Day v. Cloke

• Decision Date: 21 May 1923
• Docket Number: 2553. [a1]
• Citation: 215 P. 386,47 Nev. 75
• Parties: DAY v. CLOKE.
• Court: Nevada Supreme Court

215 P. 386

47 Nev. 75

DAY v. CLOKE.

No. 2553. ^[a1]

Supreme Court of Nevada

May 21, 1923

Appeal from District Court, Nye County; Mark R. Averill, Judge.

Action by John J. Day against Jack Cloke. From judgment for plaintiff, and order overruling motion for new trial defendant appeals. Judgment and order reversed.

Ryland G. Taylor and Frank T. Dunn, both of Tonopah, for appellant.

A. M Hardy and Harry Dunseath, both of Tonapah for respondent.

DUCKER C.J.

The respondent, who was plaintiff in the court below, brought this action to recover $10,000 damages for injuries alleged to have been sustained by him while in the employ of appellant in his blacksmith shop in Tonopah, Nye county, Nev. It is alleged in the complaint that on the 3d day of December, 1919, plaintiff was in the employ of said Jack Cloke as a blacksmith, and, while working on the repair of a wagon, and due to the negligence of said defendant, the said wagon slipped from its holdings; that plaintiff, while jumping to escape being crushed by the falling wagon, was struck in the right breast by a projecting timber, his rib broken, lung punctured, and was badly bruised, and ever since has been, and now is, totally and permanently injured and disabled therefrom, and has suffered and now suffers from total disability; that all of said injuries complained of came through no fault or negligence on the part of the plaintiff but solely by reason of the negligence and carelessness of defendant. It is also alleged that Cloke, at the time of said injuries, had not elected to provide, secure, and pay compensation to his employees for injuries sustained arising out of and in course of employment, according to the provisions of an act in such cases made and provided, and was not at the time of said accident and injuries aforesaid operating under any or all of the provisions of said act, and subject to the same, and had not contracted to provide, secure, and pay compensation in the matter and by the said act provided for all personal injuries sustained arising out of and in the course of employment, and had never given notice of an election to reject the terms of the said act.

A general demurrer to the complaint was overruled by the court, and defendant answered, denying the allegations thereof. On the issues made the cause proceeded to trial before the court without a jury, which resulted in a judgment in favor of respondent for $5,000. A motion for a new trial was denied. From the judgment and order overruling the motion for a new trial this appeal is taken.

A number of errors are assigned by appellant, the first of which is directed to the order overruling the demurrer to the complaint. It is contended that the complaint does not state facts sufficient to constitute a cause of action, in that it is not alleged therein that respondent has not recovered his benefits under an act of the Legislature of this state relating to the compensation of injured workmen in the industries of this state, etc., approved March 15, 1913 (St. 1913, c. 111); that such an allegation is an essential prerequisite to his recovery in a common-law action. The contention is without merit. The respondent has resorted to his common-law remedy for damages for personal injuries. If he has received benefits for the injuries complained of under the provisions of the statute, this would be a defense to the action which cannot be raised by a general demurrer. An allegation that he has not received such benefits is unnecessary.

It is assigned as error that the judgment is against the law, against the findings, and against the evidence. The findings are in part uncertain and inconsistent, and on the whole insufficient to support the judgment. The unsatisfactory state of the findings arises from the fact that the trial court in its formal findings of fact has referred to its written opinion, and made it a part of the findings to the extent in which the opinion passes upon the facts. This is a practice which should not be indulged in, and which received the criticism of this court in a recent opinion, Crumley v. Fabbi, 213 P. 1048. We again venture to hope that it will be discontinued.

Among the formal findings of fact is one to the effect that on the 3d day of December, 1919, and while the relationship of employer existed, and while in the course of his employment, plaintiff was working on the repair of a wagon, and, due to the negligence of said defendant, the said wagon slipped from its holdings, and this plaintiff, while jumping to escape the falling wagon, was struck in the right breast by some projection on a tool press, breaking a rib, puncturing his lung, and severely injuring his back, causing a total disability. The first part of this finding is inconsistent with the finding in the written opinion wherein the court says:

"I have little doubt that the fall of the wagon was wholly the fault of Day, as he was the only one who touched it after it was run into the shop."

The evidence discloses that the falling of the wagon was not due to the negligence of the appellant. He was not present when the wagon was placed in the position from which it fell, or when the accident occurred. In fact, the falling of the wagon was due entirely to the acts of respondent, and so admitted by him in his testimony. The inconsistency of the findings however, does not affect the judgment, as there is no evidence tending to show, nor does the respondent claim, that he was injured by the falling wagon, and this appears to be due entirely to his own negligence. He claims to have been injured in jumping to escape the falling wagon, whereby he came in contact with a projection which constituted negligence on the part of appellant. This is a...