Patterson v. Risher

• Decision Date: 12 April 1920
• Docket Number: 331
• Citation: 221 S.W. 468,143 Ark. 376
• Parties: PATTERSON v. RISHER
• Court: Arkansas Supreme Court

221 S.W. 468

143 Ark. 376

PATTERSON v. RISHER

No. 331

Supreme Court of Arkansas

April 12, 1920

Appeal from Sebastian Circuit Court, Greenwood District; Paul Little, Judge; affirmed.

Affirmed.

R. W McFarlane and J. V. Walker, for appellant.

1. This cause should be reversed because the plaintiff was forced to try the case on an improper theory. The counsel for defendants took the position that there could be no recovery against any one of defendants unless the recovery was against all the defendants. Counsel for plaintiff undertook to meet and correct this theory by requesting the court to instruct the jury that they might find the issues for or against any one or more or all of the defendant as might be warranted under the law and evidence, and the court erred in refusing instruction No. 24. Kirby & Castle's Digest, § 7669; 1 Cooley on Torts (3 Ed.), pp. 223, 227; Webbs' Pollock on Torts, 230; 93 N.W. 565; 164 U.S. 393; 59 S.W. 920; 1 Cooley on Torts, 244-247; 56 N.J.L. 34; 32 A. 90, Fellman v. Ryson, 28 A. 669; 1 Sutherland on Dam. (3 ed.), p 362, par. 140. A recovery may be had against one or all the defendants as the law and evidence justify. 10 Wend. 654; 20 S.E. 336; 10 Ark. 201; 93 Id. 521.

2. The evidence does not show either contributory negligence or assumed risk, and therefore the enquiry was narrowed down to the question of negligence on part of defendants. The testimony is undisputed that deceased was not at fault, and the question of contributory negligence passes out of the case.

3. The court erred in refusing instruction No. 15 for plaintiff. This is elementary law and needs no citations.

4. It was error to give No. 16 for plaintiff. 115 Ark. 380; 90 Id. 473; 97 Id. 180.

5. For the reasons and authorities above given the court erred in refusing Nos. 17 and 18 for plaintiff.

6. Having fully covered the phase of the case it was improper to reiterate and re-emphasize declarations of law and it was error to refuse No. 23 asked for plaintiff and in giving Nos 4, 9 and 18 for defendant. 104 Ark. 495; 77 Id. 567; 14 Id. 530; 36 Id. 641; 54 Id. 336; 37 Id. 580.

Pryor & Miles, for appellees.

1. There is no motion for new trial in the printed abstract of appellant. 27 Ark. 506; 114 Id. 415; 119 Id. 175. Objections made for the first time on appeal are unavailing. 123 Ark. 66.

2. There is no error in the instructions. Kirby & Castle's Digest, § 7669; 164 U.S. 393; 154 Cal. 420; 23 Wash. 710; 161 P. 21; 171 Iowa 624; 150 Id. 27; 165 Iowa 625; 90 S.E. 183; 177 P. 871; 160 Id. 51.

3. If the court erred in the instructions as to contributory negligence and assumed risk, it was invited error and appellant can not complain. 82 Ark. 105; 106 Id. 138.

4. No proper objections were saved to the giving of the instructions objected to. 38 Ark. 528; 119 Id. 179; 106 Id. 315; 111 Id. 538.

5. Instruction 16 is copied from the law announced in 60 Ark. 582. See also 105 Ark. 392.

6. There was no error in giving No. 18 for defendant. The law is well settled. 203 F. 644; 100 Ark. 86; 90 Id. 485; 25 Ann. Cas., p. 526. None of the errors assigned were brought to the attention of the court by special objections.

OPINION

WOOD, J.

This is an action brought by the plaintiff below, appellant here, as administrator of the estate of James Patterson, deceased, against the defendants below, appellees here, to recover damages alleged to have accrued to the estate of James Patterson and also to the appellant as the father and next of kin by reason of the suffering and death of James Patterson, caused by the alleged negligence of appellees.

The complaint alleged in substance that W. H. Risher was the superintendent of mine No. 6 for the Central Coal & Coke Company; that it was his duty to warn and instruct all young or inexperienced employees as to their duties and the dangers of their employment; to see that proper appliances were furnished to subordinates and to employ competent servants.

That defendant Porter was mine foreman, whose duty it was to exercise ordinary care to furnish the deceased a reasonably safe place in which to work; that defendant Kiger was driver boss, whose duty it was to secure skillful drivers under the approval of the mine foreman and to secure and place trappers to open and close the doors in the different haulage ways in the mine, that defendant Hubbard was a coal digger and that on the day the deceased was injured the regular driver did not work and defendant Kiger put Hubbard to driving on the entry where the deceased was at work.

That on the day of the injury, September 22, 1917, James Patterson was a minor, seventeen years of age, which fact was known to the defendants; that he had no experience as a trapper and did not know the dangers of that employment, which fact was known to the defendants; that at the direction of the defendants, Kiger took the deceased out of the room and directed him to perform the duties of trapper; that John Kiger put defendant Hubbard, who was an ignorant and unskilled driver, to driving on that entry where deceased was trapper; that Hubbard drove an empty car up to room No. 20 on fifth east entry where deceased was working, when, on account of defective hitching or being negligently hitched to the car, the mule pulling the car became detached from the car, and that the driver, instead of spragging the car to prevent it from running down the entry, took after the mule; that the car ran down the entry and against the door and knocked a large prop against which the door closed out of place; that the prop and door were hurled against deceased, crushing his head and mangling him; that from the injuries thus received James Patterson continued in intense pain until April, 1918, when he died; that without fault or carelessness on his part deceased was injured by the defendant, and each of them in taking the deceased, a youth of seventeen years, without experience, and putting him in a place of danger, and by not using ordinary care by furnishing him a reasonably safe place in which to work without special instructions as to the danger, and by putting an ignorant and reckless driver on that entry and by not furnishing safe hitching for the car and by failing to securely sprag the car when the mule became separated from it.

The defendants answered, denying all the material allegations of the complaint and setting up the affirmative defenses of contributory negligence and assumed risk.

There was a jury trial which resulted in a verdict and judgment in favor of the appellees. From which judgment is this appeal.

Among other prayers for instructions the appellant asked the court to instruct the jury as follows: "No. 24. You are instructed that you may find the issues in this case for or against any one or more or all of the defendants as you may feel yourselves warranted under the law and the evidence before you."

The court refused this prayer, and appellant duly excepted to the ruling and insists here that this was error for which the cause should be reversed.

Section 6229 of Kirby's Digest is as follows: "Judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants."

It will be observed from the allegations of the complaint that the appellant does not seek to hold the appellee Coal Company liable as a joint tort feasor because of its independent participation through superior officers in the alleged negligent acts of the other appellees which it is asserted, caused the injury to and death of James Patterson. But under the allegations of the complaint liability against the appellee Coal Company is predicated solely upon the alleged negligence of its servants and agents for which the appellee company would be liable, if at all, under the doctrine of respondeat superior. In actions against joint tort feasors where a joint relationship is alleged and the doing of negligent acts jointly constituting a tort from which the injury results, and where the proof sustains these allegations, there may be a recovery against one or all of the defendants, against all, if the proof shows their joint connection in the tort, or against any one of them if the proof warrants a finding of his participation in the tort. Such was the case in Atl. & Pac. Rd. Co. v. Laird, 164 U.S. 393, 41 L.Ed. 485, 17 S.Ct. 120, where it is said: "It follows that allegations alleging a joint relationship and the doing of negligent acts jointly are divisible, and that a recovery may be had where the proof established a connection of but one of the defendants with the acts averred."

The above is also the doctrine of the other authorities referred to in the brief of learned counsel for the appellant, among them Roach v. Rector, 93 Ark. 521, 123 S.W. 399, where it is held (quoting syllabus): "In a case of wrongful conversion of property by several persons the law permits an action and a recovery against all the wrong-doers or against any number less than the whole."

But this doctrine had no application to the facts alleged in the pleadings and developed in the testimony in this case. California has a statute similar to section 6229 of Kirby's Digest, supra. The Supreme Court of California in Bradley v. Rosenthal, 154 Cal. 420, 97 P. 875, held (quoting syllabus) that "Where a recovery is sought in an action against a principal and his agent based upon the act or omission of the agent which the principal did not direct and in which he did not participate and for which his responsibility is simply that cast upon him by law by reason of his relationship to the agent, a judgment in favor of and exonerating the agent generally ex proprio vigore relieves the principal of responsibility and may be availed of by the principal for that purpose."...