Johnson v. Kosmos Portland Cement Co.
64 F.2d 193
6th Cir.
1933
Check Treatment

*1 plaintiffs most can made out of that ease is that there is some evidence that con judgment altered obtained amount recovered was tract, and that city through fraud collusion engineer in final allowing eouneil ought it to have been. estimate for more than “the proof is neither claim nor There charged prevented party fraud really making fair a full and complaining from proof nor defense.” is neither claim the contractor anything done city making defenses. did not know only city It is claimed that the and, know, them, it it it had because did

did make them. only it considered that When fraud overesti permitting claimed made, mate to considered when years than two this was made more estimate filed, up suit that it was set before the pro publicly known validation and made of ceedings, that new eouneilmen were that, filed, though the fice when suit suspeeted of the town had citizens years contending' than two for more something wrong' with the there was tract, nothing- was done the council defense, prepare itself it cannot ho judg set city now undertake to

ment aside. that, Further, if it be considered only through town can act of- because a ficers, satisfactory proof or ad- definite resulting mission of fraud and collusion continuing false estimate the time suit out a case of fraud in would make the obtaining judgment, the record is entirely proof. wanting The most of plaintiff’s that, can be said evidence is original suit, had been offered in presented would an issue for decision. Offered as it is in suit to set aside a judgment, it falls far below the measure of required.

proof judgment is affirmed.

JOHNSON et al. v. KOSMOS PORTLAND CEMENT CO.

SAUER et al. v. SAME. Nos. 6080. Appeals, Court of Sixth Circuit. March *2 respondent company had The cement en- Kleinsteuber, gaged doing as the business Works, Kleinsteuber to Boiler make alterations on the and Sauer Wilber- dissenting. Judge, MOORMAN, Circuit ding Kleinsteuber, employ were in the and were assigned work as performing such was to by them company the cement in- under general president its vice structions manager. and allege explosion The libels that the by was caused respond- of the failing ent in pro- to use reasonable care to vide the place deceased awith safe in which work, respondent, to having- after barge oil, used properly for failed to clean out its hold so as generation to gases. The record certain ac- discloses cepted gases methods for removal of under They such first, are, scrape circumstances. the sides of tank pos- and remove all oil Ky. Louisville, Coleman, of Harris W. sible, then to gases by exclude the filling the Helm, of Louis Doolan, Helm (Trabue, hold with water or steam. of these None appellants. brief), Ky., for ville, on the things was done. Ky. Seelbaeh, Louisville, Louis The court respond- found below that the Norton, Crawford, Jr., and Mid- (George W. ent had failed to use reasonable care such Seelbaeh, Louisville, all of dleton, Milner respect, explosion gases and caus- brief), appellees. Ky., for on ed the death of the respond- decedents. The ent exception HICKS, findings, and SIM- took MOORMAN, Before appeal. does not Judges. The court further found ONS, Circuit that the which accumulated Judge. SIMONS, barge were not exploded set off and by the acetylene torch referred to- in the evidence combination a 750-ton August On but a lightning bolt which struck the cement belonging to the rock barge oil and barge, and that barge by striking riv- dock on the Ohio was to a tied company lightning, explosion Kosmosdale, Ky., during thunder near er thereof, therein as result every not such a occurred, explosion killing An storm. natural probable including Wilberding, leaving for board, on one the gases in the as should have reason- is administra- Johnson appellant whose estate ably anticipated by respondent Sauer, appellant whose for estate tor, and permitted begin time Ap- widow, is decedents work executrix. Sauer, his Rose barge, libelants could not re- recover seek to Sauer pellants Johnson findings excepted cover. latter The Kentucky statute, section death under the libelants, by the and form the bases of these provides for sur- Ky. St. appeals. representatives of de- personal vival to wrongful action for causes of ceased question therefore presented, upon personam suits are libels death. rest, decision must neg- whieh ligence whether the upon the admiralty, in reliance brought-in a proximate allows ac- that, where state statute rule Wilberding cause of the death and Saner. death, into it will read tion It is the rule circuits in this other general supplement ad- and allowed to appeal admiralty that while an is a trial de joins Appellant miralty Kleinsteuber law. findings novo, will of the District Court libelant, compensation and seeks to recover as clearly accepted prepon employer of the deceased' paid as an by him Paine, A. of evidence. The William derance Longshoremen’s and Harbor Work- under the 6);A. F.(2d) Perseus Compensation title § ers’ Act § 6); (C. C. A. Drowne G. 272 F. 633 (33 933), provides § S. C. USCA Corporation, Transit operate compensation shall payment Shepard Reed, 26 employer rights assignment of all as finding urged upon that the us 6).A. damages against persons. recover third question of causation is below Company, appel- Insurance The Travelers disturbed fact, finding lant, of Kleinsteuber. insurer (cid:127)events is relied mary wrongful act or omission continuous ting the injuries. fault, causation. is to determine to ate ate always recognize the unbroken connection between injury.” eration sequence be and which is inherent ous imate etc., tion. But it as to make exceptions the tested clear tbat the Milwaukee, said there tion ing of law and new and mitted that the rule is liability tween reposes in applicable law of ing is of an undoubtedly United States While the And wrongful supported warrant considered Tested the alleged injury recognize amounting assumption tbat the efficient light succession eause disconnected from the In of that it Railway v. ordinarily again, eause, negligence, S., cause an upon ? Did the court, be whether there was correctness obtains. gases is respect said: “The of the act and the independent We unbroken 24 L. Ed. of self-operating wrong and the a a natural a the as proximate But ultimate “But when reserved, etc., of review. ought eause, finding one of mixed it. The the correctness to remain in finding the attending escape hero these Supreme Court, in as whether an mind to the result of the upon, fact, of to as such. The generally difficulty substantial Kellogg, Railway negligence wrongful form unbroken reaching wanton injury, to be facts events, whenever natural proximate fact; question of rules, fact, whole, as which question act Where, connection of injury, a 256, ibis a inquiry and where is at proximate cause, can bo have cause of they cause question to original the constitute was not negligence, or an act difficult of consisted jury it and remains. supra, wrong, held, the usual so injury? least a mixed we a,nd probable to the or was must Kellogg, 94 are been foreseen evidence. it must court, or the, as is no must, therefore, always Was circumstances.” linked intervening of finding the law any will continuous cannot fail examined cause must here, succession so law and that in order produced produced for the injury. an no wrong between which, page 475 self-operat- appear Milwaukee, question of linked there effect, intermedi in permit- intermedi a continu apply presump es, injury difficulty chain problem primary the be is: together applica given it tbat applied We It was prox U. upon upon mary cause, jury, put must faet. find find pri- and and act, op the ad the the be do be of S. ulus. But is 201, decided obvious to the court ly extraordinary, event, it is bility, seen the from could reasonably have been the cient to of ger seen as bility that seeability” arbitrary ably gence implied negligent act, ence.1 ther than to ous result was wanton cient to the deed must also ate explosive gases to destroying sequent discussion, at curred. *3 tainly pendent upon between the wrong whatever sole Was the ably ing. described. probable consequence See least, negligence, injurious attending light neither in or But bo it argued in there been no there would have or Pittsburgh as is injury constituting the latter, whether the the motion Reasonable intervening impose in its wrong reasonably expected reasonable bringing no precise causation, We of the the not to Wo have secondary cause, or lightning the is a the causal relation of while hold actionable be it self-opcrating, absolute standard of of note, Smith be need faet that injury is finding- result should have been fore circumstances? If the likewise the and, explosion or failure to conform to some necessary liability brought attending negligence is cause of the and so S. S. Co. manner which said have been the result of the of a session. it, rather to been no disconnected from the about the original carry apprehension for its reasonably here, remain expectation question be one below, foreseeable if probable in the or in efficient cause was result, of Lampe barge by accumulation of that, injury it liability ignition negligence. danger upon two concurring a about, not this would not have oc- response then, test been no v. Palo cireumslanees. In unprecedented injury prerequisite and that in a lightning, conceiv- bearing upon wrong, not in in there is no yet together effi- catastrophe in resulting there inquiry of disaster? criterion not injury, the absence of alleged wrongful self-operating. anticipated for an no intermedi- of injury in permitting or any the existence consequence. of the dan can reason the care, “fore foreseen enough; A.) nor a force the to a general explosion. operating sense de- light former, natural it suffi no fur and so former alleged injuri to lia gases, negli neglig sense, A.) caus- fore stim- is so here sub Cer- pri- lia as in it Even, covery; third, the rule but for ct omission. or when cir a rule, peculiar of cumstances ceased true we are to be became lied certain familiar, mani this conclusion. defendant would be liable.” the soundness of of natural forces and effect festations think, however, We the doctrine account taken into are be conditions foreseeable results calls for no such narrow consequences of probable regarding the applied test to anticipation injury be direc including force act, negligent the one above as discussed. think the We (Milwaukee Railway Kel tion wind thing true rule to pro when the done Rita, (The and tide Santa supra), wind logg, danger injury, duces immediate and is (N. S.) 30 L. A. [C. 176 F. about, substantial factor bringing *4 & M., P. S. (Anderson v. St. drought 9]),A. not that necessary the author of should light 45), 430, 179 N. W. Minn. Ry., 146 S. have had mind particular in the means Co., 143 Coal Riverside v. West (Brown ning potential which the force he has created (N. 732, R. A. 28 L. 662, N. Iowa, 120 W. might injury. Memphis he vitalized into Co., Ry. C., & I. v. B. (Vyse 1260), flood S.) Creighton, Consolidated & Electric Gas v.Co. 736), snowfall N. W. Iowa, 90, 101 552 6); Doyle Chicago, 126 183 A. v. F. of Ironwood, Mich. 189 (Morrison City Ry. Co., Iowa, 607, & K. v. St. P. 77 42 N. W. is, at least Lightning 477). 555, 117, 420; 4 L. A. Pacific Ry. 155 N. W. R. Texas & Co. involved, no ex here place Carlin, supra, 354, affirmed 23 the time v. 189 U. S. natural force.2 of 585, ; traordinary manifestation 47 Ed. 849 S. Ct. B. & O. Mc v. strikes, injury This Bride, results. (2d) 36 F. 841 Morrison Lightning (C. A. ordinary and observa experience City supra; of Ironwood, v. Detzur our v. within Stroh to avoid precautions many 948, Brewing Co., 282, 119 77 N. take Mich. W. tion. We are insured effect, insure 44 L. R. A. 500.3 American Law In injurious The puts stitute’s Restatement of Torts it this it. against way, ais substantial “If the actor’s conduct in of expectation reasonable Nor is injury, in bringing factor about the other’s by the determined consequencesto be jurious nor fact that the actor neither foresaw has been injurious result no similar that fact injury have foreseen the extent of the act under a like to follow known occurred, manner in which it does not or If attending circumstances. identical 310, being liable.” him from Section dis he could peculiar circumstances so, See, 8, April 2., Draft 1932. Tentative No. relied accident, and every in almost covered Negligence, also, § & Redfleld Shearman conclusive not liability. It is defeat upon 39. not have river Ohio in the barges oil that right in of understanding we are onr If There by lightning. exploded heretofore been doctrine, application to the facts the true in barges oil number of of record no present compels The case reversal. situation in inherent danger use, in fault of consisted its fail- empty in oil, hold full in a not lay gases from the ure to Their remove had which from hold empty partly or Mich. S.S. McGill v. removed. See not been 3 foreseeable, spe “The harm "which was be 9). can A. 788 F. need be ab Co., 144 actually resulted, harm not cific which * ** a If substantial solutely identical. number of a substantial assumption that no pursued will certain conduct that when likelihood have barges.containing empty appreciable the plaintiff’s in harm to result person, conducts, if he then defendant so cannot in the face thunderstorms exposed to ground not could escape liability on the he approved generally a disclosing evidence in manner which the harm would precise foresee harm, exact nature of the nor occur, nor the needs no il gases. removing for practice Smith, Jeremiah Har extent of harm.” 25 full danger may demonstrate lustration to Rev. 238. vard Law negligence yet has consequences of are present although injury not occurred. particular “The Damages invariably surprises.” Watson, almost Finally, give validity to such contention Injuries, 148. Personal would lead to the anomalous result noted in unexpected expected rather than “It great majority happens in the the cases of tfiat Ry. Carlin, 111 Texas P. Co. F. negligence.” Dudley, Stevens necessary 158. Vt. 5), L. R. A. 462 “That for injury precise in is not “It it in fact resulted should in which have been form perhaps first, second, injury oc Winsor, 118 251. Hill v. Mass. foreseen.” in such manner there could he curring which party is that the act one “The law ought, ordinary care, an the exercise have injury operation forces others, of natural do not liable to result ticipated constitute injury (intervening) agency, exception any such proximately is liable for result such then he although ing prudence violence, extraordinary, anticipated that human could it, al would Bohlen Studies so not have injury provided happen.” foreseen or did particular not have Christian them. Chicago, P., the Law of Torts Haverly Ry., son v. St. M. O. 67 Minn. N. Rep. R., 20 Am. St. 641. Pa. A. W. it, respect, to dence of in that practice menace standard presented continuous explosiveness presumed must the men num- relied one Any of: working- men thereon. precautions having- the usual and customary expectable circumstances ber provide been taken to them place re- with precise injury a safe brought about in which match, They to work. were members of sulted; the flame lighted whom, crew, rivet, pro- the task acetylene torch, spark cleaning heated assigned. would boot, so have been presumably of: a or friction tool duced argument support injurious advanced danger result was on. contention that though the risk was assumed hut the manner present, ever even emphasizes the which, correctness of our which, result was conclusion the means injury brought aspect should have been in it some foreseen. about may have of unusualness. The decrees are below set aside. The causes are remanded proceedings for further class This ease fall does -within consistent herewith, including findings cases where failure damages, and decrees duty in favor comply is not a of libelants. statutory with some in bringing substantial about the factor in *5 jury, but an merely creates incidental MOORMAN, Judge (dissenting). dition whieh or situation in the accident oth my opinion the application In cor injury. erwise caused in such Louis results proximate rect rule of result to this case Layton, 617, ville & N. 243 Railroad v. S.U. quires gas exploded Had affirmance. 456, 931; Minneapolis 37 S. 61 L. Ed. Ct. spontaneously, there would be an unbroken Gotschall, 66, 244 St. L. R. Co. v. U. 37 S. negligence chain injury. between the 598, 995; Ct. Ed. Wolfe, S. 61 L. Davis v. attracted the the chain 284; 263 U. S. 44 S. Ct. 68 L. Ed. causation complete. would still he In either Chicago Reetz E. Co., & R. 46 50 F.(2d) v. case the would be the direct or, as (C. Smuggler A. 6); Co., C. v. Mining Teis said, sometimes the natural (N. 158 F. 15 L. R. A. S.) 893 (C. C. negligence, the defendant’s prox and thus the 8).A. Neither it within those classes where imate result. the factual But ease differ negligence recognized is not in acts from ent. g-as inactive dormant, the commission injuri no generally a new outside force intervened caused the reasonably ous results can be foreseen. explosion. This seems me to make Ry. Page, Northern Co. 274 U. v. S. 47 S. defendant’s remote unless cre 929; Bobango Ct. 71 L. Ed. v. R. Erie situation, ated a foreseeable where Co., (2d) (C. 57 F. 6); 667 nor where of, danger of the intervention the new force. secondary efficientcause intervenes to break Beale, Consequences The Proximate chain causation and so sole becomes the 33 Law Act, Harvard Review I think injury. cause Gt. Northern. danger was not foreseeable. Thunder Ry. Wiles, v. 240 S. 36 S. Ct. 60 storms, true, do come, lightning does 732; Gwyn Ed. Cincinnati, v. N. O. T.& a,nd domen take out strike, insurance Co., (C. P. R. F. 88 C. A. Winters So men run these risks. do trains open into Co., v. Baltimore Ohio R. 177 F. (Pere Marquette Ry. Co. Haskins, switches 6);A. Orton v. Co., Penn. R. 7 F.(2d) 36 (6 F.(2d) A.) C. C. and automobiles Marquette 6);A. Pere Railway Co. railway standing highways into ears (Or Haskins, 6).A. Pennsylvania Co., ton 36 (6 C. no assumption Many tilings A.). happen of risk. C. that reasonable While there is evidence that the men had foresight anticipate; cannot and so it is that taken precautions in the use of the thing hap foreseeable not that has acetylene torch, they precautions again pened happen but which “could against fire explosion. and not There noth reasonably light been foreseen in ing in the record charge them with knowl attending circumstances.” I think all the edge that g-ases had not been beyond scope stroke of this removed In light expectation. hold. of evi-