James McNeil & Bro. Co. v. Crucible Steel Co. of America

• Decision Date: 04 January 1904
• Docket Number: 34
• Citation: 207 Pa. 493,56 A. 1067
• Parties: James McNeil & Brother Company v. The Crucible Steel Company of America, Appellant
• Court: Pennsylvania Supreme Court

56 A. 1067

207 Pa. 493

James McNeil & Brother Company v. The Crucible Steel Company of America, Appellant

No. 34

Supreme Court of Pennsylvania

January 4, 1904

Argued October 29, 1903

Appeal, No. 34, Oct. T., 1903, by defendant, from judgment of C.P. No. 1, Allegheny Co., March T., 1902, No. 185, on verdict for plaintiff in case of James McNeil & Brother Company v. Crucible Steel Company of America. Affirmed.

Trespass to recover damages for injuries to plaintiff's property.

The facts appear by the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $46,746.94. Defendant appealed.

Errors assigned sufficiently appear by the opinion of the Supreme Court.

H. L Castle, of Stone & Stone, for appellant. -- A person who uses a steam boiler on his premises in such a manner as not to constitute a nuisance, is not liable for damages caused by its explosion, where there has been no fault or negligence on his part; but he will be liable for damages caused by his negligence in the management of the boiler or in using it when in a defective condition: Kilbridge v. Carbon Dioxide, etc., Company, 201 Pa. 552; Earle v Arbogast, 180 Pa. 409; Ardesco Oil Co. v. Gilson, 63 Pa. 146; Service v. Shoneman, 196 Pa. 63.

The court below in effect attempted to reverse the Supreme Court in the case of Erie City Iron Works v. Barber & Co., 102 Pa. 156.

W. B. Rodgers, with him A. M. O'Brien, for appellee, cited on the question of damages: Imperial Coal Co. v. Port Royal Coal Co., 138 Pa. 45; Schlitz Brewing Co. v. McCann, 21 W.N.C. 244.

Before DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE DEAN:

Plaintiff owned and operated a steel plate mill in the city of Pittsburg; immediately adjoining was the manufacturing plant of the Park Steel Company, which it was averred by plaintiff was controlled and managed by defendant, the Crucible Steel Company. On December 20, 1901, about four o'clock in the afternoon, there was a disastrous explosion of three tubular boilers in the Park Steel Company's mill. Besides the damage to the Park Company's mill, it destroyed much of the machinery and a large part of the building of the plaintiff's plate mill. The exploded boilers had been purchased about two years before and put in place by Munroe & Sons, a reputable firm of boiler makers in Pittsburg. They were secondhand boilers. Only a day or two before the explosion, Munroe & Sons had sent a mechanic in their employ to examine and make necessary repairs to them. After the explosion, an examination of the fractured boilers and the fragments of them showed that the steel in them was burned, indicating that the water had been permitted to run down in them while in use. They were old and in some spots or patches badly corroded, so that the steel was quite thin. The plaintiff averred that the explosion and the consequent damage was caused by the negligence of defendant in not maintaining and operating its boilers with the care demanded by the circumstances, and therefore it was answerable in damages to the injured plaintiff. The damage it was entitled to recover, it claimed was: 1. The cost and expense of restoring the building and machinery to their condition immediately before the explosion. 2. Compensation for loss sustained by interruption of its business during the time it was rebuilding.

The court submitted the evidence, which was quite conflicting, bearing on the question of negligence to the jury, also the evidence tending to show the plaintiff's loss from destruction of property as well as loss during the time that the mill was being restored. The verdict was for plaintiff in the sum of $46,646.94 which the jury specified as including $10,000 profit for loss of business and $2,247.20 interest.

Judgment was entered for plaintiff on the verdict, and we have this appeal by defendant, who prefers twelve assignments of error. Four of these assignments, somewhat abreviated by us, embrace the main points of appellant's complaint. They are as follows, that the evidence shows and the court should have so instructed the jury:

1. That the actual owner and operator of the exploded boilers was the Park Steel Company, and if there was negligence, it was the negligence of that company and not of defendant, therefore, there could be no recovery.

2. The evidence shows that immediately before the accident Munroe & Sons, competent and reputable boiler makers, were employed as independent contractors to repair the exploded boilers; that they did repair them and reported them in good condition, therefore defendant is not responsible.

3. That the boilers were regularly inspected by the official inspectors of Allegheny county and duly passed by them, and if the official inspectors failed to detect and notify defendant of any defect, defendant is not responsible for the consequences of such failure.

4. The court should have instructed the jury that if they found for plaintiff, the true measure of damages was the cost of putting the mill and machinery in the same condition as immediately before the explosion, and under this evidence this was the only damage to which plaintiff was entitled. The remaining alleged errors seem to us of minor importance and we will notice them further on.

As to the first alleged error, that plaintiff in any view of the case brought its suit against the wrong party, the court instructed the jury that if defendant did not actively control or assist in the control and management of the Park Steel Company, there could be no recovery and submitted to them the evidence bearing on that point. This was right; the action was not on a contract express or implied; it was, what formerly would have been, before our present statutory form of pleading, trespass on the case, for damages consequent upon an act in its character tortious. It was wholly immaterial how the Crucible Steel Company got into possession of the plant of the Park Steel Company, whether by a contract, by sufferance or by a trespass; the question is, was it in the control and management of the business of that company? Was it operating its machinery and boilers at the time plaintiff was injured? It is true, the evidence as to the possession and that defendant was in the active control and management of the plant of the Park Steel Company, is not altogether one-sided, but if there was any express contract which would have effectually rebutted the inevitable inference to which the circumstances pointed, that contract was in the possession and knowledge of the Crucible Steel Company. But it produced no such contract and the court could not have done other than submit the evidence to the jury. That evidence was ample to warrant the verdict in that particular against defendant. Appellant argued, that the evidence only shows that defendant bought the product of the Park Company each month. We think it goes much further than that. The manager of both companies was the same, the purchasing agent the same; the Crucible Steel Company made invoices of the Park Company work in its own name and ordered work in its own name to be done for the Park Company and paid for it; Thomas, the secretary for both companies, testified in substance, that the real control and management of the Park Company was in the Crucible Steel Company; every director and officer of the Crucible Steel Company was a director and officer in the Park Company; they were paid salaries by the Crucible Steel Company but not by the Park Company; in a circular issued over its own name the Crucible Steel Company claimed as one of its properties the Park Mill; the repairs made on the exploded boilers by Munroe & Sons' workmen were billed to and approved by the Crucible Steel Company; Parks, vice president of the Crucible Steel Company, shortly after the explosion admitted that the defendant was the owner. All this, and much other evidence of a like significance was adduced tending to prove the fact averred by plaintiff. True, the nominal organization and identity of the Park mills as a corporation were maintained, but this was about the only fact tending to rebut the evidence offered by plaintiff. We think the court would have erred if it had not submitted the evidence to the jury.

The second and third errors complained of by defendant raise a much closer question. It is argued that Munroe & Sons, competent and reputable boiler makers, were independent contractors employed to repair the boilers and did repair them just before the explosion, and as the boilers were regularly inspected and passed by the official inspector of the county, therefore, there was no "absence of care according to the circumstances," and consequently defendant is not answerable for the injury. The ninth and tenth written requests of defendant for instruction and answers of the court thereto exhibit clearly the error complained of; they are as follows:

"9. The court is asked to further charge the jury that it appearing from the evidence that immediately prior to the accident, R. Munroe & Sons Company, reputable boiler makers were employed to repair the said boilers in any particulars they might need repairing, and that in pursuance of said order they sent their employees, and as independent contractors did so repair said boilers and turn the same over to the Park Steel Company as in good condition, then if the said boilers blew up from bad material, or unskillful work, the defendant is not responsible for injury to plaintiff, resulting from said defects.

"A. This point is affirmed, if the jury find that Munroe & Sons repaired the boilers and turned them over in good condition and that such 'turned over as in good condition' meant and included that a careful inspection of the boilers had been made, and that Mr....