Dovich v. Chief Consolidated Mining Co.

• Decision Date: 03 July 1918
• Docket Number: 3214
• Citation: 53 Utah 522,174 P. 627
• Court: Utah Supreme Court
• Parties: DOVICH v. CHIEF CONSOLIDATED MINING CO

174 P. 627

53 Utah 522

DOVICH v. CHIEF CONSOLIDATED MINING CO

No. 3214

Supreme Court of Utah

July 3, 1918

Appeal from the District Court of Salt Lake County, Third District Hon. Geo. F. Goodwin, Judge.

Action by Mike Dovich against the Chief Consolidated Mining Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Dickson Ellis & Lucas for appellant.

Willard Hanson for respondent.

THURMAN J. FRICK, C. J., and McCARTY, CORFMAN, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

Action for personal injury. Plaintiff was injured in defendant's mine in Eureka, Juab County, Utah, while engaged in repairing an air pipe line in the main drift on what is known as the 1,400 foot level. Plaintiff was employed as a timberman in said mine, but was also subject to the orders of the shift boss or foreman for any other work that might be necessary in the mine. It is alleged by the defendant that it was also his duty, without special request, to do any other work that might be necessary for the good conduct and safety of the mine when such work appeared to him to be necessary.

On the date of the injury plaintiff was working in what is known as the 1,410-K stope, which was connected with the 1,400 level, or main drift. In going to and from his work he passed through and along the main drift, in which was a car track for moving ore and material, and also an air pipe line strung near the top of the drift supported by pieces of timbers. Where it did not rest upon the timbers it was attached to them by means of a wire. The primary purpose of the timbers was to support the pipe line. They were called sprags and extended across the drift. Whether or not they incidentally supported the roof of the drift is a subject of conflict in the testimony.

On the day in question the plaintiff was ordered by the shift boss to assist in repairing the pipe line, which was leaking or was otherwise out of repair, in the vicinity of the 1,400-K stope. Plaintiff and another employee of defendant, in pursuance of the order, undertook to make the repair. In doing so it became necessary to support the pipe upon their shoulders, and, while in this position, earth, rock, and material fell from the roof and sides of the drift upon the plaintiff, causing the injury complained of in the complaint.

The testimony of the plaintiff tends to show that the crosstimbers or sprags which supported the pipe were two or three feet below the roof or back of the drift, and did not in any manner support the roof.

The plaintiff in his complaint charges, in effect, that the defendant was negligent in failing to inspect the roof and sides of the drift, in permitting them to become loose and liable to cave, and in failing to timber up the same; that these acts of negligence on the part of the defendant were the cause of the injury.

Defendant admits that plaintiff was in its employ as a timberman, and alleges that it was his duty to do other work when ordered or when necessary; admits that plaintiff was ordered to assist in repairing the pipe line, and that while so engaged earth and rock fell from the roof and sides of the drift upon plaintiff and injured him. Defendant, further answering, pleads assumption of risk, contributory negligence, negligence of fellow servants, and a full settlement with plaintiff, and release executed by him releasing defendant from any and all claims and demands, causes of action, and liability for or on account of said injury. The release is alleged to have been executed by plaintiff on the 3d day of February, 1915, is set out in full in the answer, and states the consideration to be one dollar paid to plaintiff, and the agreement of defendant to pay plaintiff one half the ruling rate of wages for a period not exceeding twenty-six weeks. Plaintiff denied the execution of the release, or, if he did execute it, he alleges the same was procured falsely and fraudulently by the defendant, specifically alleging the nature and character of the fraud.

It is alleged and admitted that the main drift was a means of ingress and egress to and from the various stopes of the mine on that level.

The case was tried to a jury. Judgment for plaintiff. The defendant appeals, and assigns as error various rulings and orders of the court relating to the admission and exclusion of evidence, instructions given to the jury, refusal of defendant's requests, refusal to order a nonsuit, and error in entering the judgment.

The release relied on as a defense by appellant seems to be the main feature of this litigation, sixty-three pages of an eighty-nine page brief are devoted by appellant to the discussion of questions connected with the release in one way or another. The validity of the release being challenged by the reply of plaintiff to defendant's answer, the defendant introduced evidence as to its execution.

Walter Fitch, Jr., assistant superintendent of defendant, testified that he called on plaintiff at the Holy Cross Hospital, Salt Lake City, Utah, February 3, 1915; had a general conversation with him and took up the matter of the release; "read the release over to him, explained it to him in his own language, and asked him if he wanted to sign it. Plaintiff said 'Yes,' the company had always treated him right and he knew they would in the future. He didn't want any trouble with them and would therefore sign the release, and he did so." On cross-examination witness testified he paid plaintiff $ 1 at the hospital, and that he submitted the release to plaintiff before he signed it. The form was made in Salt Lake City. At that time witness was a representative of the Continental Casualty Company, which was writing insurance for the men in the mine. Witness was getting a percentage of what was written. He collected insurance for the men when they were hurt. He did not remember whether he talked with plaintiff about insurance or not, and did not remember whether plaintiff signed more than one paper or not at the time he signed the release. The principal purpose of witness was to get the release. He admitted that he wanted to get the release executed before some lawyer got hold of plaintiff. This witness was the only one on the part of defendant who testified directly concerning the execution of the release.

On this question plaintiff testified, in substance, that he was in the hospital when Walter Fitch, Jr., called on February 3d. Plaintiff had been operated on on February 1st. He was in bed when Fitch called. Plaintiff did not read or write English. When Fitch called plaintiff was suffering all over, and was bothered with chloroform. Fitch came in the morning and said he came about insurance. Plaintiff had been sick a couple of times before and Fitch had always fixed his insurance. Fitch asked plaintiff his age, height, and weight and asked him to sign his name. He did so, thinking he was signing for insurance. Fitch said nothing about a release. Fitch never showed him the paper claimed to be a release. Plaintiff did not see the release and Fitch did not read it over to him. Plaintiff understood he was signing simply to get his insurance. Fitch did not tell him the mining company would pay him half wages for twenty-six weeks, nor did Fitch give him one dollar. There were present at the time Emil Bovich and Gust Bills. One was on one side of plaintiff's bed and one on the other, five or six feet between his bed and theirs. On cross-examination plaintiff was shown the signature to the release, and admitted that it looked like his, but still persisted in saying he never saw that paper.

Gust Bills testified for plaintiff: was at Holy Cross Hospital when Fitch came there. Witness' bed was next to plaintiff's, with an aisle between them. They were lying feet to feet. Fitch and plaintiff had a conversation about insurance. Fitch said something about a release, and offered to give plaintiff a dollar, but he wouldn't take it. Fitch had a paper in his hand, but witness did not know whether it was a release or not. Didn't hear Fitch say, "Now, if you sign this you cannot bring suit." If he had said anything like that witness would have heard it. Fitch never said anything about getting half pay from the company. There was nothing said except about insurance. Fitch wanted plaintiff to make a report about the accident. Witness told the man next to him to tell plaintiff not to sign any papers.

Emil Bovich, another witness for plaintiff, testified to the following effect: Was in the hospital when plaintiff was there. His bed was about three and one-half feet from plaintiff's. A man came up to the hospital like that man (pointing to Fitch). He said he came to fix up insurance. He asked plaintiff's age, weight and height; then asked him if he wanted any money. He asked plaintiff to sign a brown or yellow paper. He did not say anything about a release or giving him half pay for twenty-six weeks. Witness was close by, in the next bed. Gust Bills was on the other side. Witness saw plaintiff sign one paper. Did not see him sign two.

The cross-examination of these witnesses did not materially change the testimony as above stated.

In view of the pleadings and the evidence relating to the release, the court, at the close of the trial, gave special instruction to the jury, which we will hereafter consider in connection with certain requests of the defendant relating to the release.

The plaintiff having testified, as above shown, that he "was suffering all over, and was bothered with chloroform," on the occasion of Fitch's visit to the hospital, the defendant, when introducing its testimony, had Dr. Arthur J Murphy sworn as a witness. After stating that he took part as a doctor in the operation performed on plaintiff, the witness was asked by defendant's...