174 P. 627 | Utah | 1918
Action for personal injury. Plaintiff was injured in defendant ’s mine in Eureka, Juab County, Utah, while engaged in repairing an air pipe line in the main drift on what is known as the 1,400 foot level. Plaintiff was employed as a timberman in said mine, but was also subject to the orders of the shift boss or foreman for any other work that might be necessary in the mine. It is alleged by the defendant that it was also his duty, without special request, to do any other work that might be necessary for the good conduct and safety of the mine when such work appeared to him to be necessary.
On the date of the injury plaintiff was working in what is known as the 1,410-K stope, which was connected with the 1,400 level, or main drift. In going to and from his work he passed through and along the main drift, in which was a car track for moving ore and material, and also an air pipe line strung near the top of the drift supported by pieces of timbers. Where it did not rest upon the timbers it was attached to them by means of a wire. The primary purpose of the timbers was to support the pipe line. They'were called sprags and extended across the drift. Whether or not they incidentally supported the roof of the drift is a subject of conflict in the testimony.
On the day in question the plaintiff was ordered by the
The testimony of the plaintiff tends to show that the cross-timbers or sprags which supported the pipe were two or three feet below the roof or back of the drift, and did not in any manner support the roof.
The plaintiff in his complaint charges, in effect, that the defendant was negligent in failing to inspect the roof and sides of the drift, in permitting them to become loose and liable to cave, and in failing to timber up the saipe; that these acts of negligence on the part of the defendant were the cause of the injury.
Defendant admits that plaintiff was in its employ as a tim-berman, and alleges that it was his duty to do other work when ordered or when necessary; admits that plaintiff was ordered to assist in repairing the pipe line, and that while so engaged earth and rock fell from the roof and sides of the drift upon plaintiff and injured him. Defendant, further answering, pleads assumption of risk, contributory negligence, negligence of fellow servants, and a full settlement with plaintiff, and release executed by him releasing defendant from any and all claims and demands, causes of action, and liability for or on account of said injury. The release is alleged to have been executed by plaintiff on the 3d day of February, 1915, is set out in full in the answer, and states the consideration to be one dollar paid to ^plaintiff, and the agreement of defendant to pay plaintiff one half the ruling rate of wages for a period not exceeding twenty-six weeks. Plaintiff denied the execution of the release, or, if he did execute it, he alleges the same was procured falsely and fraudulently by the defendant, specifically alleging the nature and character of the fraud.
It is alleged and admitted that the main drift was a means
The case was tried to a jury. Judgment for plaintiff. The defendant appeals, and assigns as error various rulings and orders of the court relating to the admission and exclusion of evidence, instructions given to the jury, refusal of defendant’s requests, refusal to order a nonsuit, and error in entering the judgment.
The release relied on as a defense by appellant seems to be the main feature of this litigation, sixty-three pages of an eighty-nine page brief are devoted by appellant to the discussion of questions connected with the release in one way or another. The validity of the release being challenged by the reply of plaintiff to defendant’s answer, the defendant introduced evidence as to its execution.
Walter Fitch, Jr., assistant superintendent of defendant, testified that he called on plaintiff at the Holy Cross Hospital, Salt Lake City, Utah, February 3, 1915; had a general conversation with him and took up the matter of the release; "read the release over to him, explained it to him in his own language, and asked him if he wanted to sign it. Plaintiff said ‘Yes,’ the company had always treated him right and he knew they would in the future. He didn’t want any trouble with them and would therefore sign the release, and he did so.” On cross-examination witness testified he paid plaintiff $1 at the hospital, and that he submitted the release to plaintiff before he signed it. The form was made in Salt Lake City. At that time witness was a representative of the Continental Casualty Company, which was writing insurance for the men in the mine. Witness was getting a percentage of what was written. He collected insurance for the men when they were hurt. He did not remember whether he talked with plaintiff about insurance or not, and did not remember whether plaintiff signed more than one paper or not at the time he signed the release. The principal purpose of witness was to get the release. He admitted that he wanted to get the release executed before some lawyer got hold of plaintiff. This witness was the only one on1 the part of de
On this question plaintiff testified, in substance, that he was in the hospital when Walter Fitch, Jr., called on February 3d. Plaintiff had been operated on on February 1st. He was in bed when Fitch called. Plaintiff did not read or write English. When Fitch called plaintiff was suffering all over, and was bothered with chloroform. Fitch came in the morning and said he came about insurance. Plaintiff had been sick a couple of times before and Fitch had always fixed his insurance. Fitch asked plaintiff his age, height, and weight and asked him to sign his name. He did so, thinking he was signing for insurance. Fitch said nothing about a release. Fitch never showed him the paper claimed to be a release. Plaintiff did not see the release and Fitch did not read it over to him. Plaintiff understood he was signing simply to get his insurance. Fitch did not tell him the mining company would pay him half wages for twenty-six weeks, nor did Fitch give him one dollar. There were present at the time Emil Bovich and Gust Bills. One was on one side of plaintiff’s bed and one on the other, five or six feet between his bed and theirs. On cross-examination plaintiff was shown the signature to the release, and admitted that it looked like his, but still persisted in saying he never saw that paper.
Gust Bills testified for plaintiff: Was at Holy Cross Hospital when Fitch came there. Witness’ bed was next to plaintiff’s, with an aisle between them. They were lying feet to feet. Fitch and plaintiff had a conversation about insurance. Fitch said something about a release, and offered to give plaintiff a dollar, but he wouldn’t take it. Fitch had a paper in his hand, but witness did not know whether it was a release or not. Didn’t hear Fitch say, “Now, if you sign this you cannot bring suit.” If he"had said anything like that witness would have heard it. Fitch never said anything about getting half pay from the company. There was nothing said except about insurance. Fitch wanted plaintiff to make a report about the accident. Witness told the man next to him to tell plaintiff not to sign any papers.
Emil Bovich, another witness for plaintiff, testified to the
The cross-examination of these witnesses did not materially change the testimony as above stated.
In view of the pleadings and the evidence relating to the release, the court, at the close of the trial, gave special instruction to the jury, which we will hereafter consider in connection with certain requests of the defendant relating to the release.
The evident purpose of the questions was to prove by the witness that an anaesthetic, such as was administered to the plaintiff on the 1st day of February, would not in all probability affect his mind or consciousness on the 3d, when the defendant contends the release was executed; that therefore
Comp. Laws Utah 1907, section 3414, as amended in Sess. Laws 1911, c. 109, at page 181, reads as follows:
"4. A physician or surgeon cannot, without the consent of his patient, be examined in a civil action, as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.” (Italics ours.)
The questions propounded did not seek to elicit, nor could they possibly elicit, any information acquired by Dr. Murphy in attending the plaintiff which was necessary to enable him to prescribe or act for him. This proposition seems to be so self-evident that further comment is, perhaps, unnecessary. This court, in the case of Madsen v. Light & Ry. Co., 36 Utah, 536, 105 Pac. 799, speaking through Mr. Justice Frick, after quoting the foregoing statute, said:
"While the courts are not in strict harmony in concretely applying the provisions of statutes similar to the foregoing, yet they practically all agree that, in order to bring the information referred to, in the statute within its provisions, it must be made to appear: (1) That the information was obtained during the existence of the relation of physician and patient; and (2) that the information, however acquired, was necessary to enable the physieiau or surgeon to prescribe for or act professionally for the patient. The statute should receive a fair and reasonable construction and should be applied and enforced so as to accomplish the purpose for which it manifestly was designed. It seems quite clear that in adopting the statute the Legislature did not intend that all information, whether by communication or otherwise, which is obtained by physicians from their patients, should be privileged, but such information only as may reasonably be necessary to enable the physicians to apply their full professional skill for the benefit of their patients. The statute is not intended as an aid to conceal or smother the truth in a court of justice; but its object is to protect as privileged all that may be said by a patient to his physician while the relation of trust and confidence exists, and, further, to protect all the information a physician obtains through his senses of touch, sight, or otherwise, during such relation, provided the communication or information was reasonably necessary to enable the physician to accomplish the purpose for which the relation of physician and patient is called into existence.”
“It is not a case where plaintiff’s senses were stupefied by the use of opiates. There is no such claim in the allegations of the reply. There is no such suggestion in the .reply. There is here no allegation or proof of any impairment of plaintiff’s mental faculties. His own doctors and other witnesses prove the contrary. He was not dazed or rattled. He was a person of mature years in full possession of his mental faculties. He knew what was going on. He did not claim then that he did not fully understand everything that was being done. He does not claim so now.”
If there was no allegation of any impairment of plaintiff’s mental faculties, and no proof whatever, it is difficult to see the purpose of this assignment. It fails to present even a moot question for the court’s consideration. But it would, perhaps, he unfair to use every admission of counsel made in argument as a weapon against them unless it is manifest that the admission was made deliberately and to be used as such. And, besides, there is a more potent reason why the error in this case must be declared to be -nonprejudicial. During the further examination of Dr. Murphy, while on the stand after qualifying as an expert in the use of anaesthetics, the following question was asked and answer received' without objection:
Thus it appears the identical information sought by the questions prohibited was obtained and appellant received the benefit thereof.
This assignment is without merit. Comp. Laws Utah 1907, section 3285; Barker v. Savas, 52 Utah, 262, 172 Pac. 675, and cases cited.
Phillip J. Purcell, a witness for defendant, was asked the following question:
“Did Walter Fitch at that time (when the release was signed) have any authority whatever to adjust or settle any lawsuits for that company?”
The question was objected to by respondent. The objection was sustained and an exception noted. The ruling of the court is assigned as error.
If it were not for the explanation made by counsel in their brief, it would be difficult to see upon what theory it is claimed this question was material. It appears, however, that inasmuch as the plaintiff testified that he understood his business with Fitch at the hospital related to insurance and not to a release, appellant conceived the idea that evidence that Fitch was not authorized to adjust or settle lawsuits for the insurance company would tend to prove that his business with plaintiff did not relate to insurance. In the, first place, plaintiff did not testify that his business with Fitch related in any manner to adjustment or settlement of a lawsuit with the insurance company. Hence the information sought by the question asked the witness Purcell was not responsive to, nor in rebuttal of, anything to which the plaintiff testified. In the second place, if it be assumed that plaintiff did state that
The witness Pitch, when on the witness stand, was asked by appellant the following question:
“Are you able to state, Mr. Pitch, speaking.in the tone of voice in which you spoke to Mr. Dovich, that you could have heard the voice of a person speaking in the same tone of voice twenty feet away from you ? ’ ’
Respondent objected to the question. The objection was sustained, and appellant assigns error.
What the witness Pitch could have heard was wholly immaterial. The question was objectionable from any point of view. The court did not err in sustaining the objection.
“The defendant contends that if the plaintiff ever had a claim against the defendant, that the same was fully settled between the parties by the agreement and release introduced in evidence and marked ‘Exhibit 3.’ You are instructed that the giving or receiving of the one dollar mentioned was not essential to make the same a binding agreement, but that the agreement on the part of the defendant company to pay the plaintiff half his wages for a period of 26 weeks was sufficient consideration to make the same binding-upon the plaintiff. However, you are instructed that before the same was binding upon the plaintiff he must have understood the nature of the instrument that he was signing, and that it was an agreement on his part to give up and relinquish whatever
This instruction is excepted to for the reason that it does not contain a statement to the effect that a mere preponderance of the evidence would not be sufficient to authorize setting aside the release or hold it not binding upon the plaintiff.
The eourt did- not in so many words inform the jury that a mere preponderance of the evidence would not be sufficient, but it did charge the jury:
“Before you can disregard the release on the ground of fraud, it must appear by evidente that is clear, cogent, and
The words “clear, cogent, and convincing” denote something more than a mere preponderance. If such words were used in an ordinary civil case, and excepted to by the losing party, we believe the exception would be well taken for the reason that they do imply something more than a mere preponderance, and a preponderance is all that is ordinarily required. We are not conceding, however, that more than a preponderance was required in the present case.
For the reasons above stated, this assignment should not prevail.
Appellant calls our attention to scores, if not hundreds, of cases which it claims support its contention. We have not been able to read or consider all of them, for they are too numerous for the time we have at our command. We have read sufficient, however, to satisfy our minds that the eases cited are generally distinguishable from the case at bar. Such as appellant has deemed of sufficient importance to quote from are as follows: Chicago & N. W. Ry. v. Wilcox, 116 Fed. 913, 54 C. C. A. 147; St. L. & S. F. R. Co. v. Chester, 41 Okl. 369, 138 Pac. 150; Bessey v. M., St. P. & S. S. M. Ry., 154 Wis. 334, 141 N. W. 244; Wallace v. C., St. P., M. & O. Ry., 67 Iowa, 547, 25 N. W. 772; Wallace v. Skinner, 15 Wyo. 233, 88
Every ease must be decided upon its own facts. In the present case the jury was justified, under the evidence, in finding, and no doubt found, that Walter Fitch, Jr., was the assistant superintendent of the defendant company by which plaintiff was employed; that Fitch looked after insurance for the men employed; that Fitch had adjusted insurance for plaintiff twice before; that when Fitch came, on the occasion of the signing of'the paper relied on as a release, plaintiff was in the hospital in bed sick and sore; that Fitch told him he had come to see about his insurance; that nothing was said about a release; that nothing was said about half pay; that Fitch did not pay him $1; that plaintiff thought and understood from Fitch that the business related solely to insurance; that plaintiff could no.t read or write the English language, and when he signed his name he did it, as he thought, to get his insurance. There is not a single word of testimony as to the conduct of Fitch, or the relation between him and plaintiff, to put plaintiff on his guard or cause him to believe Fitch was trying to deceive or mislead him.
The question, under these conditions, naturally arises, why should plaintiff not trust Fitch implicitly? Why should'he be suspicious and required to exercise the extraordinary care and diligence contemplated in defendant’s requests?
If the testimony introduced by plaintiff is true, the facts
“You are instructed that it is the duty of the servant to use reasonable and ordinary care to protect himself from injury, and if he fails to use 'such ordinary care, and injury results to him by reason of such failure, he cannot recover, even though the master is also guilty of negligence that contributes to the injury. The servant in his work may assume that the master has used reasonable and ordinary care to provide him a reasonably safe place in which to work, and
Appellant excepted to the instruction, and especially to that part where the court says, ‘ ‘ The servant is not bound to inspect the premises to ascertain whether the master has performed his duty,” etc. The grounds of appellant’s objection, as stated, is that—
“the evidence shows on the part of the defendant that it was the duty of the plaintiff to prepare or make safe any place in either the stopes of said mine or the drifts thereof which at the time appeared to him to be dangerous or likely to cave and injure any one; that under said evidence the question of fact as to whether it was such duty of plaintiff to have inspected said place at the time he was injured was taken from the jury.”
It may have been plaintiff’s duty to prepare and make safe any place which appeared to him to be dangerous, but, unless there was a positive duty imposed upon him to inspect in order to ascertain if a place was dangerous, such duty should not bo inferred. Appellant does not contend that the evidence showed it to be plaintiff’s duty to inspect, but only to make places safe when they appeared to be dangerous. But the court, in the very same connection, says:
“This does not mean that a servant must not continue at all times to exercise ordinary care for his own safety.”
Of course if plaintiff, at the time he was injured, was engaged in making'the place unsafe, a higher degree of care would be imposed, and, as to that the court further and properly instructed the jury:
“If the work being done by the plaintiff in this case at the time of the injury tended to make the place insecure, then you
In this case the plaintiff was not injured while engaged in his usual and ordinary occupation as timberman. He was sent by the shift boss into another and different part of .the mine to perform another and different kind of work. He was sent into the main drift, a completed apartment, used by the employees as a means of ingress and egress to and from their work in the mine and for the' transportation of material. He had the right, the same as other employees, to assume, that the place was safe unless the place appeared to be dangerous. There was evidence that it was dangerous, and was known to some of the employees to have been in a dangerous condition for several days. But the plaintiff had not noticed the dangerous condition and had not been informed of it. He went to his work assuming that the place was safe, especially as it did not appear to him to be dangerous. There was substantial evidence to the effect that the work he was doing did not tend to make the place dangerous; hence his duty to inspect did not arise.
"VVe think, in view of the evidence, the court was justified in giving the instruction, and that appellant’s exception thereto is without merit.
In addition to the exceptions already considered, defendant tendered other requests which were refused and exceptions noted. It would not be profitable to review in detail all of these exceptions. We have read them with care and considered them in connection with the instructions given. The objection to all of appellant’s requests not covered in substance by the instructions given is that they seek to impose upon plaintiff a burden of responsibility not authorized by law under the admitted or uncontroverted facts. For .instance, if appellant’s contention were true that it was the duty of plaintiff to make safe any place in the mine that appeared to him to be dangerous, and that obligation also carried with it the duty to inspect every place for the purpose of ascertaining whether such place was dangerous, the result
The instructions of the court to the jury relating to the questions of negligence, contributory negligence, assumption of risk, and upon the matter of the release, were full, fair, and complete, as we view the pleadings and evidence. The rights of both parties were carefully safeguarded by the instructions. There was substantial evidence to sustain the verdict. Whether or not the jury arrived at a just conclusion is not for us to determine. The motions for nonsuit, directed verdict, and peremptory instruction were properly overruled.
We find no error in the record.
The judgment of the trial court is affirmed, at appellant’s costs.