Tom Reed Gold Mines Company v. Brady, Civil 4117

• Decision Date: 19 February 1940
• Docket Number: Civil 4117
• Citation: 55 Ariz. 133,99 P.2d 97
• Parties: TOM REED GOLD MINES COMPANY, a Corporation, Appellant, v. P. H. BRADY, Appellee
• Court: Arizona Supreme Court

99 P.2d 97

55 Ariz. 133

TOM REED GOLD MINES COMPANY, a Corporation, Appellant, v. P. H. BRADY, Appellee

Civil No. 4117

Supreme Court of Arizona

February 19, 1940

APPEAL from a judgment and an order of the Superior Court of the County of Maricopa. J. W. Faulkner, Judge. Judgment reversed and cause remanded for a new trial.

Mr. E Elmo Bollinger and Mr. Louis L. Wallace, for Appellant.

Mr Carl D. Hammond, of Kingman, Arizona, and Mr. J. O. Reavis of Bakersfield, California, for Appellee.

OPINION

ROSS, C.J.

Plaintiff, P. H. Brady, on November 9, 1934, leased of the defendant, Tom Reed Gold Mines Company, for one year from that date a portion of the Aztec Center mining claim, situated in the San Francisco Mining District, Mohave County, Arizona, agreeing to pay to the defendant a royalty on all ores extracted therefrom.

On September 23, 1937, plaintiff filed this action against the defendant. Thereafter, on November 15, 1937, he filed an amended complaint. It was alleged that the defendant evicted him from the leased premises on January 8, 1936, at which time there remained in ore chutes 1,680 tons of ore mined, extracted and removed from the premises, ready for shipment, of the value of $36,516.80, after deducting royalties due the defendant, and that on or about said date defendant converted said 1,680 tons of ore to its own use.

The complaint alleges, and the answer admits, that there were extracted from said premises additional ores, but that such ores had been settled for and were in no way involved in the controversy.

Defendant's amended answer, filed November 9, 1938, denies generally and specifically that there were 1,680 tons of ore, on Janluary 8, 1936, in chutes ready for shipment, and alleges affirmatively that it had rendered full and complete settlement for all ores extracted from the premises by plaintiff.

Defendant as a counterclaim in a cross-complaint charges that plaintiff during the time he was mining on the Aztec Center unlawfully entered upon adjoining mining property of defendant (not included in the lease) and extracted therefrom and converted ores of the value of $5,000; that plaintiff's operations on the leased premises so weakened the supporting rocks and walls thereof that as a result, on February 2, 1936, a cave-in resulted, from which defendant suffered further damages in the loss of ore of the value of $17,737.38, and was compelled to expend the sum of $1,070 to reopen the 400-foot level of the Aztec.

In a second cause of cross-complaint and as a counterclaim, defendant charges that, due to the unskillful and unminerlike manner in which plaintiff prosecuted his work, a cave-in occurred on February 2, 1936, damaging defendant's property, including the Aztec Center and adjoining property, in the sum of $17,737.38, and that by reason thereof defendant had been compelled to expend the sum of $1,070 to reopen the 400-foot level of premises to serve and provide needs of its adjoining premises.

The lease is copied into the pleadings and by its terms plaintiff bound himself to do his mining in a skillful and minerlike manner and also to confine his operations within the boundaries of the leased premises.

Plaintiff's answer to the cross-complaint consists of an allegation "that said first cause of the cross complaint, and the whole thereof, is barred by the statute of limitation." and of general and specific denials.

The jury returned a verdict in favor of plaintiff fixing his damages at $18,682.38. From a judgment entered thereon and an order overruling a motion for new trial, defendant has appealed.

We will consider the assignments of error in the order which appears to us to be natural.

It is insisted that the preponderance of the evidence is against the verdict and, indeed, that there is no evidence to support the verdict. The rule in this jurisdiction is that if the evidence is in conflict on any issue submitted to the jury its verdict as to which way it preponderates will be accepted by the appellate court. The evidence is in sharp conflict as to the quantity of ore left in chutes ready for shipment when plaintiff, on January 8, 1936, was evicted from the premises by defendant. Witnesses testified in behalf of plaintiff and their testimony sustained the affirmative, whereas the witnesses for the defendant denied that there was ore to exceed 100 tons. In such circumstances, the court will not undertake to weigh the evidence and determine which way it preponderates but will leave the matter as the jury found it.

The defendant asserts that "the Court erred by rejecting testimony, by commenting upon evidence and by subjecting said witness (expert) to a severe cross-examination by the Court after the dismissal of said witness by counsel for both parties, as follows: ..." To sustain this assignment defendant sets out ten pages of testimony of an expert witness. We do not repeat it here but will say it consists in part of questions asked by the court and in part of questions asked by counsel and the answers of the witness. The assignment leaves to the court the duty to pick out from the ten pages of testimony what was "rejected" that should have been admitted, the portion thereof characterized as "commenting," and to detect the severe cross-examination and wherein it was harmful. The duty of indicating what parts of the testimony or other action of the court was error devolves upon the party complaining. Many of the questions by the court do not bear the construction imputed and if any do counsel should have pointed them out.

Of course the trial judge's attitude as between litigants in his court...