Johnson v. Butte & Superior Copper Co.

• Decision Date: 25 April 1910
• Citation: 108 P. 1057,41 Mont. 158
• Parties: JOHNSON v. BUTTE & SUPERIOR COPPER CO., Limited.
• Court: Montana Supreme Court

108 P. 1057

41 Mont. 158

JOHNSON v. BUTTE & SUPERIOR COPPER CO., Limited.

Supreme Court of Montana

April 25, 1910

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by Charles J. Johnson, as administrator of the estate of Fred Simila, deceased, against Butte & Superior Copper Company Limited. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Maury & Templeman and J. O. Davies, for appellant.

Kremer Sanders & Kremer, for respondent.

HOLLOWAY J.

Fred Simila was employed by the defendant company as a miner, and was working in a shaft at the Black Rock mine, when a piece of timber fell upon him inflicting injuries from which he subsequently died. The administrator of his estate brought this action, and in his complaint alleges that one James Goggin was employed by the defendant company as a shift-boss at the time when and the place where Simila was injured, and that Simila's injuries were occasioned by the negligence of Goggin which caused the timber to fall. The answer of the defendant admits its corporate existence, and admits that Simila was in its employ; but denies that Simila was injured at all while engaged in the discharge of his duties as a servant of the defendant company. There is a specific denial that Goggin was in fact, or was acting as, a shift-boss for the defendant company, and a denial that through any act of his Simila was injured. There is then a general denial of all the allegations of the complaint not specifically admitted or denied, and certain affirmative defenses are pleaded, the second of which only requires notice here; and the gist of that defense is found in the following declaration: "That the said Simila was injured through the fault and negligence of one of defendant's employés, who was then and there a fellow servant of the said Simila." Upon the trial the plaintiff offered in evidence the paragraph of the answer from which the above language is quoted, but an objection to the offer was sustained. At the close of plaintiff's case the defendant moved for a nonsuit. The motion was granted, a judgment rendered and entered dismissing the action, and from that judgment the plaintiff appealed. The evidence introduced and offered on behalf of the plaintiff is presented in a bill of exceptions.

1. It is urged that the trial court erred in excluding from the jury's consideration the second affirmative defense set forth in defendant's answer.

This action invokes an act of the Ninth Legislative Assembly (Laws 1905, p. 51; Rev. Codes, § 5248), which holds a mining corporation liable for injuries to one of its employés when such injuries are caused by the negligence of a superintendent, foreman, shift-boss, engineer, or craneman. While it is true that the affirmative plea that Simila was injured through the negligence of one of defendant's employés who was then a fellow servant of Simila would not alone support the plaintiff's allegation that Simila was injured through the negligence of James Goggin, and that Goggin was a shift-boss, it would, however, tend to prove that Simila was injured through the negligence of an employé of the defendant company, and relieve the plaintiff from the necessity of proving that the particular act which caused Simila's injury was a negligent act, and that the person who caused it was an employé of the defendant. If this portion of the answer had been admitted, plaintiff would then have had to prove only: (a) That Simila was injured while in the discharge of his duties as an employé of the defendant; (b) that the particular individual whose act caused the injury was James Goggin; (c) that James Goggin was a shift-boss; and (d) the extent of Simila's injury and the damages resulting therefrom, to make out a prima facie case. There is ample evidence in the record to support the first and fourth of these facts.

When a corporation is suing or being sued, it does not occupy a position different from that of a natural person who is sui juris. The same rules of evidence are applicable, and, so far as questions of procedure go, the corporation is treated as a natural person. 5 Ency. Pl. & Pr. 61. Section 7887, Rev. Codes, provides: "Evidence may be given upon a trial of the following facts: *** The act, declaration or omission of a party, as evidence against such party." The general rule governing the admissibility of pleadings as evidence is stated as follows: "Where parties allege matters of fact in their pleadings, these pleadings may be offered in evidence against such parties as admissions of the facts so alleged. Such written statements are admissible on the same principle as oral admissions." Jones on Evidence, 274; 16 Cyc. 968; 2 Ency. L. & P. 173; Am. & Eng. Ency. Law (2d Ed.) 719; Abbott's Trial Brief, Civil Jury Trials, 295. This court has recognized the right of the defendant to interpose inconsistent defenses, under the provisions of section 6549, Rev. Codes; but it has never gone to the extent of saying that such defenses may be so far inconsistent that, if the allegations of one are true, the allegations of the other must of necessity be false. Generally speaking, our Code requires pleadings to be verified (Rev. Codes, § 6565); but, in permitting a defendant to set forth in his answer as many defenses as he has, it was never intended to sanction or encourage perjury. In states, where the pleadings are required to be verified, the general rule is: "The defendant may plead inconsistent defenses, provided they be not so incompatible as necessarily to render one or the other absolutely false." Clarke v. Lyon County, 7 Nev. 75; Seattle Bank v. Jones, 13 Wash. 281, 43 P. 331, 48 L. R. A. 177; 1 Ency. Pl. & Pr. 857; Bliss on Code Pleading, § 343. There are some authorities which hold that if an answer contains inconsistent defenses, as, for instance, a denial that the plaintiff was injured through the negligence of any one, and an affirmative plea that he was injured through the negligence of a fellow servant, then the affirmative plea is not admissible in evidence to prove the issue made by the complaint and the denial, as the practical effect of this would be to deny to a defendant the right to interpose such inconsistent defenses. Pomeroy's Remedies & Remedial Rights (2d Ed.) 724; 1 Elliott on Evidence, § 236. But so far as we are able to determine from the means at hand, these authorities are treating of cases arising in states where the pleadings are not required to be verified. It appears to us to be the acme of absurdity to say that the casual admission of a defendant, made on the street, may be put in evidence against him, but that his solemn admission, made deliberately and under oath, in a pleading, which calls for a true statement of the facts, may not be used against him. If by the second affirmative defense the defendant sought to charge that Simila's injuries were caused by a fellow servant, it would seem that it would have been sufficient to say so, without volunteering the information that the act which caused the injury was a negligent one. Adopting the rule as stated in Clarke v. Lyon County, above, it is manifest at once that the reason for the contention made by Pomeroy and Elliott fails when applied to the pleadings under our Code, and that there is not any reason whatever why admissions in a pleading ought not to be used in evidence against the pleader.

In passing, we may say that it is very doubtful whether the answer in this case is open to adverse criticism. The denial is that Simila was injured "while engaged in his duties as defendant's servant."

It was not any objection to the offered evidence that the plaintiff did not embrace in his offer the entire answer. Section 7871, Rev. Codes, provides: "When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; when a letter is read, the answer may be given; and when a detached act, declaration, conversation or writing is given in evidence, any other act, declaration, conversation or writing, which is necessary to make it understood, may also be given in evidence." In Abbott's Trial Brief, Civil Jury Trials, 299, the rule is stated as follows: "A party may read in evidence a mere extract from his adversary's pleading, however brief, provided he does not omit a part of a sentence or clause which qualifies that part which he reads, so as to pervert the sense or render it uncertain." From the allegations of this affirmative defense, plaintiff was seeking to show that Simila's injury was caused by a negligent act, and that the person whose negligence caused the injury was an employé of the defendant company. The plaintiff would not have been bound by the allegation that the person who caused the injury was a fellow servant of Simila. We quote again from Abbott's Trial Brief, 298, the following: "A party who puts in evidence his adversary's pleading is not thereby estopped from denying or disproving statements contained in it."

Our conclusion is that the trial court erred in excluding the evidence offered.

2. But counsel for respondent insist that, assuming this evidence had been admitted, plaintiff would still have failed to make out a prima facie case upon which to go to the jury. Simila and five other men were engaged in sinking a shaft. They were 75 or 80 feet below the 1,200-foot level. They had drilled holes preparatory to blasting, and Goggin had taken their tools to a place of safety, 18 or 20 feet above where the men were working. The timber which struck Simila was used by the defendant to protect the regular sets of timbers from the effect of the blast, and before it fell it was resting upon the mining timbers, 15 or 20 feet above the bottom of...