Wirta v. North Butte Mining Co.

• Citation: 210 P. 332,64 Mont. 279
• Decision Date: 25 September 1922
• Docket Number: 4832.
• Parties: WIRTA v. NORTH BUTTE MINING CO. ET AL.
• Court: Montana Supreme Court

210 P. 332

64 Mont. 279

WIRTA v. NORTH BUTTE MINING CO. ET AL.

No. 4832.

Supreme Court of Montana

September 25, 1922

Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.

Action by John Wirta against the North Butte Mining Company and another. From a judgment of dismissal and from an order denying a new trial, plaintiff appeals. Affirmed.

H. A Tyvand, of Butte, for appellant.

L. O Evans, of Butte, W. B. Rodgers, of Anaconda, and D. Gay Stivers, and D. M. Kelly, both of Butte, for respondents.

FARR J.

The plaintiff, John Wirta, brought this action against the defendant the North Butte Mining Company, a corporation, and its superintendent, Norman Braly, to recover damages for personal injuries sustained by him while underground in the Speculator mine, a mining property operated by the North Butte Mining Company, due to a fire in the mine and the failure to provide sufficient exits in case of a fire.

At the trial, after the opening statement of plaintiff's counsel and the plaintiff had been sworn as a witness in his own behalf, defendants interposed an objection to the introduction of any evidence upon the ground that under the pleadings there was no material issue to be tried; that the complaint, the answer, and the reply, taken in connection with a stipulation entered into between the parties and made a part of the record, show that at the time of the happening of the accident and the injury to the plaintiff therefrom the plaintiff was employed in a hazardous employment, and that both the defendant company and the plaintiff were bound by the Workmen's Compensation Act (Laws 1915, c. 96), and that plaintiff has redress only according to the method and in the manner and to the extent provided for in the act. This objection was sustained by the court, and thereupon, on motion of defendants, judgment was entered dismissing the action. A motion for new trial was later made by plaintiff and denied by the court, and plaintiff appeals to this court from the order denying his motion for a new trial.

The complaint alleges and the answer admits the control and management of the Speculator mine by the North Butte Mining Company, which, for the sake of brevity, will hereafter be referred to as the "mining company," that access to this mine was had through a shaft known as the Granite Mountain shaft, in the charge and management of the mining company, which had been sunk to the depth of approximately 3,600 feet; that on the 8th day of June, 1917, the plaintiff was employed at crosscut No. 15, between the 2,400-foot level and the 2,600-foot level, both of which were connected with the Granite Mountain shaft, starting to work at 6 o'clock p. m. on said date, with other employés of the defendant mining company, and that defendants were at the time of the accident operating said mine, and were engaged in the business of mining. It is further alleged, and denied by the defendants:

"That on the 8th day of June, 1917, the defendants * * * carelessly and negligently failed and neglected to provide, keep and maintain more than one passageway * * * open as a means of exit for the employés * * * mentioned, and especially this plaintiff, from their said place of work to the surface of said mine. That on said day and for some time prior thereto, there was a certain passageway from the place where the said plaintiff was working * * * to a certain mine adjacent to the said Speculator mine, to wit, to the High Ore mine, which furnished an exit to the surface. That for a long time previous to the accident herein complained of the said passageway had been open; that at the time of the said accident, plaintiff and his fellow servants believed said passageway was open. * * * That shortly before the time of this accident the said passageway through the said High Ore mine had been bulkheaded and closed with concrete; that at all times herein mentioned, the defendants knew said fact. * * * That * * * defendants carelessly and negligently failed and neglected to provide, keep, and maintain any other passageway from said plaintiff's place of employment to the surface, except the aforementioned, the said Granite Mountain shaft. * * * That on the said day the defendants herein carelessly and negligently caused and permitted a fire to be started in the aforesaid shaft, and that as the result of the said fire the whole mine, and especially the place where the plaintiff was working, became filled with gas, smoke, heat, and the air became so impure and obnoxious that great suffering and finally death would result to any person remaining therein. That thereupon this plaintiff and many other employés of the defendants ceased working for the defendants herein, quit their said employment and place of employment, and sought to make their escape from the said mine; that said shaft at said time was so full of fire, smoke, and gas that no person could pass through the same. That after ceasing their said employment, and while not in the employment of the defendants above named, this plaintiff and the other said employés sought to make their escape from the said mine through the aforementioned passageway on the 2,400-foot level through the aforementioned High Ore mine. That because of the carelessness and negligence of the defendants herein, and especially because of the negligence of the said defendants in failing and neglecting to provide plaintiff with more than one means of exit from the said mine, to wit, the Granite Mountain shaft, and because the defendants carelessly and negligently caused and permitted a fire to be started and to continue to burn in said shaft, and carelessly and negligently failed and neglected to inform plaintiff of any other means of exit from said mine except through the said Granite Mountain shaft, this plaintiff could not and did not pass out of said mine, and was compelled to remain therein for a period of about 40 hours, and that during all of said time the whole of said mine, and especially the said passageway where the plaintiff was, became filled with smoke, gas, and heat, and the said air became impure and obnoxious, all causing the plaintiff the most intense pain."

As an affirmative defense to this complaint, the defendants alleged that the plaintiff, as an employé of the defendant mining company, was engaged in the conduct of its mining operations underground in the Speculator mine "during all of the times of the happenings mentioned and set forth in the complaint"; that both the plaintiff and the defendant mining company were bound by the Workmen's Compensation Act of Montana, and that the remedy provided for therein is exclusive. Later a stipulation was entered into between the plaintiff and the defendants, admitting facts to the effect that the defendant mining company had taken the various steps necessary to come under the Compensation Act.

Plaintiff urges that the relation of master and servant did not exist at the time of the accident, and now insists that the injuries sustained by him did not arise out of and in the course of his employment in the mine. The stipulation of facts and the pleadings show that the defendant mining company took the requisite steps to bring itself within the provisions of the Compensation Act, and if the relation of master and servant existed between the plaintiff and the defendant mining company at the time of the accident, and if the accident and the injury resulting therefrom arose out of and in the course of plaintiff's employment, then it is conceded that the remedy provided by the Compensation Act is exclusive.

That the Compensation Act of this state, in so far as it provides compensation to an injured employé for injuries received from an accident growing out of and in the course of his employment is exclusive of all other remedies, is unquestionable. Sections 2838 and 2839, Rev. Codes 1921; Hyett v. Northwestern Hospital for Women and Children, 147 Minn. 413, 180 N.W. 552. The plaintiff seeks to avoid this defense by asserting that he was not employed by the defendant mining company at the time he was injured, and that his injuries did not arise out of and were not received in the course of his employment. The decisive questions, then, are: Did the relation of master and servant exist between the plaintiff and the defendant mining company at the time plaintiff sustained the injuries complained of, and did these injuries arise out of and in the course of plaintiff's employment?

Plaintiff urges that when the fire started "thereupon this plaintiff and many other employés of the defendant ceased working for the defendant herein, quit their said employment and place of employment, and sought to make their escape from the said mine," and that plaintiff thereafter was no longer in the employ of the defendant mining company, and that therefore the injuries sustained by him by reason of the gas and smoke due to his inability to pass out of the mine did not arise out of and in the course of any employment with the defendant mining company. It is alleged that because of plaintiff's inability to pass out of the mine, he was compelled to remain therein for a period of about 40 hours during which time he sustained the injuries complained of because of the gas and smoke due to the fire. If we correctly understand plaintiff's contention in this court, he urges that because of this he was, against his will, compelled to labor for a longer period than 8 hours in violation of law; that the relation of master and servant was terminated by plaintiff because of the willful breach of duty on the part of the mining company to provide another means of exit in case of a fire, and that his subsequent detention in the mine amounted to an unlawful imprisonment; and that it became the...