National Enameling & Stamping Co. v. Zirkovics

HOOK, Circuit Judge

(dissenting). The controlling question in this case is whether a pot or kettle jacketed in brick and holding molten metal is within section 7828, Rev. Stat. Mo. 1909, which requires the guarding of “belting, shafting, machines, machinery, gearing, and drums” in factories. More narrowly it is whether the pot is a “machine” or “machinery,” as those terms are employed in the Missouri statute.

The apparatus was used for galvanizing sheet iron. Slabs of zinc were reduced to a molten state in the pot by a fire beneath. The supply of the molten mass was maintained by adding slabs as required. Moisture on or in a slab, when put in, would cause an eruption or explosion of the liquid metal, and plaintiff, who was doing that work, was injured on such an occasion. Formerly the galvanizing was done by immersing the sheets of iron by hand; but at the time of the accident detachable rollers and chains operated by power were fastened to the pot to conduct the operation.

My Associates decline to consider whether the pot of molten metal by itself would be within the statute, but they hold'that it became so because of the mechanical attachment. In other words, they are of the opinion that “the melting pot was a part of the machinery used for the purpose of galvanizing sheet iron”; and this, though two things are clear in the record: First, it was not shown and did not appear that the attached machinery was in operation at the time of the accident; and, second, no one contends that the attached machinery had the remotest bearing on the accident. It would have happened just the same, had the rollers and chains been lifted out and put. aside. This casual, irrelevant circumstance is held to impart a definite character to the pot that must otherwise, at least, be doubtful. Equally would the attachment of a power wringer to a washtub filled with suds malee the tub of suds machinery within the Missouri statute, though the wringer was idle. The wide scope of this conclusion of my Associates is shown by some of the decisions cited to support it. Commonwealth v. Lowell Gaslight Co., 12 Allen (94 Mass.) 75; Wreggitt v. Barnett, 99 Mich. 477, 58 N. W. 467; East Tenn., etc., R. Co. v. Thompson, 94 Ala. 636, 10 South. 280. In the Massachusetts case it was held that mains, service pipes, and meters of a gas company were machinery, within the meaning of a tax law requiring the deduction of the value of “real estate and machinery.” The Michigan case was an action for damages for the removal of a shingle mill outfit “consisting of engine, boiler, belts, saws, pulleys and other machinery.” The plaintiff averred “that defendant removed said machinery.” The court said: “We think it would be overtechnical to say that a smokestack was not included.” In the Alabama case it was held that the supply pipe of a water tank was “a part of the ways, works, machinery, or plant connected with or used in the business of a railroad company,” within the meaning of a civil damag'e statute.

Statutes of the kind before us should be ungrudgingly construed with liberality to accomplish their beneficent objects, but there are limits beyond which courts cannot go without indulging in legislation. No one could reasonably contend that a gas meter, a smokestack, or a water supply pipe was machinery within the Missouri statute, however they might be regarded in other relations or for other purposes. If it were otherwise, strange questions would arise over guarding them with protective devices. In Simpson v. Witte Iron Works, 249 Mo. 376, 155 S. W. 810, the plaintiff fell over a belt placed near the floor, while it was not running; but it was held that the case was not within the statute, although “belting” is one of the terms used. The court said that the statute contemplates the safeguarding of agencies of power and motion, and only when such agencies are in action. The construction is a reasonable one, and is of course binding upon us. A word or term may mean one thing in one place and quite a different thing in another place; and when it appears in legislation due attention should be given to the purpose of the statute, as well as to the context in which it is found. Holy Trinity Church v. United States, 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226. The inquiry here is not whether the pot of metal was in a broad, comprehensive sense a part of the machinery of defendant’s manufacturing plant, but whether in a much narrower sense it was, when considered by itself, machinery within the particular statute. The injury was caused by the melted zinc in the pot, not by the mechanical attachment. The latter had nothing to do with it.

I cannot escape the conviction that a construction has been given the local law at variance with that settled by the highest judicial tribunal of the state.