Moore v. Jefferson City Light, Heat and Power Company

• Decision Date: 29 April 1912
• Citation: 146 S.W. 825,163 Mo.App. 266
• Parties: GEORGE D. MOORE, Respondent, v. JEFFERSON CITY LIGHT, HEAT AND POWER COMPANY, Appellant
• Court: Kansas Court of Appeals

146 S.W. 825

163 Mo.App. 266

GEORGE D. MOORE, Respondent, v. JEFFERSON CITY LIGHT, HEAT AND POWER COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

April 29, 1912

Appeal from Cole Circuit Court.--Hon. John M. Williams, Judge.

AFFIRMED.

Judgment affirmed.

Silver & Dumm for appellant.

(1) The act of Carter, defendant's servant, in placing the box and its contents under plaintiff's porch, not being within the course or scope of his employment in defendant's business, plaintiff cannot recover in this action and the demurrers to the evidence should have been sustained. Snyder v. Railroad, 60 Mo. 413; Cousins v. Railroad, 66 Mo. 572; Fougue v Burgess, 71 Mo. 389; Stringer v. Railroad, 72 Mo. 62; Barber v. Railroad, 116 Mo. 81; Walker v. Railroad, 121 Mo. 575. (2) The act of the little boy plaintiff's son, was the proximate cause of the injury and plaintiff is precluded from recovery for this reason, and the demurrers to the evidence should therefore on this ground have been sustained. Luehrmann v. Gas Light Co., 127 Mo.App. 214; Kappes v. Shoe Co., 116 Mo.App. 155; Afflict v. Bates, 21 R. I. 281; Insurance Co. v. Boone, 95 U.S. 117; Beckam v. Railroad, 127 Ga. 550; The Santa Rita, 173 F. 413; Railroad v. Kellogg, 94 U.S. 469; Barrett v. Railroad, 138 Mo.App. 135; Henry v. Railroad, 76 Mo. 293.

Irwin & Peters and J. Porter Henry for respondent.

The act of Carter in placing the dynamite under the porch of plaintiff was an act within the scope of his employment, and the question was fairly submitted to the jury. Chandler v. Gloyd, 217 Mo. 412; Barree v. Cape Girardeau, 197 Mo. 391; Harrison v. Light Co., 195 Mo. 606; Herold v. Bryan, 195 Mo. 574; Haehl v. Railroad, 119 Mo. 325; Ephlam v. Railroad, 137 Mo. 187. The negligence of the defendant's servant in placing the dynamite beneath plaintiff's porch amid rubbish and combustible material, and allowing the same to remain there in exposed condition for sixteen hours, was the proximate cause of the injury. Harrison v. Light Co., 195 Mo. 606; Meade v. Railroad, 68 Mo.App. 92; Nelson v. McClellan, 31 Wash. 208; Mansfield v. Richardson, 118 Iowa 250. In the handling of a dangerous instrumentality the party is charged with that degree of care commensurate with the danger or injury it is liable to occasion, and if he fails, it is negligence. 1 Sherman and Redfield on Negligence (5 Ed.), sec. 12; Harrison v. Light Co., 195 Mo. 628; McFern v. Gardner, 121 Mo.App. 10; Nelson v. McClellan, 31 Wash. 208.

OPINION

BROADDUS, P. J.

This is a suit to recover damages for the alleged result of defendant's negligence. The plaintiff in the month of May, 1911, was engaged in the grocery business on Clark avenue in Jefferson City. His house was a combined one for a residence and for business, the residence being on the south part and his store on the north part of the building. There was a porch on part of the front of the building, at the south end of which there was an opening of about two feet.

The defendant is and was a corporation and, as such, was engaged in the manufacture and distribution of electricity and electric power in said city. Albert Carter, who was working for the defendant on the corner of Clark avenue and Elm street, was using dynamite caps and fuse in connection with digging a hole for a lamp post. He had three or four sticks of dynamite and some caps and fuse left over that day, which he put in a wooden box and which he placed under plaintiff's porch at the opening as far back as he could reach. He placed it on an old sack and covered it up with a part of the sack. The reason he did not take it back to the defendant's office at the close of the day was because it was a little out of his way, as he lived out in that end of the town and thought it would be convenient to him to leave it out there; and he did not think defendant's office would be open by the time he could get there. On the next day, the 23d of May, the dynamite exploded causing great damage to plaintiff's property and severely injuring plaintiff's wife. Plaintiff saw the explosion. A Mr. Schneider, who was standing in front of the building, called plaintiff's attention to a fire under the porch, and he ran out to see what was the matter, and saw some smoke and started towards it, but the explosion occurred just before he got to it. A short time before the explosion plaintiff's little boy was shooting Roman candles near the point of explosion. A witness stated: "The boy was at the end of the porch out from the box. He shot them all off right in front of the porch, and the fire was so close to the box, I should judge it could be communicated to the box. The explosion followed in a few minutes."

The defendant offered to show that Carter asked and obtained permission from plaintiff's wife to put the dynamite under the porch, which offer, upon plaintiff's objection, was refused. The defendant further offered to show, "that defendant carried on work of that kind and would give an order to its workman to get just what was needed for the day's work, and then if any was left over it was the instruction of the defendant's managing officers to the workman to return the same to defendant's office; that defendant had a place in its office building to keep what surplus was left over, and that it had been the uniform practice for its workman to so treat the dynamite and act that way." This offer was rejected by the court.

The defendant tendered as evidence a certain ordinance of the City of Jefferson, which provides that: "No person shall, within this city, set off or discharge any rockets or other fireworks without the written consent of the mayor, in which he shall specify the time and place, when and where it may be done." It was admitted by plaintiff that no such consent for the boy to discharge rockets or fire works had been given by the mayor. Upon the objection of the plaintiff the court refused to admit the ordinance as evidence.

It was shown that dynamite will ignite from the jar of the cap, if the cap is attached, and that caps are ignited with a fuse connected with a cap, and that any spark or blaze will ignite it. The evidence tends to support the theory that the fire was communicated to the explosive material by sparks from the rockets exploded by plaintiff's boy. The judgment was for the plaintiff in the sum of $ 2000 from which defendant appealed.

The points relied on for reversal are: First. The court was in error in overruling defendant's offer of evidence. Second. In refusing defendant's demurrer to plaintiff's case at the close of the testimony. Third. In giving instructions 2 and 5 for plaintiff.

Instruction 2 reads as follows: "The court instructs the jury that if you find for the plaintiff, then you may assess his damages at what as shown by the evidence will compensate him for the injury done to his brick building, not to exceed the sum of $ 2000, and such sum as will compensate him for the damage done to his furniture and household goods, not to exceed $ 700, and such sum as will compensate him for the damage done to his automobile and other personal property about the premises, not to exceed $ 100, and such sum as will compensate him for the damage to his merchandise, together with such loss and damage to his business as was caused by a temporary suspension thereof, if you find that his business was so suspended, not to exceed $ 700."

Instruction 5 reads as follows: "The court instructs the jury that by the terms, 'natural and proximate cause,' is meant the natural and probable consequences of the act complained of."

We will only notice such objections to the ruling of the court upon the rejection of certain evidence as we think are material. It is insisted that the court erred in refusing to permit defendant to show that the act of Carter, in placing the dynamite under plaintiff's porch and in not returning it to its customary place of storage in defendant's office building, was a violation of defendant's instructions and practice in the handling of said dynamite; and that such act was not within the scope of his authority. In support of this theory we are cited to twenty-nine decisions, ten of which are Missouri cases. Among them is the case of Snyder v. Ry. Co., 60 Mo. 413. And as we think it states the law correctly we insert the syllabus as follows: "The rule is firmly established that the master is civilly liable for the tortious acts of his servants whether of omission or commission, and whether negligent, fraudulent or deceitful, when done in the course of his employment, even though the master did not authorize or know of such acts, or may have disapproved of or forbidden them. But the act must be done not only while the servant is engaged in the service he is employed to render, but it must pertain to the particular duties of that employment," etc. So far as we are advised...