McLaughlin v. Chief Consol. Mining Co.

• Decision Date: 04 December 1923
• Docket Number: 3835
• Court: Utah Supreme Court
• Parties: McLAUGHLIN v. CHIEF CONSOL. MINING CO. et al

220 P. 726

62 Utah 532

McLAUGHLIN v. CHIEF CONSOL. MINING CO. et al

No. 3835

Supreme Court of Utah

December 4, 1923

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action by William C. McLaughlin against the Chief Consolidated Mining Company and another. From a judgment against the named defendant, it appeals.

AFFIRMED.

M. E Wilson and Cheney, Jensen, Holman & Stephens, all of Salt Lake City, for appellant.

Willard Hanson and F. B. Scott, both of Salt Lake City, for respondents.

WEBER C. J. GIDEON, THURMAN, FRICK, and CHERRY, JJ., concur.

OPINION

WEBER, C. J.

The judgment of the trial court in this case was affirmed on July 11, 1923. On petition of appellant a rehearing was granted, and counsel again made oral arguments and submitted additional briefs. The former opinion will be superseded by this one, which will be the only opinion officially published.

The Chief Consolidated Mining Company, a corporation, appeals from a judgment in favor of plaintiff and against the mining company for $ 15,000, and in favor of Hanley, its codefendant. No appeal is prosecuted by any one from the judgment in favor of Hanley.

The complaint charges that on May 25, 1917, plaintiff was in the employ of defendant company as a mucker, working on or near what was known as the 1,800-foot level of defendant company's mine at Eureka, Utah; that said work was being done in what was known as the 1,873 drift or stope; that James B. Hanley was in the employ of said mining company as its shift boss, and as such had immediate charge and supervision of the plaintiff, and directed and supervised the plaintiff in his work. It is alleged that the back and roof and sides of the place of work where the plaintiff was employed were loose, and that to make it reasonably safe for those therein employed it became necessary, in the exercise of reasonable care, for the defendants to inspect the roof, back and sides thereof, to pick down and remove all the loose rock, and other material likely to fall of its own weight, and that it became the duty of defendants to timber the same, and to omit to inspect said drift and stope, and to omit to pick down and remove the said rock and other materials, and to omit to securely timber the said stope, rendered the place unusually and unnecessarily dangerous to the muckers therein working; that defendants had full knowledge of these matters, and that they knew or might have known, if they had properly inspected said roof and back, that there was loose rock and other material in the back and roof of said stope and place of work, and failed and neglected to pick down and remove the loose rock or other material from the back and roof of said stope and place of work of plaintiff, and that defendants failed to timber said place of work so as to prevent loose rock, earth, and other material from falling down from the back and roof of said place of work.

It is alleged that defendants, with knowledge of the dangerous condition, carelessly and negligently assured plaintiff that the place of work was safe, and that there was no danger of rock and earth and other material falling from the roof and back of said stope, and that, pursuant to the demand and direction of defendants, and relying upon assurance and information given him by them that the place was safe, plaintiff worked therein on the 25th day of May, 1917, and while working in said place at said time a large quantity of earth, rock and other material fell from the roof, back, and side of the said stope and place of work, and fell upon plaintiff, severely injuring him.

To this complaint the corporation defendant filed its answer and counterclaim. By stipulation of the parties in open court the answer of the mining company was considered as the answer of defendant James B. Hanley so far as applicable, and the reply as filed to the answer of the company was considered as the reply to the answer of defendant Hanley. In this answer the ownership of the mine and the employment of plaintiff are admitted. It is also admitted that plaintiff was injured while in the service of the mining company; that James B. Hanley was the shift boss of defendant company; that from time to time, under the supervision of his superior officers and directors, he gave directions to other employes, including the plaintiff herein, in carrying on defendant's work of operating its mine. The allegations of negligence, and all other allegations of the complaint not admitted, are denied. The affirmative defense of assumption of risk is set forth as a second defense. As a third defense the corporate defendant alleges that on the 14th day of December, 1917, defendant paid to plaintiff $ 2,500, and that plaintiff released and forever discharged said defendant from all claims and causes of action which he then had or might thereafter have on account of injuries sustained by him in the accident mentioned in the complaint. A counterclaim is also pleaded, the allegations of which will be referred to hereinafter.

In his reply the plaintiff claims that the release pleaded in the answer was obtained from him by fraudulent representations, stating in detail the acts alleged to be fraudulent, and which are pleaded in avoidance of the release.

The first contention of appellant is that it was entitled to a separate trial of the issues of fact relative to the release; that the court was, upon demand of appellant, required to order such issues to be tried and determined before entering upon an examination of the issues relative to liability for personal injuries; that these issues were of an equitable rather than a legal character, but that, whether legal or equitable, the issues regarding the release should have been tried first.

It has been held by many courts that a releasor cannot maintain an action for damages sustained by him until he has had the release rescinded in an equitable proceeding. The authorities that favor this doctrine are cited in Union Pacific Co. v. Syas (C.C.A. 8th Cir.) 246 F. 561, 158 C.C.A. 531, in which the court held that, in an action for damages for personal injuries, where defendant pleaded a release that was attacked by plaintiff as having been procured by fraud, it is improper for the court to submit the question of fraud to the same jury trying the action for damages; that a proceeding to rescind the release on the ground that it was obtained by fraud is essentially an equitable proceeding. In Fay v. Hill, 249 F. 415, 161 C.C.A. 389, the same court follows the doctrine announced in the Says Case. Other federal courts have reached the opposite conclusion, and hold that the defense based upon a release under a reply alleging fraud and misrepresentation raises a legal issue, and one that is proper to submit to a jury. Thus it is said in K. C. S. Ry. Co. v. Martin (C.C.A.) 262 Fed. at page 243:

"The defendant set up in bar of the action a written release alleged to have been executed by the plaintiff for a valuable consideration. The plaintiff replied to the effect that he was induced to execute the release by described fraudulent representations made to him by the defendant's agent, and that plaintiff, promptly after ascertaining the falsity of such representations, returned the check given to him when the release was executed. The court overruled a request of the defendant, made at the opening of the trial, that the issue so raised be heard and determined on the equity side of the court prior to the trial of the other issues involved; and the court, over the defendant's objection, submitted that issue to the jury with the other issues so submitted.

"There is a conflict of decisions on the question whether such an issue, raised as it was in the instant case, is one at law and triable by a jury. The view prevailing in some courts is that the issue is not one at law, unless the fraud charged touches the execution of the questioned instrument, so as to be provable under a plea or replication of non est factum. In the case of Union Pacific Railway Company v. Harris, 158 U.S. 326, 15 S.Ct. 843, 39 L.Ed. 1003, such an issue was treated as one triable by a jury in an action at law. That was a suit for personal injuries, in which a release was pleaded as a bar to the action. The plaintiff replied that the release was obtained through misrepresentations and fraud, and that the plaintiff, while he was ill, signed the release in ignorance of its contents. The court held that there was no error in the instructions given in submitting those issues to the jury, and affirmed the judgment rendered for the plaintiff. Though fraud other than that touching the execution of the release was set up in the pleading attacking its validity, it was decided that there was no error in the action of the court in submitting to the jury the issues raised.

"Upon a full consideration it was decided by the Circuit Court of Appeals for the Sixth Circuit, in the case of Wagner v. National Life Ins. Co., 90 F. 395, 33 C.C.A. 121 Circuit Judge Taft delivering the opinion, that it is proper in a suit at law for the plaintiff to meet a plea of release by a replication that the release was obtained by fraud, whether the fraud touches the execution, or consists in misrepresentation as to material facts inducing execution. Another well-considered case to the same effect is American Sign Co. v. Electro Lens Sign Co. (D. C.) 211 F. 196. What the plaintiff does when he makes such a reply to a plea setting up a release, amounts to his saying that, because of the fraudulent misrepresentations alleged, the defendant is without right to maintain the defense based upon the release set up. A contract so procured is no more binding at law than in equity. It is competent for a...