107 P. 904 | Mont. | 1910
delivered the opinion of the court.
This action was. brought to recover damages for personal injuries alleged to have been suffered by plaintiff during the course of his employment, as a miner, by the defendant Beins Copper Company. This defendant is a Montana corporation. The other defendant is a corporation organized under the laws of Great Britain, with its principal office in the city of London, and is doing business in Montana. For convenience they are referred to hereafter, respectively, as the “Copper Company” and the “London Company.”
It is alleged in the complaint, in substance, that on September 12, 1907, the plaintiff was in the employment of the defendant Copper Company in its mine in Silver Bow county; that in the prosecution of his work he was required to raise or hoist certain timbers from the first floor of the 800-foot level of the mine up to the eighth floor; that the defendant, in order to enable him to do this, furnished him a chute or slide and a rope with block and
On the trial the only allegation of negligence on the part of the defendant Copper Company which plaintiff sought to establish was that it failed to furnish Mm a reasonably safe and suitable appliance for use in hoisting the timbers. The contention was that, inasmuch as during its. use the rope became wet .and stiff and could not be properly tied to secure the timber, it could not be safely used, and hence that the defendant should have furnished an iron or steel chain attachment which would not be affected by the wet. The court submitted the case to the jury upon the issues made as to this allegation only. A verdict was returned against both defendants for $5,000, and against the Copper Company for an additional sum of $2,000. The defendants have appealed separately from the judgment entered thereon and the order denying their motions for a new trial.
It is argued by respondent that the appeals may not be entertained: (1) Because, defendants having moved jointly for a new trial, they may not be heard upon separate appeals from the ■order denying their motion; (2) because, having failed to serve ■each other with notice of appeal, they cannot be heard upon the .appeal either from the order or the judgment; and (3) because the transcript is insufficient to advise this court as to what matters were considered by the trial court in denying the motion for a new trial.
The assertion that defendants made a joint motion is based upon the course adopted by them in preparing it. They were represented by the same counsel. Their notice of intention re
There is no rule of procedure which prevents two or more parties from presenting a joint bill of exceptions. The purpose of a bill of exceptions is to bring into the record matters occurring during the trial, which would not otherwise be a part of it. (In re Dougherty’s Estate, 34 Mont. 336, 86 Pac. 38.) Such being the case, the only obligation resting upon a party who intends to rely upon it is to prepare and have it settled in pursuance of the provisions of the statute. If it speaks the truth as to the matters upon which he purposes to rely, his right to rely upon it is not impaired notwithstanding it may incorporate matters that are immaterial to his case. The only interest the adverse party has in it is that it speak the truth as to the matters offered by the moving party in support of his motion. We think the order of the court denying defendants’ motions must be con
Even if the defendants had moved jointly, either had a right to prosecute its appeal from the order denying their motion. The provision of the statute is: “A party aggrieved may appeal in the eases prescribed in this title. ’ ’ (Revised Codes, sec. 7079.) Among the appealable judgments and orders enumerated in the following section is “an order granting or refusing a new trial.” If the contention of counsel should be sustained, the right to appeal in any case would be made to depend, not upon the statute, but upon the accident that the appealing party had been associated as plaintiff or defendant with another party, and the ability or disposition of such other party to prosecute his appeal.
Nor do we think that the right of defendants to be heard is impaired in any way by the fact that they did not serve their notices of appeal upon each other. The statute (Revised Codes, sec. 7100) requires the notice to be served on the adverse party or his attorney. The expression “adverse party” is held to include all parties who have an interest in opposing the object sought to be accomplished by the appeal. (T. C. Power & Bro. v. Murphy, 26 Mont. 387, 68 Pac. 411.) Here both parties are and were, during the trial and other proceedings in the district court, represented by the same counsel. To sustain the contention of counsel would exact the absurd requirement that an attorney, representing different parties, should, in order to make their respective appeals effective, serve upon himself, on behalf of each of his clients, copies of the notices which he himself had prepared for them. The purpose of the notice is to bring before the appellate court all the parties who have the right and may wish to oppose the contentions made by the appellant. Here neither of the defendants occupies a position adverse to its co-defendant. The record shows that they assail the judgment upon the same grounds. Whether any of these grounds is available to both defendants or not is a question that may be examined only upon reaching the merits of the appeal.
The witness Raleigh testified as follows: “I saw Mr. Cummings on that day, particularly somewhere near 2 o’clock in the afternoon, on the 800-foot level of the Reins Copper Company. When I noticed him in particular, he came to get me to help him pull on a post of timber, and I left my station and went to help him. I went into the drift where they took the timber in to pull up the chute. I looked at the timber and how the rope was tied on. It was tied on with a timber hitch and a half-hitch. The timber hitch was tied at one end, and the half-hitch at the other; well, I would not say at the end; he tied the timber hitch on the lower end and the half-hitch somewhere near the three-quarters. I helped pull up timbers there a number of times. The rope was tied on very much the same as they always did. The rope they used there was always damp. * # * The rope was damp and stiff. * * * The next thing that happened, as near as I can remember, after the stick was up some thirty feet, Mr. Cummings got a jar in the ribs by the timber that we were pulling up the slide. * * * I was quite often around where he was working, but not very often—whenever he would come for me. It was a frequent occurrence for him to come and ask me to assist him in hauling the timber up the timber chute—any time they happened to want me. I have frequently helped Mr. Cummings to do the same work. * * * I don’t know whether I can tie a timber hitch or not, but I think I can. * * * The rope was damp from moisture. In my judgment, it was tied securely on •the timber. It looked safe to me, or I would not have been there. * * # I can’t explain how it happened at all. All I know is that the timber came down. I could not state whether it came down the chute or whether it was on either side. I ■can’t offer any explanation of the timber coming down there at .all. * * * From anything I know, there was nothing to cause that timber to come down there. I don’t know what would .cause the timber to come down. * * # From the appearance
The witness Koskela testified, in substance, that the appliance customarily used in the more important mines in Butte was a rope with a chain attachment for the purpose of fastening it to the timbers, especially in wet places, and that such an appliance is safer than a rope. He was allowed to testify, over the objection of defendants, that a rope is unsafe when wet, because it is slippery and will not fasten upon the timber properly, while a chain will fasten in the timber and cannot slip. Other witnesses testified to the effect that a rope is frequently used for the purpose of hoisting timbers and is usually the only appliance used in small mines such as that of the- defendant Copper Company. No witness testified to an examination of the rope after the accident, to determine whether it became- untied or merely slipped off the timber. It appears, however, that it was examined to ascertain whether it was broken.
Eliminating from this evidence the opinion expressed by the witness Koskela, to the effect that a rope without the chain attachment is unsafe—which was incompetent, as we shall hereafter show—it is wholly insufficient to make out a prima facie case of negligence on the part of the Copper Company. The
In the first place, the evidence tends to show that the rope in question, or a similar one, had been in use by the employees of the defendant Copper Company for a long time, with perfect efficiency and safety; and that while, perhaps, it was not as well adapted for the accomplishment of the work for which it was used, as it would have been had it been fitted with an iron or steel attachment, it was not obviously dangerous. Tested by the;
On behalf of the London Company, the contention is made -that it was improperly joined as defendant. The point was sought to be raised by demurrer, and also by a motion for a non-suit. The demurrer was joint. Under section 6534, Revised 'Codes, the defect of misjoinder of parties defendant can be
A separate motion for nonsuit made by this defendant was also overruled. This ruling is not assigned as error, though a considerable portion of the brief is devoted to an argument to demonstrate that it was. The question of the liability of this defendant, with the Copper Company jointly, is therefore not technically presented. Nor is the question of the sufficiency of the evidence as to it presented, except as tending to show liability of the defendants generally. However, since a new trial must be ordered, and since the question will again arise, we have concluded to state briefly our views with reference to it.
The contention at the trial was that, since this defendant had entered into a contract to indemnify the Copper Company against liability for damages such as are sought to be recovered in this action, it is liable jointly with the Copper Company, under the provisions of section 5653 of the Revised Codes. This section reads as follows: “One who indemnifies another against an act to be done by the latter, is liable jointly with the person indemnified, and separately to every person injured by such act.” The question is whether this section is only declaratory of the common-law rule, or whether it extends the rule so as to include the indemnitor who stands in the same relation to the indemnitee as does the London Company. This relationship is founded upon the contract of indemnity, and unless the assumption of this relation put it in such a position, with reference to the Copper Company, that it became jointly liable with the latter for all
If the London Company is liable to the plaintiff in this action at all, it is liable as a joint tort-feasor with the Copper Company, for the full amount of the damage sustained; for, if by virtue of its contract with the Copper Company it became a party to the wrong which the plaintiff alleges he suffered, its liability is not limited by the amount in which it agreed to reimburse the Copper Company. If it is not to be regarded as a joint tort-feasor with the Copper Company, and therefore not liable to the same extent as the latter, then it is liable only upon the contract. For present purposes it makes no difference whether the plaintiff may, under ány circumstances, sue it directly upon the contract as one made for his benefit. It is clear that upon principle he cannot pursue it in an action at law such as this, upon the contract and at the same time pursue the Copper Company for its tort. At common law the indemnitors of a sheriff were held liable with him when he had unlawfully seized or detained property at their instance; but this was. because they had, in a legal sense, prompted his action, and therefore participated with him in the wrong as principals, and not because they were liable to the plaintiff on the contract of indemnity. The following cases illustrate the rule: Herring v. Hoppock, 15 N. Y. 409; Fonda v. Van Horne, 15 Wend. (N. Y.) 631, 30 Am. Dec. 77; Davis v. Newkirk, 5 Denio (N. Y.), 92; Davidson v. Dallas, 8 Cal. 227.
Section 6215 of the Revised Codes declares: “The provisions of this Code, so far as they are substantially the same as existing statutes, or the common law, must be construed as continuous thereof, and not as new enactments.” In view of this provision, we must hold that section 5653, supra, does not change the rule recognized in the cases cited, unless the language employed in it impels to the contrary conclusion. The phrase, “an act to be done,” with reference to which the indemnity exists, clearly implies an act the nature of which is known to-
The ruling of the court in permitting the witness Koskela to express an opinion to the effect that a rope without a chain attachment is an unsafe appliance was error. The statute (Revised Codes, sec. 7887) provides that the opinion of a witness may be given upon “a question of science, art or trade, when he is skilled therein. ’ ’ The general rule, however, is that he may state facts only “whenever the question to be determined is the result of the common experience of all men of ordinary education, or is to be inferred from particular facts; the inference is to be drawn by the jury and not by the witness.” (Sappinfield v. Main St. Ry. Co., supra.) In Nutt v. Southern Pac. Ry. Co., supra, in considering the admissibility of the same character of evidence, the court said: “The necessity for opinion evidence only exists where the facts in controversy are incapable of being detailed and described so as to give the jury an intelligible understanding concerning them; but when the facts are such as can be detailed or described, and the jury are able to understand
The judgment and order of the district court are reversed, and the cause is remanded, with direction to dismiss the action as to the London Company.
Reversed and remanded.