The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-01-08
DECIDED A NON-SUIT
The Motion of N. ]. Connell and W.
R. Kenyon Sustained.
ORCOTT'S FLAT ADMISSION
Authorities Cited In Support OF the
Arguments-What the Judge
Said In Passing Upon
the Matter.
ORCOTT'S FLAT ADMISSION

The very important question in the
explosion cases-the individual liability
of the officers and trustees OF the Ken
yon-Connefl Commercial company-was
argued before Judge Mediation yester-
day, and by him decided adversely TO
the victims of the great catastrophe of
a year ago, and holding that w. r.
Kenyon and Michael ]. ConneA, the
principal officers of the company and
managers Of its business, are not tndi-
vidually responsible for damages. II
the decision Is sustained by the su-
preme court the hundred or more SUI
ferers, through the violation OF law by
the Kenyon-Connell company, win be
entirely without remedy, as the COM
pany rs insolvent. One good thing
brought out by the proceedings yester-
day was to locate the personal reSpons-
Utility for the explosion and the conse-
quent death of IS men and the injury OF
a hundred others. At the trial ON Mon
day Charles circuit claimed that he
alone was responsible for the excessive
storage of powder i'm the warehouse and
admitted that he constantly, for a Pc
Rod of several years. had on hand In
the warehouse a quantity of powder
far in excess of the amount allowed by
law. In the arguments yesterday the
company's attorney referred strongly
to the fact that circuit was the guilty
man, and that he acted on his own re-
sponsibility. 1t is hardly probable,
however, that any criminal action will,
at this late day, be instituted against
circuit on his confession, or admission
as to his responsibility in the matter.
The proceedings yesterday came up
on a motion for a non-Sut as to M. }.
Connell and w. r. Kenyon, president
and general manager of the company,
respectively, in the Milano case. The
arguments were opened by j. l.. Wines
for the defendant. He said that not
until Mr.. Kenyon and Charles circuit.
the warehouseman, the was not the
slightest evidence to connect Mr. Ken
yon with the company, except the aid
mission of the pleadings that he was an
officer of the company. Kenyon and
Council are nothing more than agents
of the company or servants of the cor
poration. 1t is not claimed that they
had personal knowledge of the storage
of powder in excess of the quantity al
lowed by law. 1t may be claimed that,
as general manager and president of
the company, they were negligent and
failed to keep themselves Informed as
to the condition of affairs ait the ware
house. The evidence disclosed the fact
that Charles Orcutt was the agent and
servant of the corporation and had
complete charge of the warehouse,
and as such was ON an equality with
Kenyon and Council as agent and SER
want of the Kenyon-Connen company,
and therefore the plaintiff cannot hold
the two defendants liable for am injury
sustained through the act of circuit,
and for which the defendants Kenyon
and Connell. There lis no controversy
over the proposition that a corporation
Is liable and responsible for the acts of
its agents, but 1t has not been shown
that the two defendants were in the re
motest degree responsible for the un-
lawful acts of the agent, circuit. Mr.
~ to n he off arsf
that for an anct of omission am agent
cam not be held personally liable, and
an agent Is not responsible for the acts
of those retained by the agent for his
principal, unless 1t is shown that the
acts complained of were committed
under his advice or direction. MIR
Wines also argued that a master Is not
responsible for the acts of a servant
where the servant exceeded his author
ity. If the plaintiff expects to recover
against amy or both of the two officers
of the company he must have shown
THAT CIRCUIT bore a personal relation
ship to the defendants, and that he
worked for them and not for the Ken
yon-Comnell company. A private rela-
tionship must be established between
CIRCUIT and the defendants. There can
not be two masters of the same servant
and one of two things must be true:
Either Orcutt is not the servant of the
Kenyon-C Council company and his acts
are not THE acts of IT'S servant, or he is
not the servant of Mr.. Kenyon, and his
acts are not the acts of Mr.. Kenyon
The evidence is undisputed that circuit
was in charge of the warehouse prior to
the incorporation and that The remained
in charge after that, and as such was
an agent of the company. One agent
is never responsible for the acts of an
other agent. He is only responsible
when he participates in the act. or
where the act is committed under his
direction. An agent is not liable to a
third party for injuries sustained, by
reason OF the agents failure to do
something he should have done. For
his act of omission he is responsible on
ly to his principal. There are some au-
thorities that hold that where the i'm
mediate agent, Kenyon, employs an in
competent sub-agent, circuit, and has
knowledge of his incompetency and
fails TO remove him he becomes liable
for the wrongful acts of the sub-agent,
but in this case II has not been pretend
ed that Orcutt was incompetent. A de-
cision of the Missouri court of appeals
was read which held that a railroad su-
per1ntendent was not personally liable
for the acts of a sub-agent. a detective
employed to keep strikers from the
property of the company, although the
sub-agent did what the superintendent
instructed him to do. A federal deci-
SlOus lTD4l Iilt E<dclrAAi QlclllCl l<Dul-
siana, was read. to the effect that an
agent was liable only TO his principal
for non-feasance. or neglecGng TO do
that which he should have done, as in
this case, his failure to keep himself in
formed of the acts or circuit. Mr..
Wines read many decisions and au-
thorsties from the text books 20 sustain
his position and In support OF the claim
that either Kenyon and Conneu or the
Kenyon-Conneu company were not La
BILE. Both could not be llesd responsible.
The agent actually committing the act
Is liable and the principal IS liable. Mr..
Wines argument took up the entire
morning session of court.
T. ]. Walsh. at the afternoon session
of court. made the argument in oppo-
sition TO the motion for a non-suit and
referred to the statute or Montana re-
lat1ng 10 corporations. which provides
that the management OF the business
and affSfrs OF a corporation shall be
reposed IN a board of trustees. CON-