Bollinger v. Major Sheet Metal Co.

DIXON, Judge,

dissenting.

Because Section 292.090, RSMo 1978, is a remedial statute intended to provide a safe workplace and should be liberally construed to effect its purpose, I, therefore, dissent from the majority opinion.

Section 292.090 was enacted in 1891. Laws of Mo.1891, p. 159. The title to the act was “AN ACT relating to manufacturing, mechanical, mercantile and other establishments and places, and the employment, safety, health and work hours of employes.” The title to the act, which may be considered in determining the legislative purpose intended, Bullington v. State, 459 S.W.2d 334 (Mo.1970), as well as the context of the act, shows that the legislative purpose was to provide various safeguards in the workplace for employees and workers. The statute is in derogation of the common law. Section 1.010, RSMo 1978, directs the interpretation of such a statute in the following language:

[N]o act of the general assembly or law of this state shall be held to be invalid, or limited in its scope or effect by the courts of this state, for the reason that it is in derogation of, or in conflict with, the common law, or with such statutes or acts of parliament; but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof. (R.S. 1939, § 645, as amended L.1957 p. 587 § 1).

Prior to the adoption of the quoted language of § 1.010 by the Laws of 1917 p. 324, the courts had universally followed a rule of strict construction of statutes in derogation of the common law. The statute nullified these decisions as the Supreme Court noted in Women’s Christian Association of Kansas City v. Brown, 354 Mo. 700, 707, 190 S.W.2d 900, 904 (1945). There may be statements in the case law aberrant to the statutory rule, but they can have no effect in the face of the statutory language.

Thus the primary canon or rule of construction is to read the language of the statute liberally to effectuate the purpose of the law. The legislature is also presumed to have acted with full knowledge of the relevant facts and existing conditions in the enactment of legislation. Wilson v. McNeal, 575 S.W.2d 802, 810 (Mo.App.1978).

The two canons above stated are sometimes merged in a single statement, to-wit: Statutes should be construed in light of the goal sought and the conditions the statute sought to remedy. State ex rel. Missouri Power & Light Co. v. Riley, 546 S.W.2d 792, 796 (Mo.App.1977).

Other ancillary rules of construction have application in the instant case. The connective “or” has been defined in our case law.

[T]he word “or” is disjunctive in its nature and in its ordinary sense marks an alternative which generally corresponds to the word “either”, Council Plaza Redevelopment Corp. v. Duffey [439 S.W.2d 526 (Mo.1969)], supra; Jenkins v. Meyer, 380 S.W.2d 315 (Mo.1964); Horton v. Estate of Elmore, 420 S.W.2d 48 (Mo.App.1967); Sheets v. Thomann, 336 S.W.2d 701 (Mo.App.1960), ....

Hawkins v. Hawkins, 511 S.W.2d 811, 812 (Mo.1974).

The authorities also support the interchangeability of “or” with the connective “and” when the sense of the statute requires it. Hawkins, supra.

Moreovlr, it is a general rule of statutory construction that

‘meaning be given to each word used in a legislative enactment, insofar as possible, and one word of a statute should not be considered a needless repetition of another.’ State ex rel. Thompson-Stearns-Roger v. Schaffner, 489 S.W.2d 207 (Mo.1973). See also Stewart v. Johnson, 398 S.W.2d 850 (Mo.1966).

lora v. Director of Revenue, 618 S.W.2d 630, 633 (Mo.1981).

It is beyond cavil that the purpose of the statute was to provide safety for workmen in the erection, repair, and demolition of buildings. It is also common knowledge that workmen engaged in that labor use scaffolds in the sense of temporary or moveable platforms external to the work and also the building or structure in various states of completion. Workmen use the skeleton of the building as it is erected to support themselves and the materials and machinery to forward the work. In many instances scaffolds are impractical or impossible to utilize for such support. The commonplace scene of workmen clambering over the work in progress is so frequently encountered in everyday life that it must be considered to be within the presumed knowledge of the legislature. In physical fact some types of alteration and repair and, certainly, repairs and alterations to roofs may not be accomplished without utilization of the roof and its supporting structure to undertake the repairs.

When the words “scaffold or structure” are read in the light of the purpose of the statute and the facts and circumstances prevalent in the workplace, the legislature must have intended to include the structure being repaired, erected, or demolished within the meaning of structure. To say otherwise is to say that the legislature, with knowledge of potential harm to workmen, intended to exclude the building being worked on from the meaning of “structure,” which would defeat in large measure the legislative purpose to provide safety for workmen.

The majority asserts that structure does not mean “building,” but fails to explain what was meant by the word, “structure,” used alternatively to “scaffold.” The majority thus fails to give meaning to each word of the statute and fails to effectuate the purpose of the statute by excluding from the statute’s operation practices of workmen in utilizing the structure itself for erection, repair, and demolition. These practices and customs are presumed to be part of the conditions that the legislature was aware of and sought to make safe for the workmen. The attempted distinction of Carpenter v. Burmeister, 217 Mo.App. 104, 273 S.W. 418 (1925), by utilizing the term “scaffold” is without substance. The “structure” the workmen were using in Carpenter was composed of two elements, the boards and the structure they rested upon—the walls of the incomplete building. The boards themselves could not constitute a “scaffold,” for they could not float in the air. If the walls had collapsed and the workmen been injured thereby, without any failure of the boards, the result should be the same.

In the instant ease, the workmen were directed to cut the hole in the roof, which could only be accomplished by utilizing the roof as a support for the men while working. The “structure” utilized—the building—was not sufficiently braced, and the roof collapsed, causing the death of claimant’s decedent. Section 292.090 was violated, and the award was properly enhanced by the penalty provided by the Workers Compensation Act. The judgment of the circuit court affirming the Industrial Commission should be affirmed.