Indian Refining Co. v. Mobley

Decision Date15 October 1909
Citation121 S.W. 657
PartiesINDIAN REFINING CO. v. MOBLEY.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Scott County.

"To be officially reported."

Action by John J. Mobley against the Indian Refining Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Allen &amp Duncan and Bradley & Bradley, for appellant.

T. L Edelen, for appellee.

LASSING J.

This is an appeal from a judgment of the Scott circuit court awarding appellee, John J. Mobley, $5,000 damages for injuries received by him in the explosion of a steam pipe in appellant's plant in Georgetown, Ky. while he was there soliciting insurance. Appellee is, and was at the time of the injury complained of, a solicitor of insurance for a fraternal order. Appellant owns and operates a large refining plant near Georgetown, and has in its employ a great many men. While appellee was working at Versailles he received word from the management of his company to go to Georgetown and write insurance. Acting under this order, he did so, and went out to the plant of the Indian Refining Company and there met some one apparently connected with the company, and asked of him permission to enter the company's grounds for the purpose of working among the employés. He stated to this person that he had a sick and accident policy that was carried by working people, and he wanted to distribute his literature among the employés of the refining company. From him he received permission to enter the grounds of appellant company. Whether the person from whom he received this permission was an employé or not does not appear from the record, but it is immaterial, as he later had a talk with Mr Olsen, an officer of the defendant company, and he told Olsen what he had come for, and Olsen said to him: "Go through the works. Do what you can at any time. Come as often as you please, and any assistance I can be to you I would be glad to do it. I would like to see all the boys have that sick and accident policy. I think it is a good thing." This conversation took place on the first day that he visited the plant and some time before the date of the injury. In the interim he was there quite frequently, and solicited and wrote a great number of policies for men about the works. On the day that he was injured he states that he was looking for a young man named Arvidson, whom he desired to write, and was informed that he would find him in the boiler room. He went there to see him, found his man, and was talking insurance to Arvidson at the time he was injured. This is, in detail, a statement of the circumstances under which appellee went upon the premises of appellant, as testified to by him. The explosion which caused the injury was due, according to the testimony of William Rudd, the only witness introduced by appellee who attempts to account for it, to the negligent manner or method in which the steam pipes or fittings were constructed, and he attributes the explosion directly to the carelessness and lack of forethought on the part of appellant's employés in the handling of the steam pipe. Upon this showing, it is urged for appellant, the trial judge should have given a peremptory instruction at the conclusion of the plaintiff's testimony to find for the defendants inasmuch as the evidence clearly shows that appellee was a mere licensee who had been suffered or permitted by the appellant company to go upon its premises for the purpose of prosecuting his own business, in which the company had no interest whatever, and that, therefore, it owed him no duty, and, owing him no duty, could not be held responsible for any injury which he received while upon their premises, in the absence of a showing that such injury was willfully or wantonly inflicted. Many other errors are assigned why the judgment should be reversed, but, from the conclusion which we have reached, we will consider only the question as to whether or not a peremptory instruction should have been given.

Much evidence has been introduced for the purpose of showing that appellee was invited to enter or come upon the premises of appellant, and that, in fact, he was more than a mere licensee, but when all of this testimony is read in connection with the statement of appellee himself, as to the circumstances under which he went upon the grounds and through the plant of appellant company, we are of opinion that it does not have the effect which counsel for appellee would give it. It was, at most, but a consent on the part of the company that appellee in the prosecution of his business might come upon the premises and through their works. The company had no interest whatever in the placing of this insurance, and, while an individual officer connected with the company may have looked upon fraternal or accident insurance as a good thing for laboring men, and regarded it as especially advantageous for men engaged in a hazardous employment, still there is nothing in the record to warrant the conclusion that the company in any wise sought to have their employés apply for or take out policies in appellee's company. On the contrary, it shows that appellee was paid both a salary and commission for the work which he did, not by appellant, but by the insurance company for which he was working. The fact that Mr. Olsen carried policies of insurance similar to those written by appellee, and regarded it as a good thing and would like to see all the employés of the company carry such policies, cannot be construed into an invitation on the part of appellant to appellee to enter its works, especially when that statement was only made after permission to do so had been expressly sought by appellee. The company was doing him a favor in permitting him to come upon its grounds and labor among its men. Hence, in our consideration of the case, he will be treated as a mere licensee, who went upon the premises of appellant for purposes of his own, and that in his being there appellant was in no wise interested or concerned. For the purpose of determining whether or not a peremptory instruction should have been given, it must be accepted as true that the explosion which caused the injury resulted directly from the negligent manner in which the steam pipe was constructed and managed.

Plaintiff's right to recover at all is rested upon the idea that the defendant company owed him some duty. If, under the circumstances above detailed, it owed to him no duty to protect him against injury while upon its ground resulting from the explosion of the steam pipe as detailed by the witness Rudd, then the peremptory instruction should have been given. In 2 Cooley on Torts, p. 1268, the general rule governing cases of this character is thus stated: "The general rule supported by the authorities is that the owner or occupant of premises owes no duty to licensees and trespassers further than to refrain from willful acts of injury." If this general rule is recognized and the principle applied in this case, there could be no recovery for it is not claimed, much less shown, that the injury to plaintiff resulted from a willful act of the defendant or its agents. In the case of Lackat v. Lutz, 94 Ky. 287, 22 S.W. 218, 15 Ky. Law Rep. 75, the principle here under consideration was before the court. The facts in the case were as follows: One Stoker, who was superintendent for Lutz, requested a boy named Lackat to go to defendant Lutz's place of business and notify him that his, Stoker's, child was dead, and he would not come to work on that day. While on his way to the building owned by the defendant for the purpose of delivering the message the boy was directed to go into a small room where a man would be found who would deliver his message. This room was poorly lighted, and he stepped in an opening or hole that had been negligently left or made in the floor, and his leg was caught in a large revolving wheel and crushed. He did not know of the danger to which he was exposed, and could not discover it on account of the darkness of the room; and the agent of the defendant who directed him to said room failed to notify him of the danger. A demurrer was sustained to the petition, and upon review here this court said: "It is not alleged plaintiff, when injured, was in performance of any duty to defendant, or that he was at the place of defendant with his knowledge or consent. On the contrary, a fair inference from statements of the petition is that he went there at the instance and for the accommodation of only Stoker, who was, for that day at least, not in the service of the defendant. It is not alleged that the room in which plaintiff received the injury was designed or used as a passageway for strangers, or was ever, in fact, entered by any others than employés of defendant. The defendant, therefore, owed to plaintiff no other duty or care than any other stranger or person intruding upon his premises without his consent or knowledge. And, as the actual condition of the room in question was not a subject affecting the rights or interests of any other than defendant and his employés, we have the case of a plaintiff, not alleged to be deficient in intelligence, voluntarily going where he need not have gone, and the exercise of ordinary care would have kept him from going." In this case the right to a recovery was denied, although the plaintiff had been directed by some employé to go into and wait in the room where he received his injury. In many respects the case from which ...

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