Laffery v. United States Gypsum Co.

• Decision Date: 05 November 1910
• Parties: LAFFERY v. UNITED STATES GYPSUM CO. et al.
• Court: Kansas Supreme Court

111 P. 498

83 Kan. 349

LAFFERY v. UNITED STATES GYPSUM CO. et al.

Supreme Court of Kansas

November 5, 1910

Syllabus

The general rule is that when a person lets out work to another the contractee reserving no control over the work or workmen the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligent or improper execution of the work by the contractor.

To the foregoing rule there are many exceptions and limitations, one of which is that an owner or a contractee is responsible for injuries to a third party, caused by work done by an independent contractor where the contract directly requires the performance of work intrinsically dangerous, however skillfully done.

The mere liability to injury from doing the work contracted for cannot be the test, for injuries may happen in any undertaking, and many are attended with great danger if carelessly managed, although with proper care they are not specially hazardous.

The intrinsic danger of the undertaking upon which the exception is based is a danger which inheres in the performance of the contract, resulting directly from the work to be done, and not from the collateral negligence of the contractor.

It cannot be held as matter of law that mining generally is so intrinsically or inherently dangerous as to make the owner of a mine liable for the negligence of an independent contractor resulting in injuries to a servant of such contractor, where it is not shown that the mine was unsafe when the contract was made, or that the owner reserved some control of its operation.

Where it is a disputed question of fact whether a person who employed the workmen and superintended the operation of a gypsum mine was an independent contractor or the superintendent for the owner, it is error to instruct the jury that the owner is liable for fatal injuries to a laborer employed in the mine caused by the negligence of the person so superintending the mine, without submitting to the jury the disputed question of fact as to the relation of the superintendent to the owner.

Where it was a material question for the jury whether one acting as superintendent of a mine was so superintending it for the owner, as its employé, or operating it for himself as an independent contractor, evidence that the owner held insurance indemnifying it against loss and damages from accidents to laborers in the mine, and of the terms of the policy, and of the correspondence between the owner and the insurance company and with the alleged contractor, was competent as tending to show the real relation between the person so superintending the operation of the mine and the mineowner.

The evidence is held to be sufficient to sustain the findings of negligence in the operation of the mine, and causing the injury complained of, and of the absence of contributory negligence.

Appeal from District Court, Marshall County.

Action by Minnie M. Laffery against the United States Gypsum Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Johnston, C. J., and Graves, J., dissenting.

Warner, Dean, McLeod & Timmons and W. W. Redmond, for appellants.

Gregg & Gregg and E. A. Berry, for appellee.

OPINION

BENSON, J.

A judgment was rendered against the United States Gypsum Company and J. E. Drake for damages for the death of George A. Laffery, a laborer in the mines of the company. The defendants appealed, but no brief was filed or argument made for Drake.

The company owns and operates a mill for the manufacture of gypsum products, and owns adjacent mines from which gypsum is taken to supply the mill. The mill and mines were formerly owned and operated by the Blue Valley Plaster Company. In the year 1900 the plaster company entered into a written contract with Drake, by the terms of which it was agreed that Drake should mine and deliver such gypsum as the plaster company might require at its mills, that company to furnish cars and rails to transport the material from the mine, the deliveries to be at the plaster company’s cable, and Drake to receive 45 cents per ton therefor. The contract contained the following stipulation: "It is further agreed that said party of the first part shall in no wise have control of the mine from which said gypsum is taken or any authority respecting the manner of, or means employed in and about mining said gypsum." This agreement was by its terms to remain in force for one year.

In February, 1905, the plaintiff’s husband, a laborer employed by Drake, was killed by a rock which fell from the roof of the mine where he was at work. The plaintiff alleges that the death was caused by the negligence of the defendants in not properly inspecting the mine, and in not furnishing a reasonably safe place in which to work. The defendants answered by general denial and pleaded assumption of risk and contributory negligence. The defendant company also specifically denied that Drake was superintending the mine for that company, or that it was engaged jointly with him in mining. The jury in answering special questions found that Drake was superintendent of the mine; that the company was negligent in not properly inspecting it; that the room where the deceased worked should have been but 20 feet in width, but was 27 1/2 feet wide; that the superintendent of the mine did not maintain a reasonably safe inspection, that the place where the deceased worked was not reasonably safe; and that his death would have been averted by a reasonably careful inspection. Other findings were made, but they are not material to this decision. It will be observed that the jury did not find that Drake was superintendent of the mine for the company. They were not requested to find on that issue although quite material.

Drake had been superintendent of the mine for several years before this contract was made, and he continued to direct its operations afterwards. In the year 1902 the mills and mines were transferred to the gypsum company, and Drake continued to supervise the operation of the mines until the year 1906. Whether in this supervision after the transfer he acted as superintendent for the company, or for himself as contractor or whether he acted in both of these capacities, were questions of fact; but that he employed and discharged the laborers and superintended the mining generally in removing the material from the earth and delivering it at the mill is not disputed. The claim of the defendant company is that he acted solely as an independent contractor, under the contract with the plaster company, adopted and in force between the transferee and the contractor, the same as though it had been made between them. The claim of the plaintiff is that Drake acted as superintendent of the mines for the defendant company without reference to the contract, and that the contract was set up as a cover to relieve the company for responsibility for the negligence of its own superintendent. Evidence was offered tending to support the claims of each party. The court, however, in effect, took this question of fact from the jury by the following instruction: "The owners and operators of a mine and mills engaged in the business of producing and manufacturing plaster from gypsum rock secured from an underground mine by the ordinary process of mining, and which in its nature is dangerous to others, are under obligation to see that it is carefully performed so as to avoid injury, and such person or corporation cannot delegate the obligation to an independent contractor, and thus avoid liability in case the work and operation of said mining busines is negligently done to the injury of a servant employed in such mining operation, *** and if you shall be satisfied by a preponderance of the evidence that said George A. Laffery on the 20th day of February, 1905, while in the performance of his labor as a servant and miner in the Blue Valley Mine in Marshall county, Kan., and without any fault or negligence on his own part, was killed as the result of the negligent inspection of said mine by the person in the immediate charge thereof and superintendency of the same, or by reason of carelessly and negligently not being provided with a safe place in which to perform his work as such miner, then you must find against both defendants, regardless of any suggestion in the evidence toward the claim that J. E. Drake was solely responsible for such negligence, if any existed." The plaintiff contends that this instruction is supported by the opinions of this court in Railroad Co. v. Madden, 77 Kan. 80, 93 P. 586, 17 L. R. A. (N. S.) 788, and Isnard v. Edgar, 81 Kan. 765, 106 P. 1003. In the Madden Case the question was whether a railroad company was liable to a landowner for damages caused by fire set out by a contractor to burn off the right of way-an entirely different question from that presented here, where it is contended by one party that the person injured was the employéof the contractor alone, and by the other party that he was the servant of the owner. The railroad company in that case had a duty to perform which it was bound to discharge in such manner as not to negligently injure third parties, and it could not in the situation there presented be relieved of that responsibility by committing the work to a contractor. The relation of master and servant did not exist, although an illustration was drawn from that subject. In the Isnard Case the plaintiff was employed by the owner of the mill and was injured while working in a place and with appliances furnished by his employer, and it was held that the owner was liable for his own negligence causing the injury. By comparing the claim of the defendant company here, viz., that...