Texas Gulf Sulphur Co. v. Robles, 4112

Decision Date06 July 1973
Docket NumberNo. 4112,4112
Citation511 P.2d 963
PartiesTEXAS GULF SULPHUR COMPANY, a corporation, Appellant (Defendant below), v. Valentin G. ROBLES, Appellee (Plaintiff below).
CourtWyoming Supreme Court

Raymond J. Connell and William J. Kirven III, or Yegge, Hall & Evans, Denver, Colo., for appellant.

Robert H. Johnson, Rock Springs, G. L. Spence, Casper, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE, and McINTYRE, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

Valentin G. Robles, appellee, plaintiff below, brought this action against Texas Gulf Sulphur, appellant, defendant below, for injuries sustained while working in a mine shaft upon property owned by said appellant. After a jury trial with a resultant verdict for the plaintiff in the sum of $125,000, judgment was entered thereon with costs and it is from that judgment appellant prosecutes this appeal.

Robles was employed by Winston, who had a contract with appellant for sinking the shaft for the development of a trona mine in Sweetwater County. He was badly injured as the result of a fall while engaged in such work on May 20, 1968. Stated very generally, Robles bases his claim upon the assertion that the company was negligent in its failure to comply with numerous mine safety laws and regulations of this state and its failure to properly supervise the safety conditions and operations of Winston. Defendant relies upon defenses of denial of negligence, contributory negligence on the part of Robles, and his assumption of risk.

A fan with a canvas conduit was used to carry air into and down the shaft and to force out fumes and dust but was not operative at the time of the accident. There is conflict as to who turned this fan off. The bottom of said canvas conduit was some 68 to 70 feet off the bottom of the shaft and had not been lowered into the actual area where this man was employed. Immediately prior to the time of this accident Robles was employed with a crew in the shaft at a depth of nearly 600 feet where they were removing steel forms used in connection with the lining of this shaft with concrete. Robles had gone to work at midnight and after a lunch break around 4 a. m. he fell approximately 20 feet while he was climbing the side of the shaft on a form while returning from the bottom to a landing. He apparently lost consciousness or balcked out and fell. Although he had no definite idea what caused him to fall, he believes a possible cause might have been hypoxia, or oxygen starvation, resultant from negligence of the company in failing to properly supervise the work pursued thereunder.

Although there is a long and voluminous record a more complete discussion of the facts appears unnecessary because of the posture of this appeal.

WORKMEN'S COMPENSATION DEFENSE

The company urges as a first ground for reversal that the court erred in not directing a verdict for it upon the ground it was the statutory employer under § 27-60(D), W.S.1957, and was entitled to immunity from suit by virtue of §§ 27-50 and 27-51, W.S.1957. The first time this defense was suggested was on the motion for directed verdict at the close of plaintiff's case. This defense does not appear in the pleadings nor is it in any manner mentioned in the company's pretrial memorandum or the pretrial order. It is not asserted or mentioned in the motion for new trial filed December 23, 1971, and first emerges as a claimed error in the so-called supplemental motion for new trial filed February 4, 1971, after denial of the original motion. The company did not plead this as an affirmative defense (Rule 8(c), W.R.C.P.), and although this is not specifically enumerated in that rule as being an affirmative defense, it clearly fits the description of 'any other matter constituting an avoidance or affirmative defense' (emphasis supplied). It must be pleaded and raised in the lower court. A general and almost universal identifying criterion of an affirmative defense is one in avoidance, or stated alternatively a direct or implicit admission of plaintiff's claim and assertion of other facts which would defeat a right to recovery, Horst v. Morand Brothers Beverage Co., 96 Ill.App.2d 68, 237 N.Ed.2d 732, 738; Armstrong v. Johnson Motor Lines, Inc., 12 Md.App. 492, 280 A.2d 24, 29; Charles F. Hartmetz Investments v. Litty, 129 Ind.App. 251, 153 N.E.2d 924, 926. We have heretofore styled the defense of a bona fide purchaser for value as an affirmative defense which must be specifically pleaded, Wheatland Irrigation District v. Dodge, Wyo., 387 P.2d 679, 683. It has been frequently recognized that this defense is an affirmative one in cases involving a claim of avoidance because of workmen's compensation coverage, Behringer v. Inspiration Consol. Copper Co., 17 Ariz. 232, 149 P. 1065, 1067; Dalgleish v. Holt, 108 Cal.App.2d 561, 237 P,2d 553, 557; McDaniel v. Kerr, 364 Mo. 1, 258 S.W.2d 629, 635; Hammett v. Vogue, 179 Tenn. 284, 165 S.W.2d 577, 579. The failure to raise such a defense is a waiver and results in its removal from the case, and further cannot be raised on appeal, Pangarova v. Nichols, Wyo., 419 P.2d 688, 691; 5 Wright and Miller, Federal Practice and Procedure, § 1278, p. 339 (1969), and cases cited therein. For these reasons this matter is not before us in this appeal.

EVIDENTIARY MATTERS

Appellant contends the court erred by allowing witnesses Dr. Phibbs and T. L. Johnson, a mining engineer of long, wide, and varied experience, to improperly answer hypothetical questions and to permit testimony dealing with guess, speculation, and conjecture. The company asserts a particular objection to a portion of a hypothetical question posed to Johnson as follows:

'You may take into account, if you will, the testimony of Dr. Phibbs that you heard this morning read from his deposition relating to the effects of hypoxia as stated in that deposition.' (Emphasis supplied.)

The principal basis of the company's claim of error is the assertion of the general principle or rule that an expert witness may not have placed before him, in a hypothetical question, the opinion or inference of another expert or that an expert cannot base his opinion upon the opinion of another witness and a party cannot incorporate in a hypothetical question the opinion of another expert, and cites much authority thereon. It is interesting to note that 2 Wigmore on Evidence, § 682, p. 810 (3d Ed.), criticizes the rationale of this rule. 2 Jones on Evidence, § 14:22, p. 645 (6th Ed.), notes relaxation of what it terms a prevailing rule; and McCormick on Evidence, p. 33 (2d Ed.), suggests a wide latitude in the trial judge. Both Wigmore and McCormick note the obvious difficulty in distinguishing between inferences and facts in this area. The follwoing statement from McCormick, supra, at 32, appears most applicable herein:

'* * * Of course, it will often be apparent that the witness is being asked only to accept the objective descriptions given by the previous experts, not their inferences or conclusions, and then there can be no objection, * * *'

The question covers the effects of hypoxia. The effects of such condition would appear to be a medical fact. Dr. Phibbs was not testifying as to his opinion or drawing inferences when he testified to these results. The fact that Dr. Phibbs was a qualified expert does not result in his entire testimony being opinion or inference.

The other error which is urged in connection with the Johnson testimony is directed at a hypothetical question some three and one-half pages in length, and after a most critical statement of the form of the question concludes that the question was not a proper hypotetical question, citing authority that such question must be proper in form and content and that it must 'contain a full and fair recital of all relevant and material facts already in evidence,' 32 C.J.S. Evidence § 551(2)b, p. 526. However, appellant does not point out any single objection or prejudicial part thereof nor does it indicate the facts it claims are improperly contained therein or omitted therefrom. Without this particularity this court could only speculate as to the claimed error. This court has said before we will not consider questions not supported by cited authority or cogent argument, Wagoner v. Turpin Park Irrigation Co., Wyo., 489 P.2d 630, 634. It is of paramount importance to a consideration of an assignment of this character that the particular facts upon which this claim is based be indicated and discussed. A hypothetical question is not improper if it sets forth the theory of the party and 'in general the facts which the evidence tended to prove, so that any failure to adhere literally to the evidence is not fatal,' Culver v. Sekulich,80 Wyo. 437, 344 P.2d 146, 151. The same case cites with approval a statement that the rejection of such question must be based upon a failure in an important area and not in a trifling respect. It is not necessary that the question contain every possible fact, Culver v. Sekulich, supra, 344 P.2d 152. Without such enunciation and discussion we must assume the rule in Culver applied or these failures would have been indicated in the brief.

The testimony of John Kovach, Safety Engineer for FMC Corporation with many years' experience, attributes the cause of the fall to the lack or oxygen or monoxide and no question or objection was raised in connection with his testimony. The testimony of Dr. Phibbs, which will hereinafter be discussed, is also essentially the same as that of Johnson. In light of the fact that no contention is made that the evidence was insufficient to sustain this verdict there is a definite burden upon the appellant to demonstrate the prejudicial effect of this evidence as a basis for reversible error, Rule 61, W.R.C.P.; Willis v. Asbury Transportation Co., Wyo., 386 P.2d 934, 937; State Highway Commission of Wyoming v. Joe Miller Land Company, Wyo., 467 P.2d 450, 456.

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