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EMPLOYERS' LIABILITY-FELLOW-SERVANT LAW-NATURE LIABILITY-INJURIES CAUSING DEATH-SURVIVAL OF RIGHT OF ACTION-DAMAGES-Beeler v. Butte & London Copper Development Company, Supreme Court of Montana, 110 Pacific Reporter, page 528.Edwin Beeler was killed while in the employment of the company named above as a pump man in one of its mines. This action was brought by his heirs to recover damages under the provisions of sections 5248 to 5250 of the Revised Codes of Montana, and from a judgment in their favor in the district court of Silver Bow County the company appealed. The appeal resulted in the judgment of the lower court being affirmed, as appears from the following quotations from the opinion of the court as delivered by Judge Sanner. Numerous errors were alleged as grounds for reversal of the judgment, but these were reduced to a few general propositions which the supreme court discussed in part as follows. Taking up the first objection raised, Judge Sanner said:

It is urged that the complaint fails to state a cause of action in this: (a) That the action is not maintainable by plaintiffs, since it does not survive to the heirs but only to the personal representatives of the person injured; (b) that the action is upon a liability created by statute, and, having been commenced more than two years after the cause of action accrued, it is barred by the provisions of subdivision 1, section 6449, Revised Codes.

(a) The authority for this action is in the act approved February 20, 1905 (ch. 23, p. 51, Laws 1905), reexpressed in sections 5248, 5249, and 5250 of the Revised Codes. In section 5250 it is expressly provided that the right of action shall survive and may be prosecuted and maintained by the heirs or personal representatives of the person injured. The complaint alleges that the plaintiffs are the widow and child, respectively, and that there are no other heirs, of the person injured and since deceased. This is a sufficient answer as to the right of plaintiffs to maintain this suit.

(b) The theory of limitation, as disclosed in the chapter of the code on that subject, has no reference to the defenses that may or may not be interposed in resistance to a plaintiff's demand; but it is grounded in every instance upon the nature of the demand'itselfwhether it be upon a judgment, written contract, account, etc. Subdivision 1, section 6449, must be viewed in the light of the fact that the phrase "liability created by statute” has come to have a fixed application to a class of cases quite distinct from those elsewhere mentioned or referred to in the same chapter. If the action at bar had been for injuries resulting from the negligence of a vice principal, instead of a fellow servant, it would be recognized at once as a straight action in tort, governed, as to its limitation, without any thought of its being a "liability created by statute.” Now, the fact that the injury which is the basis of the action, resulted from the negligence of a fellow servant instead of a vice principal does not affect the essential nature of the action; it is still an action for personal injuries founded upon actionable negligence. And while it may properly be said (see Kelly v. Northern Pacific Ry. Co., 35 Mont. 243, 88 Pac. 1009) that under the act approved February 20, 1905,

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an employer's liability exists where none existed before, yet the true function of that act must be regarded, not as creating a new cause of action, but merely to carry forward the right of the injured party and to remove a defense theretofore available in this class of causes (Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 Pac. 960). It follows that in the sense employed by the chapter on limitations of actions, this is not an action on a “liability created by statute," and the contention that it is barred by subdivision 1, section 6449, is not sound. Such being our conclusion, it is unnecessary to consider whether, under the conditions presented by the record, the statute of limitations could be available to appellant in the absence of a special plea thereof.

The nature of the accident and the acts that caused it were then reviewed, with the conclusion that it resulted from the negligence of a fellow servant, and that, while Beeler was dead at the time when he was discovered, it does not appear that death was instantaneous, but, on the contrary, that there was sufficient competent evidence to support the conclusion that he lived an appreciable time after the injuries were sustained. These facts were regarded by the court as sufficient to warrant the refusal of the court below to direct a verdict for the defendant company.

Of the other points considered, none of which was found to furnish a basis for interfering with the judgment of the lower court, only that relating to the grounding of a claim for damages need be noted. On this point Judge Sanner said:

Complaint is made of instruction F, as follows: "The court instructs the jury that if under all the evidence and all of the instructions of the court your verdict should be for the plaintiffs and against the defendant, then it will be necessary for you to assess and write into that verdict the amount of damages caused proximately to Edwin Beeler by the acts, if proven, of the hoisting engineer. In determining this amount you are limited to a sum of money which would have compensated Edwin Beeler for the pain and suffering of mind and body which the injuries caused (if any such pain and suffering were caused), between the time that he was injured and the time he died, if he survived the injuries for any length of time, and to the further sum that would have compensated him, unless you find that death was instantaneous, for the impairment, if any, which was caused by the injuries, of his capacity to earn money in the future if he had not been injured. Now gentlemen, the amount sued for and claimed in the complaint of $25,000 must not be to you any criterion in determining the amount of your verdict, if you do render any, in favor of the plaintiffs, but I charge you that in no event shall your verdict be in excess of the amount of $25,000.”

We see no error here. The phrase “any length of time” read in juxtaposition with the phrase "unless you find death was instantaneous” makes it clear that the court intended to advise the jury that there must have been an appreciable period of suffering. "The statute authorizing this suit gives to the heirs the right to prosecute and maintain the same action that the injured man could have maintained, had he lived. Unquestionably, his right of action included damages for the pain and suffering that he endured and for his diminished and lost earning capacity for the period of his natural expectancy. No reason exists why the scope of the action should diminish because of his death; to inject such a change into the statute would do violence to its language, and would, pro tanto at least, destroy its very purpose.

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EMPLOYERS' LIABILITY-MINE REGULATIONS-Shot FIRERS-CONSTRUCTION OF STATUTEHougland et al. v. Avery Coal & Mining Company, Supreme Court of Ilinois, 93 Northeastern Reporter, page 40.-Blanche Hougland and others had sued the company named to recover damages for the death of William Stevenson and William Hougland as the result of an explosion in a mine operated by the company. Judgment was granted in favor of the plaintiffs, and the company appealed, alleging various grounds for reversal, none of which was allowed, and the judgment was affirmed. Various points were raised by the company, of which but one is of sufficient general importance to call for consideration here. This was the contention that a shot firer is not protected by the laws of Illinois (Acts of 1905, p. 328, as amended by Acts of 1907, p. 401; Twenty-second Annual Report of the Commissioner of Labor, 1907, pp. 370, 371). On this point Judge Farmer, speaking for the court, said:

The principal ground upon which plaintiff in error asks a reversal of these judgments is that a shot firer does not come within the protection of the general act concerning mines and miners. The shot firers' act was originally passed in 1905 (Laws 1905, p. 328), and was amended by the addition of three sections in 1907 (Laws 1907, p. 401). The amendments, however, do not affect the decision of the question raised by the plaintiff in error. The reason given by plaintiff in error for its contention that shot firers are not within the protection of the general act concerning mines and miners is that the shot firers' act is a separate and independent legislative enactment in nowise amendatory of the general act; also, that shot firers are experts to whom the entire mine is turned over when they commence the discharge of their duties, and no inspection is required or can be made after the miners quit work and before the shot firers enter upon the discharge of their duties. In Davis v. Illinois Collieries Co., 232 Ill. 284, 83 N. E. 836, a shot firer was held to be within the protection of the general act concerning mines and miners. This case was cited with approval in Brennen v. Chicago & Carterville Coal Co., 241 Ill. 610, 89 N. E. 756, where it was said the provisions of the general act." are for the safety and protection of all who are employed in the mine, including engineers, firemen, pump men, shot firers, drivers, and other workmen and employees."

Plaintiff in error insists that since those cases were decided this court has held in Hollingsworth v. Chicago & Carterville Coal Co., 243 Ill. 98, 90 N. E. 276, that the shot firers' act is an independent act, and not an amendment to the general mining act, and that the decisions in those cases are therefore no authority. We can not agree to this position. In the Hollingsworth case the coal company did not employ shot firers, and the shot fired by one of the miners caused an explosion, resulting in the death of another miner. The widow of the deceased brought an action against the coal company, and alleged as a ground of recovery that the mine was of such condition and character that the law required shot firers to be employed therein, and that the coal company willfully failed to employ shot firers, by reason whereof her husband was killed. We held the shot firers' act being no part of the general mines and miners' act but being an independent act, and containing no provision authorizing a widow to sue for damages for failure to comply with its provisions, as is the case with the general act, the suit could not be maintained. There is no intimation in the opinion in that case that shot firers are not within the protection of the general act, and that decision is in nowise inconsistent with the previous decisions of this court holding that they are within the protection of said act.

Complaint is made of the ruling of the trial court in permitting witnesses experienced in the business of mining and shot firing to testify, over the objection of plaintiff in error, that the shot in the second west entry was a workmanlike and practical shot. One of these witnesses prepared the shot, another saw it before it was fired, and the others made their examinations afterwards. Some of them testified it split the coal so that it was easily mined afterwards, but did not knock it down, as is usually the case. Some of them called it a "standing shot.” All testified that it was prepared in a workmanlike and practical manner. It is conceded by the plaintiff in error that the subject was one for expert testimony, and no complaint is made that the witnesses did not possess the proper qualifications. The contention is that they should not have expressed any opinions, but that they should have described the shot and left it to the jury to determine whether it was a workmanlike and practical shot. Without stopping to inquire whether the latitude allowed by the court is too broad, it is sufficient to say that whether it was or not could have no controlling force on our decision. If the explosion occurred from the willful failure of plaintiff in error to provide proper air currents and keep the roadways cleaned and sprinkled, as charged in the declaration, contributory negligence of the deceased in firing a shot prepared in an unskillful manner would not defeat a recovery. (Davis v. Illinois Collieries Co., supra.)

EMPLOYERS' LIABILITY-NOTICE-SUPERINTENDENCE-CONSTRUCTION OF STATUTE-Smith v. Milliken Brothers, Court of Appeals of New York, 93 Northeastern Reporter, page 184.-James Smith sued the company named on account of an injury received by him while in their employment. Smith was engaged in adjusting some heavy machinery in the plant of his employers and was standing on a cogwheel not at that time in motion. While he was in this position one, C. E. Smith, who was in immediate charge of the work being done, directed one Miller, who was the superintendent in general charge of the work, to start the machinery with the result that James Smith suffered injury. Judgment had been rendered in James Smith's favor in the courts below and on appeal this judgment was affirmed in the court of appeals.

The question was raised as to the sufficiency of the notice served under the liability law of the State (Consolidated Laws, ch. 31). On this point Judge Hiscock, who delivered the opinion, found that no material defect in the notice existed, saying that while it was not a model in form it did state with all necessary completeness the time and place and the nature of the injuries; also that the employer was apprised with reasonable certainty of the real cause of the accident, so that though there were admitted inaccuracies in the notice there was not sufficient lack of definiteness to invalidate it as given.

The point about which the strongest contention was made was that C. E. Smith who gave the order resulting in the injury was not under the act performing the work of a superintendent; but that since Miller, who was his superior, was present, any negligence of C. E. Smith would be nothing more than the act of a fellow servant. On this point Judge Hiscock spoke in part as follows:

There was evidence that Miller, the superintendent, directed respondent (James Smith] to obey the orders of Smith, and that he had been doing so for some time. While Miller had charge of a large number of men, Smith also had charge of a considerable number who were subject to his orders, and some or all of whom were engaged at the time in work upon this machine. He directed the respondent what to do at the time he was injured, and he was occupying a position on the machine where he could observe the work which was being done and give directions in connection therewith, while Miller, who, generally speaking, was his superior, was on this occasion engaged in performing part of the manual labor connected with adjusting the machine, and was not giving any orders.

The mere presence of a superior does not necessarily prevent a subordinate from acting as a superintendent. This is apparent, and the principle was practically involved and settled in Andersen v. Penn. Steel Co., wherein a judgment for the plaintiff was affirmed. N. Y. 606, 91 N. E. 1100.) In that case the intestate was killed through the alleged negligence in superintendence of one Lannon, who was a mere“ pusher” or foreman of a gang of men in removing some steelwork in connection with Blackwells Island Bridge, while one Wright was foreman in general charge. The court was asked to charge "that if they find Wright, the foreman, was present at the time of the accident, Lannon can not be treated as superintendent within the meaning of the law.” It declined so to do, and instead charged: “If Wright was present and engaged in superintendence of this particular work upon which the decedent was engaged at the time of the accident, then they can not find that Lannon was there acting as superintendent.”. This was excepted to, and, of course, approved by the affirmance of the judgment.

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