Beeler v. Butte & London Copper Development Co.
| Decision Date | 06 July 1910 |
| Citation | 110 P. 528,41 Mont. 465 |
| Parties | BEELER et al. v. BUTTE & LONDON COPPER DEVELOPMENT CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.
Action by Margaret A. Beeler and others against the Butte & London Copper Development Company. Judgment for plaintiffs. Defendant appeals. Affirmed.
Kremer Sanders & Kremer and Walsh & Nolan (T. J. Walsh, of counsel) for appellant.
Maury & Templeman and J. O. Davies, for respondents.
SANNER J. (Judge of Seventh judicial district court).
The respondents, heirs of Edwin Beeler, deceased, recovered judgment against the appellant company for damages for personal injuries sustained by him while in the service of the appellant company, as the result of the negligence of a fellow servant. The cause is now before this court upon appeal from said judgment and from an order denying appellant's motion for a new trial. The transcript assigns 63 alleged errors. These, however, are consolidated by the briefs filed on appellant's behalf into a few general propositions which will be reviewed in the order of their presentation.
1. 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, § 6449, Rev. Codes.
(a) The authority for this action is in the act approved February 20, 1905 (chapter 23, p. 51, Laws 1905), re-expressed 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 itself--whether it be upon a judgment, written contract, account, etc. Subdivision 1, § 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 P. 1009) that under the act approved February 20, 1905, 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 P. 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, § 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.
2. In the selection of the jury respondents were permitted to ask each of the jurors whether they had any business relations with the Casualty Company of America. Apparently respondents deemed this information necessary as an aid to the intelligent exercise of their peremptory challenges. It does not appear that either the purpose or tendency of these questions was to inform the jury that the burden of a judgment, if obtained, would fall on an insurance company instead of the defendant, and the company was not afterwards mentioned in the case. The first time the question was asked, no objection whatever was made, and we are unable to see how the appellant could have been prejudiced by the examination. Hoyt v. Independent Asphalt Co., 52 Wash. 672, 101 P. 367.
3. It is assigned as error that the district court denied appellant's motion for a directed verdict. This assignment, with that based on the refusal of a new trial, brings up the main question whether the whole case presents a sufficient fact basis for the verdict of the jury. On the 11th of November, 1906, appellant's shaft was divided into three compartments, the center one accommodating the cage, the east one containing the pumps, and the west one containing a steam pipe line; and at a point 640 feet below the surface, commonly called the "Six Hundred," there was a controlling valve in the steam line in the west compartment. The station is electric lighted, and here, as well as at intervals of about 100 feet above, are wall plates made of 12x12 timbers, which the cage, in passing, would clear by from 3 to 5 inches, a space wholly insufficient to admit the passing of an adult human body. To reach the valve in the steam line, a pumpman would necessarily proceed to the "Six Hundred," step from the cage to the wall plate on the north at or near the northwest corner of the center compartment, thence into the west compartment to the ladder close to the corner; it would take from two to four minutes to close this valve. The cage was a sinking cage, and had no gates; it was operated by means of an engine and cable which were under the control of the engineer who was stationed where he could, and often did, observe it at the surface. The engine, cable, cage, and shaft were all in normal, safe condition. Fifty-five or 60 feet below the "Six Hundred" was the bottom of the shaft, where men were working; water was dropping, and there was water in the shaft and the pumps were at work drawing it out.
On the morning of the day above referred to, Edwin Beeler, a pumpman in appellant's employ, was sent by one O'Neal, his boss, to prime a pump at the "Four Hundred," and after that proceed to the "Six Hundred" and shut off the steam line there. He proceeded to the "Four Hundred," was there about 15 minutes, primed the pump passed some remarks with one Simmons, took the cage, rang for the "Six Hundred" and descended. About half an hour after this O'Neal, finding the steam line still open, signaled from the bottom of the shaft for the cage, and, not receiving it, he ascended the shaft by means of the ladder, arrived at the "Six Hundred," and there found Beeler dead, bound tight between the lower edge of the north wall plate and the upper edge of the bottom of the cage, the floor of the cage being about four inches up on the wall plate. The cage was rigid, and it was necessary to lower it to remove the body; "it seemed to have him by the breastbone and the lower short ribs, square *** he was bound in that tight that there wasn't a tremor in the cage at all." His body was held almost erect, his head thrown slightly backward, the hat still on it; both hips were below the floor of the cage but the left leg was drawn up so that the kneecap was...
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