Glover v. American Hominy Flakes Co.

Ellison, J. This action is for personal injuries. It resulted in a judgment for plaintiff and was appealed to the supreme court where the judgment was reversed and the cause remanded. It will be found reported in 133 Mo. 292, to which report we refer for a statement and history of the case. It was retried in the circuit court and again resulted in a judgment for plaintiff. AtfcetLstconfap°-‘ court and'court of appeals. There is not much in this record which has not been determined by the supreme court on the first appeal. We can not re-examine matters determined on the first appeal by the supreme court. While this court could, . _ when occasion made it proper, re-examine matters on a second appeal of the same case which had been determined on the first appeal to this court, we could not do so in a case where the first appeal had been determined by the supreme court; unless since such decision there had been a different ruling by that court. Píí?nfIamenpde-tI' meat: depart-But there was an amended petition filed by plaintiff after the case was remanded by the supreme court and defendant insists that it introduced a new and different cause of action. The orjginai petition charged that the machinery was operated by defendants both as a hot water and steam heater and drier, while it was constructed for and intended to be operated as a steam heater and drier only. The amendment consisted in charging that the change from a steam heater and drier to both a steam heater and drier and a hot water heater and drier was a deceptive change. There was no change of the cause of action. The original petition was based upon the idea that the machine was a steam [106] heater and drier and that plaintiff relying upon that fact, and not knowing of the fact that it was being operated as a hot water heater and drier was scalded in an attempt to mend a portion of the machinery. The amendment merely characterized the change from one mode of operation to another as a deceptive change. We rule the point against defendant. modifications' The complaint as to the instructions given and refused is not well founded. Taken as a series they embody the law of master and servant as applicable to this case and we have no desire here to go over the ground again which has been so often and so fully covered. Especially do we deem it unnecessary in a ease which has been fully discussed by the supreme court. The chief complaint concerning the instructions is not that the court refused defendant’s statement of the general law of master and servant as applicable to a case of this nature. On the contrary the court gave such declarations. The complaint is that the court added to them the qualifying clause: “unless you further find from the evidence that said machinery had been deceptively changed as stated in the other instructions given you.” This clause was, in substance, added to the principal instructions for the defense in such way as to inform the jury that if the change in the machinery had been made in such way as to deceive plaintiff then he could recover if on account of such change he was led into, the dangerous work. The clause was introduced by the court evidently for the purpose of conforming to the views of the supreme court. Definitions: deceptively: instiuction. We can discover no valid reason why it was improper to use the words “deceptively” or “deceptive” in the instructions, without defining them. T, . . , . it it is necessary to define to a lury the J „ 0 J meaning of such common and well under [107] stood words, then the words used in the definition would, for equally as good reason, need to be defined and so on acl infinitum. An examination of the whole record shows that no substantial error was committed and that the judgment was for the right party. It will therefore be affirmed. All concur.