Forsell v. Pittsburgh & Montana Copper Co.

• Decision Date: 01 March 1909
• Citation: 100 P. 218,38 Mont. 403
• Parties: FORSELL v. PITTSBURGH & MONTANA COPPER CO.
• Court: Montana Supreme Court

100 P. 218

38 Mont. 403

FORSELL v. PITTSBURGH & MONTANA COPPER CO.

Supreme Court of Montana

March 1, 1909

Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.

Action by Alfred Forsell against the Pittsburgh & Montana Copper Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Kremer Sanders & Kremer, for appellant.

Breen & Hogevoll and Maury & Templeman, for respondent.

HOLLOWAY J.

This is an action for damages for personal injuries. The complaint alleges: That the plaintiff was employed by defendant company and directed to work near the 1,200-foot level in a shaft in the Pittsmont mine; that defendant John Medlin was a stationary engineer, employed by the defendant company to operate a hoisting engine by means of which a heavy cage was raised and lowered in the shaft. The complaint then alleges "The defendant copper company disregarded and failed in its duty of using ordinary care to make the said place where plaintiff was at work reasonably safe, and it negligently permitted the brakes on said engine to be defective and in such condition that no man could clamp them tight enough to prevent the cage from slipping down the shaft when the cage would be placed at rest by said engineer." The complaint further describes the injuries received by the plaintiff. The complaint also contains a second cause of action, based upon the alleged negligence of defendant Medlin only. At the conclusion of plaintiff's case, each defendant interposed a motion for a nonsuit. The motion of the defendant Medlin was sustained, and that of the defendant company was overruled. The plaintiff recovered judgment against the defendant copper company, and from the judgment and an order denying it a new trial the company appeals.

1. Since the second cause of action is predicated upon the alleged negligence of Medlin only, the order granting a nonsuit as to him withdrew that cause of action, and it is not before us now. Whether there was a misjoinder of causes of action we will not determine. There does not appear to have been any objection made by answer or demurrer to the complaint on that ground, and, unless the objection is so taken, it is deemed waived. Rev. Codes, § 6539.

2. The defendants requested the trial court to compel the plaintiff to elect upon which cause of action he would proceed to trial. This was denied, and properly. In 2 Abbott's Trial Briefs (Pleading), 1260, the rule is stated as follows: "The objection to a misjoinder of causes of action which would have sustained a demurrer is waived by not demurring, and therefore not ground for compelling plaintiff to elect at the trial."

3. By discharging Medlin on his motion for a nonsuit, the trial court determined, as a matter of law, that he was not shown to be guilty of actionable negligence. In order to recover at all, it was necessary for the plaintiff to rely upon the alleged negligence of the defendant company as charged in his complaint. It will be observed from that portion of the complaint quoted above that the negligence of the defendant company is said to consist in its failure to use ordinary care to make the place where plaintiff was at work reasonably safe; but there was not any evidence offered in support of this allegation, except in so far as the evidence tending to support the second ground of negligence may be said to support it.

As a second ground of negligence it is alleged that the defendant company "negligently permitted the brakes on said engine to be defective and in such condition that no man could clamp them tight enough to prevent the cage from slipping down the shaft when the cage would be placed at rest by the engineer." These allegations were all put in issue by the answer. Early in the trial a question arose over the admissibility of evidence, and the court ruled that the plaintiff might introduce evidence tending to show the condition of the engine at the time it was placed in position, that it was too small, that the brakes would not hold, and any defects in the brakes caused by lapse of time or the failure of defendant company to keep them in repair. Under this ruling the plaintiff, over the objection of the defendants, introduced evidence tending to show that the brake used was too light for the work imposed upon it, that the hoisting engine was defective, that the exhaust from the engine was not properly connected, and the effect of the back pressure of steam. In admitting this evidence we think the trial court erred. As we construe the complaint and the evidence offered in support of it, the only contention is over the charge against the defendant company that it negligently permitted the brake to be in a defective condition so that it would not perform the duty assigned it. In Pierce v. Great Falls & C. Ry. Co., 22 Mont. 445, 56 P. 867, the complaint charged the railway company with negligence in the following particulars: The coach was improperly equipped; the trainmen were incompetent; the track was unsafe; the train and track were not inspected. The allegations of negligence were denied, and the answer alleged that the wreck was caused by an act of God-that the train was blown from the track by a violent windstorm. The plaintiff, being unable to sustain the allegations of her complaint by proof, then sought to show that the railway company was negligent in running its train through the windstorm. Speaking of this attempt this court said: "In the case at bar, however, the plaintiff, instead of stating generally the failure of the defendant to exercise care in the discharge of its duties, alleged in her pleadings the particulars in which the negligence of defendant consisted. She could not recover for negligence in any other respect, for a plaintiff must stand upon the cause of action stated in the complaint." That this rule is correct would seem to be too plain to require argument or citation of authorities. Our Code (Rev. Codes, § 6532) requires the complaint to contain a statement of the facts constituting the cause of action. "It would be folly to require the plaintiff to state his cause of action, and the defendant disclose his grounds of defense, if in the trial either or both might abandon such grounds and recover upon others which are substantially different from those alleged." Boardman v. Griffin, 52 Ind. 101; 2 Abbott's Trial Briefs (Pleading) 1720; White's Personal Injuries in Mines, § 130; 6 Thompson's Commentaries on the Law of Negligence, 7471; 1 Elliott on Evidence, § 204; 14 Ency. Pleading & Practice, 342; Ebsary v. Chicago City Ry. Co., 164 Ill. 518, 45 N.E. 1017; Telle v. Leavenworth R. T. Ry. Co., 50 Kan. 455, 31 P. 1076; Arcade File Works v. Juteau, 15 Ind.App. 472, 44 N.E. 326.

4. A witness was permitted to testify, over the objection of the defendant company, in effect, that instead of a band brake, such as was used, a post brake should have been employed. This was error also. The complaint does not count upon the negligence of the company in selecting the particular character of brake, nor does it allege that a band brake is not adapted to the work required by the defendant to be done by the brake in question. Galveston, H. & S. A. Ry. Co. v. English (Tex. Civ. App.) 59 S.W. 626.

5. But it is said that there is a fatal variance between the allegations of the complaint and the proof, which amounts to a failure of proof. After setting forth the alleged negligent acts of the defendant company above, the complaint continues "Now such...