Clark v. Granby Mining & Smelting Co.

• Citation: 183 S.W. 1099
• Decision Date: 11 March 1916
• Docket Number: No. 1587.,1587.
• Court: Missouri Court of Appeals
• Parties: CLARK v. GRANBY MINING & SMELTING CO.

183 S.W. 1099

CLARK v. GRANBY MINING & SMELTING CO.

No. 1587.

Springfield Court of Appeals. Missouri.

March 11, 1916.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by Eugenia Clark against the Granby Mining & Smelting Company. From judgment for plaintiff, defendant appeals. Reversed.

Eliot, Chaplin, Blayney & Bedal, of St. Louis, and George Hubbert, of Neosho, for appellant. Walden & Andrews, of Joplin, and Chas. Stephens, of Columbus, Kan. (Horace Ruark, of Neosho, of counsel), for respondent.

ROBERTSON, P. J.

A jury trial resulted in a verdict in favor of plaintiff for $6,000, upon which judgment was entered, and from which defendant has appealed. The action is for wrongful death. Plaintiff's husband was working about a boiler owned by the defendant when it exploded and killed him. The land upon which it was being used was owned by defendant and had been opened up for mining purposes, and the defendant had promulgated rules and regulations providing that persons desiring to operate thereon should do so only after the consent of the defendant was obtained and the rules and regulations were signed. Long before the accident occurred, one J. D. Davis had signed the rules and regulations, and thereby, according to said rules, became a licensee of defendant for the purpose of searching for and mining ores upon said lots. In the course of his operations, he had, without objection on the part of the defendant, associated with him in said operations other persons, including the plaintiff's husband. While they were working upon these lots, they discovered elsewhere upon defendant's land a skid boiler and inquired of a representative of defendant if it could be borrowed. The boiler was 25 or 30 years old, and had been used at various places on defendant's land by prospectors and miners, and it seems that no one connected with the defendant knew anything about the boiler at that time, and the representative of whom inquiry was first made stated that he would ascertain from others in higher authority about this matter. Later it was decided that the defendant would loan the boiler to the plaintiff's husband and his associates. They procured the boiler, and, after they had operated it a short time, a leak was discovered in the fire box, and employés of the defendant undertook to repair it. In making the repairs they took out four bolts and replaced three with washers thereon and one where a stay-bolt was taken out they reamed the hole, placed a large bolt therein, and riveted it. In about four weeks after these repairs were made, the explosion occurred. The plaintiff's husband was alone at the boiler when it exploded, but witnesses testified that shortly prior to the explosion there was no unusual pressure of steam, and one witness testified that he examined the boiler after the explosion and discovered that a rupture had occurred around this riveted bolt. No charge was made by the defendant for this repair. This is a sufficient reference to the facts for a general outline of the case, and later we will necessarily discuss some of them more in detail.

At the close of the testimony, the defendant requested, and was refused, an instruction directing the jury to return a verdict for it.

At the request of the plaintiff, the jury was instructed, in substance, that if defendant's employés, in making the repairs, "did not use such care as an ordinarily skillful and prudent man would have used under the same or similar circumstances," and as a result of such want of care the explosion occurred and resulted in the death of plaintiff's husband, then the verdict should be for plaintiff.

There was clearly no testimony upon which to base any charge of negligence as to the placing of the bolts with the patches or washers; the contest, as the instruction was evidently intended to cover, was over the result of putting in the riveted bolt without a washer or patch.

The contention of appellant is that its demurrer to the evidence should have been sustained, because there is a failure of proof on any theory, and because, at most, the defendant owed plaintiff's husband only the duty of slight care, was liable only in the event of gross negligence; also, that the duty did not devolve upon the defendant to furnish a safe boiler, but only to disclose defects of which it actually knew, and that the defendant undertook to stop the boiler from leaking around the bolts, which it did.

To meet the contention upon the part of the appellant, the plaintiff asserts that:

"Where an act of negligence is eminently dangerous to the lives of others, the guilty party is liable to the one injured by the negligence, whether there be a contract between them, violated by the negligence or not."

Also, it is contended under the evidence that it is clear that what was to be done by the respective parties under the contract was for their mutual profit, and then further assertions are made, equally as far from the facts and the theory on which plaintiff submitted the case, concerning the supervisory control of the boiler by the defendant.

It will thus be seen that, if there were sufficient testimony to make any sort of a case, there might be involved in this case the difficult application of a rule that will not penalize an accommodating lender of property nor relieve one from liability who has been reckless in his conduct towards others, and, as there are many cases cited in the briefs, we refer to a few.

In 3 R. C. L. 138, the following discussion of the question applicable to the original lending may be found:

"61. Liability for Defects in Property Bailed. — The extent of a bailor's liability for injuries resulting to a bailee from the presence of defects in the article bailed depends primarily on the class to which the particular bailment concerned belongs. Where a bailment is purely gratuitous and has been created for the exclusive benefit of the bailee, as where articles are loaned to another simply for his own use without any reward or compensation being received from him by the lender, the latter's only duty in respect to defects is to inform the former of any of which he is aware, and which might make the use of the loan perilous to him or to his servants. The ground of this obligation is that when a person lends he ought to confer a benefit, and not do a mischief. But the obligation of a mere lender goes no further than this, and he cannot, therefore, be made liable for not communicating anything which he did not in fact know, whether he ought to have known it or not. Where, however, the bailment is for the mutual benefit of both bailor and bailee, the former's obligation is correspondingly enlarged; and it is therefore his duty to deliver the thing hired in a proper condition to be used as contemplated by the parties. For a failure to do so, he is justly held liable for the damage directly resulting to the bailee from its unsafe condition. This distinction is fundamental and seems to be generally recognized."

Cited in support of the above quotation is the case of Gagnon v. Dana, 69 N. H. 264, 39 Atl. 982, 41 L. R. A. 389, 76 Am. St. Rep. 170, and the note to Robideaux v. Hebert, 12 L. R. A. (N. S.) 632.

In the case of Young v. Waters-Pierce Oil Co., 185 Mo....