Mangum v. Bullion Beck & Champion Min. Co.

• Decision Date: 30 October 1897
• Docket Number: 832
• Citation: 50 P. 834,15 Utah 534
• Parties: WILLIS L. MANGUM, RESPONDENT, v. THE BULLION, BECK & CHAMPION MINING COMPANY, APPELLANT
• Court: Utah Supreme Court

50 P. 834

15 Utah 534

WILLIS L. MANGUM, RESPONDENT, v. THE BULLION, BECK & CHAMPION MINING COMPANY, APPELLANT

No. 832

Supreme Court of Utah

October 30, 1897

Appeal from the Fifth district court, Juab county. E. V. Higgins Judge.

Action by Willis L. Mangum against Bullion, Beck and Champion Mining Company for injuries sustained in defendant's mine. From a judgment for plaintiff, defendant appeals.

Affirmed.

W. C Hall and H. J. Dinning, for appellant.

There must not only be objection amounting to protest on the part of the servant, but that there was promise express or implied sufficient to induce the servant to remain, and upon which he acted. Bailey on Master's Liability, 212, 213 and 214; Ry. v. Watson, 14 N.E. 721; Ry. v. Watson, 15 N.E. 874; Sweeney v. Berlin, 5 N.E. 358; Prentiss v. Kent, 30 N.W. 110; Webber v Piper, 38 Hun 353; Ry. v. Gildersleeve, 33 Mich. 113; Mfg. Co. v. Morrisey, 40 Ohio St. Rep. 148; Colo. Fuel Co. v. Cummings, 46 P. 875-77.

This appeal is upon a bill of exceptions and statement upon motion for a new trial. While the constitution provides that appeals in law cases shall be heard on the questions of law on appeal, our motion to direct a verdict and exception to the decision raises a question of law that the evidence must be examined to determine. Also our exception to the overruling of our motion for a new trial, one of the grounds of the motion being that the verdict is not justified by the evidence. Our exception to that ruling brings up the evidence, and raises a question of law. Anderson v. Daly Mine, 49 P. 126; Handley v. Daly Mine, 49 P. 295; White v. Peirce, 49 P. 416; Mader v. Taylor, 49 P. 255; Sanford v. Bell, 48 N.W. 434, and Cal. cases cited.

The presumption of law is that the inspectors were competent, and if inspection is made with due care, jury cannot say it was not. Lovell R. R. v. Bates, 45 N.E. 108-11.

The law is that a recovery is only warranted when negligence is shown. Complaint must be made of the particular defect. Beach on Cont. Neg. 372; Burlington R. R. v. Lehe, 29 P. 176.

Richards & Richards, for respondent.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

The plaintiff brought this action to recover damages for personal injuries, which he claims he received because of the negligence of the defendant. The trial resulted in a verdict in his favor for $ 4,750, and judgment was entered accordingly. A motion for a new trial having been overruled, the defendant prosecuted its appeal to this court.

It is insisted for the appellant that the complaint fails to state a cause of action, either upon the ground of promise and inducement or negligence. No question was raised respecting the sufficiency of the complaint until after the trial, and entering of judgment; but that fact does not preclude the raising of this objection here, and its soundness must be determined by reference to the pleading. It is alleged substantially that on or about the 28th of March, 1896, the plaintiff was, and for a long time previous thereto had been, in the employ of the defendant directing the loading and hoisting of ore in its mine; that on, and for some time prior to, that date "the defendant carelessly negligently, and wantonly allowed the machinery connected with and used for the purpose of hoisting the cage in the shaft of its mine, and the said cage and appliances connected therewith, to become and remain in an unsafe and defective condition; that by the use of reasonable care and diligence the said defendant could have ascertained said unsafe and defective condition thereof, and then well knew of the same;" that on March 28, 1896, while the plaintiff, in the discharge of his duties, was being lowered in the cage to one of the levels of the mine, "by reason of the said carelessness and negligence of the defendant in allowing its machinery to so become unsafe and defective, and by reason of the defendant's careless and negligent operation thereof, this plaintiff, while so in the performance of his duties, and while exercising due care and diligence on his part, and under the promise of the defendant that the said defects in said machinery would be removed, and such negligent operation thereof discontinued, which promise had induced the plaintiff to continue in his said employment, he, the said plaintiff, was thrown down and bruised and severely injured by the violent and sudden stopping of the said cage." It is contended that in going to trial the defendant believed the plaintiff based his right to recover upon the promise to repair defects which induced him to remain in its employ, and that such was the theory of the complaint. The only portion of the complaint to which this contention can refer is the one last above quoted, and it contains no allegation which warrants such a belief. By transposition and omitting superfluous words, the charge is that, by reason of the carelessness and negligence of the defendant in allowing its machinery to become unsafe and defective, and by reason of the defendant's careless and negligent operation thereof, the plaintiff was thrown down and bruised and severely injured by the violent and sudden stopping of the cage, while in the performance of his duties, and exercising due care and diligence, and under the promise of the defendant that the defects of the machinery would be removed, and such negligent operation discontinued, which promise induced the plaintiff to continue in the employment. The charge is not that he was injured as a result of the promise, but by reason of the carelessness and negligence of the defendant, while he himself was in the exercise of due care and diligence. Negligence is clearly the gravamen of the action, and we think the matter respecting the promise was merely alleged to negative any presumption to the effect that the plaintiff had assumed the risk of the defective machinery by continuing in the employment after its defect became known to him; but, however this may be, the complaint sufficiently states a cause of action, regardless of any promise, and none of the cases cited by counsel for the appellant, wherein a promise was the ground of action, apply here. Under our system, the allegations of a pleading, for the purpose of determining its effect, must be liberally construed, with a view to substantial justice between the parties. Comp. Laws Utah 1888, § 3238. Nor can the objection to the complaint that the allegations respecting the defective machinery and its negligent operation were in general terms avail the appellant. While these allegations do not refer specifically to the particular parts of the machinery which were defective, or specify with exactness wherein the machinery was operated carelessly, still we are of the opinion that they would have been sufficient to resist a general demurrer before trial, if one had been interposed, and hence are sufficient to resist the attack that the complaint did not state a cause of action, made after verdict and judgment. If the facts were not stated with that certainty and definiteness which good pleading requires, the appellant's remedy was by special demurrer or motion to make more certain and definite. Having failed to file a proper demurrer or motion before trial, or to object to the introduction of testimony on these grounds at the trial, it waived the objections, and cannot now, after judgment, be heard to urge them, for the purpose of defeating the action. Moreover, it does not appear that the plaintiff had such exact knowledge of the machinery and its operation as would enable him to state just what particular parts were defective, or just wherein its operation was negligent. The general facts he could know, but the particular facts were more likely to be within the knowledge of the defendant, because of its duty to inspect the machinery and keep it in repair. In such case less particularity in stating the specific facts, or the acts or omissions which constitute negligence, is required. The complainant may know only the immediate cause of the injury, and may be unable to state the precise acts or things which caused it. If, therefore, the facts alleged show such an occurrence as is usually the sequence of carelessness or negligence, it is incumbent upon the opposite party to explain it, and show the exercise of proper care; and the court in such case will not say, as matter of law, that the complaint does not state a cause of action on the ground of negligence. It is only when the acts and things alleged are such that they cannot constitute negligence under any possible state of facts or circumstances which could be proved under the averments in the complaint that the court will, after verdict and judgment, say, as matter of law, that negligence was not sufficiently pleaded. Where the essential facts are alleged imperfectly, or too generally, or with such indefiniteness, uncertainty, or ambiguity as to render the pleading objectionable on demurrer, such defects will be cured by verdict; since it would be unreasonable to permit the opposite party to avail himself of these defects after putting his opponent to the expense of a trial. When, therefore, negligence is alleged in general terms, it is sufficient to withstand the objection, made after verdict and judgment, that the pleading is indefinite, uncertain, imperfect, or ambiguous, however inartificially the facts may be stated. Judge Story, in Dobson v. Campbell, 1 Sumn. 319, 7 F. Cas. 783, said: "The general principle of law is that, where a matter is so essentially necessary to be proved to establish the plaintiff's right to recovery that the jury could not be presumed to have found a verdict for him unless it had been proved at the trial, there the omission to state that matter...