Andrews v. Tamarack Min. Co.
| Decision Date | 23 September 1897 |
| Citation | 114 Mich. 375,72 N.W. 242 |
| Court | Michigan Supreme Court |
| Parties | ANDREWS v. TAMARACK MIN. CO. |
Error to circuit court, Houghton county; Jay A. Hubbell, Judge.
Action by Grace E. Andrews, administratrix of the estate of Nicholas J. Andrews, deceased, against the Tamarack Mining Company for the death of plaintiff's intestate, caused by defendant's negligence. There was a judgment in favor of plaintiff, and defendant brings error. Reversed.
A. R. Gray, for appellant.
M. M Riley (Sylvester, Scheiber, Riley & Orth, of counsel), for appellee.
Plaintiff's intestate was a miner in the employ of the defendant, a corporation owning and operating a copper mine in the Upper Peninsula. The hanging walls of the mine were of such a character that they would crack suddenly and fall away if left exposed to the air even for a short time; so that, to safely carry on the work, it became necessary to place batteries of stull timbers, extending from the foot to the hanging walls, about eight feet apart, each battery consisting of three timbers. About 11 o'clock in the forenoon of the day before plaintiff's intestate Nicholas J. Andrews, was killed, one Thomas Maslin, the underground captain of defendant's mine (having charge of all the underground work), while on his daily tour of inspection through the mine, ordered two of the miners, named Waesinen and Kunanen, to drill three holes in the hanging wall and blast it down, so that a battery of timbers might be put in there, as soon as they had finished the work in which they were engaged. They did not finish the work they were doing that night. On quitting work in the evening they informed the men working on the night shift of the orders given by Capt. Maslin, and these men commenced to drill three holes for the purpose of blasting down the overhanging rock. They completed two holes, and had commenced on the third, before leaving their work. Plaintiff's intestate had been in the employ of the defendant about two weeks at this time, as a hitch cutter. He had previously worked in this same time, and knew the character of its formation, and the duties of a hitch cutter, which were to cut holes in the foot walls for the timbers to set in to support the hanging walls. The holes or hitches were cut to prevent the lower ends of the timbers, which extended obliquely from the foot to the hanging wall, from slipping. On the morning when Andrews was killed, he and his partner (these hitch cutters work in couples), one Trevarrow, were ordered into that level to cut hitches for the timbers. The miners were drilling the third hole in the overhanging walls when Andrews and his partner arrived. The miners, before commencing their work that morning, had tried the ground or rock above, using two iron bars at a time for that purpose, but could not move it. The timber gang of four men was also there, having gone with Andrews and his partner, and they spent from an hour to an hour and a half taking down some loose rock; and they, too, tried this particular piece of ground, using three bars at a time, but could make no impression on it. Andrews and his partner stood all this time looking on, in full view of and observing the work, the place being lighted so that the rock and the working could be seen. After the loose rock had been barred down and the particular piece of rock had been tried, all seemed to consider the place safe; and Andrews and his partner, without making any further or other examination, began this work of cutting hitches in the foot wall. They had been at work about an hour, when a sudden crack was heard, and the piece of rock referred to suddenly fell, striking Andrews and killing him almost immediately, and somewhat injuring his partner. It appears that this timbering was not done to protect vein matter, but to protect from the rock after the vein is removed.
The first count of the declaration, after charging the duty of the defendant, alleges, in substance, that the defendant negligently failed to keep and maintain the said drifts, crosscuts, stopes, and chambers in and about its said mine in reasonably safe condition, etc., and negligently failed to properly timber the said drifts, etc., so as to secure and prevent any pieces that might become loosened in the roof of such drifts, stopes, crosscuts, and chambers from falling, etc., and negligently failed after it had come to its knowledge that such stopes, etc., had become unsafe, to warn the said Andrews and other of its said employ�s working therein of the dangerous condition thereof, and that, by reason of the negligence and failure on the part of said defendant to discharge such duties in the premises as aforesaid, the said Andrews, while in the course of his employment, etc., was killed, etc.
On the trial the plaintiff called the coroner of the county, who testified that Capt. Maslin was sworn before him as a witness in the inquest held upon the body of Nicholas J. Andrews. The record returned here states what then took place, as follows This deposition was read in evidence, and is as follows: The court was in error in permitting this deposition to be read. It was not offered for the purpose of impeaching Capt. Maslin, but for the purpose of proving a substantive fact; that is, that Maslin knew the mine was in a dangerous condition when he ordered the men in there. It is conceded that it was no part of the res gest�. It has many times been held by this court that the declarations of an agent as to a past transaction are inadmissible to bind the principal. Railroad Co. v. Coleman, 28 Mich. 440; Mabley v. Kittleberger, 37 Mich. 360; Patterson v. Railway Co., 54 Mich. 91, 19 N.W. 761; Stebbins v. Keene Tp., 55 Mich. 552, 22 N.W. 37; Wormsdorf v. Railway Co., 75 Mich. 472, 42 N.W. 1000. It is true that, where the acts of the agent will bind the principal, then his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting a part of the res gest�. But counsel for plaintiff contends that Capt. Maslin was the "alter ego" of defendant, and that his agency continued at the time his testimony was given before the coroner; therefore whatever Maslin said in reference to the occurrence at the mine would be binding upon the defendant, though said long after the occurrence. If he can be said to be the alter ego, he was not clothed with authority to make admissions. It is not like the case where the agent is clothed with such power, as that of baggage-master of a railroad, whose duty it is to deliver the baggage of passengers, and to account for the same if missing, providing inquiries are made. Declarations so made by such agent are within the scope of his agency, and, if made while the agency continues, are admissible against his principal. Morse v. Railroad Co., 6 Gray, 450. But counsel contends that the deposition could not have injuriously affected the defendant, as Capt....
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