Dayton v. Free

• Decision Date: 01 December 1914
• Docket Number: 2648
• Court: Utah Supreme Court
• Parties: DAYTON v. FREE et al

148 P. 408

46 Utah 277

DAYTON v. FREE et al

No. 2648

Supreme Court of Utah

December 1, 1914

Rehearing denied May 8, 1915.

Appeal from District Court, Fourth District; Hon. A. B. Morgan Judge.

Action by Ernest Dayton against J. S. Free and others.

Judgment for plaintiff. Defendants other than the Snake Creek Mining &amp Tunnel Company appeal.

Judgment in favor of such company. Plaintiff appeals.

AFFIRMED.

A. C. Hatch and E. A. Walton for Dayton.

Howat, Macmillan & Nebeker for Snake Creek M. & T. Co.

King & Nibley and P. T. Farnsworth, Jr., for Free & Taylor.

J. E. Johnson for Stewart and other defendants appellants.

STRAUP, J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

The plaintiff brought this action against the Snake Creek Mining & Tunnel Company, a corporation. Free & Taylor, partners, and six others, Stewart et al., partners, to recover damages sustained by him whilst he, as he alleges, was in the employ of all of them working underground in a tunnel, engaged in drilling and blasting. He was injured by the discharge of a "missed hole" at the face of the tunnel, left by a previous and an outgoing shift. The alleged negligence is that the defendants failed and neglected to notify or warn him of the missed hole, by reason of which he was injured while he and others, without knowledge of the missed hole, were drilling holes at the face of the tunnel. All of the defendants denied the alleged negligence, pleaded assumption of risk, contributory negligence, and negligence of fellow servants. The company further pleaded that it let the construction of the tunnel to Free & Taylor as independent contractors; that the plaintiff was not in its employ, but in the employ of Free & Taylor, or Stewart et al., and that it had not charge of, and had not directed or controlled, the work. Free & Taylor averred that they sublet the work to Stewart et al. as independent sub-contractors, who employed the plaintiff and other workmen and who had the sole direction and control of the operations and of the work. The case was tried to the court and a jury. The court directed a verdict in favor of the company, and submitted the case to the jury as to the defendants Free & Taylor and Stewart et al. A verdict was rendered, and a judgment entered against all of them in favor of the plaintiff. From that judgment Free & Taylor appeal, and claim that Stewart et al. joined in the appeal. The plaintiff also appeals from the judgment in favor of the company.

He moves to dismiss the appeal from the judgment in his favor on the grounds that Stewart et al. were not properly made parties to that appeal, and that it was not taken in time. He also moves to strike the bill of exceptions on the ground that it was not served or settled in time. The company, Free & Taylor and Stewart et al., in the court below, were each represented by separate and different counsel. Counsel for Free & Taylor, in the notice of appeal appealing from the judgment in favor of the plaintiff, named all of the defendants, except the company, as defendants appealing, and signed the notice in their name and in the name of the attorney who, in the court below, represented Stewart et al., as "attorneys for said defendants." The plaintiff claims, and supports the claim by affidavits, that the attorney for Stewart et al., after verdict and judgment, and on the record, and upon service of notice, withdrew from the case, and no longer represented Stewart et al.; and that counsel for Free & Taylor had not represented Stewart et al. and disclaimed representing them, and had no authority to appear for or represent them in taking or prosecuting the appeal, nor to sign the name of their former counsel to the notice of appeal, and hence demanded that they be required to show authority in such particular. Counter affidavits were filed to support such authority. It is questionable whether sufficient authority as to all of the defendants, Stewart et al., is shown. And it is also questionable whether the record affirmatively shows, as it is required to show, that the appeal was taken in time. We, however, have concluded to treat the appeal good as to parties and time. But we are of the opinion that the motion to strike or disregard the bill of exceptions as to all of these appellants must prevail. In the first place, no bill at all as to defendants Stewart et al. was served or settled. So, as to them, there is no pretense of a bill. There is a purported bill as to Free & Taylor. The judgment from which they appeal was entered on the 16th of August, 1913. There are purported orders attached to the transcript, showing an extension of time to serve and settle a bill to and including January 10 1914. They are not incorporated, nor in any manner referred to, in the bill, and are not a part of it. If we, nevertheless, are authorized to notice them, the bill was served and settled in time; otherwise not. Our statute (Comp. Laws 1907, Section 3197) as amended by Chapter 94, Laws 1911, provides what orders are of the judgment roll without a bill. Such as these are not included. To be noticed they, therefore, must be settled in the bill. But that was not done, nor is there any reference whatever made in the bill concerning them. We are authorized to notice only that which is of the judgment roll, or properly settled in the bill which, when filed, becomes a part of the judgment roll. Thus, on the face of the record, it appears that the bill was not served or settled in time; hence, as to these appellants, must be stricken or disregarded.

The only reviewable assignment presented by them, without a bill, relates to the overruling of their demurrer to the complaint. But that assignment was not argued nor referred to, either in the briefs or on oral argument. So for as appellants may abandon it, it is abandoned. Being jurisdictional, however, we may notice the complaint to ascertain its sufficiency to support the judgment. To that extent we look at it, and to that extent we hold it good. Since nothing is claimed for this assignment, we need say no more about it. The judgment appealed from in favor of the plaintiff is therefore affirmed, and his costs, as to these appellants, awarded to him.

Now, as to plaintiff's appeal from the judgment entered against him in favor of the company. As to these parties, plaintiff's appeal and bill are within time, his motion for new trial having been overruled March 28, 1914, and his appeal taken April 13, 1914. The assignment presents a review of the ruling directing a verdict in the company's favor. It was made on the theory that the work of digging and running the tunnel was let by the company to Free & Taylor, independent contractors, who, or Stewart et al., sub-contractors, controlled and directed the work, furnished all material, employed all laborers and employees, including the plaintiff, and controlled and directed them. The material facts relating to such issue as between the plaintiff and the company are: The company, to develop mining claims in which it was interested, let a written contract to Free & Taylor, contractors (referred to in the contract as "the contractor"), to construct a tunnel 14,350 feet long, nine feet high, and six and one-half feet wide. By the terms of the contract they were required to provide all material and perform all work as specified in "specifications" attached to the contract and made a part of it. The company agreed to pay them $ 25.16 for each linear foot of tunnel driven in accordance with the specifications. If they failed or refused for six months to do the amount of work stipulated in the specifications--work equivalent to 300 feet each month--or if the company had not sufficient funds to justify a continuance of the work, the company reserved the right to terminate the contract. But in the event it terminated it without fault on the part of the contractors, it was to pay them for all work completed, and to purchase from them at cost all machinery, appliances, tools, material, etc., on hand. The company agreed to furnish necessary dump ground, easements, and rights of way. It was further stipulated in the contract (Article 6) that:

"The contractor agrees that he will employ no person on the work, or in or about the premises herein referred to, unless such persons are satisfactory to the company or its agent, and further agrees to furnish said company, when requested, with a full list of all men employed by him, and that he will promptly discharge any man so employed, at the request of said company, in case a reasonable and sufficient cause is assigned therefor."

In the specifications are specified the objects, extension, and dimensions of the tunnel, provisions made for laying a track air, and ventilating pipes, and timbering the tunnel, which timbers, track and pipes were to be placed and laid as designated by the company's engineer. The company was required to furnish "one five-drill Sullivan air compressor and receiver with compressor house, and the necessary electrical equipment for operating said compressor, electric power in quantity sufficient for use in driving the tunnel, the contractor to pay actual cost of power consumed," and a "boarding house and office buildings not to exceed the cost of $ 3,000." Other specifications are made regarding estimates and payments to be made every month, but providing for ten per cent. deduction of payments until the completion of the tunnel to the satisfaction of the company's engineer, the use and care of the machinery furnished by the company and interruptions resulting from strikes, etc. The company reserved the right, "at any time during the prosecution and continuance of the work, to run drifts, cross-cuts, tunnels, upraises, and winzes, and to...