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the place referred to in the evidence, and that you find that in operating such crane and breaksaid wire contained a deadly current of electric- ing said wire he failed to exercise such care ity, then you are instructed that it was the as would ordinarily be exercised by ordinarily duty of the defendant to exercise the highest careful and prudent persons under the same or degree of care to provide and maintain upon similar circumstances." said wire insulation sufficient to prevent the escape of the current from said wire into a per

We think the instruction is erroneous. Al. son coming in contact with the insulation portion of said wire if said wire fell through any though it apparently starts out with the wire cause which the defendant might reasonably an- containing a deadly current of electricity and ticipate as likely to occur in the natural course maintained before it fell, yet, without reof events; and you are further instructed that gard to how or why it fell, the instruction the escape of the current, if so, under such goes on to state an apparent case of liability circumstances, through the insulated portion of commencing with the wire on the ground, the wire into a person rightfully at the place, and the rest of defendant's negligence inwould be proof that the insulation was insuffi- volves merely its insulated condition after it cient.

"So if you believe and find from the evidence is on the ground, no matter whether the that on or about the 10th day of August, 1917, thing which caused the wire to fall was also Charles F. Hollis was in the employ of the de the cause of the insulation being then defendant and in charge of the coal-shoveling fective; i. e., no matter whether the place machine or clam shell and the coal yard re- where deceased took hold of the wire was ferred to in the evidence, and was foreman at the end of the wire where the boom's thereof, and that it was his duty to look after touching the wire seared off the insulation said yards and the work therein and keep the tracks and switches clean and to remove ob- at that point, or whether the insulation, at jects therefrom in furtherance of the business places along the wire or where deceased did of operating said coal yard, if so, and that at take hold of it, was defective and insufficient the time he lost his life he was in the perform- because old and rotten or because it was ance of his duties, if so, and if you further be- rendered defective by being "crackled,” broklieve and find from the evidence that the wire en, made "open" or "porous" under the referred to in the evidence bad broken and stretch and strain of its being broken by the fallen through any cause which the defendant boom, and not merely touched by it and could have reasonably anticipated as likely to burned in two. Defendant elicited evidence occur in the natural course of events, and was lying so that it extended upon the west prong from which the jury could say that deceased of the Y referred to in the evidence and ob- picked up the wire with his hand at the end structed its use and out into Guinotte avenue where the insulation was exposed by the and upon the sidewalk portion of the street, breaking of the wire, and there was also and that said wire was charged with a deadly evidence that, even if deceased picked up the current of electricity, and if you further be wire with his hands only 14 inches away from lieve and find from the evidence that the de- the end, the insulation was bad because the fendant had provided and was maintaining on boom broke it and rendered it so as to allow said wire insulation which was insufficient to prevent the escape of the current through the the electricity to escape, and also that, where insulation into a person coming in contact with insulation was lacking at other places, it an insulated portion of said wire, if so, and was because it had burned off, and not be. that in so providing and maintaining the insu- cause it was bad in the first place. The petilation on said wire defendant failed to perform tion is not based on negligence in maintainthe duty berein required of it, and if you fur-ing an electric wire close to the coal yard ther believe and find from the evidence that where it was likely to be broken regardCharles F. Hollis went to said wire at the place referred to in the evidence and took holdless of its insulation. The gist of the negliof said wire for the purpose of removing it from gence is the long-continued maintenance of the places where it lay over said switch and the wire without sufficient insulation. We do said street, if you find such to be the facts, not think our former opinion gives respondent and that he took hold of it at a place where any ground for thinking that it authorized a it was insulated, and that when he did do so case of liability beginning with the wire the current escaped through the insulation into broken and on the ground. him and killed him, then you will find for the

Other points are made, but we think the plaintiff, unless you believe and find from the above sufficiently disposes of the case as it evidence that in picking up said wire Charles F. Hollis failed to exercise for his own safety is now pleaded and presented. such care as would ordinarily be exercised by

The judgment is reversed, and the cause ordinarily careful and prudent persons under is remanded, the same or similar circumstances, or unless All concur.

man.

(248 S.W.) LAEMORE v. LEHRACK. (No. 14611.) tion with the construction of a mill in North

Kansas City, Mo. The construction of the (Kansas City Court of Appeals. Missouri. building had progressed to the fourth floor. Jan. 29, 1923. Rehearing Denied About two weeks prior to that time defendMarch 5, 1923.)

ant had erected on said floor what is known

as a gin pole derrick. The derrick was erect1. Master and servant 289(19)-Contribue ed under the supervision of defendant's foretory negligence of employé injured by fall. ing derrick held for jury.

It was used in raising materials from In an action for injuries by an employe, consisted of a wooden pole about 15 feet high,

the ground to the fourth floor. The derrick injured by the fall of a gin pole derrick through resting on a pivot. At the bottom the gin the breaking of a defective rope, contributory negligence of defendant through knowledge of pole had attached a boom arm. This arm the defective rope held for the jury.

was 8 or 10 feet long and extended upward

and outward. Attached to the upper end of 2. Master and servant Cw289(4)-Employé the arm was a pulley through which ran a may rely upon superior knowledge of master. wire cable. One end of this cable ran to the

A servant injured by the fall of a gin pole gin pole and down said pole through the derrick, through the breaking of a defective building to a drum of a hoisting engine. The rope, of which he had knowledge, had a right to rely somewhat upon the superior knowledge of other end of the cable would be fastened to the master as to the sufficiency of the rope.

building material which would be raised to the

fourth floor by the hoisting engine and then 3. Master and servant Om 264(2)-Pleading pushed around by a man, and the material

held to render admissible evidence of master's deposited at the desired place. To the top knowledge of defect.

of the gin pole were attached four guy ropes Petition alleging that defendant “carelessly running in different directions. These braced and negligently set up, constructed, and main the pole. Plaintiff was injured by the breaktained said gin pole and said rope, which was ing of one of these ropes, at the time a load old and worn, and of insufficient strength for the purpose for which it was used and intended of material had been brought to the fourth to be used; that the said carelessness and floor and before the load was deposited, causnegligence caused the said rope and said gin ing the derrick to fall upon him. pole to fall and strike plaintiff," was sufficient Plaintiff's testimony shows that the rope to render admissible the master's knowledge of that broke was 142 or 2 inches in diameter. the defect, and that the master's foreman had For a space of 15 or 20 feet from the end been advised of the defective condition by sev. attached to the gin pole, the rope was old, eral workmen.

frayed, worn, had a weather-beaten appear4. Damages on 132(8)—$6,000 not excessive ance and concrete adhered to it. It was ravfor injuries to clavicle and arm.

eled, broken strands hanging loose, and had A verdict for $6,000 was not excessive to a many weak places in it. Three or four feet man 52 years of age, earning $33 per week, from the top the rope had a knot where it who had his left clavicle broken, so as to cause had been tied together. ' Defendant's testia shortening of the shoulder, a drooping, a mony tends to show that the rope was a good failure to properly function on the part of one and that it was caused to break by the the left arm, and an encroachment on the negligent handling of the derrick by a fellarge blood vessels of the neck.

low servant of the defendant.

Defendant contends that his instruction in Appeal from Circuit Court, Jackson Coun the nature of a demurrer to the evidence ty; Nelson E. Johnson, Judge.

should have been given, for the reason that "Not to be officially published.”

plaintiff's evidence shows that the rope was Action by Robert L. Laemore against Otto so glaringly defective as to threaten immediLehrack, doing business as the Lehrack Con-ate danger to plaintiff, and that this danger tracting & Engineering Company. Judgment was known and appreciated by him, and that, for plaintiff, and defendant appeals. Af- therefore, he was guilty of contributory neg. firmed.

ligence as a matter of law. In connection

with this point, the facts show that plaintiff R. D. Groves and Miller, Camack, Winger assisted in carrying the gin pole to the fourth & Reeder, all of Kansas City, for appellant. floor and helped to erect it there. On two

Clif Langsdale, of Kansas City, for re-occasions while it was on the fourth floor he spondent.

helped to tighten the guy rope which latet

broke. Plaintiff's witnesses testified that the BLAND, J. This is an action for person-condition of the rope could be seen at a al injuries. Plaintiff recovered a verdict and glance; that its worn condition could have judgment in the sum of $6,000, and defend- been seen from the ground; that the condition ant has appealed. The facts show that on of the rope could have been seen 25 or 30 feet December 11, 1920, plaintiff was employed by away. Plaintiff's witness, Sorrell, testitied defendant as a building laborer in connec-Ithat two or three days before the rope broke

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

he was helping to tighten it and at that time (so reckless that no prudent man would have he noticed its condition and told the foreman done it. To say so we should have to hold ro that the rope was so weak that he did not other inference was possible, although all the want to work around the gin pole. His duty men who worked on the job, including the es. at that time was to push the boom around. pert millwright, were not deterred from furThe day before the accident he quit his work ther use of the rope. Plaintiff might well have and was carrying away lumber from the had broken once; or that, if it broke again, no

believed the rope would hold, even though it boom, as was plaintiff at the time it fell. He one would be injured, as no one was injured testified that he changed his work because he the first time. The question of plaintiff's conwas afraid of the rope, that if it broke the tributory negligence was, at best, one for the derrick would fall.

jury.” Reeder v. Lime Co., 129 Mo. App. 107, Plaintiff testified: That at the time he 116, 117, 107 S. W. 1016, 1019. helped tighten the rope that broke he looked at the rope and saw that it was old, had a

The mere knowledge of the dangerous conknot in it, and that he knew it was old be- dition of the rope on the part of plaintiff is cause he had looked at it and had hold of it. not sufficient for the court to say that he was He said to his fellow laborers, “I believe this guilty of contributory negligence as a matrope is an old looking rope to be pulling such ter of law, unless the danger was so glaring a load.” That the rope looked old to him. and obvious as to threaten immediate injury. "It looked like an awful poor rope to me - McDonald v. Contral Ill. Const. Co., 196 MO. such loads as they were hoisting with it.” App. 57, 190 S. W. 633; Maupin v. Southern “Q. Looked like it would not carry a load? Surety Co., 205 Mo. App. 81, 220 S. W. 20, 21; A. Well, it had been carrying them, and then State ex rel. v. Reynolds (Mo. Sup.) 200 S. it broke, or come undone, I don't know how W. 57; O'Hara v. Lamb Const. Co., 200 Mo. it come undone." We think that it can be App. 292, 206 S. W. 253; O'Mellia v. Kansas inferred from this testimony that plaintiff City, etc., Ry. Co., 115 Mo. 205, 21 S. W. 503. knew that if it broke the derrick would fall.

[2] Plaintiff's testimony shows that he [1] We do not think that, under the testi- knew of the dangerous condition of the rope, mony, we would be justified in saying that as but, from the language he used in answer to a matter of law plaintiff was guilty of con- the questions, it would seem that it was tributory negligence. He had been working merely his opinion that the rope was too about a year as a building laborer. Prior to dangerous to be pulling such heavy loads. that time he had been a farmer. He had no The jury could say that he had no settled supervision or control over the work, no duty convictions on the point as he finally said, to inspect it, no right to determine the man- "Well, it had been carrying them (the loads).” ner of doing the work, was not his own boss, It will be borne in mind that plaintiff had a but was engaged in doing a mere detail of right to rely somewhat upon the superior the work under the immediate control, or- knowledge of the master, and the evidence ders, and direction of defendant's foreman, shows that his foreman was present and who had complete charge and control of the handling the boom at the time it broke. As whole work. The evidence shows that there before stated, not only the foreman but sev.

eral other workmen continued to work around were six men besides plaintiff who worked

the derrick, although they knew of the deupon the job, excluding the labor foreman

fective rope. We think the question of conand the carpenter foreman, and that the der

tributory negligence in this case was one for rick was erected under the immediate super

the jury. vision of one of defendant's foremen and that citations and find them to be from cases

We have examined defendant's none of these men except Sorrell, although

where the servant was in full control of the they knew of the condition of the rope, were situation, knew of the danger and apprecideterred from working under the derrick,

ated the imminence of it. and, as a matter of fact, Sorrell was not so

[3] It is insisted that the court erred in deterred, because he was doing the same

admitting testimony that defendant's forework that plaintiff was at the time the derrick fell. In a somewhat similar case the men had been advised of the defective con

dition of the rope by several workmen who St. Louis Court of Appeals said:

testified for plaintiff. In this connection it "This issue was fairly put to the jury in is insisted that the allegations of the petition Beveral instructions, of which defendant's coun are not broad enough to admit such testisel disclaim criticism, as they do of all the mony. The petition alleges that defendant instructions. Hence, unless we can say the only inference from the facts in proof i3 iliated, and maintained said gin pole and said

"carelessly and negligently set up, construct. the hazard of again using the rope after it had rope, which was old and worn and of insufonce broken was so great and apparent that no person of ordinary prudence would have incur- / ficient strength for the purpose for which it red it, we must approve the way the court sub-was used and intended to be used; that the mitted this issue to the jury. In our opinion said carelessness and negligence caused the a court cannot say as a legal conclusion, that said rope to break and said gin pole to fall continuing to work with the rope, after it bad and strike plaintiff.” We think the evidence

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(248 S.W.) knowledge of the defect. Flynn v. Union fore closing the deal, the parties not standing Bridge Co., 42 Mo. App. 529, 536; Zimmer- upon an equal footing. man v. Pryor (Mo. App.) 190 S. W. 26; Hes- 3. Fraud au 13(2)—Knowledge of fraud by deter F. Dold Packing Co., 84 Mo. App. 451; fendant unnecessary. Howard v. Mo, Pac. Ry. Co., 173 Mo. 524, 73

A representation of value of animals located S. W. 467; O'Mellia v. K. C., etc., Ry. Co., at a distance where plaintiff could not see them supra; Glasscock v. Dry Goods Co., 106 Mo. is fraudulent, even though defendant does not App. 657, 80 S. W. 364.

know the falsity of the statement. [4] It is last insisted that the verdict is

4. Fraud Om44–Petition held based on fraud, excessive. The facts show that plaintiff's

and not on guaranty. left collar bone, commonly called the clavicle,

The mere fact that a petition to recover was broken; that at the time of the trial, damages stated that defendant "guaranteed” which was a little over two years after the the property in question to be worth a certain injury, there was an overlapping of the bone amount, and, if it was not, that he would turn at the point of fracture of about 114 of an back to plaintiff consideration given, did not iuch-one bone "riding on top," the outer end necessarily make plaintiff's cause of action one overlapping, and it was very much displaced. on guaranty, and not on fraud or deceit, since This overlapping was about 3 inches from the the so-called guaranty or promise could be shoulder. This has caused a shortening of tation as to value was not mere assertion of

considered as definitely showing that represen-
the shoulder and has thrown the shoulder opinion.
in. The injury has caused the shoulder to
droop, a failure to properly function on the 5. Trial em 186-Instruction held not com-

ment on evidence.
part of the left arm, and an encroachment on
the large blood vessels of the neck. The

In a suit for damages for fraud and de. shoulder is thrown forward and a change in ceit in exchange of animals for land, an incontour is noticeable. Plaintiff testified that struction given for plaintiff held not objection

able as a comment on the evidence. he could not lie on his left side at night; that his left shoulder is “m main shoulder 6. Trial em 192-Court may assume conceded to carry things"; that he cannot carry any.

facts, thing on that shoulder; that when he works There was no prejudice in an instruction his left arm bothers him, and he has nothing assuming as a fact matter conceded. like the strength or grip that he formerly 7. Appeal and error 1033(5)-No complaint had; that he cannot work long with his left of favorable error. arm; that he did not go to work for about

Defendant in deceit case cannot complain 4 months after his injury, after which time on appeal of an instruction submitting question he procured several jobs, but was able to of value of property in excess of that shown by work at them only a few days, and was evidence, any error in that respect being fadischarged on account of his inability to vorable to him. work. At the time of his injury he was mak-18. Fraud C52–Evidence held admissible. ing about $33 per week. He was 52 years of

In an action for damages for fraud and deage. We do not think, under the circum- ceit in the exchange of animals for land, evistances, that the verdict is of such size as to dence as to the inability of plaintiff to find the justify us in interfering with it.

animals where they were said to be and their The judgment is affirmed.

final location elsewhere was admissible to show why plaintiff did not offer to rescind sooner.

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All concur.

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Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published." JOURDAN V. SHEETS. (No. 14610.)

Action by Charles J. Jourdan against Rob(Kansas City Court of Appeals. Missouri. ert G. Sheets. Judgment for plaintiff, and March 5, 1923.)

defendant appeals. Affirmed. 1. Fraud C41--Petition held to show deceit.

T. A. Witten, of Kansas City, for appel

lant.
A petition for damages on the ground of
frand and deceit, in the exchange of a jack and

Ed. E. Aleshire, of Kansas City, and borses for land, held to sufficiently charge mis- George W. Willis, of Kansas City, for rerepresentation as to the animals.

spondent.
2. Fraud en 23-Representation as to value
may be fraudulent.

TRIMBLE, P. J. Plaintiff, owner of a

house and lot in Kansas City, alleged to be A petition showing a misrepresentation as to value of animals stated a cause of action, worth $2,200, on which there was a mortgage where it showed that the animals were a hun- of $800, traded his equity therein for a jack dred miles away and that plaintiff was not so and three mares owned by defendant.“ Dissituated as to be able to go and see them be- covering afterwards that the jack was worth

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
248 S.W.-41

less and that the mares were only worth and the man who had him had given him from $35 to $50 apiece, he sought to rescind, away rather than keep him. and, upon defendant's refusal, this suit was The case was tried and submitted to a brought for damages on the ground of fraud jury, which returned a verdict for plaintifr and deceit.

in the sum of $1,000 from which defendant It seems that defendant had a bill of sale has appealed. from his father-in-law, Day, which purported [1] It is claimed the petition states no to sell to defendant, for the total price of $1,- cause of action. No attack was made on the 400, one "Black Mammoth jack,

petition prior to verdict, save by way of an age 6 years, sound good prompt performer, objection to the introduction of any evidence $50;" "one bay mare 7 years old, standard thereunder. The claim is based upon the bred trotting registered, $300;" "one bay theory that the only misrepresentation al. mare 4 years old,

$300;" “one bay leged in the petition is that the stock was mare 3 years old,

$300." The first represented to be of the value of $1,400. We two mares were described in the bill of sale think that the petition can be regarded as as trotters and the third as a pacer, and it alleging more than that. It sets out that stated that all of said property was in a pas-at and prior to the exchange, the bill of sale ture on a farm owned by W. G. Gunn, five was produced, and the petition then sets miles west of Trenton in Grundy county, Mo. forth what it contained or stated as to the Plaintiff was shown the bill of sale and was location of the property, its age and value. told by defendant's agent, authorized by him The petition alleges not only that the propto trade the stock, that the stock were pedi- erty was represented to be worth $1,400 and greed animals and worth $1,400. The agent that this was false, but also that two of the then went with plaintiff to defendant's office, animals were much older than as represented and defendant told plaintiff "what he had,” | in the bill of sale and by the defendant and and they talked the matter over, and Sheets his agent. While the petition might now told plaintiff the stock was worth $1,400, and be regarded as charging misrepresentation, that he would go and look at plaintiff's prop- not only as to value, but also as to the age erty. He did so later, and told his agent he of said animals, because the production of would make the trade. Thereupon the agent the bill of sale with the age and description reported to plaintiff that defendant would of the stock set out therein could perhaps be trade, whereupon, plaintiff, who is a laborer, regarded as a representation in that regard, said that he was out of work and had no yet we will take it as alleging only what de money with which to go and look at the stock, fendant claims it does, namely, misrepresenand the defendant's agent then told him the tation as to value, since it seems to be the stock would be as represented, and “guaran- one on which the petition says plaintiff reteed” it to be so. Thereupon the two went lied. However, the age of the animals would again to defendant's office, where defendant seem to directly affect and involve their told plaintiff, "I will tell you what I will do, “worth,” and when the petition says the if that stock ain't as I represent it, I will statements and representations were made give you the money for it, or I will give you with intent to defraud and that the plaintiff your property back," and thereupon plaintiff relied upon the "statement” of the defendsaid he would trade. The evidence is not ant as being true, the petition, under a be. only that defendant told his agent the prop-lated attack, might be treated as covering erty was worth $1,400, but that both he and all of the misrepresentations. the agent represented such to be the fact to [2] But even upon the view that the only plaintiff'. Defendant's agent was a witness misrepresentation relied upon is as to value, for plaintiff and corroborates plaintiff in all still we think the petition does not wholly essential particulars.

fail to state a cause of action, although it There was evidence tending to show that may state it somewhat inartificially and implaintiff's property was worth $2,200 and perfectly. It shows that the property was more; and there was ample eridence that the 100 miles from Kansas City and in Grundy jack was from 16 to 21 years old and worth- county, and, under the circumstances therein less, and that one of the mares was 14 or 15 set forth, a representation even as to value years old, and the best one was worth not may be the basis of an action, if it is made to exceed $50.

as a fact and not as the mere expression of After the trade was made, plaintiff was an opinion, and is false, and the other parunable to find the stock where it was said ty, not being in a position to ascertain the to be, and defendant agreed to help locate facts himself, relies upon it. it and went up to Grundy county, and, aft [3] It is true that, ordinarily, a represener locating it, came back and said to his tation as to value cannot be made the basis agent, “Jourdan made a bad trade; I didn't of a cause of action for fraud and deceit, think they (the stock) were any good; I but under the circumstances here disclosed wouldn't give $25 apiece for that stock." we think it can be. Cahn v. Reid, 18 Mo. Plaintiff got a man to go up and examine the App. 115, 130. This is a case where the par.

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