196 N.W. 556 | N.D. | 1923
This is an appeal from a judgment of the district court of Adams county. The cause was tried to a jury, resulting in a verdict for the plaintiff; subsequently, the defendant moved for a new trial or for judgment notwithstanding tho verdict; the court granted the motion for judgment notwithstanding the verdict. Plaintiff appeals.
Plaintiff alleges that the defendant is a foreign corporation engaged in mining coal in Adams county, North Dakota; that the plaintiff was employed by the defendant to work in its mine in this state, commencing in the month of October, 1919, and that the plaintiff continued in such employment until he was injured; that it was the duty of flic defendant to provide a reasonably safe place in which and suitable tools with which to work; that the plaintiff was employed to dig-coal and to assist the mule driver in hauling cars of coal from the coal mine and to assist in replacing derailed ears; it is further alleged that, the defendant failed to comply with the coal mine inspection laws of the state and with chapter 162, Session Laws of 1919, known as the Workmen’s Compensation Imw; that the place of work was unsafe', the tools and equipment inadequate and that the foreman of the mine was not licensed as required by the mining laws of this state; that, on or about the 20th of February, 1920, while engaged in the-performance of his duties, and while the plaintiff was engaged in replacing a derailed car, the plaintiff was injured, without fault of his own, because
The defendant answered, admitting the corporate character of the defendant. There is both a general and specific denial of all the material allegations of the complaint. The defendant alleges that, subsequent to the injury and on or about November 14, 1921, the plaintiff compromised and settled his claim with the defendant and received a sum of money in full satisfaction thereof. It is then alleged that the defendant complied with the terms of the compromise agreement and paid the plaintiff the sum of $315 pursuant thereto ; that the plaintiff accepted such payment and has at all times retained the same. It is further alleged that- the plaintiff, on November 14, 1921, for a valuable consideration, with full knowledge of the facts, entered into a stipulation to dismiss the action. The defendant attaches to his answer, as exhibits, copies of the compromise agreement and of the stipulation to dismiss.
The defendant makes three principal contentions: First, it relies on the compromise settlement set up in the answer; second, it contends that the plaintiff was an independent contractor and not a servant of the defendant; and third, that plaintiff was not injured in the course of the employment, that is to say, the defendant contends that the evidence conclusively shows that the plaintiff’s leg was not broken in the mine and while the plaintiff was in the employ of the defendant, but after such employment ceased and at his brother’s home. We shall discuss these propositions in the order presented.
The trial court, according to the memorandum decision, ordered a judgment notwithstanding the verdict on the sole ground that the compromise settlement was conclusive and binding upon the plaintiff. The evidence shows that the plaintiff took steps to rescind the settlement promptly after it was made, and, if he had the right to rescind, it seems not to be questioned that he rescinded promptly and properly tendered a return of the consideration received.
The facts are substantially as follows: Tbe plaintiff testifies that he was employed in the mine operated by tbe defendant in Adams
The plaintiff’s testimony, very briefly summarized, tends to show that ho was severely injured in the mine and, of course, he claims that there his leg was broken. He states he never used the leg thereafter; the plaintiff, upon the oral argument, contends, and his contention on this point has some support in the expert testimony of medical witnesses, that the tubercular condition found by Dr. Murdy of Aberdeen might have resulted from the injury received in the mine. Dr. Murdy testifies that 90 per cent of people have tubercular germs in their systems, though fortunately, in many cases, inactive; that an injury may, under certain extraordinary circumstances, render such germs active. One of the expert witnesses for the plaintiff gave it as his opinion, from an examination of an-X-ray photograph, that there was no tuberculosis in the bone at the time the photograph was taken, namely, on the 30th
Special interrogatories were submitted to the jury. The first interrogatory was as follows: “Was the. plaintiff’s right leg broken and crushed on or about February 20, 1920, as alleged in the complaint? .V. Crushed.” Then followed an interrogatory as to whether the leg ■was broken at the home of plaintiff’s brother on April 29, 1920, which -was answered “No.” The third interrogatory was as follows: “Was the femur of the right leg of the plaintiff, Lilly, diseased with tubercular germs on April 30, 1920, when the bone was examined by Dr. "Murely and Dr. hfurdoff at St. Luke’s Hospital at Aberdeen, South Dakota?” A. “Yes.” Interrogatory No. 4: “Was the tubercular condition of the femur of the right leg of plaintiff one of the causes resulting in the amputation of the right leg of the plaintiff on April 30, 1920?” A. “Yes.” Other questions were submitted, one as to whether the plaintiff was induced through fraud, undue influence,, or misrepresentation, to enter into the compromise agreement. Exhibits 9, 11, and 12, which the jury answered in the affirmative. To another question as to whether, on November 14, 1920, the plaintiff was so intoxicated “that he did not know and understand the business lie then transacted,” the jury answered “No.”
The question with reference to the compromise settlement was thoroughly considered by the trial court. Briefly stated, the. facts are as follows: The defendant came to Haynes with one Sneoklqth, who transported him in his car; he there fell in with two strangers who proceeded to refresh him with something from a bottle, which the plaintiff says was intoxicating; he thereafter saw one Bigham who was connected with a bank at Haynes. lie likewise was hospitable and entertained plaintiff with liquid refreshments. Bigham had some conversation with plaintiff with reference to his case which was then pending. As a result of the discussion, the plaintiff signed a settlement or release, dated November 14, 1921. This he acknowledged before a notary public (Bigham) and in it he avers that for a consideration of $200, receipt of which is acknowledged, and for the further consideration of $175, to be paid to a hospital, the plaintiff has released in full his claim against the defendant. On the same day, the plaintiff signed a stipulation dismissing his action against the defendant. Plaintiff
It is next contended that tlic- plaintiff was an independent contractor. AVith this contention wo cannot agree. The general rule we believe is correctly stated by the supreme court of Minnesota in. State ex rel. Virginia & R. L. Co. v. District Ct. 128 Minn. 43, 150 N. W. 212, 7 N. C. C. A. 1076, as follows: . . one person is not liable for injuries caused by the negligence of another, unless such person possessed the power to control the acts of the other in respect to the transaction out of which the injury arose, and that the test for determining whether one person is an employee of another, within the rule making the employer responsible for tbe negligence of his employee, is whether the alleged employer possessed such power of control.” AVe think it clear from the record that the defendant had the right to discharge the plaintiff at any time; that if the plaintiff was mining coal in- a manner to cause waste and loss to the defendant, the defendant had the undoubted right to discharge him; there was a pit boss and a mine superintendent who apparently bad some duties of supervision and inspection in the mine. We are satisfied that there, is evidence in the record from which the jury could properly find that the defendant had control over the plaintiff within the rule stated, and, therefore, found correctly that the plaintiff was an employee of the defendant-. A contrary rule would probably leave the vast majority of the coal miners
It is next contended by the defendant that the plaintiff was not injured in the course of the employment and that there was no- negligence shown on the part of the defendant. This court held, in the case of Fahler v. Minot, 49 N. D. 960, 194 N. W. 695, that an employer who has not complied with the Workmen's Compensation Law, as was the fact here, is liable to an injured employee within the act,, where the damages were suffered by reason of injuries sustained in the course of the employment and regardless of questions of fault. The only question, therefore, under this branch of the case, is whether the Injuries were received within the course of the employment.
What was the proximate cause of the injury which necessitated the amputation of the log? If the injury to the leg, which was received in the mine and in the course, of the employment, quickened into activity dormant or inactive tuberculosis germs, and if, as a result of the ravages of that disease thus brought on, it became necessary to amputate the leg, the injury is not the consequence of a subjective or idiopathic' condition, but the accident in the mine accelerated or aggravated a preexisting disease so as to result in a compensable injury within the letter and the spirit of the Workmen's Compensation Act. George L. Eastman Co. v. Industrial Acci. Commission, 186 Cal. 587, 200 Pac. 20. See also Puritan Bed Spring Co. v. Wolf, 68 Ind. App. 330, 120 N. E. 417.
The evidence is conflicting and very unsatisfactory. There is much testimony that supports respondent’s contention that the leg was not broken in the mine, but was broken at the home of the plaintiff’s brother several miles distant. The evidence, however, does show beyond dispute some injury to the plaintiff’s leg while in the mine and while actually engaged in the performance of his work as a miner. The, jury found that it was “crushed” there. AYe are not prepared to say as a matter of law that, there is not sufficient evidence from which the jury could find that the plaintiff was injured in the mine and that such injuries wore the proximate cause of the amputation of plaintiff’s leg, whether the leg was broken there or only crushed, as expressly found by the jury. In view of the disposition we are making of this lawsuit,
The case seems to have been tried on the theory that the leg was broken in the mine the latter part of February, 1920, and not at timbóme of the plaintiff’s brother on the 29th of April following. As has been pointed out, the evidence on this point is hopelessly conflicting and in some respects the testimony of the plaintiff himself and his witness is contradictory. This evidently was the view of the jury because they evaded the question as to whether the leg was broken in the mine by answering that it had been crushed. Yet, it is undisputed that the log was in fact broken someiuhere. The testimony of the physicians with respect to the probability of tuberculosis of the bone resulting from the injuries sustained in the mine even if the bone was not broken at that time is far from satisfactory. Dr. Murdy, the physician who amputated the log, testifies that there are inactive tuberculosis germs in 90 per cent, of individuals and that “under certain extraordinary circumstances” an injury or fracture may be a predisposing factor or may set those germs in motion. Some of the other experts who testified for the plaintiff testify that such an injury or fracture, with lowered vitality and consequently lowered resistance, may render active germs that will bring about pus and perhaps other pathological conditions. We do not believe that this aspect of the record was brought to the attention of the trial court upon the argument of the motion for judgment notwithstanding the verdict or for a new trial. Indeed, there is no reference made to this feature of the case in the memorandum opinion of the trial court. On the whole record, and particularly in view of the doubts entertained by the trial court as to the sufficiency of the evidence upon some aspects of this c'ase to sustain the verdict, we
The judgment of the trial court is reversed and a new trial ordered.