119 S.W.2d 240 | Mo. | 1938
Lead Opinion
Appellant stood upon its demurrer to the evidence at the close of respondent's case.
The York Company sold to John Morrell Company, a meat packing company, two ammonia compressors, equipped with manifolds, etc. The compressors were installed in the packing plant of the Morrell Company at Topeka, Kansas, in accordance with plans submitted to the York Company. After tests with ammonia by the Morrell Company for possible leaks at about 150 pounds pressure per square inch, the machines were put in operation in June, 1933. We are concerned with the manifold of one of the compressors. The evidence established that the manifold should withstand a pressure of 250 to 300 pounds per square inch; that it had what is known as an intake or suction side, and a discharge side; that, in normal operation at the Morrell plant, the pressure on the intake side would vary from two to thirty pounds and on the discharge side from 125 to 150 pounds and a considerable difference in the temperature would exist on the intake and discharge sides, the intake side showing frost and the discharge side showing temperatures as high as two hundred degrees Fahrenheit; that, from time to time, liquid ammonia will go through a compressor and immediately chill the discharge side, causing rapid variations of from 200 to 250 degrees in the temperature of the casting, and, if present in considerable quantity, cause such machines to "knock" or "pound" badly. The compressor was located in an engine room 60 by 80 feet, with a ceiling about 20 to 22 feet high. It was powered by electricity, controlled by a "push button" on the side of the motor operating, by remote control, a *918 switch located high up in another portion of the engine room. The opening of this switch, it was not enclosed in oil, would create a large electric spark. The manifold was equipped with four valves — suction, discharge, by-pass and pump out. The functions of the by-pass and pump out valves are immaterial here. In normal operation the pump out and by-pass valves are closed, and the suction and discharge valves open. Out side the engine room there were several places where the flow of ammonia back to the engine room could be shut off; for instance: on the roof of the building and a series of three valves in the packing house. The compressor was in continuous operation from the date of its installation until February 18, 1934, except it was shut down for two or three days in October to make repairs occasioned by a burned out bearing and for a couple of hours each Sunday to clean the oil filters.
The Morrell Company operated its plant twenty-four hours a day, under a schedule calling for three shifts. John Hill was chief engineer, and Ralph Manns was master mechanic of the plant. Milford Tayer, deceased, was shift engineer, and Albert G. Voiles was shift oiler on the shift on duty from three P.M. to eleven P.M. Shift engineers have charge of the plant while on duty, and Mr. Tayer was a highly efficient and competent engineer.
On the afternoon of February 18, 1934, Voiles was in the engine room and about seven o'clock heard a hissing sound, noticed what appeared to be steam escaping and detected the odor of ammonia. Prior thereto the machinery was operating normally. He immediately hurried to notify Engineer Tayer. He located Tayer and they returned to the engine room and were adjusting their gas masks when, about fifteen minutes after the discovery of the escaping ammonia, Chief Engineer Hill arrived and instructed them to "get in there and get it shut off." "Q. Then what happened? A. We went in and Mr. Tayer was ahead of me — I was behind him — and we went directly to this machine, and Mr. Tayer was coming around the machine and I had not got around there yet. I was facing the switchboard, and I looked up and saw a big, gold ball form in front of the switchboard and I made a run for the door and I had not taken over eight or ten steps before the explosion occurred. Q. Did you get out? A. I got blowed out most of the way and finally picked myself up and got out." Witness could hear Tayer screaming in the engine room.
Master Mechanic Manns also testified, in addition to many of the facts hereinbefore set forth, that he arrived at the plant about 7:20 P.M.; that he put on a gas mask; that the men had not been able to shut the valves or do anything beyond stopping the compressor from operating and ammonia was still blowing out; that they kept gas masks there for use when repairing the ammonia lines; that he *919 went in, found the valves correctly adjusted for the normal operation of the compressor, shut off the suction and discharge valves on the compressor, shut off the flow of ammonia, closed down the rest of the machinery that was running, called the power company and had them pull the fuses on the main lines coming into the plant; that after the room had cleared of ammonia an inspection disclosed a crack of considerable length on the discharge side of the manifold, varying in width from a fine hair line crack up to say one-eighth of an inch; that "I think the crack was caused by the rapid changing temperature in the manifold and due to flaws in the manifold — inherent weakness in the manifold itself;" and that the casting was expected to withstand changes in temperature. Respondent also developed from this witness testimony as follows: "Q. I will get you to tell the jury if you know whether ammonia gas is explosive. A. Yes; it is explosive. Q. State whether or not that is a matter of common knowledge? A. It is quite common knowledge. It is in all refrigeration tables and books. . . . Q. That is a matter of common knowledge among all refrigerating companies? A. Yes;" and that when certain mixtures of ammonia with air exists, commonly known as within the combustion range, an explosion will occur whenever the temperature of the mixed gases reaches the ignition point.
Mr. Tayer was taken to a hospital. He died March 1, 1934.
The litigants reason the principal issues from the case of McLeod v. Linde Air Products Co.,
[1] "`The general rule is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third persons who have no contractual relations with him for negligence in the construction, manufacture or sale of such article.' [2 Cooley on Torts (3 Ed.), pp. 1486 et seq.]
"There are three exceptions, stated in 29 Cyc. 478, as follows:
"`1. Where the negligent act is imminently dangerous and is *920 committed in the preparation or sale of an article intended to preserve, destroy, or affect human life; (2) where the act is that of an owner combined with an invitation to the party thereby injured to use the defective appliance on such owner's premises; (3) where the act consists in the sale and delivery of an article with knowledge of undisclosed danger and without notice of its qualities, whereby any person is injured in a way that might reasonably have been expected.'" [Consult Huset v. J.I. Case T.M. Co., 120 F. 865, 867, 870.]
The McLeod case concluded: "The early cases limited exception 1 to things in their nature destructive, such as poisons, explosives, and deadly weapons. . . . We think the exception should be extended to include `a thing which when applied to its intended use becomes dangerous' although not inherently so. There is no reason why the principle should not apply to things imminently dangerous, whether inherently so or not."
Respondent asserts the instant case falls within exception one mentioned in the McLeod case. The McLeod case and the cases next mentioned do not limit said exception to "an article intended to preserve, destroy or affect human life;" and are in accord with the trend of current authority. [Consult Restatement of the Law of Torts, p. 1074, sec. 395, comment b.]
[2] The cases stressed by respondent and more directly in point are devoted principally to a discussion of the ambit of liability of the manufacturer; i.e., those to whom under the law he owes a duty. Respondent also relies upon them for the establishment of defendant's actionable negligence under the testimony of the instant case. They are: MacPherson v. Buick Motor Car Co.,
[3] If respondent's witness's testimony to the effect that he thought the crack was caused by the rapid changes of temperature and flaws in the manifold and that the manifold was expected to withstand rapid changes in temperature and a pressure of three hundred pounds per square inch be considered substantial evidence of a defect in the manifold, such defect, as alleged in respondent's petition, was a "latent" defect; and, giving consideration to the testimony that the Morrell Company's test failed to disclose leaks at a pressure of 150 pounds; that the manifold was continuously operated by Morrell Company for a period of approximately eight months free from the control and right of control by appellant, during which time it was subject to the flow of and pressure from ammonia, to rapid changes in temperature and "knocks" occasioned by liquid ammonia, which admittedly would tend to have effect on the casting, actionable negligence on the part of appellant in the manufacture or in the due inspection and test of the manifold for defects remains too much in the beclouded realm of conjecture and surmise to warrant *922
its indulgence. [Consult O'Donnell v. Baum,
[4] Respondent, stressing Stolle v. Anheuser-Busch, Inc.,
Observations made in connection with the last previous issue are applicable here. Principally, they relate to the exclusive possession and control of the manifold by the Morrell Company, without any right of possession or control in appellant; the subjecting of the manifold by the Morrell Company to the flow and pressure of ammonia, rapid changes in temperature, and "knocking" or "pounding" from liquid ammonia. With reference to such matters, as well as other possible contingencies that may have had a bearing upon the proper maintenance and the functioning of the manifold during said eight months' interval, appellant did not have legally superior accessibility. (Consult Klebe v. Parker Distilling Co.,
[5] Appellant says the cracking of the manifold was not the proximate cause of Tayer's injuries, stressing, among others, the Eversole, McManamee, Logan and Johnson cases, infra.
In Eversole v. Wabash Railroad Co.,
Respondent says appellant overlooks "the doctrine of concurrent negligence; and that where the negligence of the appellant is shown and it appears that but for his negligence the accident would not or could not have happened, then his negligence is at least a concurring proximate cause and he is still liable;" quoting from the Missouri cases of Harrison v. Kansas City El. L. Co.,
Respondent also refers us to the opinions in Slinkard v. Lamb Const. Co., of the Court of Appeals (212 S.W. 61), discussing an issue of contributory negligence, and the Supreme Court en Banc (
In Johnson v. Terminal Railroad Assn.,
Many factors enter into the determination of cases of this nature; factors involving the nature and use of the instrumentality, the defect therein, the relationship existing between the litigants, the extent of the obligation of the defendant, the legal status of the act of the injured party, as well as others; and it appears the better reasoned decisions approach the legal solution of these problems of modern social life under a policy of inclusion and exclusion in the application of the controlling principle of law to the facts of the individual case rather than by attempting to announce general rules designed to embrace a number of the factors involved.
This is not a master and servant case. Appellant had no control or right of control over any instrumentality or actor to the occurrence. A manufacturer's obligation, although analogous to, is not that of a master to his servant, and, under the facts of the instant case, he should occupy a more favorable position in law than the master. Tayer was not injured by the cracking of the manifold or by the escaping of ammonia gas therefrom. When he arrived at the engine room and procured a gas mask he was not in a position of danger. When he entered the room in obedience to the instructions of his superior, so far as appellant is concerned the master's instructions and Tayer's obedience thereto were voluntary acts of the parties involved unattended by any subsequent act chargeable to appellant contributing to the occurrence. Respondent proved that it was common knowledge among all refrigerating companies that ammonia gas is explosive and that Tayer was a highly efficient and competent engineer. This explosive gas was loose in the room. Tayer knew this condition existed. His injuries were the result of the explosion of this gas and was occasioned by the electric spark from the panel switch when he operated it by remote control. His efforts were directed towards the remedying of a condition which then existed for the protection of his master's property. The mere concurrence of negligence and injury does not necessarily render a defendant *927 liable. One without any right of possession or control should not be required to search for and guard against occurrences occasioned by acts of others which reasonably prudent persons would not anticipate. So, however much the occurrence arouses our sympathy, we think, under the authorities relied upon by appellant, the legal aspect of this issue precludes a recovery against appellant; and the judgment should be reversed. It is so ordered. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.
Addendum
The Morris case involved an explosive, dynamite. Due care varies with the danger involved and is proportionate thereto. The use of nitroglycerine when imperfectly compounded with other substances into hypersensitive and superpowerful dynamite exposes the user to probable and extraordinary hazards of bodily harm and the manufacturer is required to exercise almost, if not, meticulous precautions to secure substantial perfection. The first intended user of the dynamite would destroy it and its hypersensitive and superpowerful qualities remained intact from date of manufacture to date of user, when upon first being put in the usual manner to its intended use it directly inflicted injury upon Morris. The Morris case possessed certain features analogous to the Stolle case, as well as the McLeod case, mentioned in the opinion. In the instant case Tayer's employer operated the manifold for several months. Neither the "cracking" of the manifold nor the escape of ammonia gas from the crack in the manifold inflicted injury upon Tayer. These and other factors readily distinguish the cases.
Plaintiff may have a cause of action against decedent's former employer, embracing liability for giving a negligent order. Plaintiff, however, is not suing the master. This, with reference to proximate cause under the facts before us. A reading at the pages indicated of Smith v. Twin State Gas El. Co.,
The motion for rehearing is overruled. *928
