Rowden v. Daniell
| Decision Date | 10 November 1910 |
| Citation | 132 S.W. 23,151 Mo.App. 15 |
| Parties | OSCAR N. ROWDEN, Respondent, v. JOHN DANIELL et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. George Pepperdine, Special Judge.
Judgment reversed and cause remanded.
Mann Johnson & Todd, Woodruff & Luster for appellants.
(1) The Wolverine Zinc Company, though a foreign corporation which had failed to comply with the laws of Missouri relating to foreign corporations, nevertheless could operate and was in fact operating the mine as a corporation at the time plaintiff was injured. R. S. 1899, sec. 1026; Tribble v Halbert, 127 S.W. 168; Young v. Niles & Scott Co., 122 Mo.App. 401; Insurance Co. v Railroad, 149 Mo. 165; Lumber Co. v. Sims, 101 Mo.App. 569; Blodgett v. Zinc Co., 120 F. 897; Utley v. Hill, 155 Mo. 235; Jones v. Horn, 104 Mo.App. 705; Fritts v. Palmer, 132 U.S. 289; Merreck v. Van Santvoorf, 34 N.Y. 207; Bank v. Hall, 35 Ohio St. 128; 19 Cyc. 1311 and 1314; Bank v. Leeper, 121 Mo.App. 688; Boyington v. Van Etten, 62 Ark. 63, 35 S.W. 622. (2) The evidence failed to show that the master had any notice of the defect in or danger from the boulder. It also failed to show how long the dangerous condition had existed, or that the master should have anticipated the danger. Plaintiff therefore failed to make a case against the defendants. Carvin v. St. Louis, 151 Mo. 334; Buckley v. Kansas City, 156 Mo. 16; Alcorn v. Railroad, 108 Mo. 96; Wendall v. Railroad, 100 Mo.App. 556; Anderson v. Box Co., 103 Mo.App. 382; Dickey v. Dickey, 111 Mo.App. 304; Cole v. Lead Co., 130 Mo.App. 253; Harris v. Railroad, 124 S.W. 576. (3) There was no negligent failure on the part of the master to crib or timber the shaft which resulted in injury to plaintiff. Abbott v. Mining Co., 112 Mo.App. 556; Shore v. Bridge Co., 111 Mo.App. 278; Holt v. Railroad, 84 Mo.App. 443; Minnier v. Railroad, 167 Mo. 99; Bradley v. Railroad, 138 Mo. 293; Beckham v. Brewing Assn., 98 Mo.App. 560. (4) There was no negligent failure on the part of the master to inspect the boulder and discover and remove the danger which resulted in the injury to plaintiff. Nelson v. Wheel Co., 29 F. 840; Halloran v. Pullman Co., 127 S.W. 947; Bowman v. Car & Foundry Co., 125 S.W. 1120; Wendall v. Railroad, 100 Mo.App. 559; Clipper v. Transit Co., 202 Mo. 432; White on Mines and Mining, secs. 396-7-8. (5) The evidence does not show that plaintiff was injured through any negligence on the part of Langston, but even if it did the act would be that of a fellow-servant. Whelan v. Mining Co., 168 U.S. 85; Robinson v. Railroad, 135 Mo.App. 117; Bane v. Irwin, 172 Mo. 306; Schmeizer v. Furniture Co., 134 Mo.App. 493. (6) To plaintiff and his co-laborers was delegated the duty to inspect and trim the shaft and make it a safe place in which to work, therefore, the master cannot be held liable if there has been a failure to perform that duty. Livengood v. Zinc Co., 179 Mo. 229; Henson v. Packing Co., 113 Mo.App. 618; Gibson v. Bridge Co., 112 Mo.App. 594; Nash v. Kansas City Co., 109 Mo.App. 600; Meehan v. Railroad, 114 Mo.App. 396; White on Mines and Mining, sec. 451; Miller v. Telephone Co., 126 S.W. 190; Denker v. Milling Co., 135 Mo.App. 344; Rowden v. Mining Co., 136 Mo.App. 376; Bennett v. Lime Co., 124 S.W. 611; Kelly v. Railroad, 105 Mo.App. 365; Bradley v. Tea & Coffee Co., 213 Mo. 320; Fisher v. Lead Co., 156 Mo. 479.
J. B. Delaney, Hamlin & Seawell for respondent.
(1) Where a number of individuals assume to act in a corporate capacity in a state where they have not been clothed with a corporate existence and authorized, they cannot there be recognized as a legally constituted corporation though they may have been duly incorporated in another state; and such persons in the state where they assume corporate capacity, will be treated as, and held to the responsibility of partners, both in courts of law and comity. Bank v. Earle, 39 U.S. (13 Pet. 519), 10 L.Ed. 274; Hyatt v. Van Riper, 105 Mo.App. 664; Cleaton v. Emery, 49 Mo.App. 345; Davidson v. Hobson, 59 Mo.App. 130; Taylor v. Branham, 35 Fla. 297, 39 L.R.A. 362; Hill v. Beach, 12 N.J.Eq. 31; Fuller v. Rowe, 57 N.Y. 23; Wells v. Gates, 18 Barb. 554; Hurt v. Salisbury, 55 Mo. 310; Richardson v. Pitts, 71 Mo. 128; Glenn v. Bergman, 20 Mo.App. 348; Amusement Co. v. Forest Park, 192 Mo. 404; Lead Co. v. Grote, 80 Mo.App. 271, 127 Mo. 364. (2) The duty of an employer to furnish the employee at all times a reasonably safe place in which to do the work required of him is not only enjoined by the law governing employer and employee, but is also imposed upon the employer as owner of the premises by the general law for the protection of all persons lawfully thereon. Musick v. Packing Co., 58 Mo.App. 322; Zellars v. Light Co., 92 Mo.App. 107; O'Neil v. Young, 58 Mo App. 628; Hach v. Railroad, 117 Mo.App. 11. (3) Ordinary prudence requires a master to adopt such reasonable methods and apply such reasonable tests as are likely to discover defects in appliances used by the servant if they exist; but the master is not always and under all circumstances excused if he could not see a defect, or, if the conditions are such as would excite suspicion in a man of ordinary prudence, he must go further and apply other tests. Gutridge v. Railroad, 105 Mo. 520; Huth v. Hogye, 76 Mo.App. 671; Deckard v. Railroad, 111 Mo.App. 117; Mariarty v. Schwarzchild, 132 Mo.App. 654; Rogers v. Printing Co., 105 Mo.App. 683; Seals v. Whitney, 130 Mo.App. 412; Dakin v. Chase, 197 Mo. 260; Goransson v. Riter, 186 Mo. 300; Robertson v. Hammond, 115 Mo.App. 520; Bloomfield v. Worster, 118 Mo.App. 254; Lee v. Railroad, 112 Mo.App. 372. (4) The negligence of Langston would not relieve the appellants of liability. Bridges v. Railroad, 6 Mo.App. 389; Bartley v. Trarlicht, 49 Mo.App. 214; Herdler v. Range Co., 136 Mo. 3; Combs v. Rountree, 205 Mo. 367; Lee v. Railroad, 112 Mo.App. 372. (5) No duty devolved upon respondent under his contract to inspect the shaft, and there was no evidence of his contributory negligence or assumption of risk. Rowden v. Mining Co., 136 Mo.App. 376; Anderson v. Mining Co., 138 Mo.App. 78; Weston v. Mining Co., 105 Mo.App. 702; Kielty v. Buehler, 121 Mo.App. 58; Carter v. Baldwin, 107 Mo.App. 217; Lockland v. Mining Co., 110 Mo.App. 638; Smith v. City, 125 Mo.App. 157; Herdler v. Range Co., 136 Mo. 4; Hamman v. Coal Co., 156 Mo. 244; Scott v. Springfield, 81 Mo.App. 312; Yoangue v. Railroad, 133 Mo.App. 141.
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 one hundred 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 one hundred 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 twelve or fourteen feet was dirt and gravel, and from that point for about sixty feet, solid rock was encountered. From the bottom of the lime rock formation, and for a distance of about eighteen 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 ten or twelve 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...
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