Rowden v. Daniell

• Decision Date: 10 November 1910
• Citation: 151 Mo. App. 15,132 S.W. 23
• Parties: ROWDEN v. DANIELL et al.
• Court: Missouri Court of Appeals

132 S.W. 23

151 Mo. App. 15

ROWDEN v. DANIELL et al.

Springfield Court of Appeals. Missouri.

November 10, 1910.

Rehearing Denied December 6, 1910.

1. MASTER AND SERVANT (§§ 101, 102)—INJURIES TO SERVANT—PLACE FOR WORK— CARE REQUIRED OF MASTER.

An employer must exercise ordinary care to furnish the employé a reasonably safe place in which to work, having regard to the character of the work.

2. MASTER AND SERVANT (§ 286)—INJURIES TO SERVANT—ACTION—QUESTION FOR JURY —PLACE OF WORK.

If there is substantial evidence of the master's failure to exercise ordinary care to furnish a safe place of work, the question of his liability is for the jury.

3. MASTER AND SERVANT (§§ 101, 102)—INJURIES TO SERVANT—MASTER'S LIABILITY— PLACE OF WORK.

The master is not an insurer of the safety of the place of work, and is only liable for negligence in respect thereto.

4. MASTER AND SERVANT (§ 265)—INJURIES TO SERVANT—ACTION—BURDEN OF PROOF— NEGLIGENCE OF MASTER.

In an action for injuries to a miner claimed to have been caused by the employer's failure to crib in a boulder in the wall of the shaft, plaintiff must show that a proper inspection of the boulder would have shown that it was loose as well as show that it fell and injured him.

5. MASTER AND SERVANT (§ 124)—INJURIES TO SERVANT — MASTER'S LIABILITY —FAILURE TO INSPECT PLACE OF WORK.

An employer is not liable for failure to inspect the place of work, unless a proper inspection would have discovered the defects.

6. MASTER AND SERVANT (§ 125)—INJURIES TO SERVANT—DEFECTIVE APPLIANCES—MASTER'S KNOWLEDGE OF DANGER.

To make an employer liable for injuries from a defective appliance, it must be shown that he knew of such defects, or by reasonable care could have known thereof.

7. MASTER AND SERVANT (§ 125)—INJURIES TO SERVANT—MASTER'S LIABILITY—FAILURE TO INSPECT PLACE OF WORK.

A mining company only became liable for injuries from the falling of a boulder after a sufficient length of time had elapsed for its inspection after it had reasonable cause to believe that it might become loose, so as to make an inspection thereof necessary.

8. CORPORATIONS (§ 653)—FOREIGN CORPORATIONS—CARRYING ON BUSINESS — OFFICERS AND AGENTS—PERSONAL LIABILITY.

Since a foreign corporation under the statute before it can transact business in the state, must file a copy of its charter with the Secretary of State, and pay a certain fee, a foreign corporation has no legal existence until it complies with the statute, a person carrying on a mining business in the state, and furnishing the money therefor, in the name of a foreign corporation, was individually liable for torts committed in the conduct of the business.

9. CORPORATIONS (§ 636)—FOREIGN CORPORATIONS—STATUS.

A foreign corporation can transact business in states other than its domicile only by comity, and it may be excluded from doing business in such state or required to do business only upon the conditions imposed by them.

Appeal from Circuit Court, Greene County; George Pepperdine, Special Judge.

Action by Oscar N. Rowden against John Daniell and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Mann, Johnson & Todd and Woodruff & Luster, for appellants. Hamlin & Seawell and J. B. Delaney, for respondent.

GRAY, J.

On the 12th day of February, 1910, this cause was tried in the circuit court of Greene county before Honorable George Pepperdine, special judge, and a jury, resulting in a verdict in favor of the plaintiff, from which the defendants appealed.

The petition stated that on the 15th day of January, 1906, defendants were engaged in the business of mining in Greene county; that while so engaged defendants had sunk a shaft to about the depth of 100 feet, and that on said day said defendants were operating said shaft and digging near the bottom of same in the search for mineral; that the defendants were operating under the name of Wolverine Zinc Company, purporting to be a corporation doing business in the state of Missouri, but that no such corporation was authorized to do business in this state, and that the name so used by defendants was assumed for the purpose of avoiding personal liability, and that in truth and in fact the defendants as individuals were conducting the mining business; that on said day the plaintiff was working in said shaft in the employ of the defendants; that the defendants had sunk said shaft in such a careless and negligent manner "that the walls of the same, consisting of loose earth and boards, were left unguarded and unsupported, and in a condition which rendered them unsafe, dangerous, and liable to fall, and that defendants carelessly and negligently allowed the walls of said shaft to remain so unguarded and unsupported, and took no care whatever to provide against and secure plaintiff from the dangerous and unsafe condition of said mine." The answer was a general denial, and, in addition thereto, contained special defenses of assumed risk and contributory negligence. The Wolverine Zinc Company was a corporation organized under the laws of the state of Michigan, and the persons who organized the same were residents of that state. In fact, the record shows an admission that the corporation was legally organized under the laws of the state of Michigan, and there was no evidence upon which to submit the question of fraud in the organization of the corporation.

The plaintiff's testimony shows that he had been working for about six or eight weeks in the shaft wherein he was afterwards injured. The shaft was something over 100 feet deep, and the work of sinking the shaft was completed, and at the time of the accident a prospect drift had been started in a westerly direction from the northwest corner of the shaft. In sinking the shaft the first 12 or 14 feet was dirt and gravel, and from that point for about 60 feet solid rock was encountered. From the bottom of the lime rock formation, and for a distance of about 18 feet, the shaft was sunk through soft-grained rock. The testimony shows that it was the custom in proper mining to put in "cribbing" in the shaft wherein the walls are dirt or soft-grained rock that is likely to crumble. "Cribbing" is a pen made by putting timbers around the walls of the shaft, and when properly placed holds the walls of the shaft in place. The last 10 or 12 feet of the shaft were sunk through a boulder formation composed of boulders and clay. When the shaft was sunk, it was supposed that ore would be found at the bottom of the soft-grained rock above mentioned, but, instead thereof, the boulder formation was encountered with but little ore. It therefore became the intention of the parties to sink the shaft through the boulder formation, and then drift, in an effort to locate the deposit of ore. The east side of the shaft was not in the boulder formation, but seemed to be a solid rock which indicated to the miners that the ore deposit would be found in the opposite direction.

After the shaft was finished and drifting had been commenced, but before the drift had been opened any distance from the shaft, a boulder fell from the northeast corner of the shaft, and injured the plaintiff. The testimony further shows that the plaintiff and the men working with him, in so far as the character of the work performed was concerned, were fellow servants, and that no special part of the work was left to be performed by any one of the men, but they worked along together in the common work of sinking the shaft and opening the drift. It was the duty and the custom of the men to use powder for the purpose of loosening the dirt and rock from its natural position, so that it could be shoveled into tubs and hoisted to the surface, and, after the shots were fired, to examine the walls of the shaft with their picks and hammers for the purpose of removing all material that was loose or liable to fall. About 10 or 12 feet from the bottom a boulder was left in the northeast corner of the shaft, and, according to the plaintiff's testimony, in the north wall, and defendants' testimony, in the east wall. This boulder extended a few inches into the shaft and was examined by the men, including the plaintiff, and they were of the opinion that it was solid, and there was no danger of it becoming loose and falling to the bottom of the shaft. In sinking the men were able to excavate about 1½ feet to 2 feet per day, and they all testified that from the time they first unearthed this boulder until they got so far below it they could not reach it they sounded it from time to time for the purpose of ascertaining whether it was solid or likely to become loose. The testimony also shows that the miners determine...