Sciutti v. Union Pac. Coal Co.

• Decision Date: 13 July 1906
• Docket Number: 1737
• Citation: 85 P. 1011,30 Utah 462
• Court: Utah Supreme Court
• Parties: SCIUTTI v. UNION PAC. COAL CO

85 P. 1011

30 Utah 462

SCIUTTI v. UNION PAC. COAL CO

No. 1737

Supreme Court of Utah

July 13, 1906

APPEAL from District Court, Salt Lake County; M. L. Richie, Judge.

Action by Antonio Sciutti against the Union Pacific Coal Company. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

P. L Williams, Geo. H. Smith, and John G. Willis for appellant.

King Burton & King and Johnson & Fowler for respondent.

BARTCH C. J. McCARTY and STRAUP, JJ., concur.

OPINION

STATEMENT OF FACTS.

This action was brought to recover damages for personal injuries which the plaintiff alleged he sustained through the negligence of the defendant. It appears from the pleadings and proof that on March 28, 1904, the day on which the accident resulting in the injuries complained of occurred, the defendant, a corporation existing by virtue of the laws of the state of Wyoming, was operating as owner a certain coal mine in that state, and that the plaintiff, who was a resident of Wyoming, was then in the employ of defendant in the capacity of a miner of coal. At the time of the accident, he was entering his place of work with a naked lamp, which came in contact with inflammable and explosive gas and ignited it, whereupon an explosion ensued which caused the injuries of which complaint has been made. The plaintiff had received no notice of the presence of gas, although it was the duty of the defendant to cause the various places of work to be examined by means of safety lamps, and, if gas was found to exist in any one of them, to warn the employes, who were to work there not to enter until the gas was displaced with pure air. The negligence complained of was predicated principally upon a failure of duty to the complainant, by the defendant, respecting the gas and notice of its presence. At the commencement of the trial, the defendant gave notice to the plaintiff that it required security for costs, but the court proceeded without enforcing the demand, and the jury returned a verdict in favor of the plaintiff. The question raised by such notice presents the decisive one on this appeal.

BARTCH C. J.

The appellant does not claim that the court committed error in the admission of evidence, or in its charge to the jury, but insists that it erred in proceeding to a trial of the cause without requiring the plaintiff, who had been shown to be a nonresident, to give security for costs, after demand made therefor by the defendant. It is urged that the action of the court in the premises amounted to a denial of a right of the defendant secured to it by legislative mandate. We are of the opinion that, under the circumstances of this case, this contention is not sound. The statute in section 3354, Revised Statutes 1898, provides:

"When the plaintiff in an action resides out of the state, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff, may be required by the defendant. When required, all proceedings in the action must be stayed until an undertaking executed by two or more persons is filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars. A new or an additional undertaking may be ordered by the court, or judge, upon proof that the original undertaking is insufficient security, and proceedings in the action stayed until such new or additional undertaking is executed and filed."

Doubtless this section confers a right upon a defendant, to demand that the plaintiff, where he is a nonresident, to give security for costs, but such right is one personal to the defendant and one in which the public, or the state, has no interest. It, therefore, is not of a jurisdictional character and may be waived, and, in case of waiver, the court may proceed with the trial without making any order respecting such right. (State v. Mortensen, 26 Utah 312, 73 P. 562, 633.)

This statutory right, being thus a personal right, a mere personal privilege, may be waived by failure to make demand for security at all, or by failure to make such demand at a seasonable and within a reasonable time after it appears in the case, to the knowledge of the defendant, that the plaintiff is a nonresident. Where, then, the defendant, after the nonresidence has been shown, makes no effort or no reasonable effort, to demand security until such time that the granting of his motion would cause a continuance of the trial, or delay the proceedings, or interfere with the business of the court, his laches may prevent him from asserting his right, for in either of such events the court may, doubtless, in its sound discretion, and as a matter of justice, refuse to grant an order requiring such security, and regard the right as waived.

"A defendant, in case his adversary is nonresident, has an unquestionable right to security for costs, but inasmuch as it is a right which may be used to delay or obstruct justice he should be required to insist upon it promptly, and to adhere to it persistently, or otherwise be...