King v. Creekmore

• Decision Date: 17 December 1903
• Citation: 117 Ky. 172,77 S.W. 689
• Parties: KING v. CREEKMORE.
• Court: Kentucky Court of Appeals

77 S.W. 689

117 Ky. 172

KING v. CREEKMORE.

Court of Appeals of Kentucky.

December 17, 1903

Appeal from Circuit Court, Whitley County.

"To be officially reported."

Action by John King against W. B. Creekmore. From a judgment for defendant, plaintiff appeals. Affirmed.

Tye &amp Denham and Sharp & Siler, for appellant.

O. H Waddle and K. D. Perkins, for appellee.

PAYNTER J.

The appellee, Creekmore, owned a sawmill, and he leased it to Hiram Warren, who operated it as lessee. The appellant was an employé of Warren in running the mill, and while in the line of his duty the boiler exploded, inflicting serious injury upon him, and to recover damages this action was brought against Creekmore alone. In addition to the above facts, it is averred in the petition that the boiler was defective, and was known by the defendant to be so, or he, by the exercise of ordinary care, could have known of its dangerous and defective condition; and that it was his duty to inspect the boiler, and keep it in a reasonably safe condition. The court sustained a demurrer to the petition. An amended petition was filed, in which it is averred that the plaintiff was injured on the 14th day of March, 1902; that the mill was leased to Warren to enable him to at once manufacture lumber; that after the mill was leased to him, he moved it from defendant's premises, and used it about two weeks before the explosion occurred; that at the time the mill was delivered to Warren defendant knew of the defective and dangerous condition of the boiler, or by the exercise of ordinary care could have known it. The averments in the original petition that defendant knew of the dangerous and defective condition of the boiler, or by the exercise of ordinary care could have known of it, and that it was his duty to inspect and keep it in a reasonably safe condition did not state a cause of action. The mill was removed from defendant's premises and his control. He had nothing to do with the employment of the plaintiff, nor had he control of him in the performance of his duties. The relation of master and servant did not exist. If it did not, then the defendant certainly was not under a duty to inspect the boiler and keep it in a reasonably safe condition. Central Coal & Iron Co. v. Grider's Adm'r (Ky.) 74 S.W. 1058. That was the duty of Warren, the master, who employed the plaintiff. The original petition was based upon the theory that, as defendant owned the mill though he had leased it, and given possession and control of it to Warren, he was under the same responsibility as he would have been had he retained and operated it, and employed plaintiff. There is no rule of law upon which to base a recovery on such a state of facts. In some cases a recovery may be had by a servant against one between whom and himself the relation of master and servant does not exist. There is a variety of such cases. It may be profitable to call attention here to some of them. In Bright v. Barnett & Record (Wis.) 60 N.W. 418, 26 L. R. A. 524, the defendant was engaged in building an elevator for grain, and contracted with a fire extinguishing company to construct a fire extinguishing apparatus. The defendant was to furnish the staging that the men employed by the fire extinguishing company would need in performing the work. The staging was defective, and it broke, resulting in the death of one of the men engaged in the work. In that case the defendant undertook to furnish the staging necessary to be used by the contractor and employés. A recovery was allowed, inter alia, upon the ground that the defendant had impliedly invited deceased to walk on the staging while he was doing his work. In Mulchey v. Methodist Religious Society, etc., 125 Mass. 487, on an analogous state of facts, the court held there could be a recovery, because the society had in effect invited and induced the injured party, an employé of one who had contracted to do certain painting on its church, to go upon dangerous and defective staging...