State v. Ellison
| Decision Date | 12 July 1920 |
| Docket Number | No. 20962.,20962. |
| Citation | 283 Mo. 532,223 S.W. 651 |
| Parties | STAVE ex rel. DUVALL v. ELLUSON et al., Judges. |
| Court | Missouri Supreme Court |
Cyrus Crane, of Kansas City, and W. O. Jackson and D. C. Chastain, both of Butler, for relator.
Swearingen & Finnell, of Kansas City, Volney McFadden, of Washington, D. C., and W. H. Hallett, of Nevada, Mo., for respondents.
Certiorari to the Kansas City Court of Appeals to quash its record in Gibbs v. Duvall, 201 S. W. 605, alleged to contravene our ruling in McIntyre v. Tebbetts, 257 Mo. 577, 165 S. W. 757. In the original case the plaintiff, Lydia Gibbs, a widow, sued the defendant, Duvall, for the loss of services of her minor son and for expenses incident thereto, on account of personal injuries inflicted upon him through the alleged negligence of the defendant. At the close of plaintiff's direct presentation of the case, the trial court sustained a demurrer to the evidence. Upon an appeal to the Kansas City Court of Appeals, the lower court's ruling was reversed, and the case remanded for a new trial.
The facts as found by the Court of Appeals are that Duvall, the defendant in the original suit, owned a large tract of land near the town of Butler. Twelve or more laborers had been employed by him to remove stumps from the land, with which much of it was covered. Plaintiff Gibbs' son, a boy 16 years of age, was one of these employés. The work was in charge of a general manager, named Howard. The manner of the removal of the stumps was by boring auger holes in them, placing in each a stick of dynamite, in which was inserted a detonating cap, attached to a fuse. By igniting the latter the dynamite was exploded, and the stump blown out of the ground. The plaintiff's son had been employed in this work for several weeks before the accident which resulted in his injury. One Bert Blough, who, in the absence of Howard, directed the work, told the Gibbs boy early on the morning of December 20 to go down to the stump patch and get his auger, warm it up, and go to work. In obedience to the order the boy went to the field, where he and the men had been removing stumps the day before, and got his auger. The weather was cold, below freezing, and it was necessary to warm the augers, to prevent them from breaking, before commencing work. Some of the men had preceded the boy to the field and had built a fire. He took his auger there to warm it. A few moments after he began to warm the auger, some boxes of dynamite and fuse and caps were brought and placed near the fire. All of the employés present were told by Blough to bring their augers to the fire and warm them. They obeyed. Blough, who can be said to have ordered the dynamite brought to the place where the boy was warming his auger, then sat down upon an unopened case of dynamite, and, directing one of the men to cut the fuse into four-foot lengths, began the work of priming each fuse with a cap and inserting the fuses thus capped into the sticks of dynamite taken from the open cases near by. The work thus being done was in dangerous proximity to a quantity of fuse and dynamite, and was near the fire where the men were warming the augers. When a fuse had been capped and attached to a stick, Blough laid it on the ground at his side. Although there was a supply of caps at his feet, as a further demonstration of Blough's general supervision, he sent one of the hands for an additional supply. It was not yet daylight and the only light Blough had for the priming operation was that from the fire, and perhaps a lantern, which he seems to have had.
The caps were like the old percussion caps, formerly used upon muzzle-loading guns, except that they were of the diameter of an ordinary lead pencil and were about an inch and a half in length. The closed end, like the old percussion caps, had therein a small quantity of a high explosive, which, when set off by the burning of the fuse, exploded the stick of dynamite into which the cap end of the fuse had been inserted. The cap was fastened to the fuse by slipping it over the same, or putting the end of the fuse inside of the cap and against the closed end, and then with a pair of pliers crimping or compressing the open end of the cap to the fuse, so as to hold it in place. To avoid accident it was necessary that care be exercised to crimp the cap as close as possible to its open end, or to apply the pressure as far away from the detonating end as possible. An expert testified that this process of priming and fusing dynamite was the most dangerous part of the work connected with its use; and in putting these' caps on the fuses, the proper, reasonable, and safe method was to do so at a distance from the dynamite, since, if a cap exploded, it would not only set off a quantity of other caps, but also the dynamite. While Blough was thus employed, the plaintiff's son, in company with four of the men, were standing about the fire warming their augers, preparatory to going to work. Blough, while engaged as stated and only a few feet away from the fire, was talking to the man standing at his side. While thus occupied he crimped a cap with his steel pliers, and there was a blinding flash and a tremendous explosion, which killed Blough, his companion, and three of the men who were warming their augers. One of plaintiff's son's legs was blown off, blood issued from his mouth and ears, and he received other serious injuries.
The foregoing embodies the material facts as disclosed in the opinion of the Court of Appeals. Much of it is in its nature historical, and it is relevant only so far as it tends to throw light upon the court's conclusion as to the status of Blough and the consequent liability of the defendant, Duvall, and hence the right of the relator to this writ.
A comparison and contrast of the facts in McIntyre v. Tebbetts, supra, with those in the case at bar, is necessary to a determination of the matter at issue. In the McIntyre-Tebbetts Case one Kuhr, the driver of a wagon used by a manufacturing company in hauling freight from its factory to railway stations for shipment, was authorized to employ and did employ the men needed to load and unload the wagons thus used by his employer. He had control of the men while thus employed, and furnished them with statements as to their hours of labor, upon which their compensation for same was estimated and paid. On the day of the accident he hired the plaintiff to assist in loading and unloading the wagon which he (Kuhr) was driving. After it was loaded, and they were en route to the railway station, Kuhr driving and the plaintiff, McIntyre, riding on the load, the former directed the latter to return an iron bar, which they had inadvertently taken with them, and deliver it to the shipping clerk at the office of their employer, and that he (Kuhr) would wait until the plaintiff's return. When the latter returned, he attempted to climb upon the wagon, where he had previously been riding and was expected to ride, and just as he placed his foot upon the hub of one of the front wheels, Kuhr started the team suddenly, and plaintiff was thrown to the ground and injured. In a suit brought by him against Tebbetts, the employer, to recover damages for the injuries thus inflicted, there was a judgment in the circuit court in plaintiff's favor, which upon an appeal to this court was reversed; a majority of the court holding that, while Kuhr was the vice principal of the defendant in the hiring of the plaintiff and in controlling his work while loading and unloading the wagon, at the immediate time of the accident Kuhr, as a driver of the wagon, was the fellow servant of the plaintiff, and that the latter was not entitled to recover. Three members of the court thought otherwise, and their reasons therefor will be found in their dissenting opinion. A repetition of same is not necessary here.
Conceding, as we must, although the reasons adduced in the majority opinion still appear to us to be tenuous, the binding force of the conclusion held to follow from the facts in that case, if sufficiently parallel with those in the case at bar, will justify a like conclusion here. But are they parallel, or even so akin that the conclusion in the one case may reasonably be held to establish a precedent for the determination of the other? In the McIntyre-Tebbetts Case, however variant may have been the opinions as to the correctness of the conclusion reached therein, this much must be conceded: That the plainly defined authority of Kuhr as a vice principal of his employer, as to his relation to persons employed by him, was technically limited to the loading and unloading of the wagons, and the majority opinion so held.
There was no such limitation as to the status of Blough in the instant case. "Whenever Howard, the manager, was not around, whatever Bert Blough said went." The morning of the injury plaintiff's son heard Howard tell Blough to put him and several other men at work boring holes, and Blough did so. Every man who testified said they received their orders and directions from Blough. When the men wanted directions as to what to do, they went to Blough, and he generally told them what to do. He directed the work and superintended it, told the men "what to do, and what kind of work to "do, and where to work." They received orders and instructions from him, and obeyed them; and there is evidence tending to show that this was with the knowledge, sanction, and authority of the defendant himself, and not merely the unauthorized act of Howard in placing Blough over the men. Frequently, when the men were in the field at work, with Slough in charge of and directing...
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