De Sandro v. Missoula Light & Water Co.

• Decision Date: 20 November 1913
• Citation: 48 Mont. 226
• Court: Montana Supreme Court
• Parties: DE SANDRO v. MISSOULA LIGHT & WATER CO. ET AL.

48 Mont. 226

DE SANDRO

v.MISSOULA LIGHT & WATER CO. ET AL.

Supreme Court of Montana.

Nov. 20, 1913.

Appeal from District Court, Missoula County; F. C. Webster, Judge.

Action by Angelo De Sandro against the Missoula Light & Water Company and another. From a judgment for plaintiff, and from an order denying a new trial, the defendant named appeals. Reversed and remanded.

W. M. Bickford, Wm. L. Murphy and H. H. Parsons, all of Missoula, for appellant.

John H. Tolan and R. F. Gaines, both of Missoula, for respondent.

BRANTLY, C. J.

The plaintiff recovered a judgment for damages for personal injuries alleged to have been suffered by him during the course of his employment as a servant, by the defendant Missoula Light & Water Company. Adam Hadalin was also made a defendant, but the jury found in his favor. Plaintiff has not appealed, nor did he reserve and incorporate in the record exceptions to any rulings adverse to him during the course of the trial. The Missoula Light & Water Company has appealed from the judgment and an order denying its motion for a new trial. This defendant, hereinafter referred to as “the company,” is the owner of a franchise granted by the city of Missoula, whereby it is authorized to lay the mains and pipe lines in the streets of the city necessary to enable it to distribute water to the inhabitants. The franchise in express terms grants the privilege of making such excavations in the streets and alleys as are required to install the system of mains and pipe lines and to keep it in repair. It provides that the company shall repair or pay for any damage done by it to property or persons by reason of the construction or maintenance of the system. Under an arrangement between the company and the defendant Hadalin, the latter had undertaken to do, at a stipulated price per foot, all the digging and refilling of trenches required by the company for the laying of pipe lines, for the year 1910. Under this arrangement Hadalin employed his own men, including a foreman, and furnished all the tools and implements necessary to do the work, and agreed to hold the company harmless as against any claim for damages by reason of the doing of the work or any part of it. At the time of the accident the plaintiff, with others, in all about 15 men, was engaged, under the direction of one Odenwald, Hadalin's ostensible foreman, in excavating a trench on South Seventh street, in what is designated in the record as No. 2 Daly addition to the city of Missoula. The addition had not, at the time, been incorporated in the city, because the owner of it had not complied with the requirements of the statute relating to additions to cities and towns. Rev. Codes, §§ 3212, 3213, 3465, et seq. The pipe line theretofore laid on this street was, by the work in hand, being extended from the city limits into the addition at the expense of the owner. The place where the accident occurred was therefore not within the city limits, though the street mentioned is an extension of the street of the city having the same designation. The manner of doing the work was as follows: Each employé was allotted a section of 12 1/2 or 13 feet, which he was expected to complete during the forenoon. A like amount was allotted to him for the afternoon. In case any one of them had not fully completed his allotment within the time allowed, the others would assist him. The trench was 5 1/2 feet deep and 2 feet in width. The débris was shoveled out upon the surface to the sides of the trench. At noon on the day of the accident the plaintiff had finished the task allotted to him up to that time. As soon as he had taken his lunch he went to the assistance of another who had not completed his task. At that point the ditch had been completed to the depth of about four feet. While the plaintiff was engaged in lowering it to the required depth, the walls for a distance of from 15 to 30 feet caved in and partially covered him, breaking his left leg below the knee. From causes which supervened thereafter, it became necessary for the limb to be amputated above the knee.

It is alleged that the defendants were engaged in excavating ditches in certain streets of the city of Missoula; that they well knew, or in the exercise of ordinary care ought to have known, that the nature of the soil in which the excavation was being made required the walls of the completed portions thereof to be supported by some sort of cribbing or other appropriate means in order to prevent them from crumbling or caving; that the lack of such cribbing or support rendered it unsafe to work in the incomplete portions; that with knowledge of these conditions the defendants wholly failed and neglected to provide any cribbing or support for the walls of the completed portions; that plaintiff did not know of the conditions; and that while he was engaged in his work, the walls of the completed portions crumbled and caved in, causing the walls of the incomplete portion, where the plaintiff was at work, also to crumble and fall upon him, whereby he suffered the injuries complained of.

The defendants filed separate answers; the company admitting its corporate capacity and plaintiff's injury, denied all the other material allegations of the complaint. Among other matters designated as affirmative defenses, it alleged that at the time the plaintiff was injured he was not in the employment of the company, but was in the employ of its codefendant Hadalin, under an independent contract, by the terms of which the latter had exclusive control of the construction of the trenches required by the company, at a stipulated price per foot for excavation and refilling, and that neither the company nor any of its officers or agents had any right to control, or was responsible for, any act or omission of said Hadalin. The defendants also relied upon the special defenses of contributory negligence and assumption of risk. There was issue by reply.

The brief of counsel for the company contains 35 assignments of error, to most of which they have devoted attention in their argument. Many of them are wholly without merit. We shall give special notice to such of them only as will serve to guide the court on another trial, which must be ordered on the ground of insufficiency of the evidence to sustain the verdict.

1. The sufficiency of the evidence to make a case for the jury was challenged during the trial, both by motion for nonsuit and by request for a directed verdict. The principal contention now made is that the evidence introduced by the plaintiff fails to show prima facie that, at the time of his injury, he was in the employment of the company, and that, if it be conceded that he was employed by the company, and that the latter was guilty of negligence in failing to support the walls of the completed portions of the trench by any suitable means, the evidence wholly fails to show a causal connection between this dereliction of duty and the plaintiff's injury.

The plaintiff was the only witness who testified in his behalf as to the character of the work, the purpose for which it was being done, the surrounding circumstances, and how and by whom he was paid his wages. When his case was closed no contract had been shown between Hadalin and the company. On the other hand, it appeared that the trench was being excavated for the company for the laying of a pipe line which was to be part of its system, and that it was engaged, with another crew of men, in laying pipe therein as fast as it was completed. It was shown that the plaintiff's wages were being paid by Hadalin, but Hadalin's relations to the company were not shown, except that he was directing the work as it progressed. One seeing how and for what purposes the operations were being conducted, and knowing, as he must, that corporations can act only through agents, would naturally infer that the whole enterprise was that of the defendant company. These circumstances, we think, furnish a sufficient basis for an inference, in the absence of countervailing evidence, or circumstances in themselves explanatory of the situation, that all the men engaged were the employés of the company.

It was said by Chief Justice Cockburn, in Welfare v. London & Brighton Ry. Co., L. R. 4 Q. B. 693: “I agree that where a thing is being done upon the premises of an individual or a company in the ordinary course of business, it would fairly be presumed that the thing was being done by a person in the employment of the principal for whose benefit the thing was being done.”

To the same effect are the remarks of Justice Clopton, in Rome & Decatur R. R. Co. v. Chasteen, 88 Ala. 591, 7 South. 94: “As no contract was produced or proved, which was in the power of the defendant, evidence that the engine and cars belonged to the company, and that the road was being constructed for its benefit, if believed, prima facie shows that those employed in the work of construction were the agents and servants of the company, and devolves on it the burden to prove that the road, engine, and cars were in the possession, and under the control of Callahan as a contractor, and that those employed were exclusively his agents and servants. As an inference may be reasonably drawn that the company retained the right to direct what should be done, and how––the general mode of performance––though Callahan may have employed and paid the workmen, the sufficiency of the undisputed facts mentioned to overcome the presumption arising from ownership was a question for the jury, on consideration of all the circumstances proved.”

The decisions recognizing the doctrine stated above are not numerous, but the following are more or less directly in point: McCamus v. Citizens' Gaslight Co., 40 Barb. (N. Y.) 380; Redstrake v. Swayze, 52 N. J. Law, 129, 18 Atl. 697;Dillon v. Hunt, 82 Mo. 150;Perry v. Ford, 17 Mo. App. 212. See, also, Moll on Independent Contractors, etc., § 32, and note to Richmond v....