McLamb v. EI Du Pont De Nemours & Co.
| Decision Date | 12 November 1935 |
| Docket Number | No. 3943.,3943. |
| Citation | 79 F.2d 966 |
| Parties | McLAMB v. E. I. DU PONT DE NEMOURS & CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
H. Edmund Rodgers, of Wilmington, N. C. (Rodgers & Rodgers, of Wilmington, N. C., on the brief), for appellant.
George Rountree, of Wilmington, N. C. (C. M. Spargo and Abel Klaw, both of Wilmington, Del., and Rountree & Rountree, of Wilmington, N. C., on the brief), for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
Willie Joe McLamb, the plaintiff in the District Court, seeks to recover damages in this suit against E. I. Du Pont De Nemours & Co., for personal injuries suffered by him in an explosion of dynamite which occurred on December 12, 1933, during the dredging of the Inland Waterway near Little River, S. C., by the United States government. A hard stratum of land and rock had been encountered in this vicinity, which impeded the progress of the work, and the United States Army engineer in charge requested the Du Pont Company to send experts to examine the ground and advise him as to the desirability of using explosives. The assistant manager of the company at Birmingham, Ala., and his assistant responded, and after an examination, it was concluded that explosives would greatly facilitate the work, and so the army engineer purchased an emergency supply of dynamite and advertised for bids for the large supply that would be needed.
The officer in charge of the government dredge employed a number of laborers, including the plaintiff, to make up a gang for the explosion work. They had not had any previous experience in blasting or in the use of dynamite, and the two Du Pont experts, at the request of the engineer, undertook to instruct the men and advised them in the handling and use of the explosive, and the men were told to follow the instructions so given. The experts determined the location of the holes, the amount of the charges, and the time of setting them off, and the work proceeded under their observation and instruction, according to the plaintiff's testimony, until the accident took place. Although the army engineer conferred with the experts as to the advisability of using an explosive, and as to the manner in which it should be handled by the men, he retained control of the whole enterprise, and was free at any time to accept or reject the tendered advice. As a matter of fact, he accepted the advice to use dynamite, and did not alter the methods which at his request the experts advised and directed the workmen to adopt.
The blasting proceeded for seven or eight days before the accident occurred. During the latter part of this period, the experts went to Charleston, S. C., to represent their employer at the opening of bids for the sale of dynamite to the government. The Du Pont Company was the successful bidder.
The cause of the accident was not disclosed, but it is conceded by the plaintiff that there was no evidence of negligence or lack of care at any time on the part of the agents of the defendant company. In this situation, the District Judge directed a verdict for the defendant.
The plaintiff bases his suit on the theory that in the eye of the law he became a servant of the Du Pont Company when the representatives of that company were entrusted with the direction of the work of using the explosives, notwithstanding the fact that he was employed and paid by the United States to do the work; and so it is contended that the rule should be applied that one who uses an intrinsically dangerous substance, such as dynamite, has an absolute liability, irrespective of negligence, for any damage to person or property that ensues; and that the plaintiff, not having been furnished a safe place to work, has a right of action against his employer. See Exner v. Sherman Power Const. Co. (C. C. A.) 54 F.(2d) 510, 80 A. L. R. 681.
It is of course true that "one may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, so that he becomes the servant of that person, with all the legal consequences of the new relation." Standard Oil Company v. Anderson, 212 U. S. 215, 220, 29 S. Ct. 252, 253, 53 L....
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