Hedlun v. Holy Terror Mining Co.
| Decision Date | 07 October 1902 |
| Citation | 92 N.W. 31,16 S.D. 261 |
| Parties | JOHN HEDLUN, Plaintiff and respondent, v. HOLY TERROR MINING CO. Defendant and appellant. |
| Court | South Dakota Supreme Court |
HOLY TERROR MINING CO. Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Pennington County, SD Hon. Levi McGee, Judge Affirmed Wood & Buell, Fowler & Whitfield Attorneys for appellant. William Gardner, A. K. Gardner, D. M. Kelleher, I. W. Goodner Attorneys for defendant. Opinion filed Oct. 7, 1902
This is an action to recover damages for personal injuries received by the plaintiff while employed by the defendant, a domestic corporation, blasting rock in its mine. its trial resulted in a judgment for $12,000, from which, and an order denying its application for a new trial, the defendant appealed.
It is alleged in the complaint that the defendant was negligent (1) in failing to provide proper means of ingress to the cage in which the plaintiff and his co-laborers were conveyed to and from their work, and (2) in furnishing a quicker fuse on the day of the accident than that previously furnished, knowing that it was quicker, without informing the plaintiff of the change, he being without knowledge or notice of the change, and unable by the exercise of reasonable diligence and observation, to learn of it. It is also alleged on information and belief that after his injuries, resulting in the loss of his left leg seven inches below the knee, were received,
“while the plaintiff was confined to his bed by reason of the injuries hereinbefore complained of, and while he was in great distress in body and mind, and while he was under the influence of cocaine, morphine, and other medicines calculated to affect his mind in such a manner that he did not understand or know what he was doing, and was in fact non compos mentis, the defendant by its agent, came to the house of the plaintiff at Keystone, South Dakota, and there and then taking advantage of this plaintiff’s condition, well knowing that this plaintiff was not in a condition of mind to attend to any business, or to know the results of his own acts, or to understand what his own condition was, falsely, fraudulently, and knowingly persuaded this plaintiff to enter into an agreement of settlement, the consideration of which purported to be two hundred and seventy-three and sixty-five one-hundredths ($273.65) dollars, a sum wholly inadequate to even pay the expenses to which this plaintiff has been put by reason of the said accident, and in no manner compensating this plaintiff for the injuries sustained by him; that this plaintiff hereby tenders back to the said defendant whatever sum or sums it may have advanced by reason of the said pretended agreement, and hereby repudiates and disaffirms said pretended settlement with the said defendant.”
Defendant’s demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action having been overruled, it answered, denying each and every allegation of the complaint not specifically admitted; admitting its corporate existence, ownership of the mine, the employment of the plaintiff as a miner and servant at the time of the injury mentioned in the complaint, and that thereafter plaintiff entered into an agreement of settlement with the defendant in consideration of $273.65, paid to him by the defendant, whereby the plaintiff, in writing, wholly satisfied, discharged, and released the defendant from all damage or liability on account of the injuries complained of in the complaint; and alleging
“that at the time of entering into said compromise contract and the execution and delivery of said written release and satisfaction thereof the plaintiff was of sound contracting mind, and the same was entered into without any fraud on the part of the defendant, or any undue influence exerted by the defendant or its agents, and the same was the free and voluntary act of the plaintiff; and that since the date of the entering into of said compromise agreement the plaintiff never rescinded or offered to rescind said contract. prior to the commencement of this action, and never returned or offered to return the consideration paid to him therefor, or any part thereof; and that as to the alleged tender of the consideration received under said contract into court, as alleged in the complaint, the defendant alleges that there has been no money paid into court, either to the judge or clerk thereof, or to any other person; and that the said compromise agreement is in full force and effect, and is an absolute bar to the action of plaintiff.”
It is also alleged in the answer
“that the defendant corporation is not in any manner liable for any injuries which were received by the plaintiff at the time and place mentioned in plaintiff’s complaint; and that his said alleged injuries were not caused by reason of any negligence, carelessness, or fault on the part of this defendant or its agents, servants, or employes, but that said injuries were caused solely and entirely by reason of the fault, negligence, and carelessness of the said plaintiff himself.”
It is contended that the demurrer to the complaint and defendant’s objection to the introduction of any evidence should have been sustained, for the reason that the complaint contains no allegation of a tender of the amount received from defendant in consideration of the alleged settlement. The release was a matter of defense which should not have been mentioned in the complaint, and the allegations relating thereto might properly be regarded as surplusage. Trotter v. M. R. F. Life Ass’n, 62 AmStRep 887 (1897). Nor was the complaint defective if such allegations be regarded as a part of it. In reviewing the ruling of the lower court upon the demurrer and upon defendant’s objection to the introduction of any evidence, all of the well-pleaded facts contained in the complaint are admitted to be true. If so, the alleged release or settlement was fraudulently obtained, and in such case the better and more reasonable rule is that a tender of the amount received by the plaintiff need not be made before action is commenced, the release being treated as a receipt for a partial payment, to be deducted from the amount of the plaintiff’s recovery. O’Brien v. Railway Co. (Iowa) 57 N.W. 425; Railroad Co. v. Doyle, 18 Kan. 58; Sanford v. Insurance Co. (Wash.) 40 Pac. 606; Bliss v. Railway Co., 160 Mass. 447, 39 AmStRep 504. At the time of receiving his injuries the plaintiff, an experienced miner, was working with Joseph Everly, James Hopkins,and Sherman Dunning in a crosscut at a point about 500 feet below the surface of defendant’s mine. They were engaged in drilling and blasting rock. The plaintiff and Everly were partners, as were Hopkins and Dunning. During the night they drilled holes in the face of the crosscut with air drills. When of sufficient depth, each hole was loaded with giant powder, to which was attached a fuse. The men were conveyed to and from their work in a cage operated up and down the shaft by means of a steam hoist. During the night preceding the accident the plaintiff and his partner drilled six holes. Hopkins and Dunning drilled six, and there was one which had been previously drilled. In the morning the tools were taken out, the holes were loaded, the blasting signal was given, and a lagging was so placed as to enable the men to more readily get into or onto the cage. The men then proceeded to spit the holes, which consisted in splitting the fuse with a knife, and then lighting it with a candle. The plaintiff and Everly spit seven holes and got onto the cage. Everly was on the cage first. The plaintiff got on next, and called to Hopkins and Dunning to come. Hopkins had trouble with his last hole, trying the second—perhaps the third—time to spit it, without success, when Dunning and he left it, to get on the cage. Dunning reached there first, followed by Hopkins, who, getting on the cage, gave the signal to raise it; which was instantly done by the engineer in charge, but before it had been raised above the roof of the crosscut two holes exploded throwing large quantities of rock onto the cage, and causing the injuries to plaintiff complained of in this action.
It is contended that the court erred in permitting the plaintiff, when on the stand as a witness on his own behalf, to answer the following question:
“On the other shifts, how far away had you gotten up the shaft before the shots went off?”
The answer was:
The evident purpose of this question was to show that the fuse used at the time of the accident was quicker than that used during the preceding shifts. It was proper for that purpose. Of course, its weight depended upon the conditions existing during the preceding shifts and when the accident occurred, but that was a matter for the jury. The question was preceded by evidence as to the condition of the mine and the nature of the work in which the plaintiff was engaged. Later in the trial all the conditions and circumstances surrounding the work on the crosscut from its inception to the time of the accident were fully described. Hence there was no reversible error in the ruling, even if a proper foundation for it had not been laid when it was first received. We think, however, that the foundation was sufficient. The same witness was asked a is question:
“Now, Mr. Hedlun, based upon your experience as a miner, and in the use of fuse and blasting powder, I will ask whether or not, in your opinion, the fuse used by you in the morning of the accident was the same quality or character of fuse used on the previous morning and the morning before?”
His answer was, “No.” It is contended that this evidence was inadmissible, for the reason there was no claim that the fuse was defective or insufficient, or that it was not a standard fuse. The contention is...
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