreman: Assurance of Safety. Where a servant is apprehensive that the place in which he is required to work is dangerous and unsafe, and calls the attention of defendant’s foreman in charge of the work and in charge of the servant to the dangerous condition, and relies on the assurance of the foreman that there is no danger, and the servant is injured- without any negligence on his part, the master is liable for the servant’s damage.
    2. -: Foreman or Fellow-Servant. If plaintiff was under the control and direction of another one of defendant’s employees, who directed him what to do and was his superior in the particular work they were performing at the time, although they worked together at the same common work, they were not fellow-servants, but the other was the defendant’s vice-principal.

      3. -: Assurance: Expression of Opinion. Coils of wire, weighing between 100 and 125 pounds, were stacked up in columns ten or twelve feet high, and plaintiff and defendant’s assistant foreman were engaged in removing the coils to another part of the warehouse. As plaintiff was returning with his truck he noticed the columns were leaning, and called the attention of the assistant foreman to’them and told him that they were getting dangerous, and to have them braced. The foreman said, “Just go ahead; there is no danger; come on with the wagon.” Held, that this was not a mere expression of an opinion by the foreman, but an assurance that there was no danger; and as plaintiff relied upon it, and was injured when the columns fell, defendant is liable.
    4. -: Reasonable Care. It is the duty of the master to exercise reasonable care to protect his servant from the hazards incident to his employment.
    5. -: Servant’s Knowledge of Danger: Contributory Negligence. Where the defense is a plea of contributory negligence, the servant’s knowledge of the unsafe condition of the place in which he is required to work may be shown in evidence, but such' knowledge precludes a recovery only when the danger is so obvious that a man of ordinary prudence would, under the circumstances, refuse to do his master’s bidding; and whether the danger was so obvious and imminent as to make it contributory negligence on the servant’s part to continue in his master’s service, is a question for the jury.
    6. -:-: Instruction. And where the servant’s knowledge of the danger is not made an issue by the pleadings, it is not error for plaintiff’s instructions to ignore his knowledge.
    7. -: Bracing Leaning Columns: Duty of Foreman. Where plaintiff testified that he had seen the assistant foreman under whom he was at work and other foremen give orders to brace other leaning -columns of coils of wire which were in a leaning attitude, as were those which fell on him, and that he asked the assistant foreman to have them braced, it cannot be said that the foreman had no duty to perform regarding the wire columns which fell. Having been warned that they were liable to fall, it was his duty to take precaution to make them safe, and his act in directing plaintiff to “come on” was negligence, for which his master is liable.
    8. -: Pleading: Departure. Defendant should not be permitted to stand quietly by, make no objection to the petition, or to the admission of evidence tending to sustain its inartistically drawn allegations and tending to sustain the theory upon which the instructions were given, and then on appeal be heard to contend that the instruction is broader than the petition. And in this case, where the petition charged that defendant was negligent in allowing the wire column to remain in a dangerous condition for want of propping, and the evidence on both sides was, without objection, directed to leaning columns, it will not be held that an instruction which told the jury that if “the wire columns were in a leaning condition and were thereby rendered dangerous and unsafe to work about,” etc., was such a departure as would authorize a reversal, although the petition does not say in so many words that the wire columns that fell on plaintiff were in a leaning condition and were thereby rendered dangerous and unsafe to work about.
    Appeal from St. Louis County Circuit Court . — Hon. Jno. W. McElhinney, Judge.
    Affirmed.

      Percy Werner, Wm. F. Broadhead and Jones, Jones, Hooker & Davis for appellant.

      Sterling P. Bond and R. L. Shackelford for respondent.
    (1) Where the servant has apprehensions of the danger of the place where he is required to work hut relies upon the assurance of the foreman, in charge of the work and in charge of the servant, that it is safe, and the servant is injured, the master is liable for such injuries. Brothers v. Carter, 52 Mo. 376; Lewis v. Railroad, 59 Mo. 508; Gormley v. Yulcan Iron Works, 61 Mo. 496; McGowan v. Railroad, 61 Mo. 532; Keighan v. Kavanaugh, 62 Mo. 232; Cook v. Railroad, 63 Mo. 403; Dowling v. Gerard B. Allen & Co., 74 Mo. 19; Stephens v. Railroad, 86 Mo. 230; Miller v. Railroad, 109 Mo. 357; Russ v. Railroad, 112 Mo. 53; O’Mellia v. Railroad, 115 Mo. 205; Moore v. Railroad, 85 Mo! 595; Cole v. Railroad, 183 Mo. 91; Carter v. Baldwin, 107 Mo. App. 226; Wojtylak v. Coal Co., 188 Mo. 261; Keilty v. Construction Co., 121 Mo. App. 58; Garard v. Coal & Coke Co., 207 Mo. 258; Dodge v. Mfg. Coal & 'C. Co., 115 Mo. App. 501; Edge v. Railroad, 206 Mo. 417; Bane v. Irwin, 172 Mo. 317. (2) The neglect of the duty of the master to use ordinary care in furnishing a reasonably safe place for his servants to work, with the servant’s knowledge of the condition, does not convert the master’s negligence into an' assumption of the risk on the part of the servant. In such case the servant’s knowledge of the condition is a fact to be considered under the plea of contributory negligence, and when the defense is based on that, it precludes a recovery only when danger is so glaring that a man of ordinary prudence, under the circumstances, would refuse to do his master’s bidding. And where there is evidence that the master’s failure to furnish a safe place to work was the result of his order to his employee, the question of whether the danger was so glaring and imminent as to make it contributory negligence for the servant to continue in his master’s service, is a question for the jury. Curtis v. McNair, 173 Mo. 270; Wendler v. House Furnishing Co., 189 Mo. 502; Kielty v. Construction Co., 121 Mo. App. 63; Curtis v. McNair, 173 Mo. 270; Fogerty v. St. Louis Transfer Co., 180 Mo. 555; Dodge v. Mfrs. Coal & Coke Co., 115 Mo. App. 508; Koerner v. Car Co., 209 Mo. 157. (3) The foreman or other representative may occupy a dual capacity. If the master or foreman engage in the same kind of work with the laborers, still they are not fellow-servants. William Akin was such foreman and occupied a dual capacity. Gorman v. Yulcan Iron Works, 61 Mo. 495; Haworth v. Railroad, 94 Mo. App. 215; Rowland v. Railroad, 20 Mo. App. 469; Grattis v. Railroad, 153 Mo. 394; Miller v. Railroad, 109 Mo. 356; Russ v. Railroad, 112 Mo. 45; Dayharsh v. Railroad, 103 Mo. 570; Fogerty v. Transfer Co., 79 S. W. 669; Bien v. Railroad, 108 Mo. App. 399; Neves v. Green, 111 Mo. App>. 641. (4) The servant simply assumes the risk of the dangers incident to his employment. He does not assume the risk of the master’s negligence. A question of contributory negligence arises, not one of risk. Cole v, Railroad, 183 Mo. 94; Charlton v. Railroad, 200 Mo. 413. (5) Plaintiff’s petition states a canse of action: A similar petition was held good-in the case of Kielty v. Construction Co., 121 Mo. App. 58; Wojtylak v. Coal Co., 188 Mo. 206; Fisher v. Central Lead Co., 156 Mo. 485; Tucker v. Tel. Co. (Mo. App.), 112 S. W. 7. The objection to the petition is raised in the appellate court for the first time and comes too late. Dodge v. Mfrs. Coal & Coke Co., 115 Mo. App. 507. After trying a cause on a certain theory in the trial court, it is too late for a party to change front in the upper court, and repudiate that theory. Epperson v. Cable Co., 155 Mo. 370.
   BURGESS, J.

Plaintiff recovered judgment in the court below for $5,000 damages for personal injuries alleged to have been caused by the negligence and carelessness of the defendant and its foreman, from which judgment defendant appeals.

The record shows that plaintiff was a laborer employed by the defendant company in its bonded warehouse in the city of St. Louis, and had been in the em-’ ploy of the company about five months at the time of the injury, November 11, 1904. The company worked about two hundred men in its warehouse, and had a general foreman named Henry Peterson, under whom were foremen or bosses in control of different gangs of men, two of said foremen being William A. Akin and Henry J. Schleuter.

The plaintiff’s testimony was, in substance, as follows : On the day in question he, with three other men, was ordered by foreman Akin to assist in removing wire bundles from one place in defendant’s bonded warehouse to another. After working a while removing the bundles, Alan took three of the men to another, part of the warehouse and showed them how to pile the wire, and then returned and assisted the plaintiff in removing the wire coils, placing them on trucks and hauling them to the place where the other men were stacking them up. The coils of wire weighed between a hundred and a bundred'and twenty-five pounds each, and before being removed had been piled up in the form of columns. They had removed over three hundred of these coils, and plaintiff was coming back with, an empty truck, and while in the aisle, about ten feet away, he noticed the columns which later fell on him leaning over. He called the attention of the foreman to them, and told him to have them braced up, as they were getting dangerous. Akin replied, ‘£ Just go ahead; there is no danger; come on with your wagon.” In obedience to the foreman’s order, and relying upon his assurance that there was no danger, plaintiff continued his work. After they had removed two more loads of wire, the columns in question, which were ten or twelve feet high, fell on plaintiff, breaking both his legs. His left ankle was dislocated and the small bone broken, and his right leg was broken and mashed. He was confined to his bed for about five months, under the care of physicians, and had been unable to do any work from the time he was injured. Plaintiff was not an experienced man, and had not been in the warehouse more than a dozen times during the five months he was in the employ of the company. He had seen the wire columns braced under the orders of different foremen, whose custom it was to give orders to have the columns braced when they deemed it necessary. Among those whom he had heard give such orders were foremen Akin and Schleuter, and the general foreman, Peterson. Dr. William Baker testified as to plaintiff’s injuries, stating that he was permanently injured; that he attended to plaintiff’s injuries from November 30, 1904, to March 2,1905, and that his bill for his services was seventy-five dollars.

Besides plaintiff, the only eye-witnesses to the accident were William A. Akin and C. M. McKenzie, the latter being Government inspector, United States custom. Akin testified that he was foreman and directed the plaintiff and the other men under his control in their work; that he was himself injured by the fall of the wire columns in question, and was laid up for over four weeks. He, however, denied that plaintiff said anything as to the dangerous condition of the columns, or that he told plaintiff there was no danger. McKenzie, the Government inspector, testified that he was standing ten or fifteen feet away from the men at the time the columns fell, and that he heard no remarks made such as testified to by plaintiff. The general foreman, Henry Peterson, testified for the defendant that Akin did not occupy the position of foreman, and had no authority over the men with whom he was working at the time, but that John H. Schleuter was then foreman. This testimony, however, was controverted by that' of Akin, Schleuter and Burkard.

The court, at the request of plaintiff, instructed the jury as follows:

“1. The court instructs the jury that it was the duty of the defendant to furnish the plaintiff a reasonably safe place to work. 'If the jury believe and find from the evidence that William Akin was intrusted by the defendant with authority to superintend, control and command over the plaintiff, and was managing and controlling the work in question and the plaintiff, as defendant’s agent; and if you further believe and find from the evidence that at the time of the plaintiff’s injuiies the wire columns were in a leaning condition and were thereby rendered dangerous and unsafe to work about, and that said Akin had authority to brace said columns so as to prevent them from being dangerous, and that it was a part of his duty to so brace them, and that said Akin either knew, or by the exercise of ordinary care would have known, that said wire columns were dangerous and unsafe by reason of the same being in a leaning condition, in time so that by the exercise of ordinary care he might have put or caused the same to be put iu a reasonably safe condition by so bracing the same before the injuries of the plaintiff, and that the said Burkard at the time of the injuries exercised ordinary care, and while in the exercise of such care the wire columns fell on him in consequence of them being in a leaning condition, and thereby dangerous and unsafe, and he was thereby injured, then your verdict must be for the plaintiff.
“2. By the words ‘ordinary care’ as used in these instructions is meant that degree of care-and caution usually exercised by reasonably prudent men under 'the same or similar circumstances, and by the word ‘negligence’ is meant a failure to exercise ordinary care.
“3. If the jury find from the evidence that one William Akin was foreman of the defendant, A. Leschen & Sons Eope Company, and as such foreman was superintendent for the defendant of the plaintiff and of the place where plaintiff was required to work, if you find plaintiff was required to work at such place, and superintendent for the defendant of the work of removing the wire columns, and had entire superintendence, charge and control thereof, and had power and authority to provide material to brace the wire columns in question, and that this was a part of his duty, and that said Akin was the representative of the defendant directing the work in question, and the plaintiff was subject to his orders and directions, then the jury are instructed that said Akin’s acts and conduct in connection with said wire columns and the bracing thereof were the acts and conduct of the defendant so far as this case is concerned, and in respect to said acts he was not a fellow-servant with the plaintiff.
“4. The court instructs the jury that defendant must show by the greater weight of the evidence that plaintiff has been guilty of contributory negligence in order to prevent his recovery on that ground.
“5. If you find a verdict in favor of the plaintiff, yon will assess his damages at such, sum as will reasonably compensate bim for whatever injuries you believe from the evidence he has sustained, if any, and in estimating such damages you will take into consideration: 1st, the nature, character and extent of such injuries, if any; 2nd, the pain of body and mind, if any, which he has suffered from said injuries and directly caused thereby; 3rd, the pain of body and mind, if any, which plaintiff will suffer from said injuries in the future therefrom and directly caused thereby; 4th, the amount and value of time, if • any, lost to plaintiff, in consequence of said injuries, and directly caused thereby; 5th, the impairment in his earning capacity, if any, and directly caused by such injuries.”

To the giving of said instructions the defendant duly excepted.

At the request of the defendant, the court further instructed the jury as follows:

“6. The court instructs the jury that the employer’s obligation towards an employee does not oblige him to keep a working place in condition at every moment of the work so far as the safety of the place depends upon the due performance of the work in hand by fellow-servants.
“7. The court instructs the jury that a man, upon entering any employment, agrees to assume all the ordinary risks incident to the service in which he engages and if you find from the evidence in this case that plaintiff was injured not by reason of any negligence on the part of the defendant or any of its representatives, as explained in others of these instructions, but as the result of one of the ordinary risks of the work in which he was engaged, or as the result of a mere accident, then your verdict should be for the defendant.
“8. The court instructs the jury that if you find from the evidence that the plaintiff John Burkard and the man who was working with him, William Akin, at the time in question, were both directly co-operating in the work of removing wire columns from the room in question, and were so consociated with each other thht each was in a position to observe the work of the other, and exercise a care promotive of mutual caution, and that each was at full liberty to use such methods, in performing the work in hand, as to him seemed proper in the exercise of ordinary care, and that neither had control over the other in the matter of the selection of appliances or the method of doing the work in hand, then the said plaintiff and the said William Akin were fellow-servants in the performance of such work, and the defendant would not be responsible for any assurance which said Akin may have given that plaintiff could safely continue the work of removing the wire after he observed the danger, even if you believe from the evidence that said Akin did give such assurance.
‘ ‘ 9. The' court instructs the jury that if you find from the evidence that William Akin who was at work with plaintiff removing the columns in question, assisted in the manual work of removing the said columns, doing the same work that plaintiff did, and the evidence fails to show that he was empowered by the defendant to exercise any control over plaintiff, or that he had any power to hire or discharge men, or to select and provide instrumentalities for their work or to decide for other employees what method should be pursued in performing work, then the said William Akin was a mere fellow-servant of the plaintiff and any assurance of safety, which the evidence may show he may have given to plaintiff, would not result in any liability on the part of the defendant.
“10. The court instructs the jury that the duty of the master to provide a safe place for his employees in which, to do their work does not extend to conditions' which the employee's create in the performance of and as a detail of such work; and if yon find from the evidence that the instability of the columns of wire, which fell and injured plaintiff, was brought about by the previous work which had been done by plaintiff and the man at work in the removal of such colurhns with him, just prior to the accident, and that the said plaintiff and the said William Akin so at work with him, were fellow-servants, as explained in others of these instructions, then no recovery can be had in this case and your verdict should be for the defendant.
“11. The court instructs the jury that even if you believe from the evidence that the said William Akin who was at work with plaintiff at the time in question, was a vice-principal, empowered, on behalf of the defendant, to decide for other of the employees as to the methods which should be adopted in doing the work in question, and that he did give plaintiff an assurance of his safety in doing the said work, aijd. that plaintiff so received and understood and relied upon such assurance, yet, if you believe’from the evidence that said assurance was not negligently given, and that there was nothing at the time in question to have warned a reasonably prudent man of the danger of said columns falling, then no recovery can be had by plaintiff against the defendant based on any such assurance.
“12. The court instructs the jury that if you 'find and believe from the evidence that whatever, if anything, passed between plaintiff and William Akin with reference to the safety of the columns of wire in question, was the mere interchange of opinions and that whatever may have been said by the said William Akin was understood by the said plaintiff as a mere expression of opinion and was not regarded by plaintiff otherwise than as such, and that he voluntarily continued at the work in question in reliance upon his own opinion as to Ms safety, then your verdict should be for the defendant.
“13. The court instructs the jury that if they believe and find from the evidence that plaintiff did not complain to any one that there was any danger of the wires falling and that no one gave him any assurance that there was no danger, then the plaintiff cannot recover.
“14. The court instructs the jury that there is no evidence in this case that the columns of wire were piled to an unusual height in the wareroom at the time and place in question.”

Defendant further asked the court to give the following instructions:

“1. The court instructs the jury that under the pleadings and the evidence wMch has been adduced, your verdict should be for the defendant.
“2. The court instructs the jury that the plaintiff and the workman, William Akin, were at the time and place, and in the matter of the work in which they were engaged at such time and place, fellow-servants within the rule of law which exempts the master from liability for injuries sustained by one servant through the negligence of a fellow-servant.
“3. The court instructs the jury that there is no complaint made by plaintiff in his petition that the defendant was guilty of any negligence in failing to furnish all the necessary props which would have been required to prevent the columns of wire from falling, and you are instructed the defendant was not bound to supervise the mere details of the work in handling and removing the columns of wire in question and that for the negligence of plaintiff or any other of its servants engaged in doing this work, in failing to use props, if they were so negligent, there would be no liability therefor on the part of the defendant.
“4. The. court instructs the jury that if the place at which plaintiff was at work became dangerous át the time he was injured only by reason of the negligence of plaintiff’s fellow-workman in the manner in which the columns of wire in question were originally piled, or the manner in which those, which had been taken away, were removed, then plaintiff must be held to have assumed the risk of such danger and no recovery can be had by him for injuries resulting from such negligence.
“5. The court instructs the jury that, in this case, plaintiff seeks to recover damages from the defendant on the ground that he was required to work in a place which was unsafe by reason of the fact that the columns of wire, which he was assisting in removing, were piled up to an unusual height and that he, having observed that they looked dangerous, attracted the attention of "William Akin, a servant of the defendant, who was working with him, to such danger, and that said Akin assured him that there was no' danger, whereas, he knew, or might, by the exercise of ordinary care, have known that the said columns were dangerous and could have braced same to have -prevented their falling and negligently failed to do so; and you are instructed that if you find from the evidence that whatever of danger there was to plaintiff, to be apprehended from the falling of the said columns of wire, was just as open and apparent and as readily understood by the plaintiff as by the said Akin and that plaintiff’s knowledge or means of knowledge of apprehending and understanding the danger were fully equal to that of the said Akin and that plaintiff voluntarily continued to work about said columns after his observation of the danger, then he must be held to have assumed the risks of working thereabouts and your verdict should be for the defendant.”

To the action of the court in refusing to give the above instructions the defendant duly excepted.

At the close of plaintiff’s evidence and again at the close of the whole case, the defendant asked for an instruction in the nature of a demurrer to the evidence, which the court refused to give, and defendant claims this was error. The argument is that plaintiff’s injury was the result of pure accident, for which no one was responsible, and that plaintiff was fully advised of the-particular risk incident to his employment, and assumed that risk.

It is true that plaintiff knew the dangerous condition of the columns of coiled wire, one of which after-wards fell on him, and that he called the attention of foreman Akin thereto. Akin, upon whose experience and superior judgment plaintiff had a right to rely, assured plaintiff that there was no danger, and said, “Come on with your wagon.” In obedience to this command, and being assured that there was no danger, plaintiff proceeded with his wagon, and one of the leaning columns of wire soon afterwards fell on him, causing the injuries complained of. That Akin was at the time of the injury one of defendant’s foremen, and had charge and control of plaintiff in and about the work in which he was then engaged, was found by the jury to be the fact'; and it has uniformly been ruled by this court that where a servant is apprehensive that the place in which he is required to work is dangerous and unsafe, but relies, as the evidence in this case shows plaintiff did rely, upon the assurance of the foreman in-charge of the work and in charge of the servant, that it is safe, and the servant is injured without any negligence upon his own part, the master is liable. [Brothers v. Cartter, 52 Mo. 372; Lewis v. Railroad, 59 Mo. 495; Gormly v. Vulcan Iron Works, 61 Mo. 492; Cook v. Railroad, 63 Mo. 397; Moore v. Railroad, 85 Mo. 588; Russ v. Railroad, 112 Mo. 45; O’Mellia v. Railroad, 115 Mo. 205; Cole v. Railroad, 183 Mo. 81; Edge v. Railroad, 206 Mo. 474; Garard v. Coal & Coke Co., 207 Mo. 242.]

But defendant contends that no negligence was' shown on the part of Akin, and that his remark that the column of wire which subsequently fell upon plaintiff was not dangerous was the mere expression of an opinion on the part of a fellow-servant of plaintiff as to a matter regarding which plaintiff had equal means of knowledge with him; that the language, “Come on with your wagon,” was in no sense an order; that plaintiff had no right to rely on what Akin said, and that there was no evidence that he did rely upon it.

We are unable to agree to this. It was negligence for Akin to say to plaintiff, in effect, that there was no danger to be apprehended from the leaning column of wire, without first taking the precaution to ascertain whether it needed to be braced or not, particularly after plaintiff called his attention to its condition.

Akin and plaintiff were not fellow-servants. While they worked together at the same time and place, plaintiff was under the control and direction of Akin, who was his superior while engaged in this work. As already stated, plaintiff had the right to r ely upon what Akin, his superior, told him, and the evidence shows that he did so. But defendant insists that plaintiff’s testimony in this regard is overcome by other testimony. It is only necessary to say as to this that it was a question for the consideration of the jury, who found otherwise.

The plaintiff’s first instruction is criticised upon the ground that it bases plaintiff’s right to recover upon the duty of Akin to brace the columns, if he knew, or by the exercise of due care could have known, that they were unsafe, and that it ignores the fact that plaintiff knew the danger and so testified, and that Akin honestly believed the wire piles were safe. With respect to the insistence that the instruction is bad because it ignores the fact that plaintiff knew the danger, it need only be said that there is no such issue in the pleadings. The petition is based upon the alleged negligence of defendant in failing to furnish plaintiff a reasonably safe place to work, and the answer alleges contributory negligence on the part of the plaintiff. It is the duty of the master to use ordinary care in furnishing his servant a reasonably safe place to work, and where, as in this case, the defense is a plea of contributory negligence, the servant’s knowledge of its unsafe condition may he shown in evidence, but such knowledge precludes a recovery only where the danger is so obvious that a man of ordinary prudence would, under the circumstances, refuse to do his master’s bidding; and the question of whether the danger was so obvious and imminent as to make it contributory negligence for the servant to continue in his master’s service is a question for the jury. [Curtis v. McNair, 173 Mo. 270; Wendler v. House Furnishing Co., 165 Mo. 527; Fogarty v. St. Louis Transfer Co., 180 Mo. 490; Dodge v. Mfrs. Coal & Coke Co., 115 Mo. App. 501; Kielty v. Construction Co., 121 Mo. App. 58.] While the evidence is not sufficient to show that the danger was so obvious and imminent. as to make it contributory negligence on the part of plaintiff to continue working under the circumstances, that fact did not absolve the foreman Akin from the duty of bracing the wire columns after his attention was called to their leaning attitude.

It is said for defendant that Akin had nothing to do with the wire columns .which fell, and that there is nothing in the evidence from which a jury could properly infer that he had any duty regarding them. This evidently is a mistake. Plaintiff testified that he had seen and heard Akin and other foremen of the defendant give orders to brace other wire columns which were in a leaning attitude as these were. Akin represented the defendant, was a vice-principal, and had power to superintend, control and direct the plaintiff in the performance of his work. For his negligént act in commanding the plaintiff to “come on,” and in failing to take any precaution to see that the leaning columns were rendered safe and steady, after his attention was called thereto by plaintiff, the master is liable. [Miller v. Railroad, 109 Mo. 350, and authorities cited.] It is the duty of the master to exercise reasonable care to protect his servant from the hazards incident to his employment.

In Moore v. Railroad, 85 Mo. 588, it is ruled that they are fellow-servants who, under the direction and management of the master himself, or by some servant placed by the latter over them, are engaged in the prosecution of the same common work, and without any dependence upon or relation to each other except as colaborers without rank, and that he is a vice-principal who is intrusted by the master with power to superintend, direct" or control the workman in his work, and that for negligence in such superintendence, direction or control, the master is liable. That case has been many times cited with approval by this court. [Hoke v. Railroad, 88 Mo. 360; Stephens v. Railroad, 86 Mo. 221; Smith v. Railroad, 92 Mo. 359; Tabler v. Railroad, 93 Mo. 79; Russ v. Railroad, 112 Mo. 45.]

In La Salle v. Kosta, 190 Ill. 130, 60 N. E. 72, it is said: “Where a master confers authority upon one of his employees to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employee, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and not á mere fellow-servant; and all commands given by him within the scope of his authority are in law the commands of the master.”

From these authorities, it is entirely clear that Akin and plaintiff were not fellow-servants at the time „of the injury, but that plaintiff was a servant, and Akin a vice-principal.

The first instruction for plaintiff is also objected to on the ground that it leaves to the jury the question of Akin’s authority and duty to brace the columns, which it is insisted was a question of law. This objection seems to us very technical; it does not go to the merits of the case, and is, we think, non-prejudicial; At any rate, the judgment should not be reversed upon that ground.

Said first instruction is criticised upon the further ground that it is broader than the petition, and authorizes a recovery upon a ground not alleged in the petition; that is, upon the ground that the wire columns were in a leaning condition, and thereby rendered dangerous and unsafe to work about. This we do not regard as the proper construction to be placed upon the petition. In the first place, no objection was taken to it before trial, nor afterwards by motion in arrest. Again, while the petition must be considered as in-artistically drawn, and does not in so many words allege that the wire columns were in a leaning condition and were thereby rendered dangerous and unsafe to work about, it does allege that when plaintiff was ordered to work by foreman Akin on the day he was injured by the. falling of the wire columns, he said to Akin: “ ‘I think the wire columns ought to be braced; they look kind of dangerous,’ whereupon said foreman said to the plaintiff, ‘There is no danger; just go ahead; and plaintiff, in obedience to the order and direction and relying upon the assurance of said foreman that it was safe to work at said place, undertook to perform the work as directed and ordered by said foreman of the defendant, and while engaged thereat said columns of wire fell upon, crushed and broke both legs of the plaintiff, dislocated his ankle, wrenched his knee, and otherwise bruised and injured his body. That the defendant and its said foreman knew, or by the exercise of reasonable care might have known, that said place in which plaintiff was ordered to work was dangerous, and could have made said place a reasonably safe place to work by bracing or causing the wire columns which fell upon the- plaintiff to be braced and rendered secure and safe, but negligently and carelessly failed to do so.”

We have, then, the substantial allegation, though inartistically stated,, that the place was dangerous because the wire columns were not braced; that a •request was made by plaintiff to have them braced, and that the foreman assured plaintiff that there was no danger, and ordered him to go ahead.

The testimony of the plaintiff in explanation of the dangerous condition of the place was as follows: “I noticed them kind of lean over, and I told Billie Akin [the foreman] to get them braced; they were getting dangerous.” No objection was made to this testimony. In the very nature of things, the allegation of the dangerous condition of the wire columns and of the request by plaintiff for braces or props fully notified the defendant of the negligence upon which plaintiff would rely, even though the petition did not allege in so many words that the columns were “in a leaning condition.” Defendant’s counsel himself asked plaintiff these questions: “Now, what were you doing when you say you noticed a column that •looked as if it were tottering?” “How near to this pile were you standing when you attracted Billie’s attention to it?” '“What did you say to Billie?” Ans. “I said this column is looking dangerous — it ought to be braced.” Q. “Did you ever notice these piles in a tottering condition before, and if so what would be done to brace them up?” Ans. “Take a block and brace them up.”

This sufficiently indicates that the proof that the wire columns were tottering or leaning and that they were in a dangerous condition for want of bracing was made without objection, and the defendant was advised by the allegations of the petition that such would be tbe proof. Tbe instruction, in using the words, “If yon further believe and find from the evidence that at the time of the plaintiff’s injuries the wire columns were in a leaning condition and were thereby rendered dangerous and unsafe to work about,” etc., merely applied the law to the concrete facts in evidence, and that evidence was within the scope of the charge of negligence in allowing the wire columns to remain in a dangerous condition for want of propping. We think, in view of the fact that the evidence was received without objection, that this instruction, when read in connection with all the others, was not such a departure from the allegations of the petition as to call for a reversal. The defendant should not be permitted to stand quietly by, make no objection to the petition, or to the admission of evidence tending to sustain its allegations and the theory upon which the instructions were given, and in this way take advantage of his adversary.

Finding no reversible error in the record, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    J. W. THOMASSON v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant.
    Division Two,
    March 9, 1909.
    1. SERVICE OF SUMMONS: Town Mutual Insurance Company: Insufficient. In. a suit on an insurance policy issued by a town insurance company, where the statute requires the service to be “on the president or secretary, or other chief officer in charge of the principal office of such company,” a return which recites that the service was on “J. W. Daugherty, secretary of the defendant corporation, he being in said defendant’s usual business office and in charge thereof” and that “the president or other chief officer of said defendant could not be found,” is not a sufficient service, and does not give jurisdiction over the person of defendant, and if it appears specially for that purpose only and moves the court to quash the service as insufficient, it should be quashed.
    2. -: -: -: Waiver: One Answer: No Separate Motion. Where the court has jurisdiction over the subject-matter, and under the law over such corporations as defendant, but not over the particular defendant because of defective return of service of process, the filing of an answer in which there is a plea in abatement based on such defective return and also a general denial, waives the defective service. The statute contemplates but one answer, which must include all defenses. But a. plea to the jurisdiction over defendant’s person has no place in the answer, but should be raised by a motion to quash, and if that motion is overruled defendant’s only remedy is to abide the ruling and appeal. If he files no motion to quash, but in its stead files an answer in which he couples a plea in abatement with a general denial, he waives the plea to the jurisdiction over his person, where by law the court is given jurisdiction over the class of defendants to which he belongs. [Following Newcomb v. Railroad, 182 Mo. 1. c. 707, and distinguishing Meyer v. Insurance Co., 184 Mo. 481.]
    3. PLEADING: Defective Petition: After Verdict: Insurance: Place of Goods. A petition which defectively states a 'good cause of action, and does not entirely fail to state a cause of action, is good after verdict, even though it might have been subject to demurrer had one been timely filed. So that where plaintiff brought suit on an insurance policy issued by defendant, and specifically alleged the location of the barn to be on a certain section in Dunklin county, and then alleged that defendant insured plaintiff against damage or loss by fire “to the amount of $400 upon the grain and hay therein, and to the amount of $100 upon the farm utensils therein,” and that on a' certain day “while said policy was in force said barn, hay and grain and farm utensils were totally destroyed by fire,” the petition is not fatally defective because it did not pointedly allege that the grain, hay and farm utensils were in Dunklin county or that they were destroyed while situated in said barn. At most it was only a defective statement of a good cause of action, and the material matter if not expressly averred is necessarily implied.
    Transferred from St. Louis Court of Appeals.
    Affirmed.

      N. T. Gentry, amicus curiae.

    (1) Appellant insists that the trial court did not have jurisdiction over the person of defendant, because of the defect in the sheriff’s return. Counsel for respondent insist, however, that the “principal office” contemplated by Sec. 8092, R. S. 1899', is the same as the “usual office,” which the sheriff certifies was the place where he served the summons .on J. W. Daugherty, secretary of defendant corporation. If defendant had its principal office at a certain place, surely then that place was its usual office. In other words, principal and usual are synonymous when they refer to one’s business office. Defendant’s principal business office was its usual business office, and vice versa. Thomasson v. Ins. Co., 89 S. W. (Mo. App.) 564; Taussig v. Railroad, Í86 Mo. 180. Appellant’s contention that a summons cannot be served by any one except the sheriff himself can hardly be taken seriously. Many conditions may arise, the sickness or absence of the sheriff, or the press of business, and it will be important, yea, absolutely necessary, for one of his deputies to serve such a paper. It is no stretch of imagination to consider that such a condition of affairs may exist, especially in a city like St. Louis. Hence, our statute was enacted, which provides for such a contingency. When the deputy sheriff served this summons, he was then acting as sheriff; indeed, he was the acting sheriff, and possessed the,same powers. R. S. 1899, sec. 10043. (2) But whether the sheriff’s return to the summons was sufficient or not, defendant appeared on the first day of the term and filed an “answer.” The first count of this answer was a plea to the jurisdiction, and the second count was a general denial. As was intimated by the learned trial judge in this case, “the defendant voluntarily put itself in court when it came in and pleaded to the merits of the cause.” Defendant did not file a motion to quash the sheriff’s return; hut filed a paper, which it termed an “answer,” and by this answer it denied all of the allegations contained in the petition. If defendant desired simply to raise a jurisdictional question, then its appearance and its motion should have been for that purpose, and that purpose only. A motion to quash the sheriff’s return is one thing, while an answer is another and a different pleading. “The appearance, to be special, must be on jurisdictional grounds. If upon any other ground, it is a general appearance and gives the court jurisdiction.” Works on Jurisdiction, secs. 13, 22 and 34; 34 Cyc. 511; Roy v. Merc. Co., 26 Pac. 996; Sheehan v. Simms, 36 Mo. App. 230 ; Speer v. Burlingame, 61 Mo. App. 83; Belden v.Wilkinson, 60 N. T. Supp. 1083; Bailies on Code PL, pp. 313, 314; Railroad v. Railroad, 63 N. T. 181; Handy v. Ins. Co., 37 Ohio St. 366; Rowland v. Coyne, 55 Cal. 1; Printing Co. v. Budd, 2 Wash. 339'; Gilbert v. Hall, 115 Ind. 551; Stevens v. Harris, 99 Mich. 233; Kronski v. Railroad, 77 Mo. 368; Delinger v. Giggins, 26 Mo. 183; Tower v. Moore, 52 Mo. 120; Newcomb v. Railroad, 182 Mo. 707.
   GANTT, P. J.

This appeal has been certified to this court by the St. Louis Court of Appeals on account of a dissent of one of the judges of that court, in which he holds that the opinion of the majority of that court is in conflict with a decision of this court.

The action was begun in the circuit court of Dunklin county, April, 1903. The petition omitting the caption is as follows:

“Plaintiff for his cause of action states that defendant is, and was, at all times hereinafter mentioned, a corporation duly organized and existing under the laws of the State of Missouri, doing a fire insurance business, with right to sue and be sued as such corporation. Plaintiff further states that on the first day of March, 1901, defendant made its policy of insurance' of that date, whereby in consideration of the payment by plaintiff to defendant of the' premium of forty dollars, defendant insured plaintiff against loss or damage by fire to the amount of three hundred dollars upon his barn, situated upon south half of southeast quarter of section 18, township 20 north, range 10 east, in Dunklin county, Missouri, and to the amount of four hundred dollars upon the hay and grain therein, and to the amount of one hundred dollars upon the farm utensils therein, from noon of the first day of March, 1901, to noon of the first day of March, 1904. Said policy is herewith filed and marked ‘Exhibit A.’
“Plaintiff further states that at the time of the issuing of said policy, and at all times from said date to the occurrence of the fire hereinafter mentioned, plaintiff had an interest in all the property insured, as owner thereof, to an -amount in each case exceeding the amount of the insurance on the barn, hay and grain, and farm utensils respectively; and that on the 15th day of November, 1902, and while said policy was in force, said bam, hay and grain, and farming utensils, were totally destroyed by fire; that plaintiff duly performed all of the conditions required of him by the terms of said policy, and in due time after the fire, and more than ninety days before the commencement of this action, to-wit, on or about the — day of November, 1902, gave to the defendant due notice and proof of the fire and loss aforesaid, and demanded payment of the sum insured. But defendant has ever failed and refused, and still fails and refuses, to pay. Wherefore, plaintiff prays judgment for said sum of eight hundred dollars, with interest thereon from the — day of November, 1902.”

On this petition a writ of summons issued to the sheriff of the city of St. Louis and was returnable to the first Monday in May, 1903. Upon that summons the following return was made: “Executed this writ in the city of St. Louis, Missouri, on the within named defendant, the Mercantile Town Mutual Insurance Company (a corporation), this 13th day of April, 1903, by delivering a copy of the writ and petition as furnished by the clerk to J. W. Daugherty, secretary of the defendant corporation, he being in said defendant’s usual business office and in charge thereof. The president or other chief officer of said defendant could not be found in the city of St. Louis at the time of service. Joseph F. Dickmann, Sheriff; By Wm. Cahill, Deputy.”

At the return term of the writ the defendant filed the following answer:

“Defendant, appearing specially, by its attorneys, for the purpose of this answer and for no other purpose, avers that this court has no jurisdiction over the person of the defendant in this cause. Wherefore defendant prays that this action he abated and for its costs.
“2. Without waiving the aforesaid plea in abatement, defendant, appearing specially as aforesaid, for answer to the plaintiff’s petition denies, generally, each and every allegation thereof.”

The circuit court first heard the plea in abatement and found for the plaintiff and thereupon the defendant withdrew from further appearance in the cause. The court then proceeded to try the cause upon the petition and the second paragraph in the answer and rendered judgment for the plaintiff for the sum of $654 and costs.

At the same term the defendant filed its motion for new trial, which was heard and overruled and also a motion in arrest, which was overruled. Thereupon the cause was appealed to the St. Louis Court of Appeals. At the October term, 1905, the judgment of the circuit court was affirmed in the opinion by Judge Nortoni, in which Judge G-oode concurred, and Judge Bland dissented on the ground that the majority opinion was in conflict with the opinion of this court in Meyer v. Insurance Co., 184 Mo. l. c. 487. The bill of exceptions preserved none of the evidence. The jurisdiction of the circuit ¡court is challenged both as to the jurisdiction over the person of the defendant by virtue of the service of the summons and as to the subject-matter on account of the alleged fatal defect in the petition.

I. It is insisted by the learned counsel for the defendant that the return on the summons was insufficient to give the court jurisdiction. The statute governing suits against Town Mutual Insurance Companies in section 8092, Revised Statutes 1899, provides that “suits may be instituted in the circuit court of any county in this State where the cause of action originated against any company operating under the provisions of this article or where such company has its principal office, and whenever any suit shall be so instituted against any such company, a certified copy of the original petition and summons shall be served on the president or secretary, or other chief officer in charge of the principal office of such company, by the acting sheriff ■ of the county in which such company may have its principal office. If such company have its principal office in the city of St. Louis, then the acting sheriff of the city of St. Louis shall serve the process herein mentioned. And service when so made and proven by the return thereof, shall be deemed service on any company proceeded against. ’ ’ As already noted the cause of action in this case originated in Dunklin county. Service was had in the city of St. Louis presumedly because the principal office of the defendant was in that city. This fact, however, is not shown in the return, and it is perfectly plain, we think, as held by the Court of Appeals, that the return on the writ did not comply with the statute; it merely shows a service on the secretary in charge of “the usual business office,” and not upon the president, secretary or other chief officer in charge of the .company’s “principal office,” and had the defendant appeared specially for that purpose only and moved to quash the service as insufficient, it should have been quashed. But instead of doing so, as will be seen by the statement, the defendant filed an answer in which it averred that the circuit court had no jurisdiction over the person of the defendant in this cause. And at the same time and in the same answer filed a general denial of all of the allegations of the petition.

Conceding that the service was insufficient, the contentions of the respective counsel are as follows: On the part of the- defendant, it is insisted that it took advantage of this defective service in its plea to the jurisdiction and did not waive the same by filing in the same answer its general denial of the petition. That in our practice a plea in abatement is not waived by. a plea in bar in the same answer, and the defendant is required to include all of his or its defenses in one answer. In support of this proposition it cites Little v. Harrington, 71 Mo. 390; Cohn v. Lehman, 93 Mo. 574, and various other cases in this court to the same effect.

In Little v. Harrington, it was held by this court that the statute contemplated hut one answer, “and this to contain whatever defense or defenses the defendant may have, thus dispensing with the common-law rule that a plea in bar waives all dilatory pleas,” and the rule laid down in Bliss on Code Pleading, section 345, that “matter in abatement is as much a defense to the pending action as matter in bar,” was approved. It was also noted in that cause that the dictum in Moody v. Deutsch, 85 Mo. 237, was out of harmony with the previous decisions and disapproved.

On the contrary, the plaintiff insists that the facts of this case do not bring it within either of the cases cited by defendant, but that it falls within the principle announced by this court in Newcomb v. Railroad, 182 Mo. l. c. 707, in which this identical question was in judgment before this court, and it was there said: “The defendant could have made a special appearance for the purpose, and moved to quash the return for the insufficiency appearing on its face, and if the court had overruled the motion the defendant could have preserved its exception and have withdrawn, and if the court had then proceeded to render judgment for the plaintiff the judgment would have been reversed on appeal. But a plea to the merits is a general appearance and after that the character of the return is immaterial. There is no injustice in! requiring a party, in a matter of procedure, to make! his election and abide by his choice. Appellant says that under our system of pleading it was bound to include in one answer every matter of defense it had; therefore, it did not waive the plea to the jurisdiction by its plea to the merits. It is true that under our system a plea in abatement is not waived by a plea in bar in the same answer and the defendant must include all its defenses in one answer. But the insufficiency of this return was not a point to be presented by the plea at all; it was out of place in the answer. A question of jurisdiction may arise on the face of the return on the summons, or on the face of the petition, and by reason of some fact not appearing either in the return or in the petition. If it arises on the face of the return it is only a question of whether defendant had been properly served, that is met by a motion to quash the return; if it arises on the face of the petition, it is a question of law, and is met by a demurrer; if it arises from some fact that appears neither in the return nor in the petition, it is presented by a plea.” Applying what was then said by this court to tbe facts of this case, it must be held that when the defendant answered to the merits it waived the insufficiency of the return.

While we are entirely satisfied with the reasoning and conclusion reached by this court in the New-comb case, we think it is in harmony with the law in other States upon this question. In Belden v. Wilkinson, 60 N. Y. Supp. 1083, the defendants demurred to the complaint upon the ground that the court had no jurisdiction of the person of the defendant, but the court said: “The objection that the court has no jurisdiction of the persons of the defendants does not mean that a proper service of the summons had not been made upon them; for such defect, if it exists, can only be taken advantage of on motion.” Citing Nones v. Insurance Co., 8 Barb. 541. The last-mentioned case was a suit against a foreign corporation commenced by the service of a summons and complaint upon the president thereof not having any office or place of business in New York, but who happened to be within the State at the time of such service. The defendants put in an answer denying the jurisdiction of the court and alleged that by the service of the summons as aforesaid the court had not acquired jurisdiction over it. And the question presented was whether that was a sufficient answer, and the court said: “It will be observed that the answer is founded upon that section of the code which provides that where the court has no jurisdiction of the person of the defendant, the objection may be taken by answer. But the objection taken here is not that the court has no jurisdiction of-the person of the defendant, but that the summons has been irregularly served. There is no question that this court has jurisdiction over a foreign as well as a domestic corporation. . . . The meaning of the section 'that the court has no jurisdiction of the person’ is, that the person is not subject to the jurisdiction of the court, and not that the suit has not been regularly commenced. If the suit has not been regularly commenced the defendant must relieve himself from such irregularity by motion. ’ ’

So, in this case there can be no doubt that our statute expressly gives jurisdiction over the defendant company, provided, of course, that the proper process is issued and served upon it. And if the defendant desires to stand upon the insufficient service of the writ in this case, its remedy was to move specially to quash the same and if the motion was overruled then] to withdraw from further appearance. But the defective service was waived by the general answer to thei jurisdiction over its person. [Eddy v. Lafayette, 49 Fed. 809; Railroad v. Railroad, 63 N. T. 176; Handy v. Insurance Co., 37 Ohio St. l. c. 370, 371; Gilbert v. Hall, 115 Ind. 549; Kronski v. Railroad, 77 Mo. 362.]

Without further elaboration we think the majority of the Court of Appeals properly held that the filing of an answer to the merits was a waiver of the objection to the service of the summons as laid down in Newcomb v. Railroad, supra.

II. But it is insisted that the circuit court of Dunklin county had no jurisdiction of the subject-matter of the action for the reason that in so far as the petition counted upon the .insurance of the hay, grain and farm utensils it was fatally defective because it did not alleg'e that those items were destroyed by fire in Dunklin county, which allegation was necessary to give the circuit court of that county jurisdiction over the subject-matter of those items. As held by the Court of Appeals, there can be no doubt that the want of jurisdiction of the court over the subject-matter of the action “may be taken advantage of at any time either in the trial or appellate court. ’ ’ [Parlin & Orendorff Co. v. Hord, 145 Mo. 117, and cases therein cited.] And this may be done notwithstanding no motion for newi trial or in arrest was filed in the circuit court. [Lilly v. Menke, 126 Mo. 190; McIntire v. McIntire, 80 Mo. 470.] It seems to be conceded by learned counsel for the defendant that the petition was sufficient as to the allegation of the loss of the barn which was insured as being in Dunklin county, at least after verdict. Now recurring to the petition itself as to the personal property which was insured, it is alleged that the defendant insured plaintiff against loss or damage by fire to the amount of $300 upon his barn situated upon the south half of the southeast quarter of section 18, township 20, range 10, east, in Dunklin county, Missouri, and to the amount of $400' upon the hay and grain therein, and to the amount of $100 upon the farm utensils therein, etc. And it is then alleged “that on the 15th day of November, 1902, while said policy was in force, said barn, hay and grain and farming utensils were totally destroyed by fire.” The point is that the petition should have contained.a formal allegation to the effect that the personal property aforesaid was destroyed while situated in said barn in said county, or words to that effect, and in support of this contention counsel cite Todd v. Insurance Co., 1 Mo. App. 472, and Wright & Son v. Insurance Co., 73 Mo. App. 365.

The Todd case is easily distinguished in that thé loss for which the suit was brought was of buffalo meat which Todd had shipped to a commission firm and the policy of that firm covered a stock of produce “their own, held by them in trust, on consignment, or sold but not delivered.” And it was held that in as much as it nowhere appeared in the petition that the buffalo meat had ever gone into the insured building, or that the building itself had ever been burned, it was fatally defective. Whereas in this case, the hay and grain and farm utensils were all alleged to have been in the building at the time it was insuréd and then it is alleged that while the said policy was in force the said barn, hay and grain and utensils were burned.

As.to the Wright case, it is plain that the court did not rule that the petition in that case would not have been good after verdict, but Judge Ellison merely cautioned counsel- that as the ease was to be reversed and remanded any way it should be amended so as to avoid the contention that it did not show that the goods were in the building whén it was burned.

The petition in this case having shown the location of the personal property to be in the barn when insured and alleged its destruction by fire, every reasonable presumption and intendment should be. indulged from the facts alleged, after verdict, and in aid thereof. . At most all that can be urged against the petition is that it was a defective statement of a good cause of action and not an entire failure to state a cause of action. It does not follow that, because a petition is defective and subject to a general demurrer, it would be insufficient to sustain a verdict. On the contrary the well-settled rule, both at common law and under our code, is that if a material matter be not expressly averred in the petition, but the same is necessarily implied by what is stated in the context, the defect is cured after verdict, the doctrine resting on the presumption that plaintiff proved on the trial the facts imperfectly alleged, the existence of which was essential to his recovery. [People’s Bank v. Scalzo, 127 Mo. l. c. 189, and cases there cited; sec. 672, R. S. 1899; Salmon Falls Bank v. Leyser, 116 Mo. 51, l. c. 73.] The defendant did not demur to the petition in this case and every presumption will be indulged that the evidence supplied the defective allegation and showed that the grain and hay and farming utensils were in the barn at the time it was burned.

It only remains to be added that in Meyer v. Insurance Co., 184 Mo. 481, when this court said the defendant can unite in the same pleading a plea to the jurisdiction as to the person, as well as to the subject-matter, with a plea to the merits, without waiving the question of jurisdiction, it meant no more than that the plea to the jurisdiction must be one in which the court had no jurisdiction of the person under the law and did not mean the mere insufficient service of a summons in a case in which the court had jurisdiction upon a proper service of the writ. That case is in entire harmony with the decision in Newcomb v. Railroad, 182 Mo. 707. It results that in our opinion the judgment of the circuit court should be and is affirmed.

Burgess and Fox, JJ., concur.