Shannon v. Consolidated Tiger & Poorman Min. Co.

• Decision Date: 27 February 1901
• Citation: 64 P. 169,24 Wash. 119
• Court: Washington Supreme Court
• Parties: SHANNON et al. v. CONSOLIDATED TIGER & POORMAN MIN. CO.

64 P. 169

24 Wash. 119

SHANNON et al. v. CONSOLIDATED TIGER & POORMAN MIN. CO.

Supreme Court of Washington

February 27, 1901

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by Jennie Cameron Shannon and others against the Consolidated Tiger & Poorman Mining Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

John R McBride, M. A. Folsom, and Heyburn, Heyburn & Doherty, for appellant.

Robertson & Miller, for respondents.

MOUNT, J.

This is an action for damages arising out of personal injuries which were received by and resulted in the death of Joseph Shannon husband of the plaintiff Jennie C. Shannon, and father of the minor plaintiffs in the action. The injury occurred in a mine of defendant at Burke, Idaho, on February 14, 1898, by an explosion of dynamite. The deceased, Shannon, was engaged, as a miner, on what is termed a 'shift,' with three others, in sinking a perpendicular shaft in defendant's mine. This shaft was 6 feet wide north and south, by 15 feet long east and west, and about 40 feet below the level, 1,500 feet below the surface. Engaged in this work were three eight-hour shifts, consisting of four men each. One of the men comprising each shift was what was called a 'boss' or 'pusher,' who had general direction of the work of his shift, directing the men where and how to work, and furnishing materials, tools, and supplies, and who did the same work as his fellows. The shift of which deceased was a member consisted of Murphy, Shannon, Robinson, and Cassidy; Murphy being the boss or pusher. The next shift consisted of Berg and three others; Berg being the boss or pusher. The other shift consisted of Bray and three others; Bray being the boss or pusher. Each shift was known and designated by the name of the boss. The Murphy shift began work each day at 7 a. m., and quit at 3 p. m. The Berg shift began at 3 p. m., and quit at 11 p. m. The Bray shift began at 11 p. m., and quit at 7 a. m. On the 13th day of February, 1898, the Murphy shift, in the discharge of their duties, had drilled with machine drills 17 holes in the bottom of the shaft to the depth of about 6 feet, leaving 1 hole undrilled. The drilling of this hole would have completed that portion of the work. The succeeding shift, known as the 'Berg shift,' completed the drilling of this hole, and loaded and discharged all the blasts except one in the east end, which failed to explode, leaving what is termed a 'missed hole.' By rule established by custom in the mine, it was the duty of the boss of the off-going shift to notify the on-coming shift of any missed holes or other dangers. When the Bray shift came on duty, the men were notified of the missed hole above mentioned. This shift cleared out the débris caused by the blasting done by the previous shift. The Murphy shift came on duty again 16 hours after they had left the bottom of the shaft as above described. The evidence in the case is contradictory as to whether or not the Murphy shift was notified of this missed hole, which had remained through the work of the two preceding shifts. The Murphy shift came on duty at 7 a. m. on the 14th of February, and found loose rock and débris yet remaining in the shaft, in which water had also accumulated. A pump used in removing this water was out of repair, and much time was taken in clearing the water from the bottom of the shaft. After the water was cleared out, Murphy and Shannon were working in the east end of the shaft, and their co-laborers, Robinson and Cassidy, on the west end thereof. A short time before the expiration of the eight-hour time of their shift, and while Murphy and Shannon were clearing up the said débris, Murphy working with pick, and Shannon with the shovel, Murphy in some manner discharged said missed blast, which killed both, and wounded Robinson, working on the other end, some 10 or 12 feet away. Upon the trial of the case before a jury a verdict was returned in favor of the plaintiffs for the sum of $20,000. Judgment was subsequently entered thereon, and appeal taken to this court. Motion is made to dismiss this appeal for the reasons that the notice of appeal is insufficient, and that the undertaking on appeal was filed prior to the notice of appeal, and does not describe the judgment appealed from, and does not name an obligee. The notice of appeal, omitting the formal parts, is as follows: 'You will please take notice that the defendant in the above-entitled action hereby appeals from the judgment made and entered herein against the defendant on the 24th day of July, 1900, to the supreme court of the state of Washington, and from the whole and every part thereof.' Said notice was served on the attorneys for the respondents on the 24th day of August, 1900, and was filed with the clerk of the lower court on the next day. Under our liberal statutes relating to notices of appeal, this notice is sufficient. Roberts v. Railroad Co., 21 Wash. 427, 58 P. 576; Laws 1899, p. 79, § 1. The judgment in this case was signed by the judge of the lower court on the 16th day of July, 1900, and was filed and entered by the clerk on the 24th day of July, 1900. There was but one judgment in the case. The undertaking on appeal was filed on August 25, 1900, and describes the judgment as having been made on July 16. Under section 6505, 2 Ballinger's Ann. Codes & St., the appeal bond may be filed with the clerk 'at or before the time when the notice of appeal is given or served.' The notice of appeal was given on the 24th day of July, 1900, and filed the next day. The undertaking is an appeal bond and supersedeas, and undertakes 'that the appellant will satisfy and perform the judgment appealed from.' Both the notice of appeal and bond were sufficient. The motion will be denied.

Some days before the cause was called for trial, defendant filed and argued a motion for a continuance, which motion was denied by the trial court, and this ruling is claimed by appellant as error. Defendant did not save exception to the ruling of the court denying this motion for a continuance. We are of the opinion that the motion was properly denied, for the reason that the evidence sought to be obtained, and on account of the absence of which the motion was made, was not set out in the affidavit, no showing was made that the witness named would be present at the trial, and no showing that the witness could be found, or that his evidence would be produced at the trial.

The next error complained of is that the court erred in permitting the case to go to the jury because the appointment of Jennie C. Shannon guardian ad litem was void, for the reason that both she and the minors were at said time residents of the state of Idaho. The record discloses that at the time of the commencement of the case the court, upon motion and affidavit showing the existence of the cause of action and they infancy of the plaintiffs Earl B. and Myrtle M. Shannon, the nonresidence of the plaintiff and the said minors, and that said minors had no regularly appointed guardian, made an order appointing the said Jennie C Shannon, the mother of the infants, their guardian ad litem, for the purpose of bringing the action. This application was made ex parte and without notice to the defendant. Defendant thereafter appeared and filed a motion for security for costs on account of the nonresidence of the plaintiffs. The motion was granted, and a cost bond filed. Defendant thereafter appeared and denied the appointment, on information and belief, and objected to the said appointment on the ground that the court was without jurisdiction to make it. Counsel do not call to our attention any case directly in point upon the question here, but cite the case of De La Montanya v. De La Montanya (Cal.) 44 P. 354, in support thereof. While this case is not directly in point, it seems to support the opposite view from that which it was cited to support. That was a divorce case, where the father had taken his children out of the jurisdiction of the California courts. The mother had obtained a decree of divorce, and then brought an independent action for the custody of the children, and had a third party appointed guardian ad litem. This guardian ad litem appeared in the action, and admitted the allegations of the complaint. The defendant did not appear in the case. Subsequently the court entered judgment as prayed, and, among other things, awarded the custody of the children to the plaintiff, and required defendant to bring the children into the state of California and surrender them to the plaintiff. Defendant afterwards applied for an order vacating this decree because the court had no jurisdiction to make it. This application being denied, an appeal was taken, and the cause reversed. The appellate court said: 'Jurisdiction to appoint a guardian for infants, under the American system, is entirely local. I do not doubt that the mere presence of infants within a jurisdiction is sufficient to confer jurisdiction, although they may be residents of another state. But, as such jurisdiction is always exercised for the good of the child, the courts would never allow the power to be used for purposes of oppression, or to prevent an infant temporarily within its jurisdiction from being taken away, when its best interests required it, to its more permanent residence. The jurisdiction is never used except when necessary for the good of the child.' The other authorities cited in support of the contention are upon the question of guardians in probate matters. Clearly, in matters of this kind, the guardian must be appointed upon petition therefor showing property in the state, and a bond must be given. 2...