Oulighan v. Butler
| Decision Date | 19 October 1905 |
| Parties | OULIGHAN BENT LAWRENCE v. BUTLER et al. (two cases). BENT LAWRENCE v. SAME. BENT LAWRENCE v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wm.
H Bent and Albt. O. Hamel, for plaintiffs.
Woodward Hudson, Geo. L. Mayberry, and Frank L. Washburn, for defendant.
These are actions of tort brought by the plaintiffs, under the provisions of Rev. Laws, c. 171, § 2, to recover damages for the death of their intestates, each of whom, at the time of his decease, is admitted to have been in the exercise of due care. There were four defendants originally, but by reason either of pleas in abatement that were sustained, or of rulings made at the trial, the American Powder Mills was left as sole defendant, against which each of the plaintiffs has obtained a verdict.
The remedy given being purely statutory, it became obligatory to allege and prove that the several decedents left either a widow, children, or next of kin, to whom any damages that might be recovered were to be paid in the proportions specified by the statute. By reason of the omission of such allegations, the declaration did not set forth a legal cause of action, and hence was demurrable. Commonwealth v. Boston & Albany Railroad Co., 121 Mass. 36. Or, the defect being one of substance, and not of form merely, this question could be raised by a request for a ruling that proof of all allegations pleaded did not entitle the plaintiffs to recover. Commonwealth v. Eastern Railroad Co., 5 Gray, 473; Hervey v. Moseley, 7 Gray, 479, 484, 66 Am. Dec. 515. But the defendant was content to join issue and to try the cases within the pleadings as they stood. Under the general request for a ruling that upon all the evidence the actions could not be maintained, this objection was not alluded to, nor directly called to the attention of the presiding judge. By the course taken, he well may have understood, as he probably did, that nothing more was intended than to generally cover the questions more directly and fully shown by the specific requests. It can hardly be doubted that, if the objection now raised then had been stated, this difficulty would have been obviated by an amendment, or disposed of by a distinct and positive ruling. This exception, therefore, cannot be considered open, because not raised before or passed upon by the trial court. Edwards v. Carr, 13 Gray, 234, 238; Hicks v. New Haven & Hartford Railroad Company, 164 Mass. 424, 429, 41 N.E. 721, 49 Am. St. Rep. 471.
Another exception raises the question that upon the evidence the intestate, Charles W. Moore at the time of his death was in the employment or service of the defendant, and thus not within the class for whose death damages are recoverable under the statute. The Statutes of 1897 (page 388, c. 416) and of 1898 (page 724, c. 565), of which Rev. Laws, c. 171, § 2, is a substantial re-enactment, were passed after the statute of 1887 (page 899, c. 270), St. 1892, p. 226, c. 260, § 1, commonly known as the 'Employer's Liability Act.' took effect. When thus amended, the act contained provisions for the recovery of damages for the instantaneous death of an employé caused by the wrongful act of his employer. By these several remedial enactments, it must be deemed to have been the intention of the Legislature to establish a system under which damages might be awarded for death arising from the wrongful act of a person or corporation, whether the relation of master and servant did or did not exist between the decedent and those responsible for his death. Upon ascertaining the relation, it then can be determined under which statute the remedy provided is to be sought.
The fact that Moore was in the general employment of the Stanley Transportation Company, which had been hired to transport the contents of the magazine of the United States Cartridge Company, and for this purpose attended in charge of one of its teams, does not appear to have been disputed. There was uncontroverted evidence that this was his only duty, as the boxes of powder were to be loaded onto the wagons by others, who then would direct where the teams should be driven. After the loaded wagons had been taken to what perhaps was considered a safe distance, the horses were to be unhitched and sent to their stable, while the workmen were making certain contemplated repairs of the powder house. Upon the completion of these repairs, the drivers, with the horses, were to return and move back the powder. No other directions are shown to have been given to him by any one on the premises engaged in the work of removal or of repair, nor does it appear that he otherwise was required to submit himself to their direction or control. A servant sent to perform work for another person, with whom a contract for its performance has been made by his master, does not by that fact alone, at common law or by the statute under which these actions are brought, become a servant of the latter. Driscoll v. Towle, 181 Mass. 416, 63 N.E. 922; Delory v. Blodgett, 185 Mass. 126, 69 N.E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328. Under these circumstances, the jury could find that, if subject to the direction of those in charge as to where he should drive his wagon after it was loaded, he still remained the servant of his original employer, who through him retained the control and care of the horses; and whether his master was employed by the United States Cartridge Company or by the defendant, he did not become the general servant of either. Huff v. Ford, 126 Mass. 24, 30 Am. Rep. 645; Reagan v. Casey, 160 Mass. 374, 36 N.E. 58; Driscoll v. Towle, ubi supra; Delory v. Blodgett, 185 Mass. at page 129, 69 N.E. at page 1080. It therefore could not be ruled as matter of law that he was the defendant's servant, and this question was rightly submitted to the jury.
As the case was tried on the first count of the declaration, which charged negligence of the defendant or the gross negligence of its servants or agents, in considering the remaining exceptions it becomes important to recur somewhat fully to the evidence for the purpose of determining what legal relations, if any, it sustained to the persons present at the time of the explosion, as well as the questions of negligence. There were two buildings, containing three magazines. Of these, two were under one roof, but separated by a partition of open joists about two inches apart; one compartment being used by the partnership known as the 'United States Cartridge Company' for the keeping of gunpowder alone, while the other was occupied by the defendant for the keeping of gunpowder and dynamite, of which a large quantity of each was then on storage. Nearly four weeks before the explosion, the employés of the first company had observed that the floor on the defendant's side was discolored, and that the discoloration had spread through the partition. Upon investigation it was decided that this was caused by the leakage from the dynamite of nitroglycerine which had soaked into the floor. The danger to the lives of those employed about the premises or living in that vicinity by reason of its explosive character and proximity to other explosives being obvious, on July 7th notice was given to the local agent of the defendant by the United States Cartridge Company that the spot which had appeared was believed to be nitroglycerine, and requesting that the source of danger should at once be remedied; but it was not until July 29th, and after further correspondence with the defendant and interviews with its superintendent, that arrangements were finally made to remedy this dangerous condition by removing the discolored portion and putting in a new floor. The evidence, however, being conflicting whether the United States Cartridge Company contracted to make these repairs, which included the temporary removal of the contents of their magazine, or whether one Goodwin, who with the men under him actually undertook to perform the work, was in the employment of the defendant, this question was properly left to the jury, with instructions that, unless he was the defendant's servant, it would not be responsible, if he was found either to have been incompetent or grossly negligent. If the explosion, which followed after the work began, was immediately caused by the act of Goodwin, it was open upon the evidence to find that the disaster would not have occurred except for the defendant's...
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