Inspiration Consolidated Copper Co. v. Bryan

Citation35 Ariz. 285,276 P. 846
Decision Date26 April 1929
Docket NumberCivil 2799
PartiesINSPIRATION CONSOLIDATED COPPER COMPANY, A Corporation, Appellant, v. E. R. BRYAN and JULIA BRYAN, Appellees
CourtSupreme Court of Arizona

APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Judgment affirmed.

Messrs Rice & Mathews, for Appellant.

Messrs Baker & Whitney and Messrs. Struckmeyer, Jennings & Strouss for Appellees.

OPINION

ROSS, J.

This is an action by plaintiffs E. R. Bryan and Julia Bryan father and mother, under the Employers' Liability Law for damages for the death of their 20 year old son Allen Bryan, who, it is alleged, was killed on January 14th, 1914, in an accident due to the condition of his employment and arising out of and in the course thereof, while working for the defendant, Inspiration Consolidated Copper Company. The defendant's answer was a general denial. The trial, before a jury, was in December, 1927, and resulted in a verdict for plaintiffs in the sum of $18,750, upon which judgment was entered. Motion for a new trial was made, but overruled. From this order and the judgment, this appeal is prosecuted.

By a number of assignments the following questions are presented for our consideration and decision: (1) It is claimed that there is no evidence that deceased was in the employment of defendant at the time of his death, but that, on the contrary, all the evidence is to the effect that he was working for and under the control and direction of the United States; (2) that the court misdirected the jury as to the law; and (3) that the verdict is grossly excessive. We will consider these questions in the order given.

The Roosevelt Dam is a government project. It was constructed under the United States Reclamation Act. After the dam had been completed, the water passing over it became available for power purposes and steps were taken by the government to convert such power into electrical energy for domestic and commercial uses. In the distribution of this energy, the communities within the boundaries of the project were, it seems, to be given first consideration, and accordingly power plants and transmission lines were installed for that purpose. The product exceeding the consumption within the project, a market for the surplus was sought. Outside of the project, some thirty-five or forty miles east of the Roosevelt Dam, were located the defendant and other mining companies engaged in mining copper and other metals. They needed electric energy for their mining operations and for domestic purposes.

On July 15th, 1912, the United States, by L. C. Hill, supervising engineer of the Reclamation Service, with the approval of the Secretary of the Interior, as the first party, and the Inspiration Consolidated Copper Company, as the second party, entered into an agreement by the terms of which the United States undertook and agreed to furnish the mining company electrical energy to operate its mining plant and for domestic purposes, upon conditions and terms therein named, provided the mining company would construct a transmission line and a telephone line from the power plant at Roosevelt to the works of the mining company. Throughout this contract the Inspiration Consolidated Copper Company is referred to as the "Contractor." While the contractor had other obligations under the contract, we give in particular those concerning the construction of the transmission and telephone lines:

"It is understood and agreed that the Contractor shall construct a double circuit, three-phase, forty thousand (40,000) volt transmission line from the Roosevelt Power Plant to the Contractor's Pumping Station at Wheatfields and Pumping stations and works near Miami, Arizona." Article VII.

"It is further understood and agreed that the Contractor shall install a telephone line in connection with the transmission line. . . ." Article IX.

"It is understood and agreed that the Contractor shall construct said telephone and transmission lines, together with all necessary appurtenances, including switching connections at Roosevelt, at its expense, in accordance with plans and specifications approved by the proper officers of the United States Reclamation Service and subject to their supervision. This work shall be promptly undertaken and vigorously prosecuted by the Contractor and finished within at least eighteen (18) months from the date of execution hereof. Upon its completion to the satisfaction of the Chief Engineer of the U.S. Reclamation Service, it shall become the property of the United States and form a part of the Salt River project. In consideration whereof the United States agrees to pay the Contractor the actual cost of said work, by crediting the Contractor with twenty-five per cent. (25%) of each monthly bill rendered for the amount of energy used by the Contractor as recorded in the recording watt-meters above provided, until the cost of said work is in this manner refunded and paid for. In the event that said work is not completed within the time above stipulated, the United States shall have the right and privilege to terminate this contract. . . ." Article X.

After the above contract was executed the transmission and telephone lines from Roosevelt Dam to defendant's property were constructed under an arrangement as follows: The engineer in charge of the Reclamation Service under the Roosevelt project, with equipment belonging to the government and persons employed by him, did the actual work of building the lines, the defendant paying all the costs of materials and all wages of employees upon requisitions and payrolls furnished by said engineer or those working under him. It was in this way the deceased was employed and paid. The defendant phrases it thus:

"Aside from meeting the pay rolls of the men, and paying for materials procured or required by the government, as indicated, defendant had no part whatever in the work of constructing the transmission line."

While deceased was on top of one of the steel towers, engaged in fastening transmission wires to the cross-arms thereof, the guy-wire sustaining the tower broke, and the tower fell, taking him with it to his death.

Before the above contract was entered into, the responsible heads of the defendant mining company and the government met and discussed the proposed construction, its purpose, the amount and price of electricity to be delivered, and the manner and terms of paying for it by the defendant. In such discussion it was disclosed that the government had no funds available for such construction, and that, if it were done, the defendant company would have to build the lines or finance their building. Afterwards the engineers of the reclamation service drafted the contract and forwarded it to the Department of the Interior, where it was slightly changed, and, as changed, signed by the parties and approved by the Secretary of the Interior. It was a building or construction contract and not a financing one. No other contract was ever made or entered into with the sanction or approval of the Secretary of the Interior, and it is not contended or suggested that the supervising engineer of the reclamation service, or his assistants, possessed the power independent of the secretary to make any other contract or to modify the one that had been made.

The arrangement that the actual construction of the lines should be done with the government's equipment and organization under the supervision and control of the reclamation engineers was later made between such supervising engineer and the general manager of the defendant.

It is contended by defendant that this arrangement was in conformity with the terms of the contract, that under the contract the obligation of the defendant was to finance the construction of the lines, and not to construct or actually build them, and that it was so construed by the parties. We think it would be a perversion of the English language to give the contract any such meaning. It says:

". . . The Contractor (defendant) shall construct a . . . transmission line . . . shall install a telephone line in connection with the transmission line . . . shall construct said telephone and transmission lines . . . at its expense, in accordance with the plans and specifications approved by the proper officers of the United States Reclamation Service and subject to their supervision." (Italics ours.)

No plainer words could have been employed to place the duty, not only of constructing said lines, but also of financing such construction, upon the defendant. There is and can be no doubt as to whose duty it was to do the work and pay for it. Nor do we think there can be any doubt of the defendant's literally performing its contract "to the satisfaction of the Chief Engineer of the U.S. Reclamation Service." No one else agreed to construct at his expense said transmission and telephone lines. A reading of the contract will convince even a layman that the government was not to advance a dollar or contribute a lick of work towards the construction of the carrying lines. It prepared the plans and specifications and reserved the right of supervision, and no more.

We have, then, this situation: The government did not agree to build the transmission and telephone lines, and did not in fact build them. It was not the employer of the men in the construction thereof. It was not liable for their wages nor the material used in the construction. In other words, the relation of master and servant did not exist as between the United States and the deceased and others working in the construction. The reclamation officers, with at most authority of "supervision," voluntarily and gratuitously proceeded, without any consideration whatever to the...

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5 cases
  • Currie v. Fiting, 76
    • United States
    • Michigan Supreme Court
    • 1 Abril 1964
    ...that recovery may be had for the loss of benefits reasonably to be expected after the majority of the deceased. Inspiration Consol. Copper Co. v. Bryan, 35 Ariz. 285, 276 P. 846; Bohrman v. Pennsylvania R. Co., 23 N.J.Super. 399, 93 A.2d 190; Foerster v. Direito, 75 Cal.App.2d 323, 170 P.2d......
  • Mitchell v. Buchheit
    • United States
    • Missouri Supreme Court
    • 19 Diciembre 1977
    ...(Rev.Stat.Ann. § 12-542) Pacific Gas and Electric Co. v. Almanzo, 22 Ariz. 431, 198 P. 457(7) (1921); Inspiration Consol. Copper Co. v. Bryan, 35 Ariz. 285, 276 P. 846 (1929) (value of benefits parents might reasonably have expected from the child after his majority.) ARKANSAS (Stat.Ann. § ......
  • Thompson v. Ogemaw County Bd. of Road Com'rs
    • United States
    • Michigan Supreme Court
    • 13 Octubre 1959
    ...that recovery may be had for the loss of benefits reasonably to be expected after the majority of the deceased. Inspiration Consol. Copper Co. v. Bryan, 35 Ariz. 285, 276 P. 846; Bohrman v. Pennsylvania R. Co., 23 N.J.Super. 399, 93 A.2d 190; Foerster v. Direito, 75 Cal.App.2d 323, 170 P.2d......
  • City of Tucson v. Wondergem
    • United States
    • Arizona Supreme Court
    • 9 Marzo 1970
    ...burden of proof to show negligence is upon the party asserting it, it did not constitute prejudicial error. Inspiration Consolidated Copper Co. v. Bryan, 35 Ariz. 285, 276 P. 846. The City contends that the trial court erred in permitting testimony as to funeral expenses, for the reason tha......
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