Bader v. Mills & Baker Company

• Citation: 201 P. 1012,28 Wyo. 191
• Decision Date: 22 December 1921
• Docket Number: 995
• Parties: BADER v. MILLS & BAKER COMPANY
• Court: United States State Supreme Court of Wyoming

201 P. 1012

28 Wyo. 191

BADER v. MILLS & BAKER COMPANY

No. 995

Supreme Court of Wyoming

December 22, 1921

APPEAL from the District Court of Natrona County; HON. CHARLES E WINTER, Judge.

Action by Charles Bader against Mills and Baker Company and another for damages in trespass for an alleged interference and injury to plaintiff's irrigation ditch and dike resulting in a loss of water supply. There was a judgment for plaintiff and defendant appeals.

Affirmed.

Floyd E. Pendell, for appellants.

In an action for damages to growing crops the nature of plaintiff's title should be shown and the trial court erred in overruling appellant's motion, for a more specific statement. The trial court erred in overruling appellant's motion to strike portions of the petition. Mills was acting under direction of the State Engineer and not under orders from appellant in removing the gravel in question which was taken from lands belonging to the State of Wyoming. The evidence showed that the damage if any, was due to highwater in the river in 1918. The trial court should have sustained appellant's motion for nonsuit, (17 C. J 767.) It was the duty of respondent to have saved himself from damage as far as possible, (Hall v. Pain, 224 Mass. 62; Brown v. Weir, 88 N.Y.S. 479.) Respondent's ditch was in such bad repair above the points where appellants were operating as to render it useless for irrigation during the years 1917 and 1918, which disrepair was caused by high water and floods for which appellant was not responsible. The Court erred in refusing appellant's requested instruction that the gravel was being removed under orders from the State Highway Commission the evidence supported the instruction requested. (38 Cyc. 470; Burdick v. Hunt, 43 Am. Dec. 289.) The Court erred in refusing appellant's requested instruction on the measure of damages. (Roberts v. Lehl, 149 P. 851; Cheda v. Bodkin, 158 P. 1025; Canal Co. v. Bennet, 156 P. 604; Woodland v. Irrig. Co., 146 P. 1106.)

The third instruction requested and refused was with reference to the damaged condition of respondent's ditch above the dam and available water supply. Appellant was entitled to have this phase of the case considered by the jury. The Court erred in refusing appellant's requested instruction as to the elements necessary to prove the support of respondent's case and also containing the defense of an act of God. The Court erred in refusing to direct a verdict in favor of defendant in view of the state of the evidence at the close of the case. The giving of the third instruction was prejudicial to appellant and was unsupported by the evidence. Instruction No. 6 was prejudicial to appellant in that it excluded the proposition of the ditch being broken by the act of God without considering the acts of defendants, in other words, if the flood was of such violence as to break the ditch, irrespective of any act of appellant, respondent should recover. The Court erred in holding respondent responsible for acts done under direction of the State Highway Commission.

Hagens & Murane, for respondent.

Appellant's motion for a more specific statement called for the pleading of evidence and was properly overruled. (Bliss, C. P. 140.) The motion to strike was properly overruled. (Bliss C. P. 206.) The evidence showed that Blair was working under direction of Mills & Baker Company and the motion for nonsuit is not well taken. (Mau v. Stoner, 15 Wyo. 135; 35 Cyc. 490.) The evidence clearly established the fact that the interference and damage to respondent's ditch and dam was caused by appellants in that the excavations made exposed the ditch and dam to destruction by high water, irrespective of whether Mills was agent of the Mills & Baker Company he was liable personally for his wrongful acts. It was clearly shown that it would have been impossible for respondent to have prevented the damage. The instruction given by the court contained correct statements of law applicable to the case. For example, instructions eight and nine, (see 38 Cyc. 483-487.) No. 4 on measure of damage, (Hatch v. Black, 25 Wyo. 121; Texas Co. v. Laconor, 122 S.W. 424; Co. v. Hartman, 38 P. 62; Roberts v. Lehl, 149 P. 851; Sutherland, 1023.)

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

The plaintiff in this case, respondent herein, commenced an action against the defendants' appellants herein, for damages in trespass, claiming that defendant took gravel from or near the natural banks of plaintiff's irrigating ditch, thereby weakening such banks; that defendant further, by driving across and in other ways weakened a dam or dike built by plaintiff which adjoined the foregoing natural bank and was used for the purpose of forcing water further down into plaintiff's irrigating ditch; that as a result of these acts the high water of the Platte river in June, 1918, washed away part of the natural bank mentioned, and in turn and as a result thereof, the dike or dam mentioned; that by reason thereof plaintiff was unable to irrigate his land and he raised only a partial crop; that most of his alfalfa died out, and he was compelled to repair his ditch. At the close of plaintiff's evidence defendants moved for a non-suit. At the close of the testimony they moved for a directed verdict. Both of these motions were overruled and the jury returned a verdict in favor of plaintiff for $ 2000. Judgment was entered on the verdict and the case is here on direct appeal.

1. The defendants made a motion in the court below to require the plaintiff to make his petition more definite and certain, and also a motion to strike certain parts of the petition. There are no journal entries in the record containing the ruling of the court thereon, or showing whether an exception was reserved to either ruling, as required by Section 6406 of the statutes. The clerk certifies, at the end and as a part of his certificate authenticating the record, that these motions were overruled, but such certificate cannot take the place of the entries themselves. Further, that certificate does not show any exception to the rulings. We cannot, accordingly, consider assignments of error numbers 1 and 2.

2. The motions for non-suit were properly overruled. Such motion cannot take the place of a motion to direct a verdict. The case of Mulhern v. Union Pacific Railroad Company, (2 Wyo. 465,) is decisive of the point. It fully discusses this subject, and holds that a case can only be dismissed in accordance with the provisions of the Code of Civil Procedure, which are embodied in what is now § 5879 of the Statutes of 1920, and hence that the court has no authority to order a peremptory non-suit against the will of the plaintiff.

3. It is the theory of the appellants that defendant Mills, as agent for Mills & Baker Company, and the latter as agents for the State Highway Commission, are not responsible in trespass unless they intentionally, or with knowledge of the wrong, committed the tort. On this theory a motion was made in the court below for a directed verdict for defendant Mills. An instruction on this subject was also offered, but not given. The principles of law on this subject apply equally to both defendants and we need not discuss separately the assignments of error having reference thereto. There is evidence in the case to warrant a finding that the corporation actually took away the gravel which weakened the ditch bank, and that the defendant Mills, as president of the corporation, was its managing agent in the work and fully understood what was done. The contention of appellants on this subject cannot be sustained. It is a fundamental rule of the law of tort, including trespass, that all who participate in the wrong are equally liable. (38 Cyc. 485, 1042.) An agent is, generally, not liable to a third person for failure to perform a duty, and in such case is responsible, generally, only to his principal. So, too, it has often been held that if he receives property from one whom he is entitled to regard as the owner and merely transports it to another, he is not liable; the reason being that possession of personal property is prima facie evidence of ownership and hence to receive it from the possessor and to deliver it according to order is not to be regarded as a tort. (Burditt v. Hunt, 25 Me. 419, 43 A. D. 289.) But where he commits a positive wrong, he cannot shield himself simply because he acts as agent for another, for no one can authorize him to commit a wrong. In Crane v. Onderdank, 67 Barb. 47, 56, the court said:

"Although an agent, for nonfeasance and omissions of duty, is not liable except to his principal, the rule is otherwise when the act complained of is misfeasance. In all such cases he is personally responsible, whether he did the wrong intentionally, or ignorantly by the authority of his principal; for the principal could not confer on him any authority to commit a tort upon the rights or property of another."

In the case of Welsh v. Stewart, 31 Mo.App. 376, the court said:

"In case of nonfeasance, an agent is liable only to his principal, but in cases of malfeasance or trespass, he is liable to the person injured, and cannot shield himself by proving that he committed the trespass under a contract with someone else."

In the case of Hazen v. Wight, 87 Me. 233, 32 A. 887, the court said:

"And surely, if Mrs. Wight had no authority to cut wood or timber upon the premises, she could confer none upon her servant. A stream can never rise higher than its fountain; and a servant as such can never have greater authority than his employer. And if Mrs. Wight was a trespasser in directing the wood and timber to be cut, clearly the defendant was also a trespasser in executing her command."...