Maurizi v. West. Coal Mining Co.

Full title: VINCENZO MAURIZI v. WESTERN COAL MINING COMPANY, Appellant

Court: Supreme Court of Missouri, Court en Banc

Date published: Nov 24, 1928

321 Mo. 378 (Mo. 1928)

11 S.W.2d 268

Opinion

November 24, 1928.

1. MINING LAW OF KANSAS: Injury to Coal Miner: Defenses. The Mining Law of Kansas is a health and safety statute and was not repealed by the Workmen's Compensation Act, and under it the defenses of contributory negligence, fellow-servant and assumption of risk are not available to a mine owner in an action for damages for personal injuries brought by his employee who had not elected to come within the provisions of the Compensation Act.

2. ___: Substantive Law. The Mining Act of Kansas is not a mere rule of evidence, but is substantive law, and a violation of it gives to the injured coal miner a cause of action for damages.

3. ____: ____: Lex Fori. The Kansas Mining Act, being substantive law, must be construed, in an action grounded on it tried in this State for an injury to a coal miner received in Kansas, as it is construed by the courts of Kansas, and the law of the forum relating to matters of procedure will not destroy the substantive right.

4. ____: Injury to Miner: Pleading: Notice of Defective Roof. Under the Mining Act of Kansas, in an action by a miner for injuries received when the roof of a traveling-way fell in and injured him, his petition need not allege that defendant had either actual or constructive notice of the defective condition of the roof. The statute requires the mine owner "to see that as the miners advance their excavations all loose coal, slate and rock overhead are carefully secured against falling in upon the traveling-ways," and under said statute it is the duty of the mine operator to inspect the roofs of the mine entries, and to know of defective conditions in them, and to keep them propped to prevent stone from falling.

5. ____: ____: ____: Negligence: Sufficient Allegation. A failure of a defendant mine operator to perform the mandatory duty prescribed by the Mining Act of Kansas to safely secure rock in the traveling-way of a coal mine from falling, is negligence. A petition of a coal miner which alleges that he was employed by defendant as a coal miner; that while he was pushing a car loaded with coal out of his working place into the traveling-way a rock fell from the roof of the traveling-way, struck and injured him; that there was in full force and effect a named statute which made it the absolute duty of defendant to keep the traveling-ways of said mine, including the one where plaintiff was injured, secure from falling coal, slate or rock; that under and by virtue of said statute he brings his cause of action, and that all the injuries of which plaintiff complains were caused directly by and through the carelessness and negligence of defendant in failing to secure the loose rock overhead in said traveling-way from falling, charges negligence.

6. ____: ____: Contrary to Physical Facts. Before a judgment may be reversed upon the assumption that the physical facts demonstrate that the rock which fell from the mine roof could not have caused the injury to plaintiff, it must unmistakably appear that it was impossible for the injury to have resulted from the facts and circumstances in evidence. And in this case plaintiff could have been injured in the manner alleged, and the evidence relating to the manner in which he was injured is not inconsistent with the physical facts.

7. JURORS: Voir Dire: Connection with Surety Company: Inquiry: Foundation. No rule requires that a foundation be laid for an inquiry into the qualifications of members of the panel to serve as jurors. A litigant is entitled to know the relation of the members of the panel to the parties and to those interested in the result of the case. Counsel for plaintiff is not required to prove that an insurance company, or an insurance agency, is interested in the result before inquiring of the members if they are connected with either. It cannot be held as a matter of law that it is error for counsel for plaintiff to inquire of members of the panel if they are connected with a certain guaranty and fidelity company, or its local agency, before he inquires of counsel for defendant, out of the hearing of the panel, whether the insurance company is interested in the defense.

8. ____: ____: ____: ____: Good Faith: Discretion. Counsel for plaintiff is presumed to be acting in good faith when he inquires of the members of the jury panel if they are connected with an insurance company or its local agent. If it appears from the record that he had reasonable cause to believe that an insurance company, or an insurance agency, was interested in the defense, and that he acted in good faith in making the inquiries, the sound discretion of the court in controlling and directing the examination will be sustained.

9. ____: ____: ____: Inquiry out of Hearing of Panel: Discretion. The court should require counsel for plaintiff to inquire of counsel for defendant, out of the hearing of the jury panel, whether or not an insurance company is interested in the case, and, if so, the name of the company; but if such inquiry is made, and counsel for defendant evades the questions, or gives an evasive answer, and does not claim that the company is not interested in the defense, the court may assume that the company is interested, and does not abuse its discretion in refusing to discharge the panel on the ground that counsel for plaintiff had asked them if any of their number was connected with said company, or its local agency, before asking counsel for defendant, out of the presence of the jury, if such company is interested in the case.

10. EVIDENCE: Explanation of Crime. Where plaintiff on cross-examination has admitted that he twice pleaded guilty to having "white mule" in his possession, and counsel for defendant has insisted upon characterizing the offense as "bootlegging," his denial that he was guilty of bootlegging is no explanation nor an attempt to explain his conviction of a crime.

11. ____: Hypothetical Question: Omitted Facts. Where a physician was permitted to answer a hypothetical question as to the causal connection between plaintiff's injury, as developed by his testimony, and the development thereafter of a peri-nephritic abscess, a contention on appeal that certain material facts were omitted from the question will be overruled, where the record shows that the only objection to the question when it was asked was that it contained many absolutely unnecessary elements and that too many unnecessary facts were set out in it.

12. INSTRUCTIONS: Assumption of Risk: Contributory Negligence. Neither assumption of risk nor contributory negligence is a defense to an action grounded on a violation of the Kansas Mining Act requiring the owner to secure the roof of the traveling-way of a mine from falling, and the court does not err in refusing to give defendant's requested instructions on those subjects.

13. INSTRUCTIONS: Assumption of Risk: Contributory Negligence: Assumed by Plaintiff. A proviso that "unless you find that the falling of the rock was one of the assumptions of risk of plaintiff's employment, or that he was guilty of contributory negligence to his own injury," contained in an instruction predicating plaintiff's recovery upon the theory of his petition, does not make the instruction broader than the case made by the petition, but only submits to the jury the affirmative defense set up in the answer, and those defenses being unavailable under the statute upon which the action is grounded, placed upon plaintiff an unnecessary burden, and was in no wise prejudicial to defendant, even though no such defenses were otherwise submitted, and may be disregarded as surplusage.

14. EVIDENCE: Collateral Matter: Slacker. In a trial of an action for damages for personal injuries received by a coal miner while at work in a mine, even if counsel for defendant be authorized to ask him if he was a slacker during the World War, defendant is concluded by his explicit negative answer, and further examination into the collateral matter should not be permitted.

15. ARGUMENT TO JURY: Amount Sued For. It is not a rule in this State that counsel or plaintiff in a suit for damages is not permitted in his argument to the jury to state the amount for which plaintiff sues.

16. ____: Injecting Rejected Evidence. It is prejudicial conduct on the part of defendant's counsel, during the course of the argument of plaintiff's counsel based on the evidence disproving that plaintiff was a slacker, to exhibit to the jury a newspaper which the court had excluded and to remark, "You would not let this go in."

17. ____: Sustained by Evidence: Arrest of Plaintiff. It is not erroneous for counsel for plaintiff to argue to the jury that defendant caused the arrest of plaintiff as a slacker during the World War after he had made claim for damages for personal injuries received while at work in defendant's mine, where there is substantial evidence to sustain the argument.

18. ____: Inhuman Counsel. Counsel in his argument to the jury should not refer to opposite counsel as inhuman; but in this case, where counsel for defendant had gone down on his knees before the jury in an effort to demonstrate that the rock which fell from the mine roof could not have struck plaintiff while he was kneeling at his work, a remark by counsel for plaintiff to counsel for defendant, in evident reference to this trial incident, that "you never went down on your side in a coal mine as this boy did; it would have made you a little human, but you are not," while improper, was not prejudicial to defendant.

19. ____: Expiration of Time: Grandmother's Style. The court has control and direction of the trial, including the argument to the jury. As counsel for plaintiff was closing his argument, counsel for defendant said: "The time is up." Continuing, counsel for defendant again said: "The time is up. I would thank you to stop as the time is up." Counsel for plaintiff replied: "I thank you for your grandmother's style that you have used throughout the case." Counsel for defendant objected to the remark and moved that the jury be discharged. The court overruled the motion and objection, and stated: "The court governs the time." To the remarks of the court, counsel for defendant objected, and moved that the jury be discharged. Held, that if the time for argument allotted to plaintiff had expired, counsel should have directed his remarks to the court; and the reference to "your grandmother's style" was improper, but not prejudicial.

20. ____: Approval of Trial Court: Attacks upon Plaintiff. Where the record tends to show that counsel for appellant exerted himself in his argument to the jury to convince them that plaintiff in the damage suit was a foreigner, slacker, striker and fraud and the trial court approved the argument of counsel for plaintiff as a reply thereto, it will not be held that the argument for plaintiff was prejudicial error, where the court overruled the objections thereto, and it cannot be said that his rulings were an abuse of discretion.

21. EXCESSIVE VERDICT: Coal Miner: $15,000. Plaintiff was twenty-nine years of age and earning an average wage of $200 per month. While at work in a stooping position in a coal mine a rock fell from the roof and struck him upon the back. Shortly afterwards, he became affected with septic fever. About thirty days after the injury he was taken to a hospital, and an operation disclosed a perinephritic abscess, and when the kidney cavity was opened there was a gush of blood clot and pus, indicating a septic and traumatic infection around the kidney. The incision was eighteen inches long, and the operation relieved the septic fever, but pus continued to discharge from the kidney cavity for four months. His right side was injured, including the spine, sacro-illiac joint and right leg, and he suffers and will continue to suffer from limitation of motion throughout the entire right side, hip, limb and back. He has been unable to perform labor since the injury, is permanently disabled, and this condition is a direct result of the injury. The evidence for defendant tended to minimize his injuries. Held, that the issue was for the jury, and a verdict for $15,000 cannot be held to have been excessive.

22. ____: Permanent Injuries. A petition alleging that plaintiff is permanently incapacitated from performing labor and has been permanently and totally deprived of his earning power does not limit the amount of damages to temporary disability, but authorizes instructions and a verdict for permanent injuries.

Corpus Juris-Cyc. References: Appeal and Error, 3 C.J., Section 800, p. 893, n. 29; 4 C.J., Section 2890, p. 919, n. 45; Section 2938, p. 957, n. 68; Section 2939, p. 959, n. 84. Courts, 15 C.J., Section 74, p. 779, n. 58. Damages, 17 C.J., Section 408, p. 1091, n. 85. Juries, 35 C.J., Section 439, p. 394, n. 34. Law. 36 C.J., Section 27, p. 963, n. 77. Master and Servant, 39 C.J., Section 894, p. 691, n. 88; Section 1032. p. 821, n. 66; Section 1162, p. 928, n. 77; Section 1315, p. 1121, n. 78. Statutes. 36 Cyc, p. 1071, n. 25; p. 1073, n. 28. Trial, 38 Cyc, p. 1473, n. 70; p. 1475, n. 11. Witnesses, 40 Cyc, p. 2648, n. 62; p. 2771, n. 36.

Appeal from Jackson Circuit Court. — Hon. O.A. Lucas, Judge.

AFFIRMED.

Edward J. White and Inghram D. Hook for appellant.

(1) No basis for voir dire examination. Chambers v. Kennedy, 274 S.W. 729; Pettit v. Goetz Sales Co., 281 S.W. 973; Hill v. Jackson, 272 S.W. 107. (2) Defendant's demurrer at close of evidence should have been given. Kansas Compensation Act; Menke v. Hauber, 99 Kan. 171; McRoberts v. Zinc Co., 93 Kan. 246; Construction Kansas Compensation Act: Smith v. Portland Cement Co., 94 Kan. 501; Karny v. Iron Co., 160 Wis. 316: Balken v. Coal Co., 183 Iowa 1198; Bjork v. Bobbin Shuttle Co., 111 Atl. (N.H.) 284; Metz v. Ry. Co., 90 Kan. 463; Cherokee Co. v. Britton, 3 Kan. App. 292; Smith v. Mining Co., 80 P. 779. (3) Defendant's instructions on contributory negligence and assumption of the risk should have been given. (4) Excessive Damages. Crockett v. Rys. Co., 243 S.W. 908; Corn v. Ry. Co., 228 S.W. 78; Powell v. Rys. Co., 226 S.W. 924; Johnson v. Brick Coal Co., 276 Mo. 42; Highfill v. City of Independence, 189 S.W. 804; Dominick v. Coal Co., 255 Mo. 463; Lyons v. Railroad Co., 253 Mo. 143; Pendergrass v. Railroad, 179 Mo. App. 539; Nibler v. Ry. Co., 197 Mo. App. 696; Bate v. Harvey, 195 S.W. 571. (5) Explanation of plaintiff's conviction. State v. Jones, 249 Mo. 80; State v. Kimmel, 156 Mo. App. 461. (6) The alleged injury to plaintiff is inconsistent with the physical facts narrated. The back of a man five feet eight or nine inches tall, stooping over by the side of a car only twenty-three inches high and prying on the wheels of it with a three foot lever, would protrude above the side of the car, and a rock five or six feet long, three and a half to four feet wide and eighteen to twenty inches thick, falling from the roof, would, if it struck his back at all, strike it before it struck the car, and break his back and ribs. A verdict and judgment based upon a state of facts inconsistent with physical facts cannot stand. Nugent v. Milling Co., 131 Mo. 253; Kelsey v. Railroad, 129 Mo. 376; Hayden v. Railroad, 44 N.Y.S. 377. (7) In failing to allege notice of the defective condition of the roof of the defendant's mine, or that it had existed for a length of time sufficiently long to have enabled the defendant to discover it and repair it, the plaintiff's petition was fatally defective. Boemer v. Lead Co., 69 Mo. App. 601; Thornberry v. Mining Co., 126 Mo. App. 650; Wojtylak v. Coal Co., 188 Mo. 260: Anderson v. Coal Co., 138 Mo. App. 76; Adams v. Coal Co., 85 Mo. App. 486; Pippin v. Const. Co., 187 Mo. App. 360; Timson v. Coal Co., 220 Mo. 580; Nash v. Salt Co., 83 Kan. 447; Tanner v. Coal Co., 97 Kan. 21; Hockenberry v. Iron Works, 152 P. 628. (8) While foreign statutes may be enforced in a state with a similar law, founded upon the same general policy, the proof of the cause of action is always governed by the lex fori and not by the lex loci domicilii, for the courts of a state will not set aside their rules of evidence in favor of foreigners, but will proceed in the same way that it treats its own citizens, with respect to the proof and establishment of a cause of action. Yates v. Thompson, 3 Clark Finn. 580; 3 Am. Eng. Ency. Law. 540; Crone v. Dawson, 19 Mo. App. 215; Milkerson v. Truesdale, 63 Minn. 137; Taylor, Evid., sec. 49; Story, Conf. Laws (7 Ed.) 634a. A rule of evidence has no extraterritorial force and it is accordingly held that "a statute which provides that where an injury is caused by a defect, proof of the existence of the defect shall be presumptive evidence of the company's knowledge thereof, this is not the law of the case in an action brought in another state, where the ordinary rule still prevails that a master is not liable for injuries caused by defects unless they could have been discovered by the exercise of ordinary care." 5 Labatt's Master Servant (2 Ed.) sec. 1997; Jones v. Railroad Co., 80 Minn. 488. (9) In permitting the plaintiff's counsel to ask the long hypothetical question to Dr. Twyman, without including the fact that plaintiff had no broken bones; that he had walked out of the mine without assistance; that he had failed to report the alleged injury for two days and that the physicians who had operated upon his kidney, whose depositions were on file before the case was tried, had stated that, in their opinion, the abscess on the kidney was due to an infection from the blood, the trial court erred, within the rulings of this court. Carbondale v. Kemp, 309 Mo. 241. (10) The court erred in giving the plaintiff's first instruction, since, in telling the jury plaintiff could not recover if he was guilty of contributory negligence or assumed risk, it was diametrically opposed to the case made by the petition, which expressly pleaded that by virtue of the statutes set out "he did not assume the risk or become guilty of contributory negligence for failure to ascertain that said rock was loose and was liable to fall or his failure to keep out of its way." "A recovery can be had only on the case made by the pleadings and the issues cannot be changed by the instructions." 11 Ency. Pl. Pr. 164; Glass v. Gelvin, 80 Mo. 297; Bank v. Murdock, 62 Mo. 73; Railroad v. Miller, 39 Kan. 419. (11) This error was emphasized by the court refusing the two instructions asked by the defendant on assumed risk and contributory negligence, after plaintiff had attempted to abandon the case made by the petition and admit that the defenses obtained. Hall v. Coal Co., 260 Mo. 351; Goode v. Coal Co., 179 Mo. 250. (12) The inflammatory and prejudicial argument of counsel to the jury constituted reversible error. Wojtylak v. Coal Co., 188 Mo. 288; Bragg v. Railway, 192 Mo. 366; Neff v. Cameron, 213 Mo. 315; Union Pacific Ry. Co. v. Field, 137 F. 14.

C.O. Pingry, W.H. Senner and Madden, Freeman Madden for respondent.

(1) The voir dire examination regarding insurance was proper. Chambers v. Kennedy, 274 S.W. 726: Kinney v. Street Ry. Co., 261 Mo. 97; Wagner v. Const. Co., 220 S.W. 897; Smith v. Scudiero, 204 S.W. 565: Snvder v. Electric Co., 284 Mo. 85; Jablonowski v. Mfg. Co., 279 S.W. 89; Malone v. Small, 291 S.W. 163: Dudacs v. Hotel Statler Co., 295 S.W. 826: Floun v. Birger, 296 S.W. 203: Stinkamp v. Chamberlin, 294 S.W. 764; Melican v. Const. Co. 278 S.W. 366; Plannett v. McFall, 284 S.W. 853. (2) Defendant's demurrer to the evidence was properly overruled. Hiatt v. Railway Co., 278 Mo. 806; Mosely v. Fuel Co., 281 S.W. 762: Secs. 49-205. 209, R.S. Kan. 1923; Little v. Coal Co., 83 Kan. 232; Cheek v. Railway, 89 Kan. 267; Caspar v. Lewin, 82 Kan. 604; Baisdrenghien v. Railway Co., 91 Kan. 730; Le Roy v. Railway Co., 91 Kan. 548; Quapaw Mining Co. v. Cogburn, 190 P. 420. (a) There are no physical facts in this case which can, under any theory, preclude recovery or which would warrant the sustaining of a demurrer. McHatton v. Railways Co., 246 S.W. 651; Titus v. Delano, 210 S.W. 44; Pelster v. Boiler Co., 268 S.W. 890. (b) Notice, actual or constructive, to defendant of the dangerous condition of the roof of the entry was not essential to recover, and need not have been pleaded or proved. Wojtylak v. Coal Co., 188 Mo. 260. (c) The Mining Act is a substantive law of the State of Kansas, not a mere rule of evidence, and as such will be enforced by the courts of this State. Hiatt v. Railway Co., 271 S.W. 806; Wojtylak v. Coal Co., 188 Mo. 295. (d) The Workmen's Compensation Act did not by implication repeal the Kansas Mining Act. State v. Davis, 284 S.W. 464; State v. Penman, 282 S.W. 498; White v. Greenway, 263 S.W. 104; Folk v. St. Louis, 250 Mo. 116; State v. St. Joseph's Convent, 116 Mo. 575; Shade v. Cement Co., 93 Kan. 258; Smith v. Cement Co., 94 Kan. 501; Echord v. Rush, 122 Kan. 260. (e) The defenses of assumption of risk and contributory negligence were not restored by virtue of any provisions of the Workmen's Compensation Act of the State of Kansas; and even if they were restored, such defenses could constitute no bar to the present action. First, the defenses of assumption of risk and contributory negligence are not restored to defendant by virtue of the Compensation Act. State v. Gehner, 280 S.W. 414; Balen v. Colfax Coal Co., 183 Iowa 1198. Second, even were it held that the Compensation Act restored to defendant the defenses of assumption of risk and contributory negligence, such defenses would, nevertheless, under the admitted facts of this case, constitute no bar to plaintiff's cause of action. Little v. Coal Co., 83 Kan. 232; Baisdrenghien v. Railway Co., 91 Kan. 733; Curtis v. McNair, 173 Mo. 270; Mount v. Coal Co., 294 Mo. 603; Kidd v. Ry. Co., 274 S.W. 1079; Brizendine v. Railroad, 96 Kan. 691: Barnes v. Akins, 101 Kan. 359: Cherokee v. Britton, 3 Kan. App. 292; Bowers v. Mildren, 107 Kan. 584; Barrett v. Dessy, 78 Kan. 642; Wellston Coal Co. v. Smith, 65 Ohio St. 70; Head v. Lumber Co., 281 S.W. 445; Hamman v. Coal Co., 156 Mo. 232; Clippard v. Transit Co., 202 Mo. 432. (3) Defendant's requested Instructions B.C. and C-a were properly refused. (a) The defenses of assumption of risk and contributory negligence are not restored by virtue of the Workmen's Compensation Act, and hence the court properly refused instructions on these defenses. (b) Even had these defenses been restored by virtue of the provisions of the Workmen's Compensation Act, the facts of this case did not warrant the giving of any one of these instructions, the instructions being moreover erroneous in law and in fact in many particulars. (c) Instruction B requested by defendant was properly refused by the court for the reasons: No instruction on assumption by the plaintiff of injury in the manner or at the point mentioned in evidence, as a risk ordinary, usual and incident to his employment, was warranted in law for the reason that such an injury so received could not constitute such a risk. Mounte v. Coal Co., 294 Mo. 603; Curtis v. McNair, 173 Mo. 270; Little v. Coal Co., 83 Kan. 232; Baisdrenghien v. Railway Co., 91 Kan. 733; Strickland v. Woolworth, 143 Mo. App. 528; Jewell v. Bolt Nut Co., 231 Mo. 176. This instruction was improper and erroneous for the reason that it was hopelessly inconsistent and self-contradictory in law, it being impossible for a jury to find under the law both that the plaintiff was injured in the manner described in the first clause of the instruction, and also that the defendant was not negligent. Little v. Coal Co., 83 Kan. 232; 15 A.L.R. 1435 n. This instruction was erroneous in that it required defendant only to exercise ordinary care when in law the defendant was under a statutory duty absolute in character and more highly rigorous than a mere duty of ordinary care. Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. 613; State ex rel. v. Ellison, 195 S.W. 724; Little v. Coal Co., 83 Kan. 232. (d) The court properly refused Instruction C requested by defendant for the reason that such instruction merely required of defendant the exercise of ordinary care on its part, instead of the absolute duly imposed by statute, and purported to require constructive notice of the danger of the rock falling as a condition precedent to recovery. Little v. Coal Co., 83 Kan. 232; Check v. Railway Co., 89 Kan. 247; Baisdrenghien v. Railway Co., 91 Kan. 730; LeRoy v. Railway Co., 91 Kan. 548. (e) Instruction C-a requested by defendant was properly refused by the court for the reason that under the evidence plaintiff could not have been guilty of contributory negligence. Hamman v. Coal Co., 156 Mo. 232; Clippard v. Transit Co., 202 Mo. 432. It erroneously purported to declare and assume that plaintiff was under a duty to inspect the roof of the entry and to complain to defendant of the condition thereof and that such failure to inspect, remove loose rock, or complain to defendant, constituted negligence as a matter of law. Little v. Coal Co., 83 Kan. 232; Baisdrenghien v. Railway Co., 91 Kan. 730; Hamman v. Coal Co., 156 Mo. 232. (4) The hypothetical question criticised by appellant was proper; moreover no objection was made thereto upon the grounds now urged by counsel. Kinlen v. Railroad, 216 Mo. 173; Buerskens v. Dunham, 193 S.W. 857: Buzan v. Rys. Co., 212 S.W. 905: Mevers v. Wells, 273 S.W. 117: Frost v. Business Men's Assn., 246 S.W. 632; Edmondson v. Hotel Statler Co., 267 S.W. 617. (5) Plaintiff's first instruction was proper. Berry v. Railway Co., 214 Mo. 604; Burtch v. Wabash Ry. Co., 236 S.W. 345. (6) The court did not err with reference to admitting explanation of alleged convictions of the plaintiff. State v. Jones, 249 Mo. 80; State v. Kimmel, 156 Mo. App. 461. (7) The judgment is just and reasonable and should be affirmed. Smith v. Kansas City Southern, 213 S.W. 481; Gould v. Railroad, 290 S.W. 140; Callicotte v. Railway Co., 274 Mo. 696; Unterlachner v. Wells, 296 S.W. 766; Ternetz v. St. Louis Co., 252 S.W. 65; Manley v. Wells, 292 S.W. 67; Mount v. Coal Co., 294 Mo. 603; Aeby v. Mo. Pac. Ry. Co., 285 S.W. 965. (8) The argument of defendant's counsel was the culmination of a premeditated and labored effort throughout the trial to prejudice the jury against plaintiff, and the argument of plaintiff's counsel was an answer thereto. 38 Cyc. 1497, 1500; Rose v. Railroad, 289 S.W. 919; Real Estate Co. v. Surety Co., 289 S.W. 888; Citizen's Bank v. Douglass, 187 S.W. 159; Rainier v. Railroad, 271 S.W. 506; Schroeder v. Wells, 298 S.W. 806: Fathman v. Tumilty, 34 Mo. App. 236.

GANTT, J.

On September 24, 1921, plaintiff was mining coal for defendant in one of its coal mines in Crawford County, Kansas. He claims that while he and a fellow-miner were trying to put a derailed car on the track in the traveling-way of the mine a rock fell from the roof of the traveling-way onto the coal in the car, which caused it to break, and a part of the rock to strike him on the back while he was in a stooping position, forcing him to the ground and injuring him.

It is alleged in the amended petition: (a) that plaintiff is a resident of Franklin, Crawford County, Kansas; (b) that defendant is a Missouri corporation and owned and operated a mine known as Mine No. 18, located in Crawford County, Kansas; (c) that plaintiff at the time of his injuries was not working under the provisions of the Workmen's Compensation Law of the State of Kansas; (d) that on and prior to September 24, 1921, plaintiff was employed as a coal miner by defendant in its Mine No. 18; that while he was in the line of his duty, pushing a car loaded with coal out of his working place into the traveling-way of said mine so that said car could be hauled to the shaft, and while he was outside of his working place about twenty-five feet and inside the traveling-way, said car was derailed, and while he was engaged in attempting to put the car on the track, a rock fell from the roof of the traveling-way, striking and injuring him; (e) that at the time he was injured there was in full force and effect in the State of Kansas statutes relating to the health and safety of miners and the conduct of the owners and operators of mines, known as Sections 49-205 and 209, R.S. Kan. 1923; that under and by virtue of the above named statutes he has and brings this cause of action; and by said statutes and cases herein named and the authorities cited in said cases by which said statutes are construed, it was the absolute duty of the defendant to keep the traveling-ways of said mine, including the one where plaintiff was injured, secure from falling coal, slate or rock, including the rock in question that fell upon plaintiff; that said statutes and decisions also hold that plaintiff at said time and under the conditions herein named did not assume the risk or become guilty of contributory negligence for failure to ascertain that said rock was loose and liable to fall, or his failure to keep out of its way; that the cases above referred to are Little v. Coal Co., 83 Kan. 232; Cheek v. Ry. Co., 89 Kan. 247; Baisdrenghien v. Ry. Co., 91 Kan. 730; LeRoy v. Ry. Co., 91 Kan. 548; that all of the injuries of which plaintiff complains were caused directly by and through the carelessness and negligence of defendant in failing to secure the loose rock overhead in said traveling-way from falling in and upon said traveling-way, and especially the rock which fell upon plaintiff; and that plaintiff was damaged in the sum of $50,000.

The answer is as follows: (a) general denial; (b) that the suit is for the purpose of defrauding defendant, and that the accident never occurred, or did not occur in the manner in which plaintiff claims it occurred, and plaintiff was not injured in the manner claimed; (c) that this claim is one of several claims and suits which plaintiff has brought and filed, and the injuries claimed to have been received as a result of the alleged accident herein are the same or similar to those for which plaintiff has previously filed, claimed or brought suit for permanent injuries; (d) that there was impending at the time of the alleged accident a serious strike, known as the Howat strike, which would involve many of the mines in the district in which Mine No. 18 is located and cause the miners to be unemployed; that plaintiff was aware the strike was impending and fraudulently planned this alleged injury on the eve of such strike so that he would draw compensation during the strike; (e) that plaintiff had elected to come without the provisions of the Compensation Act of Kansas, and that under and by virtue of Section 44-507, R.S. Kan. 1923, it is provided that "this act shall apply to mines without regard to number of workmen employed;" that by reason of said provisions the defendant was operating under said Compensation Act; that according to Section 44-545, R.S. Kan. 1923, it is provided that in an action to recover damages for personal injuries to an employee while engaged in the line of his duty as such in which recovery is sought upon the ground of want of due care of the employer or any officer, agent or servant of the employer, and where such employee at the time of the injury has not elected to come within the provisions of said act, the defenses of assumed risk, fellow-servant and contributory negligence are available to the employer; (f) that plaintiff assumed the risk of the rock falling on him and was guilty of contributory negligence: (g) that according to the case of Metz v. Ry. Co., 90 Kan. 463, 135 P. 578, where an employee proceeded without complaint and without taking measures to protect himself, he was equally at fault or sufficiently at fault to bar recovery; and according to the case of Cherokee, etc., Co. v. Britton, 3 Kan. App. 292, 45 P. 100, the master was only bound to exercise ordinary care for the safety of the men engaged in the mine so far as could be reasonably expected. He is not an insurer against unforeseen accidents due to the weather or unanticipated slips of slate, coal or stone from the roof or wall of the mine; and according to the case of Brooks v. Coal Co., 96 Kan. 530, where the employee furnished his own place of work or where the place is changing, the master is not bound to furnish a safe place to work; that the above are decisions of the Supreme Court of Kansas, which is the highest judicial tribunal of that State; and the statute above pleaded holds that plaintiff assumed the risk and was guilty of contributory negligence.

Reply was a general denial. Judgment was for plaintiff for $15,000, and defendant appealed.

I. Defendant contends the court was in error in refusing its instruction in the nature of a demurrer at the close of all the evidence for the following reasons:

(a) That it is entitled to the defenses of contributory negligence and assumption of risk, and that plaintiff, as a matter of law, assumed the risk and was guilty of Defenses. contributory negligence.

Plaintiff pleads and the action is founded on sections of the statutes enacted in 1883 (now R.S. Kan. 1923), the pertinent parts of which are as follows:

"49-205. In order to better secure the proper ventilation of every coal mine and promote the health and safety of the persons employed therein, the owner, agent or operator shall employ a competent and practical inside overseer, to be called `mining boss,' who shall . . . see that as the miners advance their excavations all loose coal, slate and rock overhead are carefully secured against falling in upon the traveling-ways.

"49-209. For any injury to person or property occasioned by any violation of this act, or any willful failure to comply with its provisions by any owner, lessee or operator of any coal mine or opening, a right of action against the party at default shall accrue to the party injured for the direct damage sustained thereby; . . ."

Defendant pleads sections of the Workmen's Compensation Act of Kansas, enacted in 1911, as follows:

"44-507. Employers subject to act; mines. It is hereby determined that the necessity for this law and the reason for its enactment, exist only with regard to employers who employ a considerable number of persons. This act, therefore, shall only apply to employers by whom five or more workmen have been employed continuously for more than one month at time of the accident; Provided, however, that employers having less than five workmen may elect to come within the provisions of this act, in which case his employees shall be included herein, as hereinafter provided; And provided further, that this act shall apply to mines without regard to number of workmen employed.

"44-545. When such defenses available. In an action to recover damages for personal injury sustained within this State by an employee (entitled to come within the provisions of this act) while engaged in the line of his duty as such, or for death resulting from personal injury so sustained in which recovery is sought upon the ground of want of due care of the employer or of any officer, agent or servant of the employer, and where such employer at the time of the injury is operating under the provisions of this act and has not filed his election not to accept thereunder, it shall be a defense for such employer in all cases where said employee has elected not to come within the provisions of this act: (a) that the employee either expressly or impliedly assumed the risk of the hazard complained of; (b) that the injury or death was caused in whole or in part by the want of due care of the fellow-servant; (c) that said employee was guilty of contributory negligence; Provided, however, that none of these defenses shall be available where the injury was caused by the willful negligence of such employer, or of any managing officer, or of managing agent of said employer."

Under the Mining Law as construed by the Supreme Court of Kansas the defenses of "assumed risk and contributory negligence are not available as defenses to the charge that the defendant violated the safety provisions of the Mining Law." [Cheek v. Ry. Co., 89 Kan. 247, l.c. 267, and cases cited.] This is admitted by the defendant, but it contends that Section 44-545 of the Compensation Act repeals by implication the Mining Act to the extent of restoring to defendant said defenses. The exact question has not been ruled by the Supreme Court of Kansas. However, it has been ruled by said court that the Factory Act and the Mining Act subserve a common purpose, the same rules of law are applicable to both and that the enactment of the Compensation Act did not repeal the safety statutes of prior enactment. [Shade v. Cement Co., 93 Kan. l.c. 258; Echord v. Rush, 122 Kan. 260; Smith v. Cement Co., 94 Kan. 501.]

It is also admitted that the Compensation Act did not repeal the Factory Act, Mining Act and other safety acts of Kansas, but defendant insists this is no answer to its contention that the Compensation Act did, by implication, repeal the Mining Act to the extent of restoring to a mining defendant said defenses where the employee elected to be without the Compensation Act.

The Mining Act is a health and safety statute. As such it covers a vital field, and unless the intention is clear we must presume the Legislature did not intend to repeal any of its salutary provisions by the enactment of a later statute covering a different field. Repeals by implication are not in favor. [White v. Greenway, 263 S.W. 104.] If Section 44-545 is taken literally, the defenses of contributory negligence, fellow-servant and assumption of risk are available to the mine owner in an action for damages for personal injuries if the employee is without the Compensation Act. But this does not authorize us to so rule unless the provisions of the Mining Act and the Compensation Act are so irreconcilable that both cannot stand without repugnance to each other. Since the enactment of the Mining Act in 1883 these defenses have not been available to the mine owner in such an action. If the defenses are available, the only coercive factor left is Section 49-212, which declares a violation of the act to be a misdemeanor and punishable by a fine or imprisonment in a county jail or both such fine and imprisonment. Therefore, such a ruling would so neutralize the coercive side of the act as to well-nigh destroy its vitality, and would, in effect, be contrary to the decisions of the Supreme Court of Kansas holding that the Compensation Act did not repeal the safety statutes.

As stated, the direct question has not been ruled by the Supreme Court of Kansas. However, in Shade v. Cement Co., 93 Kan. l.c. 260, the court had under consideration the constitutionality of the Compensation Act, and there said:

"It seems unnecessary, now that the validity of such laws has been so generally maintained, to review the many adjudicated cases, and restate in detail the well-settled principles upon which they are based. Briefly, it may be said that the operation of the system of compensation provided by the statute rests upon the free consent of employer and employee, given in the manner provided by the act, Without such consent on his part the employee retains all his remedies under common and statutory law. It is a matter of election."

The defenses are available to a mine owner in all actions not founded on a violation of the Mining Act if the miner is without the Compensation Act. For instance, the defenses are available under such circumstances in an action for injury to a miner by rock falling from the roof of the room in which he is mining.

If a mine owner could be without the Compensation Act and was, in fact, without said act, he would not be denied the defenses in question by the provisions of said act, for those defenses had been denied him for years by the Mining Act in all cases of injury to a miner as a direct result of the owner's violation of said act. So, the owner lost no defenses under the circumstances by being within the Compensation Act. As stated, he does not lose these defenses against a miner without the act if the miner's injury is not the result of the owner's violation of the Mining Act. The availability of these defenses to the owner under such circumstances furnishes ample inducement to the miner to come within the Compensation Act. Indeed, plaintiff had been within the act. Therefore, there was no reason for the lawmakers to provide defenses for the owners they did not have at the time and prior to the enactment of said act. The defenses mentioned in Section 44-545 were only the defenses available to the owner and operator of mines prior to the enactment of the Compensation Act. Thus construed the sections involved are given full force and effect and in no way conflict with the health and safety provisions of the Mining Act.

Appellant directs our attention to the following cases: Gildersleeve v. Newton Steel Co., 142 N.E. (Ohio) 678; Smith v. Cement Co., 94 Kan. 501; Bjork v. Bobbin Shuttle Co., 111 Atl. (N.H.) 284; Karny v. N.M.I. Co., 160 Wis. 316; Balen v. Colfax Cons. Coal Co., 183 Iowa 1198; Swanson v. Georgia Casualty Co., 287 S.W. 455; Metz v. Ry. Co., 90 Kan. 463, 135 P. 578; Brooks v. Coal Co., 96 Kan. 530; Cherokee Co. v. Briton, 3 Kan. App. 292, 145 P. 100.

The Bjork, Karny, Swanson and Metz cases do not rest on a health and safety statute and are no aid in the construction of the sections involved.

In the Gildersleeve case plaintiff was injured while in the employ of defendant. He claimed that under the Norris Act the defenses of contributory negligence and fellow-servant were denied defendant. The court ruled the defenses were available for the reason the Compensation Act of Ohio by implication repealed that part of the Norris Act denying to employers said defenses. The Norris Act is a personal injury statute and not a health and safety statute. In addition, the provisions of the Constitution of Ohio authorizing the Compensation Act saves to the employee his right of action under the health and safety statutes. [Sec. 35, Art. 2, Constitution of Ohio, 1912.]

In the Smith case defendant contended the Compensation Act repealed the Factory Act. In discussing the general effect of the Compensation Act, the court incidentally stated that "where one accepts and the other rejects it [Compensation Act], certain enumerated consequences follow." From this it is argued the Supreme Court of Kansas inferentially ruled that when an employee rejects the act, even though the employer had violated a provision of a safety statute, the defenses of contributory negligence, fellow-servant and assumption of risk are restored to the employer. We do not so understand the decision. As stated, the court was discussing the general effect of the act and not the relation of the act to the health and safety statutes.

In the Balen case, the plaintiff, a coal miner, was injured in a mine. He had elected to be within and the defendant had elected to be without the Compensation Act. The defendant contended the Compensation Act provided an exclusive remedy for the plaintiff. The court ruled otherwise.

In the Brooks case the action did not rest on a violation of the Mining Act because the miner was injured in his mining room, and the defendant was entitled to the defenses of contributory negligence, assumption of risk and fellow-servant.

The Britton case was ruled by an inferior court of Kansas and is not the law of that State. The cases are not in point.

(b) Defendant contends the Mining Act is not a substantive law but a mere rule of evidence, and the proof of plaintiff's cause of action should be governed by the lex fori and not Lex Fori. by the lex loci domicilii, and if so proved the defenses of assumption of risk and contributory negligence are available, and under the evidence the plaintiff, as a matter of law, assumed the risk and was guilty of contributory negligence.

In the case of Hiatt v. Ry. Co., 308 Mo. 77, 271 S.W. 806, we had under consideration an Arkansas statute, as follows: "All railroads which are now or may be hereafter built and operated in whole or in part in this state shall be responsible for all damages to persons and property done or caused by the running of trains in this state." Speaking through GRAVES, J., we ruled this statute to be a substantive law and, in doing so, said: "We rule that the statute as construed by the Arkansas Supreme Court (which construction becomes a part and parcel of the statute so far as Missouri courts are concerned in trying cases under it), gives to plaintiff a substantial and substantive right and is not a procedural law at all." [Mosely v. Fuel Co., 281 S.W. 762.] Defendant admits the Arkansas statute imposed an absolute liability, but insists the Kansas Mining Act in providing "that a right of action against the party in default shall accrue to the party injured" as the result of a violation of said act does not give to plaintiff a substantive right, for the reason it "merely creates a cause of action." In so arguing defendant concedes the Mining Act is a substantive law. All of the authorities hold that "a substantive law is that part of the law which creates, defines and regulates rights as opposed to adjective or remedial law, which prescribes the method of enforcing the rights or obtaining redress for their invasion. [36 C.J. 963; 1 Words and Phrases, 101.] The Mining Act is a substantive law and has been so ruled by the Supreme Court of Kansas. [Little v. Coal Co., 83 Kan. 232; Cheek v. Ry. Co., 89 Kan. 247; Baisdrenghien v. Ry. Co., 91 Kan. 730; LeRoy v. Ry. Co., 91 Kan. 548.]

Attention is directed to the case of Jones v. Ry. Co., 80 Minn. 488. In that case a brakeman sued for injuries suffered in Wisconsin. A statute was there in force providing that for an injury to employees caused by a defect in the rolling stock, etc., of a railroad, if such defect could have been discovered by reasonable care, then on proof of such defect a presumption of knowledge followed. No such rule of evidence is provided in the Mining Act of Kansas, and the case is not in point.

The statute upon which the instant case rests being a substantive law, it is our duty to enforce its provisions in any case predicated thereon. [Wojtylak v. Coal Co., 188 Mo. 260, l.c. 295.] This conclusion makes it unnecessary to give further attention to the authorities cited by defendant to the effect that the proof of a cause of action is always governed by the lex fori and not by the lex loci domicilii.

(c) Defendant contends the petition does not allege facts sufficient to constitute a cause of action, in that it contains no allegation of actual or constructive notice of the defective condition of the roof, contains no allegation of Notice: negligence, and there was no proof of negligence. Negligence.

The contention that plaintiff should have pleaded either actual or constructive notice of the condition of the roof is ruled by the Supreme Court of Kansas in Little v. Coal Co., supra, as follows:

"Where an employee at work in a mine was injured by the falling of a loose rock from the roof of an entry the employer's liability depended, not upon whether it had actual or constructive notice that the rock was loose, but upon whether it had failed to perform its statutory duty to secure loose rock overhead from falling in upon the traveling-ways."

The court further said:

"The demurrer to the petition, the demurrer to the evidence, the instructions requested and refused, the objection to the instructions given and the motion for judgment on the findings are predicated upon the theory that the plaintiff could not recover without alleging and proving that the defendant either had actual notice that the rock in the roof of the entry was loose or that it was in that condition for sufficient length of time to charge the defendant with constructive notice thereof. If this were an action to recover for injuries caused by the omission of a common-law duty of the master the defendant's theory would apply; but the action is based upon a duty which the statute imposes upon the defendant to keep careful watch `to see that as the miners advance their excavations all loose coal, slate and rock overhead are carefully secured against falling in upon the traveling-ways.'

"The defendant, therefore, cannot escape liability for its failure to perform the duty on the ground that it did not know that the rock was likely to fall; nor is it any answer to say that because plaintiff (who was a miner of long experience) testified that he had not noticed that the particular rock which fell upon him was loose before it fell he was guilty of contributory negligence, or that for the same reason the defendant could not have known the condition of the entry. No duty was imposed upon the plaintiff to keep careful watch to see that loose rock did not fall upon him. He had the right to rely upon the performance by the master of the statutory duty to inspect and keep the roofs of the entries propped to prevent stone from falling."

To the same effect: Cheek v. Ry. Co., 89 Kan. 247, where the court had under consideration the final clause of the Mining Act with reference to the maintenance of boreholes when the mining operations are conducted in dangerous proximity to an abandoned mine. The defendant raised the question of notice and the question that by assigning an employee to the duty of complying with the statute it had discharged its obligations.

In the instant case defendant denies liability because it had no notice, actual or constructive, that the rock was loose, and that it performed its duty by assigning an employee to the duty of inspection.

In the Cheek case the court said:

"The defendant was obliged, as a matter of law, to know the boundaries of its mines and the thickness of the wall or coal between them. . . . Whenever the law requires the employer himself to a precautionary measure for the safety of his employees, it is not enough that he make provision for the performance of the act. The precautionary act itself must be performed."

It is further ruled by said court that the inability of the defendant to anticipate the injury constitutes no defense for a breach of statutory duty. [Caspar v. Lewin, 82 Kan. 604; Baisdrenghein v. Ry. Co., 91 Kan. 730.] In the last mentioned case, the court said:

"Any omission of this requirement, which, by diligent compliance therewith would have obviated an injury to a miner, renders the owner or operator liable in damages. The law to this extent entirely shifts the risks of the employment from the laborer to the employer. Care for his own safety may impel a miner to watch for treacherous mine roofs, but he is not legally required to do so, but may rely upon the presumption that the mining boss or overseer has fully performed his duty."

To the same effect: LeRoy v. Ry. Co., 91 Kan. 548; Quapaw Mining Co. v. Cogburn, 190 Pac. (Okla.) 416, l.c. 420.

Thus it appears that plaintiff was not required to plead either actual or constructive notice.

It is alleged in the petition "that all of the injuries sustained by plaintiff were caused directly by and through the carelessness and negligence of the defendant in failing to secure the loose coal, slate and rock overhead in said traveling-way from falling in and upon said traveling-way, and especially the rock which fell on the plaintiff, as aforesaid, as required by said statutes, and in direct violation thereof."

The defendant was charged with negligence, and a failure of defendant to perform its mandatory duty to safely secure rock in the traveling-way from falling was negligence.

Defendant directs our attention to cases cited by plaintiff, as follows: LeRoy v. Ry. Co., 91 Kan. 548; Baisdrenghien v. Ry. Co., 91 Kan. 730; Little v. Coal Co., 83 Kan. 232, 234. In these cases there was evidence either that props had been requested and denied, or that there was no timbering and the roof was bad, or that defendant had notice that the roof needed props. From this it is argued that there should have been proof in the instant case of a failure to perform some such duty. We do not so understand those decisions. The evidence referred to appeared incidentally in the trial of the cases.

(d) Defendant contends the evidence for plaintiff as to the manner of his injury is inconsistent with the physical facts. The evidence tends to show that plaintiff and Burt Contrary to Guisitto, a fellow-miner, were attempting to put a Physical derailed car on the track in the traveling-way of Facts. the mine; that Guisitto succeeded in putting the front wheels on the track, and plaintiff, with a mine prop and in a stooping position at the rear of the car, was attempting to put the hind wheels on the track; that while in this position a rock fell from the roof on the coal in the car which caused it to break and a piece of the rock to fall on plaintiff's back, forcing him to the ground and injuring him; that the car was about twenty-three inches high, and the coal extended twelve inches above the top of the car.

The contention is plaintiff's back was higher than the coal and it was physically impossible for the rock to have struck the coal before it struck plaintiff. Of course, if plaintiff only bent his body this might be true, but if he bent his knees the coal might be higher than his back. The plaintiff and Guisitto testified plaintiff's body was below the level of the coal. On cross-examination the position of plaintiff at the time the rock fell was demonstrated by counsel for defendant to the court and jury. The contention is without merit, for plaintiff could have been injured as narrated. The Kansas City Court of Appeals ruled as follows: "Before a judgment may be reversed upon the assumption that the physical facts do not warrant the same, it must unmistakably appear that it was impossible for the results to have followed the facts and circumstances in evidence." [McHatton v. Kansas City Rys., 246 S.W. 651; Titus v. Delano, 210 S.W. 44; Pelster v. Boiler Co., 268 S.W. 890.] The court ruled correctly in refusing the instruction in the nature of a demurrer, and the contentions are overruled.

II. On the voir dire examination of the panel of eighteen jurors counsel for plaintiff inquired if either was connected with the United States Fidelity Guaranty Company or Thomas McGee Son, agents of that company in Kansas City. Jurors Defendant objected to the inquiries as prejudicial on Connection the ground that said insurance company was not the with defendant, and moved the discharge of the jury. Insurance Thereupon, the court and counsel for plaintiff, out Company. of the hearing of the jury, inquired of counsel for defendant if he represented said company and if it was interested in the case. He answered that he was attorney for the company, but did not answer whether he represented said company in the case, or whether said company was interested in the case.

It is contended no foundation was laid for the questions outside of the presence of the jury, or at any other time. No such assignment of error is found in the motion for new trial, and this was not the objection made to the question. Counsel did not claim the insurance company was not interested in the defense and did not claim that McGee Son were not the agent of the company, and does not so claim at this time. The contention amounts to a claim of error if the members of the panel are so questioned before counsel for plaintiff inquires of counsel for defendant, out of the hearing of the jury, whether or not the insurance company is interested in the defense. If the insurance company is interested, the defendant cannot be prejudiced if plaintiff's counsel never makes such inquiry. We know of no rule requiring a foundation for the examination of members of the panel as to their qualifications to serve as jurors. The foundation is the right of a litigant to know the relation of the members of the panel to the parties and those interested in the result of the case. Counsel for plaintiff is not required to prove that an insurance company, or insurance agency, is interested before inquiring of the members if they are connected with either. He is presumed to be acting in good faith when he makes the inquiries. If it appears from the record that counsel had reasonable cause to believe an insurance company, or an insurance agency, was interested, and that he acted in good faith in making the inquiries, the sound discretion of the court in controlling and directing the examination will be sustained. On the other hand, if it should appear from the record that counsel has abused the privilege, and the inquiries were not for the purpose of being able to intelligently make peremptory challenges, the action of the court in permitting the inquiries would not be sustained. The court should require counsel for plaintiff to inquire of defendant's counsel, out of the hearing of the jury, whether or not the insurance company is interested in the case, and, if so, the name of the company. However, it does not follow that a failure to do so would result in convicting the court of error.

In this case counsel for defendant evaded the questions of the court and of counsel for plaintiff. This considered, we think the trial court could assume the insurance company was interested. If the members of the panels are examined as to their relations to an insurance company, a further inquiry as to their connection with any number of insurance agencies could not prejudice defendant. Defendant did not object to the inquiry as to the relations of the members to McGee Son for the reason said agency did not represent the insurance company, but made the general objection that the inquiry was prejudicial. A juror admitted his acquaintance with McGee Son, that he carried liability insurance with them and that he might be prejudiced if they were interested in the result of the case.

Attention is directed to the case of Chambers v. Kennedy, 274 S.W. 726. In that case similar inquiries were made as to the Continental Casualty Company, or any other insurance company. Defendant objected to the inquiries as prejudicial and moved the discharge of the jury. It does not appear that the Continental Casualty Company, or other insurance company, was interested in the defense, nor that counsel for plaintiff had reasonable cause to so believe. The case may have been ruled correctly on the facts, but it does not sustain defendant's contention on this assignment. The trial court did not abuse its discretion on the voir dire examination of the panel, and the contention is overruled.

III. Defendant charges the plaintiff was permitted to explain his conviction of a crime. On cross-examination he admitted he had twice pleaded guilty to having in his possession Explanation "white mule." Counsel for defendant insisted upon of Crime. characterizing the offense as bootlegging. Plaintiff denied he was guilty of bootlegging, and when he did so the only objection made was: "I object to a long-winded explanation." We discover no long-winded explanation or attempt to explain the conviction of a crime.

Attention is directed to State v. Jones, 249 Mo. 80, 100, and State v. Kimmell, 156 Mo. App. 461, 137 S.W. 329. These cases dealt with facts altogether different and are not in point. The contention is overruled.

IV. Defendant charges the court with error in permitting Dr. Twyman to answer a hypothetical question as to the causal connection between plaintiff's injury, as developed Hypothetical by his testimony, and the development thereafter of Question. a perinephritic abscess. Defendant contends certain material facts were omitted. No such objection was made to the question. The objections made are as follows:

"CAPTAIN HOOK: I object at this time to the question as an improper hypothetical question containing many elements which are absolutely unnecessary, in order to bring the whole matter to the jury in an illegal argument to the jury.

"CAPTAIN HOOK: Now, I renew my objection, saying the recitation of about nine-tenths or the greater part of the question was unnecessary and move that it be stricken out and the jury instructed to disregard it."

It will be noted that at the trial it was objected that too many facts were set out in the question, whereas it is now charged that material facts were omitted. The trial court was not given an opportunity to rule on the objection now made, and we cannot convict it of error. The contention is overruled.

V. Defendant contends the court should have given its Instructions B on assumption of risk, and C Assumption of and 6-a and 8 on contributory negligence. Risk: Contributory Negligence.

It is insisted B should have been given for the reason the court gave no instruction on assumption of risk. We have ruled the defenses of contributory negligence and assumption of risk were not available. Even if the defense of assumption of risk were available, the plaintiff would not assume the risk of defendant violating the Mining Act. If all the defenses were available, we think the instructions are erroneous, but a discussion of this question is unnecessary. In addition, plaintiff was under no duty to inspect the roof in the traveling-way. He could assume that defendant had discharged its statutory duty to secure the rock from falling. There was no evidence tending to show contributory negligence, and the contention is overruled.

VI. Having disposed of defendant's contention that the defenses of contributory negligence and assumption of Assumed by risk should have been submitted to the jury, we Instruction for next consider its contention that these defenses Plaintiff. should not have been submitted to the jury.

It is claimed that plaintiff's Instruction 1 is erroneous for the reason it contains this proviso: "Unless you find that the falling of the rock was one of the assumptions of risk of plaintiff's employment, or that he was guilty of contributory negligence to his own injury (if any)." This instruction predicates recovery upon the theory of the petition, but defendant claims this proviso makes the instruction broader than the case made by the petition. We are unable to follow this reasoning of the defendant. The proviso in no way broadens the case made by the petition. It only submits to the jury the affirmative defenses of defendant's answer. In doing so the plaintiff assumed an unnecessary burden, and the defendant could not have been prejudiced thereby. If the submission of these affirmative defenses in plaintiff's instruction was erroneous, the defendant is in no position to complain, for it invited the court to submit these issues to the jury by tendering instructions, one or more of which were given. The contention is overruled.

VII. Defendant contends plaintiff's counsel was guilty of prejudicial argument. Plaintiff rejoins that defendant's counsel declared war before the trial and waged war during the Argument trial; that his argument was based on facts and to Jury. circumstances in evidence and was in reply to the argument of counsel for defendant.

Plaintiff's counsel directs attention to the record, as follows:

(a) Just before the commencement of the trial defendant filed an amended answer, alleging, for the first time, a charge of fraud in that the Howat strike was impending which would involve the employees of the mine; that plaintiff was aware of the fact that a strike was impending, and that he fraudulently planned this alleged injury on the eve of such strike so that he would draw compensation during the strike. There is no evidence to sustain this charge.

(b) In his opening argument to the jury Captain Hook, counsel for defendant, mentioned the issue of fraud as being intertwined with the other defenses and spoke of the Howat strike that was coming on at the time of plaintiff's alleged injury, describing it as being a contest between Governor Allen and Howat, the leader of the miners. He then stated that plaintiff was a slacker in the service of this country. At this time counsel for plaintiff, out of the hearing of the jury, moved that the jury be discharged for the reason that said statements were highly prejudicial, and plaintiff could not have a fair and impartial trial. The motion was overruled.

(c) Three days before the trial defendant's attorney served notice on plaintiff's counsel to produce all records, documents and papers pertaining to plaintiff's service in the U.S. Army during the war, his discharge and arrest as a slacker following the war, and that in default of such production he would introduce secondary evidence of such arrest and of plaintiff's acceptance of a "blue discharge." There is no evidence that plaintiff was in the army. He testified he registered in 1917; that his number was 240; that after registering he went to Illinois to visit his brother; that while there he worked in a mine, called Tovey, and returned to the Kansas mines in 1918; that before leaving for Illinois he reported to the authorities and gave the address of his sister in Franklin, Kansas, who would know where he could be found should he be drawn for service; that when he returned to Kansas he continued to work in the mines until he was injured; that he was arrested by Sheriff Gould of Crawford County, Kansas, as a slacker in January, 1922, after he made this claim for damages, and was taken to Leavenworth by a deputy sheriff and delivered to the army officers; that the arrest was after the operation for the injury to his kidney, and the wound was open and draining when he arrived at Leavenworth; that the army officer said: "You ought to be ashamed to bring that boy here in this condition." They sent him to a hospital, and on his discharge he was given a "paper" to the sheriff releasing him. During the cross-examination of plaintiff he testified:

"Q. Now, Maurizi, you were a slacker in the World War, weren't you? A. Who said I be a slacker. You say I be a slacker.

"Q. Yes, I said you were. A. I know you said I am a slacker, the company make me arrest, your company make me arrest, you remember that day I came to your office, one year this month, you told me the company make me arrest at time being a slacker.

"Q. When were you up in my office? A. Last year this month, you remember I got the wife and my baby in the office.

"Q. You came up there and wanted to know when your case was coming up? A. No, I asked you, told you, `What do you want to do with the case?' if you wanted to settle the case or not, that is the time you told me that way, I never be a slacker at all."

This should have ended the examination on the subject. It may be counsel for defendant was authorized to make the inquiry; if so, the defendant was concluded by plaintiff's Collateral answer, and the court should not have permitted Matter. further examination into this collateral issue. [Muller v. St. Louis Hospital Assn., 73 Mo. 242; State v. Long, 201 Mo. 664, l.c. 674; State v. Potts, 239 Mo. 403, l.c. 413.]

The examination continued, and the plaintiff was asked the following questions:

"Q. Did you have that hole in your back during the war?" (Referring to the wound from the operation.)

"Q. You were posted in the Pittsburg papers as a slacker?" (Later an issue of said paper of the date of January 26, 1922, was offered in evidence and excluded.)

"Q. Well, the majority of the mining camp went to war?

"Q. You knew we were having war?" (Plaintiff testified he wanted to enlist and defendant's boss advised him to remain in the mines and dig coal for the good of the country.)

Captain Hook then asked:

"Q. So you took his advice and stayed there? A. I asked the boss this.

"Q. You never did get there? A. Get what?

"Q. You never did get into the army, did you?"

(d) Plaintiff testified through an interpreter. When plaintiff was sworn as a witness the court directed the interpreter to ask if he understood the nature of an oath. The plaintiff answered he did. Thereupon, Captain Hook directed the interpreter to ask plaintiff if he is an atheist. Plaintiff answered he was not.

(e) Plaintiff admitted that he pleaded guilty twice to possessing "white mule," but denied that he had ever sold liquor or engaged in bootlegging. Defendant's counsel referred to him as a bootlegger.

(f) In the early part of 1917 plaintiff worked in a coal mine near Springfield, Illinois. Of this defendant's counsel asked the following questions:

"Q. You worked at Herrin? A. Herrin?

"Q. Herrin, Illinois, in that district? A. Well, I don't know the district, but what we called Tovey No. 86 is where I worked."

(g) Defendant, over the objection of plaintiff, asked about his naturalization papers. Plaintiff stated he had a declaration of intention somewhere, received it over a year ago, but did not have it with him. Later, plaintiff sent for the papers and offered them in evidence. Thereupon, counsel for defendant asked plaintiff the following questions:

"Q. Did your lawyer tell you you had better take this out in view of this lawsuit. A. No, sir.

"Q. Had Mr. Pingry told you you had better take that out? A. No, sir."

Counsel demanded the papers, and when produced proceeded to discredit plaintiff's act and charged him with bad faith in his application to become an American citizen.

The court gave an instruction on the rights of plaintiff notwithstanding his foreign birth, but refused an instruction withdrawing the slacker charge.

The above does not cover all the criticisms by plaintiff of the conduct of defendant's counsel. However, it will give an idea of it.

With this setting we will consider defendant's assignments of error relating to the closing argument of plaintiff's counsel.

1. Mr. Madden, counsel for plaintiff, in his opening argument, stated that plaintiff sued for $50,000 damages. Objection was made and overruled. Defendant charges error and Reference to directs attention to Vaughan v. Magee, 218 Fed. Damages l.c. 631. It may be the rule in the Federal courts Claimed. that plaintiff is not permitted to refer to the amount of damages claimed but it is not the rule in this State.

2. The argument of counsel for defendant was not reported — that of counsel for plaintiff was. It appears from the record that the closing argument of plaintiff's counsel up to the time of the first interruption was in answer to Captain Injecting Hook's discussion of American citizenship, and the Rejected charge that plaintiff was a slacker. At this time Evidence. counsel for plaintiff stated that plaintiff came back to the mines in 1918; that the company knew he was there in 1918, 1919, 1920 and 1919, and up until he was injured, and that he was not arrested until he filed a claim against defendant. Thereupon, counsel for defendant displayed the rejected copy of the Pittsburg Daily Headlight, and said: "Just a moment — you would not let this go in." This was prejudicial conduct on the part of defendant's attorney. [Levels v. Railroad, 196 Mo. 606, l.c. 622.]

3. An examination of the closing argument of counsel for plaintiff discloses that his argument referring to American citizenship, slacker and that "God is not down in those camps" was in reply to the argument of counsel for Objection. defendant. In referring to those matters counsel for plaintiff mentioned that counsel for defendant had spoken of American citizenship, slacker and that God was down in those camps (or words to that effect). Counsel for defendant in objecting to this argument did not object for the reason that it was not in reply to his argument, but objected for the reason that the argument was prejudicial.

4. Defendant charges that counsel for plaintiff inferentially argued that defendant caused the arrest of plaintiff for being a slacker after he had made claim for damages. It is Based on insisted there is no evidence to sustain the argument. Evidence. The record discloses substantial evidence to sustain the argument.

In addition, it appears that Sheriff Gould, who arrested plaintiff as a slacker, had been assisting defendant in interviewing witnesses and gathering testimony. Thus, it appears there was ample evidence to sustain this argument.

In this connection it should be said that plaintiff's name might have been listed in the report of the officers and the Pittsburg paper as a slacker; if so, it seems to have been a mistake.

5. Defendant next contends that counsel for plaintiff made an odious comparison between Captain Hook and the plaintiff when he said: "Hook never worked with his knees, he never went Inhuman down on his side and down in the coal mine as this boy Counsel. did," and (addressing Captain Hook) "it would have made you a little human but you are not." Evidently this had reference to Captain Hook's cross-examination of the plaintiff as to his body being above the level of the coal in the car and not below the level of the coal in the car when the rock fell from the roof. It appears that Captain Hook used himself in an effort to demonstrate before the jury that it was physically impossible for plaintiff's back to have been below the level of the coal in the car. Counsel for plaintiff contended that it was not physically impossible if the knees were bent. It was with reference to this demonstration that counsel for plaintiff made the statement above set forth. Counsel should not have referred to Captain Hook as being inhuman. This was improper, but we do not think it was prejudicial to defendant.

6. When counsel for plaintiff was closing his argument counsel for defendant said: "The time is up." Counsel for plaintiff continued the argument, and counsel for defendant Time: again stated: "The time is up. I would thank you Grandmother's to stop as the time is up." Counsel for plaintiff Style. replied: "I thank you for your grandmother's style that you have used throughout the case." Counsel for defendant objected to the remark of counsel for plaintiff and moved that the jury be discharged. The court overruled the motion and objection and stated, "The court governs the time." Counsel for defendant objected to the remarks of the court and moved that the jury be discharged. It must be admitted that the court has the control and direction of the trial, including the argument. If the time for argument allotted to plaintiff had expired, counsel for defendant should have directed his remarks to the court. The reference to counsel's style as "grandmother's style" was improper but we do not think, prejudicial.

The record tends to show that counsel for defendant was extending himself to convince the jury that plaintiff was a foreigner, slacker, striker and fraud. The Collateral learned trial judge heard the argument of counsel Issue: Abuse for defendant, had a view of the whole trial and of Discretion. was in a position to pass judgment on the argument of counsel for plaintiff. He approved the argument of counsel for plaintiff as a reply to the argument of counsel for defendant by overruling the objections of defendant. We cannot say that his rulings were an abuse of discretion. The contentions are overruled.

VIII. Defendant contends the verdict is excessive. There was evidence tending to show that plaintiff at the time of Excessive his injury was twenty-nine years of age and earning an Verdict. average wage of $200 per month.

It will not be necessary to detail the testimony of the physicians, plaintiff's experience in the hospital, or the evidence disclosing plaintiff's condition before and after he underwent the operation.

The evidence tends to show that about twenty days after the injury plaintiff went to the Springs at Claremore, Oklahoma, and remained there nine days. From there he went to Tulsa, Oklahoma, and remained two days, during which time he was examined by physicians and then taken to a hospital at Sands Springs, about eight miles from Tulsa. An operation was performed and disclosed a perinephritic abscess around the kidney. The incision was eighteen inches long, and when the kidney cavity was opened there was a gush of blood clot, pus and corruption, indicating a septic and traumatic infection around the kidney. Pus continued to discharge from the kidney cavity until the following January. After the injury he was up and down in bed at home and the Springs, was in bed at Tulsa, was confined to the hospital four weeks and was up and down in bed at home after returning from the hospital. He was compelled to use a cane and continued to do so for eight months. Thereafter he tried to discontinue the use of the cane, but was forced to resort to it again and was using it at the time of the trial. Shortly after the injury he became affected with septic fever which was relieved by the operation. His right side was injured, including the spine, sacro-iliac joint and right leg, and he suffers and will continue to suffer from limitation of motion throughout the entire right side, hip, limb and back. He suffered severe pain and will continue to so suffer. He has been unable to perform labor since the injury, is permanently disabled, and this condition is the direct result of the injury.

There was evidence for defendant tending to minimize plaintiff's injuries, but the issue was for the jury. In this connection defendant contends the amount of damages recoverable is limited by the petition and the instruction on damages to temporary disability. It is alleged in the petition that plaintiff is permanently incapacitated from performing labor and had been permanently and totally deprived of his earning powers, and the instruction on the measure of damages does not limit the recovery for disabilities. The contention is overruled.

It follows the judgment should be affirmed. It is so ordered.

PER CURIAM:

Divisional opinion modified, and as modified, adopted by Court en Banc. All of the judges concur.