Miami Copper Co. v. Strohl

• Decision Date: 06 March 1913
• Docket Number: Civil 1244
• Citation: 130 P. 605,14 Ariz. 410
• Parties: MIAMI COPPER COMPANY, a Corporation, Appellant, v. CLOYD STROHL, Appellee
• Court: Arizona Supreme Court

130 P. 605

14 Ariz. 410

MIAMI COPPER COMPANY, a Corporation, Appellant, v. CLOYD STROHL, Appellee

Civil No. 1244

Supreme Court of Arizona

March 6, 1913

APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Gila. E. W. Lewis, Judge. Affirmed.

The facts are stated in the opinion.

Messrs Alderman & Elliott, for Appellant.

Mr Geo. R. Hill and Mr. Norman J. Johnson, for Appellee.

OPINION

FRANKLIN, C. J.

The appellee, as plaintiff, commenced an action in the court below to recover damages for personal injuries sustained by him while in the employment of appellant, the defendant. The defendant was, at the time of the injury, engaged in the operation of a mine, and the plaintiff was employed as a pumpman, whose duties required him to descend in the shaft of defendant's mine by means of a cage furnished by defendant. The gravamen of the plaintiff's complaint is that defendant failed in its duty as an employer to furnish him with safe appliances and a safe place by which to enter those parts of the mine where his duties as a pumpman required him to go. The defendant provided a cage for sending its employees down to the different levels of the mine, and when the shifts were ended, the cage was used for bringing them to the surface. At other times this cage was used by the defendant in hoisting and lowering the steel drills used by the men in their mining operations. These drills were of varying lengths, ranging from two to six feet long and from one inch to nearly three inches thick, sharpened to a fine point at one end. When lowered into the mine the drills were placed upright in the cage, the unsharpened end resting on the floor thereof. On May 17, 1910, while the plaintiff was in this cage being lowered in the shaft to his place of work, he was injured quite severely by means of one of these steel drills having fallen through a hole in the floor of the shaft, the sharp end of the drill projecting upward and into the shaft, the plaintiff being injured by this drill piercing through the floor of the cage and going through his leg. The defendant denied the allegations of the complaint and alleged affirmatively the defense of assumption of risk and contributory negligence. There were two trials before a jury. On the first trial the jury disagreed, and on the second trial, the jury returned a verdict in favor of the plaintiff for $1,000. After the first trial, but before the second, the defendant made application that plaintiff give security for costs, and the court made an order requiring such security, but plaintiff filed an affidavit alleging his inability to do so. The defendant questioned the sufficiency of the showing made by plaintiff, and moved to dismiss the suit for failure to comply with the order of the court. The motion to dismiss was denied. After judgment the defendant moved for a new trial, the motion being overruled. This appeal is taken from the judgment alone. There is no appeal from the order overruling the motion for a new trial.

The grounds of the motion embraced alleged errors of the trial court occurring during the progress of the trial in admitting and rejecting evidence; in giving and refusing instructions; the insufficiency of the evidence; that the verdict is contrary to law and was given under the influence of passion and prejudice.

The appellant makes twelve assignments of error in this court. The first error assigned involves the denial of the defendant's motion to dismiss the case based on the defendant's failure to give the security for costs. The other eleven assignments go to the insufficiency of the evidence to support the verdict, errors of the trial court committed during the progress of the trial in the admission and rejection of evidence, and the giving and refusing instructions to the jury. The appellant does not -- ipsissimis verbis -- assign as error the action of the court in overruling the motion for a new trial, and for this reason the appellee insists that, with the exception of the first assignment, the other alleged errors are insufficiently assigned and this court may not consider them; the reason advanced being that, as these assignments present errors which are good ground for a new trial, if the ruling of the court denying the motion is not in the very words assigned as error, the error of the court, if any, is waived by the failure to so assign.

In support of this contention appellee cites the following cases: Turner v. Franklin, 10 Ariz. 188, 85 P. 1070; Putnam v. Putnam, 3 Ariz. 182, 24 P. 320; Greer v. Richards, 3 Ariz. 227, 32 P. 266; Tietjen v. Snead, 3 Ariz. 195, 24 P. 324; Lemon v. Ward, 3 Ariz. 219, 73 P. 443; County of Maricopa v. Osborn, 4 Ariz. 331, 40 P. 313. An examination of these cases will show that they are not exactly in point on the question now before the court. In the first three cases there was no motion for a new trial made in the lower court, and the supreme court decided that the remedy appellants sought in the appellate court may have been awarded to them in the court below on motion for a new trial, and until appellant has exhausted his remedies in the lower court he will not be heard to complain on appeal. No such motion having been made, the alleged errors would not be considered. In the last three cases the motion for a new trial, and the ruling thereon, were not preserved in a bill of exceptions or statement of the case as required by the statute, hence the appellate court could not consider the error in the ruling upon the motion as the matter was not before them.

The rules of this court, in substance, provide that all assignments of errors must distinctly specify each ground of error relied upon and the particular ruling complained of. If the assignment of error be that the court overruled a motion for a new trial, and the motion is based upon more than one ground, the same will not be considered distinct and specific by this court unless each ground is separately and distinctly stated in the assignment of errors. Rule 8 (ante, p. xliii, 126 Pac. xi), Assignments of Errors.

While appellant did not assign that the court erred in overruling defendant's motion for a new trial, it did assign as error such grounds embraced in the motion which it relies upon for a reversal of the judgment. These grounds are separately and distinctly stated in the assignment, and with such definiteness and particularity as to fully apprise this court and the opposing counsel of the precise error of the lower court of which complaint is made. While it would, perhaps, be more logical procedure and better practice to assign specifically error upon the action of the court in overruling the motion for a new trial, and then follow with each ground of the motion relied upon being separately and distinctly stated, we think a phrasing of the assignment omitting the first requirement, but complying with the latter, is sufficient. It would be a somewhat harsh and technical rule to hold that, where the appellate court and the opposing counsel are fully advised of the errors relied upon for a reversal by a separate, specific and distinct statement of each ground of the motion for a new trial relied upon in the assignment, the failure to formally make the general assignment that the court erred in overruling the motion for a new trial precludes this court from a consideration of such alleged errors. This is emphasized by the rules of practice prescribed by the court providing that, if the assignment of error be that the court erred in overruling a motion for a new trial, and the motion is based upon more than one ground, the same will not be considered distinct and specific by this court, unless each ground is separately and distinctly stated in the assignment of errors.

In speaking of the rules with reference to assignments of error, the supreme court of Texas has said: "It is to be borne in mind that the statute and rules which require errors to be assigned were intended primarily for the relief of the appellate courts, and to secure a prompt dispatch of the business that should be brought before them. They should be given a reasonable and practicable construction, and not one calculated to embarrass suitors in the appellate tribunals by unnecessary restrictions." Clarendon etc. Land Co. v. McClelland Bros., 86 Tex. 191, 22 L.R.A. 105, 23 S.W. 1103.

The object sought by the statute and rules is to clearly apprise the appellate court and the opposite party of the specific error of which complaint is made. St. Louis etc. Ry. Co. v. McArthur, 96 Tex. 65, 70 S.W. 317.

We think the assignments before us meet the requirements.

The appellee next contends that the appeal being prosecuted from the judgment only, and there being no appeal from the order of the court overruling the motion for a new trial, this court is precluded from reviewing any of the appellant's assignments of error, except the first, for the reason that such alleged errors are properly embraced in and presented to the trial court in the motion for a new trial, and unless the order of the court in overruling the motion is appealed from this court has no jurisdiction to consider the same. This contention is sound.

While it would not be competent for the legislature to enlarge or circumscribe the appellate jurisdiction of this court as prescribed by the constitution, the method and manner of taking and perfecting appeals and presenting questions for review are, however, peculiarly matters of statutory regulation, and there must be a substantial compliance, with the statute provided in order to confer jurisdiction upon the appellate court.

The appellant is charged with the duty of taking his appeal and presenting his case for review in the manner...