Gray v. Grand River Coal & Coke Co.

• Decision Date: 05 January 1914
• Citation: 162 S.W. 277,175 Mo. App. 421
• Court: Missouri Court of Appeals
• Parties: GRAY v. GRAND RIVER COAL & COKE CO.

162 S.W. 277

175 Mo. App. 421

GRAY v. GRAND RIVER COAL & COKE CO.

Kansas City Court of Appeals. Missouri.

January 5, 1914.

1. VENUE (§ 22)—RESIDENCE OF PARTIES.

Where plaintiff and defendant K. resided in M. county and suit was brought there against K. and a corporation residing in H. county, and defendants were jointly and severally liable, the suit could have been properly instituted in either county, as provided by Rev. St. 1909, § 1751, and jurisdiction, having once attached, was not lost by the dismissal of K.

2. CORPORATIONS (§ 508)—JURISDICTION—APPEARANCE—OBJECTIONS—WAIVER.

Where defendant corporation claimed that it was sued in the wrong county, the objection merely went to the question of jurisdiction of the person and was waived by appearance at the return term and moving for security for costs and obtaining a continuance without objecting to the jurisdiction.

3. MASTER AND SERVANT (§ 318)—DEATH OF SERVANT—DUTY OF MASTER—CONTRACTUAL RELATION—DEFENSES—INDEPENDENT CONTRACTOR.

Plaintiff, a coal miner working in defendant's mine, was killed by a dust explosion due to alleged negligence in firing shots before employés had opportunity to leave the mine and in permitting it to become dangerous by the accumulation of dust, in violation of Rev. St. 1909, § 8477. Defendant company operated the mine under an arrangement with K., who employed the miners, mined the coal, loaded it into cars which were then taken by defendant company and removed from the mine by its own appliances. Defendant company also conpartitions, and exercised the right to remove miners, employed by K., for cause. Held, that plaintiff's right to recover against defendant company did not depend on her ability to trace a contractual relation from it to decedent but on the duty owed him by both K. and defendant company, and hence it was no defense to the latter's liability that K. was an independent contractor.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

Action by Luanna Gray against the Grand River Coal & Coke Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. C. Wilson, Wilson & Wilson, and Barlow & Barlow, all of Bethany, for appellant. Ed S. Jones, of Macon, Bresnehen & West, of Brookfield, and Geo. N. Davis, of Macon, for respondent.

TRIMBLE, J.

On the 3d of January, 1912, Thomas Gray, a coal miner working in the defendant's mine, was killed by a dust explosion. His widow brought this suit for damages under section 8471, R. S. Mo. 1909.

The petition is in two counts. The first charged a negligent violation of section 8477, R. S. Mo. 1909, in that shots (used in blasting coal from the solid) were fired before the employés had time to leave the mine, and that, as the mine had been allowed to become very dusty, one of these shots caused a dust explosion which killed the deceased; that it had been a practice to fire these shots before the miners were out; that this practice was well known to defendant and also known by it to be dangerous and in violation of law. The second count charged that the defendant had allowed its mine to become very dusty, owing to its failure to keep said mine sprinkled, and thereby the galleries or passageways leading from the place where deceased was working to the bottom of the shaft, and which he must traverse in going to and from his work, had become unsafe and dangerous from liability to dust explosions caused by firing shots to dislodge the coal from the solid. and, although the dusty condition and the increased danger therefrom, where more than one shot at a time is fired, were fully known, yet six shots were negligently set off within a few minutes after quitting time and before deceased had time to get out of said mine to a place of safety, which shots stirred up the dust in said mine, and the fourth shot set fire thereto and caused an explosion which killed plaintiff's husband.

The suit was brought against the defendant, Grand River Coal & Coke Company, a corporation, and one John Kilholland, who was alleged to be the defendant company's agent and vice president and who fired, or superintended and ordered the firing of, the shots. But after the testimony was in, and before the case was submitted to the jury, plaintiff dismissed as to Kilholland. A verdict was returned in plaintiff's favor, and defendant appealed.

The point is made that the trial court had no jurisdiction over the defendant coal company. It is a corporation doing business in Harrison county. Its mine is located there and the cause of action accrued in said county. Plaintiff and Kilholland both reside in Macon county. Suit was instituted in Macon county and service obtained on Kilholland, and then summons was issued to Harrison county and there served on the defendant coal company. Section 1754, R. S. Mo. 1909, requires suits against corporations to be brought in the county where the cause of action accrued or where the company keeps an office or agent. No agent was kept or maintained in Macon county, and the cause of action accrued in Harrison county. Consequently defendant says the circuit court of Macon county obtained no jurisdiction over the defendant coal company, and neither did the circuit court of Linn county, to which the cause was taken on change of venue. But the plaintiff resided in Macon county, and, of the two defendants, one of them, John Kilholland, lived in Macon county and the other, the Grand River Coal & Coke Company, was located in Harrison county. Under the facts pleaded in the petition, these two defendants were jointly and severally liable. Suit could therefore be...