144 P. 1184 | Or. | 1914
delivered the opinion, of the court.
It is maintained that no competent evidence was received tending to establish the relation of master and servant between the defendants and the plaintiff at the time he was hurt, and, this being so, errors were committed in denying a motion for a judgment of nonsuit and in refusing to direct a verdict for the defendants. The plaintiff testified that about five days after he was hurt the defendant Joplin, in company with Thompson, visited him in a hospital at The Dalles, Oregon, where he was taken after the injury, and Joplin there stated to the witness that he was a member of the firm for whom Dibert had been working; that he would do all in his power to aid him; that he then told the attending physician or nurse that if the witness needed a special nurse, one should be employed and any expense thereby incurred would be paid by sending the bill therefor to the defendants’ office in Portland. The plaintiff further testified as follows:
“After that the doctor had left and went away, or the nurse; whichever it was, and Mr. Joplin told me if I was dissatisfied at that hospital to telephone down to him, and he would come there and get me and bring me down to Portland; but afterward he told me I should telephone to Mr. Thompson, and that he was closer and could come up and get me, and he would make arrangements in Portland, so when I got down there everything would be ready.”
It is proper to say that when this declaration is claimed to have been made by Mr. Joplin, the plaintiff, by reason of the injury, was then totally blind. While at that hospital he received from the defendants a check which they had drawn at Portland, Oregon, on a bank in that city for the money he had earned
The defendants severally testified that having entered into a contract with Vensel to clear land, they about two days thereafter sublet the entire work to Thompson by an oral agreement, the terms of which were thereafter reduced to writing and signed by them. Their testimony in this respect is corroborated by that of Thompson. The latter contract is dated February 20, 1913, but neither party thereto would testify with any degree of certainty when his name was subscribed to the writing. Thompson, however, stated upon oath that he signed that contract about April 15,1913. The defendants stated upon oath that Thompson represented to them, before the contract for clearing the land was sublet to him, that he did not then have sufficient means with which to carry on the work, whereupon they orally agreed to advance such sums of money, and to furnish such quantities of goods, wares, merchandise, etc., as he might need for that purpose, pursuant to which promise they issued the check to the plaintiff for the work he had performed in clearing land and also drew checks in favor of other employees,
The testimony given by the plaintiff is contradicted in almost every material particular except as to the circumstances of the issuance of checks to which refer
“Now, have you the statements which the defendants rendered to you on account of the payment of these bills? He replied, ‘No, I have not.’
“Q. Was any written statement ever rendered you?
“A. No; I have never figured over with them or had a full settlement with them since I came down. I have been busy, and so have they, and I didn’t get down to it.”
The evidence clearly shows that the dynamite the explosion of which caused the injury, was placed beneath the roots of the stump by the “powder-man,” a fellow-servant of the plaintiff who had been engaged for that purpose in clearing the land. In order that the rule of respondeat superior may be invoked, it is important to determine who was in fact the plaintiff’s employer and for whom he was laboring when he was hurt.
These two exceptions to the rule adverted to are not thought to be involved herein, since it is believed that the work of blasting stumps is not essentially dangerous when proper care is exercised. Nor does such work in a sparsely settled community necessarily create a nuisance, but it may be and often is dangerous by reason of the negligent use of the high explosives employed to clear land.
“There was also evidence that the defendant took the plaintiff home in his buggy after the accident, or hired and paid his brother, a livery-stable keeper, for doing so. This could be taken to be an admission that he was the person interested.”
Upon principle it would seem that the circumstance so adverted to must be of little weight, for if the "incident of rendering first aid to or incurring trivial expense for an injured person were in every instance regarded as imposing liability upon the person performing such charitable service, it would necessarily follow that acts of kindness in cases of urgent need would rarely be performed. In the case at bar, however, the charges for medical attention and hospital dues amounting to $181.55 were paid by the defendants, but their testimony in explanation thereof is to the effect that such disbursements were made on Thompson’s account and at his request.
The case of De Sandro v. Missoula Light & Water Co., 48 Mont. 226, 243, 248 (136 Pac. 711, 716, 718), was an action to recover from that defendant and Adam Hadalin damages for a personal injury caused by the
“That where the jury arbitrarily acquits the servant or agent through whose negligence the wrong was done, 'the verdict against the principal ought [not] to be allowed to stand; the reason being that the plaintiff should not be concluded by the capricious conduct of the jury.”
In deciding the case, however, Mr. Chief Justice Brantly, evidently as a guide to a new trial, said:
“It is insisted by counsel that this evidence [referring to the partial payments and the employment of men hereinbefore mentioned] stands uncontroverted by any evidence in the record, and hence that the court erred in submitting to the jury the question whether Hadalin was an independent contractor. With this contention we do not agree. But for the fact that the*73 parties prepared and signed the writing in September, the question whether there was or was not a contract would have been left entirely to rest upon parol evidence. The preparation of the writing at that time did not change the situation so far as it covered the time prior to the accident. In the absence of the writing it would have been the exclusive province of the jury to say whether there was or was not a contract; for whether there was or not depended upon the truth of the statements of Brown and Hadalin in that behalf, in the light of the surrounding circumstances. There was some evidence that Wright, the general foreman of the company, was present and gave some orders to Odenwald touching the completion of the particular work on which Hadalin was engaged on the day before the accident. This was a circumstance to be considered by the jury in connection with the other evidence as to how far the company retained control of the work. The mode pursued for periodical settlements between Hadalin and the company tended to corroborate Hadalin and Brown as to the terms of the contract, but this did not so conclusively establish the fact of its existence that the court was warranted in taking the case from the jury. The production of the writing did not aid the defendant’s case; on the contrary, the fact that it was executed after the accident, and dated back to cover the time of its occurrence, might be suggestive of fabrication in order to save the company from liability. This was also a circumstance to be considered by the jury; for the question of good or bad faith of the transaction thus was made a matter of inquiry to be determined by the jury. ’ ’
Believing that no errors were committed in submitting the cause to the jury, the judgment should be affirmed; and it is so ordered. Affirmed.
