Smith v. Mine & Smelter Supply Co.

• Decision Date: 15 January 1907
• Docket Number: 1756
• Citation: 88 P. 683,32 Utah 21
• Parties: SMITH v. MINE & SMELTER SUPPLY CO
• Court: Utah Supreme Court

88 P. 683

32 Utah 21

SMITH v. MINE & SMELTER SUPPLY CO

No. 1756

Supreme Court of Utah

January 15, 1907

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by Mrs. T. G. M. Smith against the Mine & Smelter Supply Company. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

Frank B. Stephens and Benner X. Smith for appellant.

A. L Hoppaugh, D. B. Hempstead and S. H. Lewis for respondent.

FRICK J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an action for damages for injury to and destruction of personal property, caused, as alleged, by the explosion of certain explosive substances kept and stored by defendant (hereinafter designated "appellant") in its place of business within the corporate limits of Salt Lake City. The complaint sets forth two causes of action--one for injury to a dwelling house, and another for injury to and destruction of personal property kept in the dwelling; and a recovery is sought upon general negligence, as well as upon the violation of the ordinances of said city, in storing the explosives. The complaint is too voluminous to be set forth even in substance. The negligence, however, is in part charged in the following language: "That said defendants unlawfully, intentionally, carelessly, and contrary to the ordinances of Salt Lake City . . . placed in said store-rooms, at said date and prior thereto, large quantities of powder, giant or Hercules powder caps, dynamite, explosive chemicals, acids, inflammable oils, etc." The particulars in which the ordinances were violated are alleged. The ordinances are also pleaded, and the violation thereof, and the occurrence of a fire in the building occupied by appellant, and the explosion, and the injury and damage consequent thereto to respondent's property. Those parts of the ordinance which may be necessary to a full understanding of the points hereinafter decided are as follows: "Giant or Hercules powder caps shall, in all cases, be kept separate from any kind of explosive powder; if kept at a powder magazine, it shall be in a separate vault or safe away from all other explosives; if kept at a place of business, it shall be in a vault or safe away from all other explosives." Another section of the ordinances, among other things, provides: "And no person shall receive, keep, or store, or suffer to remain in any place within the limits of said city, any explosive substance having an explosive power greater than that of ordinary gunpowder." The answer was practically a general denial. Upon the issues thus presented there was a trial to a jury, which returned a verdict in favor of respondent, upon which the court rendered judgment, from which this appeal is prosecuted. The errors assigned are very numerous, and those deemed important we will consider hereafter.

The view we take of the case makes it unnecessary to make a full statement of the evidence, or to even state it in substance. We will, therefore, state such facts as may be necessary to illustrate the questions decided in connection therewith. After the respondent had produced evidence which tended to show the location of appellant's place of business, the destruction of said place of business by fire, the occurrence of one or more explosions in the part of the building destroyed by the fire and occupied by appellant, the force of the explosions, the storing by appellant in its place of business of large quantities of giant and Hercules powder caps and what are called "electric exploders," that those caps and explosives, coming in contract with fire or great heat, exploded with great force, and that the place where they were stored and kept by appellant was in an open brick vault without a door, and that the explosions occurred at the point where those explosives were being kept and stored, counsel for respondent, on redirect examination, asked a witness, who was an employee of appellant and familiar with its business and the conduct thereof in a general way, the following question: "And would the Mine & Smelter Supply Company have been likely at that time to have sold two or three thousand of those explosives within two or three days?"--to which counsel for appellant objected upon the following grounds. "As incompetent and calling for what this witness thinks the company is claimed to have done." The objection was overruled, and the witness answered: "No; they would not have been likely to sell that quantity of explosives within three or four days." The ruling of the court is assigned as error, and it is asserted that the answer was prejudicial. So that the full import of the ruling may be better understood, it is necessary to state that the witness had, on direct examination, testified that, before and up to the time of the fire and explosion, he had been in the employ of appellant as a salesman, that he was familiar with appellant's business, and that three or four days prior to the fire he had seen about 2,000 of the electric exploders, which he described as being used sometimes instead of giant and Hercules powder caps and for the same purpose, in a brick vault in which the explosive caps aforesaid were also being kept, and of which caps, he testified, there were in the vault aforesaid about 37,500. On cross-examination counsel for appellant, doubtless for the purpose of showing that the caps and electric exploders may not have been in the building or brick vault at the time of the fire, but had been sold, elicited from the witness the fact that both the caps and exploders were kept for sale by appellant, and that they were being sold in its business daily, or almost daily; that the witness did not know how many of them had been sold during the three or four days immediately preceding the fire. To meet the inference to be deduced from this testimony, the question set forth above was asked and answered. We cannot see in what way there was error in the overruling of the objection. It certainly was proper to show that the appellant kept those explosives in its place of business, and that it kept them in a place in violation of the ordinances of the city. We think, further, that it was proper, under the general allegation of negligence, to show substantially the foregoing facts, and that the explosives were dangerous. When, therefore, appellant, on crossexamination attempted to show sales of the explosives in the ordinary course of business of appellant, for the purpose of showing that some or all might have been sold, or at least raising a doubt in respect thereto, we think it was proper for respondent to show that in the ordinary course of appellant's business such a number of a particular kind of explosives would not likely be sold within the three or four days. It was entirely within appellant's power to show that it had no explosives in stock at the time of the fire and the explosion, either because it had obtained none, or for the reason that it had sold them. The witness was a salesman employed by appellant in its business, knew of its transactions in the ordinary course of business in a general way at least, and he was thus qualified to testify in respect to what would be the usual and ordinary course of that business in respect to the matter inquired into. We think the ruling was right, and therefore this assignment cannot be sustained.

Another assignment of error is that the court, over the objection of appellant, permitted a witness to testify respecting the comparative explosive power between fulminate of mercury, a component part of the giant and Hercules powder caps, and ordinary gunpowder. The objection is seemingly based upon the ground that by the ordinance appellant was permitted to carry such caps in stock, if kept separate and apart from other explosives and in a vault or safe. We think, however, that the evidence was admissible, if elicited from a witness qualified to testify upon the subject, which the witness was upon another ground. The respondent sought to recover damages for injuries sustained by reason of the explosion of certain explosives kept by appellant on its premises. The ordinance, as we have seen, forbade the keeping or storing of any explosive substance on premises within the city limits of greater explosive power than ordinary gunpowder. It is true that appellant was permitted to keep giant and Hercules powder caps; but it was only permitted to keep them if it did so by placing them separate and apart from all other explosives within a vault or safe. The testimony showed, without conflict, that the caps were kept within brick walls, which had an opening and to which opening there was no door of any kind, thus leaving those caps and the electric exploders exposed from one side at least; and thus the caps were not kept either separate and apart from other explosives, nor in a vault or safe such as was clearly contemplated by the ordinances. It followed, therefore, that the explosives were kept in violation, of the latter ordinance, which forbade explosives to be kept or stored within the city at all, but, apart from this ordinance, in view that they were not kept in a vault or safe, simply resolved itself into keeping dangerous explosives upon the premises from which another suffered injury and damage. In order, therefore, to show the degree of care required in respect to the dangerous articles kept by appellant, we think it was proper to show the nature or character of the explosives; and this is all that was done. It therefore simply amounted to proving that the appellant was using its premises for the purpose of storing thereon highly dangerous substances which might cause injury to another's property. We think the evidence was clearly proper within the principles laid down in the following cases: ...