81 Mo. App. 155 | Mo. Ct. App. | 1899
Lead Opinion
Action to recover damages for injuries received by plaintiff in consequence of the negligence of the defendant.
The petition alleges the cause of action in this way: That is to say, that the defendant, a business corporation, was engaged in selling gasoline* and the plaintiff, a wagon maker and repairer, kept a shop in which he carried on his trade as such; defendant sent a gasoline tank wagon to plaintiff’s shop to be repaired and to have a flange riveted on the same; that said gasoline tank wagon was then in a dangerous, improper and unsafe condition to be repaired in this: That said wagon was filled with an accumulation of gasoline gas; that defendant knew that said wagon was in such condition, and had negligently, carelessly and recklessly allowed said wagon to remain in said condition and had failed and neglected to empty or drive out said gas before sending it to be repaired; that this plaintiff had no notice or knowledge of the dangerous condition of said wagon. That while plaintiff was repairing-said wagon in a proper and careful manner, and while he was attempting to put a red-hot rivet through the flange and tank of said wagon, the gas, so negligently allowed to remain in said wagon by defendant, took fire and exploded with terrific force and the flames of said burning gas shot out and burned this plaintiff’s head, hands, arms and face, and inflicted on him serious and grievous injuries.
The defendant’s answer was a general denial. The plaintiff had judgment in the trial court and defendant appealed.
At the time of'the plaintiff’s injury, it appears that he was engaged in performing a contract previously entered into between the firm of King & Grimes, of which he was a member, and the defendant, for the doing of certain work on one of defendant’s gasoline tank wagons. The firm was engaged in sn independent business and, as such, undertook to do the work specified in their contract, using their own means and methods, without submitting themselves to the control of defendant, in respect to all of its details. The film represented the will of the defendant only as to the result of the work, and not as to the means by which it was accomplished. It was, therefore, an independent contractor with the defendant. Shearm. & Red. on Neg., sec. 164. The relation of the defendant to the firm was not that of master and servant; and therefore there is little to be found in the principles of the law governing that relation to guide us in our present inquiry.
The principle enunciated by the master of the rolls in Heaven v. Pender, 11 Q. B. D. 506, seems to be that, if a reasonable man must see that he did not use care in the circumstances he might cause injury to the person or property of another, a duty arises to use such care. It was said in that case, that whenever on© person -supplies goods, machinery or the like, for the purposes of then being used by another person under such circumstances that every one of ordinary sense, would, if he thought, recognize at once, that, unless he used
But, however this may be, it is conceded in the brief of the defendant’s counsel that the legal relation existing between the defendant and the firm was that of bailor and bailee, and that the duty thereby imposed on each of them, in respect to the transaction between them, was that of ordinary care. Assuming then, as we must, that the measure of duty which the defendant owed the firm was that of ordinary care, it becomes next important to inquire, what is ordinary care ?
Any one who puts in the charge of another as carrier, depositary, or otherwise, anything which he knows to be of a dangerous nature, liable to injure other goods by explosion, combustion, leakage or the like, is bound to give the person with whom such things are deposited reasonable notice of the danger; if the thing is an ordinary article of merchandise, the qualities of which are generally known, such as gun-powder, nitroglycerine, etc., a simple disclosure of the name of the article is sufficient notice of its nature, but if the dangerous qualities of the thing are not common to its species, further warning is necessary. Thus, while in shipping a tiger no
The plaintiff’s evidence tended further to show that the presence of the vaporized gasoline in the tanks could not be discovered by ordinary inspection; that the liquid gasoline had been drawn therefrom; that there was nothing about the physical appearance of the tanks to suggest the presence therein of the vaporized gasoline. In such circumstances, it would seem to be the duty of the defendant to notify the firm of its presence there and the danger to be anticipated in making the repairs in the way it had suggested. A failure to do this would be a neglect of the performance of the duty it owed to the firm. But the evidence of the plaintiff does not tend to show directly or inferentially that the defendant, at the time it sent the tanks to the firm, knew the same contained vaporized gasoline in a quantity sufficient to make it unsafe or dangerous to repair the same with hot rivets. Evidence of this fact was wholly wanting, and for this reason the defendant’s demurrer should have been sustained by the trial court. And
The defendant’s evidence tended to prove that it did have knowledge of the dangerous condition of the tanks at the time it delivered the same to the firm for repair. This sufficiently appears from the testimony of its superintendent and driver who'delivered the tanks. The defendant, by the introduction of evidence, ailed the plaintiff in making out his prima facie right of recovery. It is now in no position to complain of the action of the court in denying its demurrer to the plaintiff’s evidence.
But the defendant contends that the court erred in refusing at the conclusion of all the evidence to give the jury a peremptory instruction to find for it. It appears from the undisputed evidence that the defendant’s driver, at the time he delivered the wagon at the shop of the firm, stated to Dan Speers, who was an employee of the firm then in charge of its shop, the members of the firm then being absent, that it might be well to wash the tanks out. It seems that when both members of the firm returned to the shop, Speers communicated to Grimes the suggestion that had been made by the defendant’s driver. It may be fairly inferred that both Speers and Grimes understood the significance of the suggestion of the defendant’s driver; that is to say, that it was unsafe to proceed with the work of making the repairs without first washing out the tanks — for, otherwise, why did they so carefully examine the inside of the tanks before undertaking to repair them? It further appears that they were unable by examination to discover the presence in the tanks of either liquid or vaporized gasoline, and for that reason disregarded the defendant’s warning. If the firm received this notice it was ample warning of the condition of the tanks, and the consequent danger to be anticipated from the use of hot rivets in malting the
But it'is contended that as Grimes did not communicate to the plaintiff the notice which he had received as to the dangerous condition of the tanks, that therefore he was not in any way bound or affected by such notice. It was the duty of Speers, the servant of the firm, to communicate to it, as he did, the notice that had been given to him by the defendant’s driver, (Shearm. & Red. on Neg., sec, 630), and it was also the duty of Grimes to communicate to the plaintiff, as his partner, the notice which had been received by him. Shearm. & Red. on Neg., secs. 68, 69. The plaintiff and Grimes were, at the time of the receipt by the latter of defendant’s notice, a commercial firm. Notice given to one, in relation to the firm business, was notice to the other. Any member of such a firm is the general agent of the. other in respect to the transaction of the-firm business. Oollyer on Part., secs. 412, 414, 443; Hill v. Ross, 3 Dall. 331. In Bates on Partnership, sections 389 and 390 it is stated: “Besulting from the" agency of a partner it follows that notice to one member of a firm within the scope of the business, or reference to a partnership transaction, and which it is his duty to communicate to his copartner, if he is within reach and able to tell them, is notice to all. In such cases if he fail to notify the other partners they can not avail themselves of their grievances of the transaction of one of their number acting as their agent. Anri so knowledge of one partner is knowledge of all.” If Grimes neglected to communicate to the plaintiff the fact that he had received defendant’s notice of the dangerous condition
The case, then, on the record stands in this way: The plaintiff by the aid of the defendant’s evidence showed that the defendant knew of the dangerous condition of its gasoline-wagon when the same was taken to the shop of King & Grimes for repairs. Put this uncontradieted evidence of the defendant further shows that the plaintiff was in legal contemplation fully apprised of the dangerous condition of the wagon at the time he undertook the repair thereof which resulted in his injury. He then knew that the tank had not been washed out and of the presence thei’ein of the vaporized gasoline. He as a man of ordinary intelligence is presumed to have known that the bringing of a red-hot rivet in contact with the vaporized gasoline would result in an explosion. To-undertake repairs of the wagon under such conditions in the manner in which he did was the grossest negligence on his-part.
The negligence of the defendant in sending the wagon in its dangerous condition to the shop was not the proximate but the remote cause of the injury. The immediate and proximate cause of the injury was the negligence of the plaintiff in undertaking the repairs in the way he did. This was such negligence as should preclude his right of recovery, as may be-seen by reference to the numerous authorities cited in the-defendant’s brief.
But if this were all it may be that under our ruling in Bank v. Hainline, 67 Mo. App. 183, we would not be author
The defendant was not required, if we are right in our statement of the law, to prove that plaintiff had direct notice •or- knowledge of the dangerous condition of the defendant’s wagon. It was sufficient to prove that Grimes, the other partner, had such prior notice or knowledge of the condition ■of the wagon at the time of the explosion and consequent injury. Evidence along these lines would have been pertinent to the issue and should have been admitted.
The judgment will accordingly be reversed and the cause remanded.
Rehearing
ON MOTION EOR REHEARING.
The record, in connection with the various arguments submitted on motion for rehearing, convinces me that we have had much urged here that was not brought ■to the attention of the trial court. We have now the point urged that since there was evidence tending to prove that plaintiff’s partner was notified of the dangerous condition of the tank that this was notice to plaintiff. We think the defendant did not submit the case, or ask to have it submitted ■on such theory. He objected to plaintiff’s first instruction, which puts the hypothesis of “plaintiff” having had notice without mentioning whether his partner had. But in so far .as that-was concerned it was not improper. If defendant wanted the jury to understand that notice to the partner was
It is said that defendant’s fourth instruction, refused, submitted the question of the partner’s having received notice and directed that it should be considered as notice to plaintiff. It does not by any means. No reference to notice appears in that instruction. It makes an awkward attempt to charge plaintiff with the general knowledge his partner might have of the explosive character of gasoline. It must be apparent that it would be error to hold one partner to know all the other partner might know on scientific questions. But, rri any event, there is no reference in this to notice that the tank had not been cleaned and contained explosives.
I think, however, that plaintiff’s first instruction is faulty in requiring defendant not only to notify plaintiff of the presence of the gas, but also of how he could get it out of the tank. If plaintiff was notified of the presence of the danger, it was not incumbent on defendant to further tell or teach him how to avoid it. So, also, as to another part of this instruction: Considering that plaintiff was engaged in the business of repairing such tanks after they had been used in handling the dangerous explosive, it was requiring too much of defendant to require it to notify him that the vapors or gases which remained therein were dangerous. That is something he knew, or ought to have known, for himself.
So therefore, while I think defendant is not in a position here to raise the question of notice as a criticism on the court’s action in passing on the instructions, the errors just noticed ought to cause a reversal of the judgment and a remanding of the cause.
