Whitmore v. Orono Pulp & Paper Co.

• Citation: 39 A. 1032,91 Me. 297
• Parties: WHITMORE v. ORONO PULP & PAPER CO.
• Decision Date: 26 January 1898
• Court: Supreme Judicial Court of Maine (US)

39 A. 1032

91 Me. 297

WHITMORE

v. ORONO PULP & PAPER CO.

Supreme Judicial Court of Maine.

Jan. 26, 1898.

(Official.)

Exceptions from supreme judicial court, Penobscot county.

Action by Bertha L. Whitmore, administratrix, against the Orono Pulp & Paper Company. Verdict for plaintiff. Defendant excepts, and moves for a new trial. Exceptions sustained, and motion granted.

The plaintiff in this action is the administratrix of the estate of her husband, who was in the employ of the Bangor Pulp & Paper Company, the lessee of the defendant company, and was injured while so employed by the explosion of a digester in its mill, and afterwards died from the effects of the injury. The plaintiff had previously brought an action for the same injuries against the Bangor Company, and recovered a judgment, but the judgment was unsatisfied, as that company became insolvent.

The defendant company is the lessor of the mill under a lease dated October 1, 1892, by which it leased its mill and property to the Bangor Pulp & Paper Company for the term of 25 years, with the right, after 10 years, to purchase. The lessee was to keep the mills and property insured, and it was provided in the lease that "said lessee shall keep the property substantially in repair." The lessor had no right to inspect any secret process which the lessee should use.

The Bangor Company, lessee, went into possession of the premises on the 1st day of October, 1892, and was operating the mills at the time of the accident on October 11th. The writ alleged that the defendant company knew, or ought to have known by the exercise of due diligence, when it leased the mill, that the digester which exploded was in a weak and dangerous condition, and that the injury came from want of care on the part of defendant company in leasing the mill with defective digesters.

The defendant company denied these allegations. It claimed that there was no testimony on part of plaintiff that defendant company knew that the digesters were in an unsafe condition, and further claimed that the only testimony as to its unsafe condition was the pieces of the digester picked up after the explosion, showing corrosion of the metal, and the testimony of an expert that they indicated that these pieces were pitted and corroded to a considerable extent. The defendant company offered testimony showing that the digesters were purchased of manufacturers of the highest standing, were of the highest cost, and were carefully examined, both at the time of the purchase, and from time to time during use (the last examination being in September before the explosion, and report made in writing that they were in good condition); they had been in use only about 18 months, and the company was assured that they would be good for 10 or 15 years; was assured and believed that they were in good and safe condition, and there was nothing to lead them to believe that they were unsafe.

The verdict was for the plaintiff. The defendant moved that the verdict be set aside, as against law and evidence, and alleged exceptions to the rulings of the presiding justice.

The exceptions were to those parts of the following rulings and instructions of the presiding justice that are included in brackets:

"I will rule on another point that they [defendants] make, and that is, [they offer a judgment against another company, the Bangor Pulp & Paper Company, as a bar or estoppel here; and I rule against that proposition, and that need not trouble you at all.] As a legal proposition, I rule that if that judgment remained in no part satisfied, nothing appearing more than that they recovered judgment and took out an execution, getting no value with it [that it is not a bar to this action;] that, while the other company has been held liable, this company may also be held liable, if the evidence satisfies you. But I say this: that you should not be influenced the least in the world, in your consideration of the questions here, by the fact merely that another judgment was recovered against another company. You are not to give judgment here because there was judgment in another case."

"Now, the defense set up by the defendants is this: They say they were not operating the mill at that time—that is, when the accident happened, on the 11th, they were not in possession,—and therefore they are not liable for what was done by the other company. But the plaintiff invokes the principle which I shall rule, if you are satisfied of it, to be sufficient to enable him to recover against these defendants: That is, if they were the owners of this property, and had been conducting the business there, and using the digesters until the digesters in question became dangerous to use, and knew that fact, or they did not take, in the use of it, due and ordinary care, and then leased the same premises to the Bangor Company to be used in the same way, with a continuation of the same business,—the defendants, the lessors, receiving rent and compensation for the use of the property,—they might be as liable as the Bangor Company would have been had the accident occurred on the 1st day of October, when the defendants were in possession; that is, they are liable for what took place afterwards, unless the dangerous condition, or condition of the nuisance, did not exist when they sold it, although it existed ten days afterwards.

"I find authority enough to sustain the ruling prima facie (that is, for you to sustain it until the full court overrules it); and I give the ruling that the plaintiff should satisfy you that it was a dangerous condition, amounting to nuisance, which existed when the lease was made, rendering the defendants liable. Now it is on this principle, Mr. Poreman: Supposing your neighbor erects a nuisance—some building amounting to a nuisance —on his own premises, to your injury, and then he sells it to somebody else. Both parties might be liable,—the first man for creating the nuisance, the lessor; and the second, the lessee, for continuing the nuisance. They might each be liable, not jointly, but separately; one party for putting in the nuisance, and the other party for continuing the nuisance.

"Now, what is a nuisance? Lord Coke, in his blunt way, said it was doing anything illegal to the injury of another, by way of trade. The modern, general definition is that a man who uses even his own property (real property or personal property) unreasonably or unwarrantably or unlawfully, to the injury of another, not having a right to do it, is guilty of nuisance; and if it be a dangerous thing, besides being noxious and disagreeable, then it is otherwise an offense. If it be dangerous to life by its continuance in use, then it is even more a nuisance, or more emphatically a nuisance.

"The plaintiff claims that here were premises dangerous to use, such as could not be legally or warrantably used, because, in the situation in which things were, it would be dangerous to other persons.

"The counsel for the defendant says that could not be extended to the lessee, or employ?of the lessee. There is some question about it, but I rule, for the purposes of this trial, that the employ? such person as the deceased was— He could not protect himself if I should rule as the defendant claims, so I rule, for the purposes of this trial, that, [if the defendants are liable on all other grounds, the rule can be so applied as to make them liable to this employs, although in the service of the lessee under such an instrument as is produced here, which is a lease or contract,] under certain conditions."

"The plaintiff alleges negligence, and therefore he must prove negligence. The burden of proof is on him to prove negligence. It does not follow at all that they are guilty, merely from the accident happening. It does not follow that anybody was in fault, merely from the existence of the accident, because it may be an inevitable accident, for which nobody is responsible. And that is the defense here,—that this must be regarded an inevitable accident for which no one at all was responsible. The way to get at what negligence may be is to define the correlative terms of 'ordinary care.' [The duty which rested upon the defendants was that of ordinary care.] Not of extraordinary care, if distinction is to be made between the two kinds of care, or between negligence and extraordinary negligence. But certainly it is true, as claimed by the plaintiff, that what would be ordinary care must depend upon the circumstances. What would be ordinary care in some circumstances would not be in other circumstances. The more the exigency, the greater the danger and risks at stake, the more care to make ordinary care."

P. H. Gillin and C. J. Hutchings, for plaintiff.

C. P. Stetson and C. J. Dunn, for defendant.

EMERY, J. The defendant company, the Orono Pulp & Paper Company, constructed, and for a few years, up to October 1, 1892, operated, a pulp mill in Orono. On that day it leased its mill and plant to another and distinct corporation, the Bangor Pulp & Paper Company, for 25 years. This latter company, the lessee, took possession of the leased property on the same day, and for some little time thereafter operated it as a pulp mill on its own account. By the terms of the lease the Bangor Company, the lessee, was to have the exclusive possession of the property, and was to keep it in substantial repair; the lessor reserving the usual right to enter upon and view the premises at times convenient to the lessee. The lessor made no stipulation as to the condition of the property.

The plaintiff's intestate, Austin J. Whitmore, had entered into the employ of the lessee, the Bangor Company, and was in its employ, upon the premises thus leased and operated by it, on the 11th day of October 1892. On that day one of the digesters (a large cylinder of deoxidized bronze, and an essential part of the machinery of the mill) exploded while Mr. Whitmore was at work near it in the line of his...