Mattise v. Consumers' Ice Manufacturing Company

• Decision Date: 01 December 1894
• Docket Number: 11,507
• Citation: 16 So. 400,46 La.Ann. 1535
• Parties: JOHN JACOB MATTISE v. CONSUMERS' ICE MANUFACTURING COMPANY
• Court: Louisiana Supreme Court

16 So. 400

46 La.Ann. 1535

JOHN JACOB MATTISE v. CONSUMERS' ICE MANUFACTURING COMPANY

No. 11,507

Supreme Court of Louisiana

December 1, 1894

Rehearing refused.

APPEAL from Civil District Court, Parish of Orleans. Monroe J.

John Q Flynn and W. B. Lancaster, for Plaintiff and Appellee.

Harry H. Hall, for Defendant and Appellant.

OPINION

BREAUX, J.

The plaintiff sues for the recovery of damages sustained by the death of his son caused by the explosion of a boiler.

The defendant admits that Frederick Mattise, the son of plaintiff, was killed by an explosion of a boiler owned by the company.

The defence is a denial of all liability, and that it, or its employes, were guilty of negligence; and it further alleges that if there was negligence, its employes were the fellow servants of the defendant.

In a supplemental answer, the defendant sets up and avers that plaintiff proposed, if the defendant would pay the funeral charges he would accept the payment in full settlement of all claims that he might have for damages.

The court a qua decided that the plaintiff is not entitled to recover on his own account for loss of support, as the relations between himself and his son had not been of a character to justify the belief that he would have looked to or received from him any relief or support, had he lived.

Upon the other ground, as exercising the action of his son, which survived in his favor, he was allowed the sum of two thousand five hundred dollars.

The following are the facts as we summarize them:

The boilers were iron boilers.

In the afternoon of 25th of June, 1892, the fireman informed the engineer in charge that a "bag" had formed on the boiler.

The chief engineer testifies that he ordered this fireman to put out the fires and put the boiler out of service.

He also states that the boiler had "bagged" previously; upon notification he gave it a critical examination and put it into service for inspection; that it is customary whenever a boiler "bags" to put out the fire; to have it examined and the "bag" driven up or cut out and a new sheet put in. A bag in the boiler is formed by sediment settling on the inside, which prevents the water from touching the shell; the result is the boiler expands wherever the sediment settles, and the entire thickness of the sheet is forced out by the inward pressure. The weight of the evidence is that a "bag" in a boiler should never be neglected, as neglect may be attended with serious accident; that the fire should be immediately taken out and the boiler disconnected. About three hours after the fireman had reported to the engineer and superintendent in charge that there was a "bag" in the boiler, the explosion occurred and killed the son of plaintiff, who was a coal passer at the boilers. The evidence does not disclose that the fireman complied with the order and that the boiler was "cut off" or separated from the battery of boilers of which it formed part by closing the connecting valves and putting out the fire.

The chief engineer, Smith, superintended and directed the ammonia department of the plant and had charge of the whole factory. He had the authority to employ and discharge the fireman and other employes.

The deceased was his subordinate under his immediate direction, by whom he had been employed and might be discharged.

The president of the company testifies that a superintendent of the defendant's ammonia engine and boiler was succeeded by this engineer, who was promoted from the position of second to that of chief engineer.

As to the defendant's payment of the funeral expenses the president, as a witness, says that an aunt of the decedent called on him and said the plaintiff was in Covington and asked him if he would pay the funeral expenses, and that if he did they would require nothing more. The company did defray the expenses of the funeral. The testimony does not establish that any agreement was entered into of compromise regarding damages.

We will discuss the issues raised in the order in which we have stated the facts of the case.

THE NEGLIGENCE CHARGED.

It is evident that had the steam been "cut off" by closing the valves and thereby separating the boiler that exploded from the other five of the battery, the explosion would not have taken place.

After those hours a boiler out of service will not explode.

There is evidence tracing the explosion to the "bag." A witness, a boiler maker, whose testimony is not contradicted on that point, was satisfied that the "bag" was the cause.

The negligence in not extinguishing the fire and disconnecting the steam is not less because an unexecuted order is said to have been given to the fireman. Empty orders will not suffice.

It was the duty of the engineer, as he had done on previous occasions, to examine the boilers and exert due precaution against an accident.

It was not shown that the engineer's authority, which was really that of a superintendent, was at all felt.

He controlled the labor, or at any rate it devolved upon him to control the labor in the departments under his charge (in fact of the whole plant).

The judge of the District Court, who heard the witnesses, says:

"A 'bag,' that is to say a local distention, took place in one of the boilers and about three hours later the boiler exploded.

That Smith, the engineer in charge, was informed of the 'bag' at the time that it appeared and had ample opportunity to have had the boiler cut out, that is to say disconnected from the other boilers and relieved of steam, and to have had the fires drawn from under it, and that it was his duty after having been informed of the 'bag' to have immediately taken those measures of precaution.

That whilst said Smith claims to have given orders to Fricke the fireman to extinguish the fire and put the boilers in question out of service, it does not appear that he saw that his orders were executed, or as a matter of fact that said orders were executed, but it appears on the contrary that the boiler which exploded three hours after the 'bag' was the boiler in which the 'bagging' had taken place, and my conclusions not only from direct testimony to that effect, but from evidence as to the nature of a 'bag' and as to the surrounding circumstances is that the 'bag' in question was the point from which the break in the boiler began when the explosion took place and that said 'bag' was the immediate cause of the explosion."

THE DECEDENT AND THE CHIEF ENGINEER IN CHARGE OF THE FACTORY WERE NOT FELLOW SERVANTS.

The defendant's second ground is urged in the alternative; that is, if there was any negligence the employes were the fellow servants of the decedent and that the company can not be held liable therefor.

Distinction may well be made in case of corporations from that of individuals. Corporations must necessarily act through agents, who may be regarded as the representative of the corporation when acting within the scope of their authority.

It must be borne in mind that the decedent was performing his duty as a servant under the direction of a superior; it was incumbent upon him to obey. It was not...