Fletcher v. Kemp

Citation327 S.W.2d 178
Decision Date13 July 1959
Docket NumberNo. 1,No. 47174,47174,1
PartiesRobert FLETCHER, Plaintiff-Respondent, v. Howard KEMP, Defendant-Appellant
CourtUnited States State Supreme Court of Missouri

George F. Heege, Clayton, for appellant, John H. Martin, St. Louis, of counsel.

Cleo V. Barnhart and Barnhart & Sommers, St. Louis, for respondent.

HOUSER, Commissioner.

This is an action for damages for personal injuries, brought by Robert Fletcher against Howard Kemp. Trial by jury in the Circuit Court of St. Louis County resulted in a verdict for plaintiff for $15,000. From the ensuing judgment defendant perfected this appeal.

Plaintiff, an automobile mechanic, was seriously injured when a 55-gallon metal drum exploded in the automobile repair shop where plaintiff was employed. The shop and filling station in connection therewith were owned and formerly operated by defendant. Plaintiff had worked previously for defendant while defendant was operating the repair shop. At the time of the accident the premises were leased to Robert Martin, and plaintiff was working for and in the employ of Martin, who paid plaintiff's salary.

Defendant had several 55-gallon empty metal drums left over from the time he had operated the business. The drums had been stored in the back of the filling station for some time. Some of the drums had contained Zerone, an inflammable, explosive antifreeze mixture, and the others had contained various types of oil. Desiring to make a floating dock defendant brought four of these drums, including a Zerone drum, into the repair shop. Without asking Martin's permission to use the shop and tools (owned by defendant but leased to Martin) and without asking Fletcher's permission to use Fletcher's personally owned welding equipment, defendant 'helped himself,' 'made himself at home,' and started welding the bottom ends of two of the drums to each other. Defendant knew that one of the drums he had assembled had been a container for Zerone. The ends of Zerone drums were painted blue. The centers were painted yellow. They were stamped 'Zerone' on the middles and tops. The word 'inflammable' was stamped on the very top. Defendant was familiar with Zerone. He had been 'around Zerone' for twenty years. He knew it was inflammable and that it should not be used near a flame. The drums had not been washed out by defendant. Defendant knew that any drum with a cap or bung in it would explode if a welding torch was applied to it. Defendant assumed, and testified that 'to his knowledge' the caps or bungs were out of the drums when he brought them into the shop, but defendant had not made any tests to determine whether the drums contained any residue of Zerone or other explosive or inflammable substance before he undertook to weld. On the morning of the accident plaintiff and his employer, Martin, were busy doing other work, but Martin from time to time assisted defendant 'in some respects'; 'helped him a little.' That morning defendant had been sitting on the top of the drum that later exploded, a Zerone drum, straddling it while doing the welding. Plaintiff had observed defendant doing this. When plaintiff returned from lunch plaintiff's employer, Martin, told plaintiff to 'finish the job'; to weld two angle irons onto the end of the drum. Plaintiff asked defendant if there was anything he could do for him and defendant said, 'You're a better welder than I am, weld on this angle iron.' Defendant told plaintiff where to put the piece of angle iron. Plaintiff said that he would, and undertook to do so. Using his welding torch, plaintiff 'got a good heat up on' the end of the drum where he was going to weld the angle iron. There was an explosion, a terrific impact, which blew out the end of the drum on which plaintiff was welding, sending it more than a hundred feet through the air, taking half the hand torch plaintiff was using, and inflicting the injuries in question.

Plaintiff had been a welder and mechanic for many years. He knew a Zerone drum when he saw one; knew that the 'Inflammable' sign is on all Zerone drums; knew that Zerone is explosive; knew that in welding a Zerone drum it would explode if it got heat into it and it was 'closed up.' If the drum in question was brightly painted plaintiff did not take any particular notice. It did not occur to plaintiff to look, and he did not look, at the end of the drum in question to see whether the cap or bung had been taken out. It did not 'register' with plaintiff whether the drum in question was a Zerone drum and plaintiff did not ask either Martin or defendant if the drum had been 'washed out.' All he knew was that it was a 55-gallon drum and that he had a welding job to do.

Defendant contends that the court erred in not sustaining defendant's motion for a directed verdict.

First, defendant contends that even under the most favorable construction of the testimony plaintiff was a volunteer or gratuitous licensee, to whom defendant owed only the duty not to wilfully or wantonly injure him; that neither the relationship of master and servant nor that of invitor and invitee existed as between plaintiff and defendant, so that defendant did not owe plaintiff the duty to exercise ordinary care. Defendant refers to the rule stated in 56 C.J.S. Master and Servant Sec. 177, that 'A person who voluntarily assumes to act as the servant of another cannot recover for personal injuries as a servant.' There is a similar rule, not alone applicable in master and servant cases, that one engaged in work owes to another who assists him as a mere volunteer, without invitation and without a contractual relationship, no duty of ordinary care, and is not liable for injury received by such a volunteer, in the absence of wilful or wanton injury. 65 C.J.S. Negligence Sec. 62. Considered in the light most favorable to plaintiff, the instant facts do not bring the case within the purview of either of these rules. Quite to the contrary, plaintiff was not a volunteer in any sense of the term. Plaintiff was lawfully present at his regular place of employment, where he had a right to be. The welding was an operation within the scope of the duties of his employment. He did the work in what reasonably may have appeared to him to be in furtherance of the interests of his employer. He was invited by defendant, as well as directed by his employer, to assist defendant in the performance of the work. His undertaking the welding was not voluntary. It was not done of his own free will, unimpelled by another's influence, or without legal obligation. It was not the act of an intermeddling bystander. It was done by virtue of an order, in compliance with plaintiff's duty to obey the commands of his employer, and at the invitation of defendant, the beneficiary of the services to be rendered. Defendant directed him as to the particular welding to be done, i. e., the spot on the drum where the angle irons were to go. Accordingly, the case falls within the rule that a duty to exercise ordinary care is imposed upon one who invites another to assist in an operation. Saliba v. Saliba, 178 Ark. 250, 11 S.W.2d 774; 65 C.J.S. Negligence Sec. 62. Other bases for the imposition upon defendant of the duty to exercise ordinary care will be developed in the course of this opinion. Oatman v. St. Louis Southwestern R. Co., 304 Mo. 38, 263 S.W. 139, cited by defendant, is not in point because there was no employment or request of plaintiff by any authorized agent or servant of the railroad company that plaintiff render the gratuitous assistance in the course of which he was injured. Defendant cites Wolfson v. Chelist, Mo.App., 278 S.W.2d 39, affirmed Mo.Sup., 284 S.W.2d 447, but we see no relation between that situation and this.

Second, defendant contends that plaintiff's evidence affirmatively shows that plaintiff assumed all risk incident to the welding operation. The doctrine of assumption of risk, a conventional defense in master and servant cases, is not invariably limited to that field of the law, and may extend to other cases in which the defense is based upon the maxim volenti non fit injuria. Arnold v. May Department Stores Co., 337 Mo. 727, 85 S.W.2d 748; Dietz v. Magill, Mo.App., 104 S.W.2d 707. The rationale of the doctrine is that one who voluntarily exposes himself to a known and appreciated danger due to the negligence of another may not recover for an injury resulting from such exposure, even though the injured person may have been in the exercise of due care for his own safety at the time. Dietz v. Magill, supra; 65 C.J.S. Negligence Sec. 174, pp. 849, 850. In order to invoke the doctrine of assumed risk, or 'incurred risk' as it is sometimes called, Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345, it is necessary that the exposure to risk shall have been voluntary. It has no application where the exposure results from facts, circumstances and surroundings which constitute a real inducement to expose one's self to the danger, as where the injured person surrenders his better judgment as a result of an assurance of safety. 65 C.J.S. Negligence Sec. 174, p. 851. In the instant case the circumstances were such that reasonable minds might differ as to the voluntariness of plaintiff's exposure to risk. Earlier in the day plaintiff had seen defendant apply the same welding torch to the same drum, in an extensive welding operation, and had observed defendant sitting astraddle of the drum in the course of that work. There was no explosion after that application of heat. Plaintiff might reasonably have concluded from these circumstances that the drum had previously been cleansed of dangerous and inflammable residues; that by actual test the danger of combustion was nil and that it would be safe to do more of the same kind of work on the drum, without making an inspection. Since all reasonable minds would not come to a single...

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  • Hawkins v. Ryder Truck Rental, Inc., Docket No. 199136
    • United States
    • Court of Appeal of Michigan — District of US
    • March 6, 1998
    ...In Pace, the Court held that the injured person was not a volunteer because he had an interest in the work. See also Fletcher v. Kemp, 327 S.W.2d 178, 182 (Mo., 1959); Rountree, supra at 794, 204 S.E.2d 512. By contrast, the master (Urbane) in the instant case allegedly invited the voluntee......
  • Day v. Mayberry
    • United States
    • Missouri Court of Appeals
    • September 13, 1967
    ...thereof are essential elements of assumption of risk. Terry v. Boss Hotels, Inc.,supra, 376 S.W.2d at 248(18); Fletcher v. Kemp, Mo., 327 S.W.2d 178, 183(6), 186(15); Bullock v. Benjamin Moore & Co., supra, 392 S.W.2d at 13(1); Hathaway v. Evans, Mo.App., 235 S.W.2d 407, 411(6); 65 A C.J.S.......
  • Terry v. Boss Hotels, Inc.
    • United States
    • Missouri Supreme Court
    • January 13, 1964
    ...extend to other cases in which the defense is based upon the principle expressed by the maxim volenti non fit injuria, Fletcher v. Kemp, Mo.Sup., 327 S.W.2d 178, 182; Dietz v. Magill, Mo.App., 104 S.W.2d 707, 711, and cases cited; 65 C.J.S. Negligence Sec. 174, p. 848, and may apply to prec......
  • Wright v. Newman
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 5, 1984
    ...789, 798 (Alaska 1981). The Missouri Supreme Court has cited Sec. 392 with approval on more than one occasion. E.g., Fletcher v. Kemp, 327 S.W.2d 178, 185 (Mo.1959); Winkler v. Macon Gas Co., 361 Mo. 1017, 238 S.W.2d 386, 391-92 (1951). 8 We thus agree with appellants that Sec. 392 is a fai......
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