Friday, December 27, 2013

Apex Smelting Co. v. Burns case brief

Apex Smelting Co. v. Burns case brief summary
175 F.2d 978 (1949)

Plaintiff premises owner challenged a judgment from a United States district court that was based on a directed verdict for defendant employers. The owner's action requested damages for an interruption of operation and delayed production resulting from a fire that was caused by the employers' guard, which damaged the owner's manufacturing premises and had to be repaired a considerable expense.

The parties' written agreement provided that the employers would furnish a uniformed armed guard service to protect the owner's premises from destruction.


  • On appeal, the court declined to reverse the district court's judgment because no basis existed to do that and allow the owner to try its case on a different theory of liability than negligence. 
  • The district court correctly held that no basis for recovery existed on the theory of negligence where the guard had been previously employed by the government in various capacities in wartime. 
  • The complaint contained no allegation of a lack of due care by the employers in retaining the guard's services. 
  • The court found that the parties had an equal opportunity to observe the guard's conduct and neither complained or requested his removal. 
  • The district court correctly decided that in setting the fire the guard was not acting in the scope of his employment or in furtherance of the employers' business. 
  • The court found that the complaint did not set forth the parties' contract, did not allege a breach of it, and did not assert that the destruction was caused by the negligence of the guards who acted in the scope of their authority.
The court affirmed the district court's judgment.

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