Diehl v. A. P. Green Fire Brick Co.

• Decision Date: 01 June 1923
• Docket Number: No. 22876.,22876.
• Citation: 253 S.W. 984,299 Mo. 641
• Parties: DIEHL v. A. P. GREEN FIRE BRICK CO.
• Court: Missouri Supreme Court

253 S.W. 984

299 Mo. 641

DIEHL v. A. P. GREEN FIRE BRICK CO.

No. 22876.

Supreme Court of Missouri, Division No. 2.

June Term, 1923.

Motion for Rehearing Overruled July 1923.

Appeal from Circuit Court, Caraway County; David H. Harris, Judge.

Action by August Diehl, an infant, by Henry Diehl, his next friend, against the A. P. Green Fire Brick Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

R. D. Rodgers, of Mexico, Mo., and P. H. Cullen, of St. Louis, for appellant.

Baker & Baker, of Fulton for respondent.

DAVID E. BLAIR, P.J.

The action was for damages for personal injuries. Jury trial resulted in a verdict for plaintiff for $10,000, and defendant has appealed from the judgment rendered thereon.

The petition alleged that on and prior to May 28, 1920, the defendant was engaged in the business of sinking a shaft and mining clay at said shaft, and that, in sinking and mining said shaft, defendant used dynamite and caps; that plaintiff and his brother had been In the habit of carrying to said shaft the meals for their father, who worked at said shaft, which custom was well known to defendant, its agents, and servants, and that defendant and its servants knew or could have known that, in bringing such meals to their father, plaintiff and his brother traveled along and across the right of way of the Chicago & Alton Railway Company adjacent to the shaft; that on the aforesaid day, or a day or two previous thereto, defendant or its agents, servants, and employées carelessly and negligently threw dynamite caps, a high and dangerous explosive, along such right of way and at a point upon said right of way where the defendant, its agents, and servants or employées knew or could have known that the plaintiff and his brother were likely to pass and likely to see or be attracted to said dynamite caps; that on said 28th day of May, 1920, plaintiff and his brother took their father's breakfast to him at the shaft of defendant and, in returning home by their usual and customary route across the right of way of said railroad, were attracted by and picked up said dynamite caps, and that plaintiff and his brother carried said dynamite caps home and thereafter, while playing with the same, one of the dynamite caps exploded, and plaintiff was seriously injured thereby. Said petition then set out in detail the injuries alleged to have been received by plaintiff, which said Injuries he alleges to have been very serious and of a permanent character, and prayed judgment in the sum of $30,000.

The answer of defendant denied that it was engaged in sinking a shaft as alleged in the petition, or that it used dynamite or caps thereat through its agents, servants, or employées. Such answer further alleged, in substance, " that the clay mining operations at said shaft were being carried on by one James W. Reid, under a lease taken in the name of the defendant; that said Reid was an independent contractor, responsible only for results, and over whom the defendant had no power of direction or control. Said answer set out the contract for the payment to be made by the defendant to said Reid. The answer further alleges that the injuries which plaintiff sustained were caused by his own negligence and the negligence of his father and mother; that plaintiff took a percussion cap voluntarily, and roughly handled the same, and applied fire and heat thereto in the presence of his father and mother, and with their knowledge and consent, and that plaintiff's mother had said cap in her possession and examined and tested the same, probing into it, and, after ascertaining its condition and contents, delivered the cap to the plaintiff, and that the act of plaintiff's mother in delivering said cap to plaintiff thereafter constituted an independent, direct, and proximate cause of whatever injury plaintiff received by reason of said cap exploding. The reply was a general denial.

At the time of his injury, May 28, 1020, plaintiff was 7 years old, and prosecuted the action by his father as next friend. The undisputed facts are that one W. Reed (or Reid) and two shifts of men working under his direction, were engaged in sinking and enlarging an old mine shaft near Fulton, Mo., for the purpose of mining fire clay therefrom, to be used by defendant in its manufacturing business at its plant at Mexico, Mo. Plaintiff's father, Henry Diehl, was employed on the morning shift at said shaft. The family consisted of Henry Diehl and his wife and at least two sons, August, the plaintiff, and Freddie, 20 or 21 years of age. The Diehl family lived near the mine. Henry Diehl went to work very early in the morning and for at least two or three mornings before the date of the injury the plaintiff and Freddie took his breakfast to him at about 7 o'clock a. m. In some manner and somewhere the boys came into possession of four unexploded caps used to set off the charges of dynamite. Dynamite, fuse, and caps were used in the shaft where Henry Diehl worked, and a supply of the same was kept in the office or shed at the shaft. Two or three days prior to plaintiff's injury one of the men employed on the afternoon shift had removed four dynemite caps and fuses to which they were crimped, and one Ernest Custard had twisted the fuses together and had thrown them, together with the caps attached to them, to a point across the tracks of the Chicago & Alton Railroad into some grass and weeds. The Diehl home was west of the railroad tracks, and the clay mining shaft on the east side. In bringing their father's breakfast the boys passed within at least 50 feet of the spot where the dynamite caps had been thrown.

After securing possession of the dynamite caps above mentioned (they testified fuses were attached to the caps when they found them, and that they threw away the fuses), the boys took them home and showed them to their mother. She probed into one of them with a stick and handed it back to Freddie, the older brother. He afterwards gave one of the caps to August, and he picked up a small stick from the fire where his mother had been doing her washing and inserted such stick into the cap. The stick had fire on that end and this doubtless caused the cap to explode. Plaintiff's left hand was so injured that amputation of all or a part of two fingers and the thumb resulted. His right eye was completely destroyed, so that the eyeball was afterwards removed, and his left eye was injured to such an extent that he was slowly losing his vision in that eye at the time of the trial. The seriousness of the injury is not controverted, and no contention is made that the verdict is excessive.

In addition to the undisputed facts, the evidence of plaintiff tends to show that Freddie Diehl found the four dynamite caps and fuses at the point on the railroad right of way where Ernest Custard threw away four caps and attached fuses; that at least the plaintiff did not know what they were. Henry Diehl was asked if he had not stated that the boys secured the dynamite caps at an old coal mine dump, and upon his denial of this statement witnesses were produced to show that he had made such statement.

It also appears that a few days after the accident, and after it became noised about that suit was to be filed against defendant to recover damages for the injury received by the Diehl boy, seven or eight men employed at the fire clay shaft engaged in a search of the railroad right of way where Ernest Custard had thrown the fuses and unexploded caps and, after some effort, one of the men (not Custard) found four unexploded caps attached to fuses twisted together. Custard's testimony tended to show that they were the identical caps and fuses he had thrown away. These caps and fuses were produced at the trial. So far as the evidence discloses, caps were thrown away but once, although it was not an infrequent occurrence that caps failed to explode because the fuse became wet and extinguished the fire before it reached the caps. The caps used were waterproof, but the fuse was not.

The sharpest issue of fact centered around the question of the relationship to the defendant of Reed and the men under him. Defendant contended that Reed was an independent contractor, responsible only for results, and over whom it exercised no control or direction. Defendant's evidence tended to show that in April, 1920, it entered into an oral contract with Reed, by the terms of which Reed was to sink the shaft, mine fire clay therefrom, and place the same upon railroad cars at Fulton to be shipped to defendant at Mexico; that Reed was to bear the expense of sinking the shaft and mining such fire clay, and that defendant was to pay Reed for such fire clay on board cars at Fulton, the actual cost of mining such clay and placing it on such cars, plus ten cents per ton, the price not to exceed $1.25 per ton. This contract was verbal, in so far as the arrangements between defendant and Reed were concerned. The only writing offered by defendant on the point was the minutes of the meeting of its board of directors authorizing its president to enter into contract whereby the defendant "would advance the money to Reed to open up and develop his mine, and pay him a price that would allow him a profit out of which the money advanced could be returned to this company."

Defendant's evidence further tended to show that Green, Arthur, and Pierson, president, general manager, and engineer, respectively, of defendant paid not to exceed one or two visits each to the fire clay mine. They denied asserting any direction or control over Reed's operations. Several of the miners employed at the shaft testified that neither of the above officials of defendant ever, to their knowledge, undertook to give any directions or exercise any control at the mine. Green and Arthur testified that defendant was a buyer of fire clay and carried on no mining operations of its own, except at Mexico, where its manufacturing plant...