Rice v. Smith

• Decision Date: 24 December 1902
• Citation: 171 Mo. 331,71 S.W. 123
• Parties: RICE v. SMITH et al.
• Court: Missouri Supreme Court

71 S.W. 123

171 Mo. 331

RICE v. SMITH et al.

Supreme Court of Missouri, Division No. 1.

December 24, 1902.

EMPLOYÉ—INJURY—PARTIES LIABLE—PERSON INTERESTED WITH EMPLOYER.

1. Defendants, who were licensees of a mine, entered into an agreement with a third party, whereby the latter was to mine the ore, put it in the tub, and hook the tub to the hoisting rope, and thereupon defendants were to hoist the ore, and divide the profits with the third party. The latter was to employ the miners to do the underground work. Held that, the undertaking being for the mutual benefit of defendants and the third party, it was defendants' duty to see that the mine was in a reasonably safe condition, and, where one of the miners employed by the third party was killed by reason of its unsafe condition, defendants were liable.

Robinson, J., dissenting.

Appeal from circuit court, Jasper county; Jos. D. Perkins, Judge.

Action by Nancy A. Rice against W. Smith and Henry C. Firth. Judgment for defendants, and plaintiff appeals. Reversed.

Suit for damages for the death of plaintiff's husband, which she alleges was caused by the negligence of defendants. The petition avers that the defendants were licensees of a mine, and in control of the same, mining lead and zinc ore; that the plaintiff's husband was working in a drift in the mine, when a bowlder fell from the roof of the drift, struck him on the head, and killed him; that the mine was in an unsafe condition, in that for a long time prior to the accident large stones, bowlders, and dirt had continually been sloughing off and falling from the sides and roof of the shaft and drift, and that this condition was known to defendants, or would have been known to them if they had exercised ordinary care. The petition states that one Raynes was engaged with the defendants in operating the mine under an agreement to the effect that he was to dig and mine the ore in the drift, put it in the tub, and hook the tub to the hoisting rope, then his part of the work was done, and the defendants were to hoist the ore, clean it, and sell it, and divide the proceeds with Raynes. Raynes was to employ the miners to do the work underground, and pay them. The defendants were to do the rest. The plaintiff's husband was employed by Raynes, and was at work for him in the drift when the bowlder fell on him. The answer was a general denial, a plea of contributory negligence, and a special plea to the effect that plaintiff's husband was not in their employ nor under their control, but exclusively in the service of Raynes. Upon the trial the plaintiff's evidence tended to show the following, viz.: That defendants were licensees of the mine in question, and had some time before this event operated it. That at the time of the accident it was being operated under a contract between defendants and Raynes to this effect: Raynes, at his own expense, was to do all that was necessary to be done underground,—to mine the ore, put it in the tub, and attach the tub to the hoisting apparatus. Defendants were then to see to the hoisting it, preparing it for sale, and selling it; and Raynes, for his share, was to have half the proceeds. Raynes was to have full control of all operations underground. He was a witness for plaintiff, and this is how he understood the contract: "Q. What was your contract with Smith and Firth when you went in there? A. I rented the ground from Smith and Firth. I was to cut the dirt, and hang it on the rope, for one-half and pay all the ground expenses. I was to hire my own men and pay them. They were to hire their own men and pay them. They had nothing to do with my men, and I had nothing to do with their men. Q. Who employed Rice? A. I did. Q. What was you to give him a day? A. Two dollars. Q. What, if anything, did Smith and Firth have to do with employing him? A. Nothing. Q. I believe you stated that you got one-half of the proceeds from the sale of ores? A. Yes, sir." Plaintiff's evidence also tended to show that the drift was cut through soapstone, into which occasionally bowlders were imbedded; that the soapstone was of such a nature that it sloughed off from time to time, and pieces of it fell, and rendered the situation dangerous for the men working there; that this fact had been brought to the notice of the defendants some time before this accident, and during the operation of the mine under the Raynes contract. At the close of the plaintiff's evidence the court gave an instruction to the effect that the plaintiff was not entitled to recover. Thereupon she took a nonsuit with leave, and, after due proceedings, brings the cause here for review.

Redding & Owen, for appellant. Frank L. Forlow, for respondents.

VALLIANT, J. (after stating the facts).

The theory on which the defense of the court's ruling is based is that Raynes was...