225 P. 391 | Mont. | 1924
delivered the opinion of the court.
The plaintiff sued the defendant for damages resulting from a gunshot wound received by him on April 21, 1920. He charged that on that day and for a long time prior thereto the defendant, in connection with its mining operations in Silver Bow county, and for other purposes unknown to him, employed a large number of armed men whom it supplied with firearms “to be used by said employees in the course of their employment by discharging them upon and into human beings”; that on that day and while the plaintiff was upon a public road the “said armed employees of the defendant, acting within the scope of their employment, and without cause or provocation or any excuse therefor, did willfully, wickedly, maliciously and oppressively shoot plaintiff in the back,” to his damage, etc. Issue was joined by answer June 2, 1922. After the answer was filed the plaintiff moved for a change of venue which was denied.
1. On February 3, 1923, counsel for plaintiff announced that he desired the cause set for trial during the jury term then being held. He asked that it be set three weeks in advance in order that he might secure testimony from witnesses outside the state. On the 10th of February and again on, the 17th of February he renewed his application to have the case set. Upon the latter date the case was assigned for trial on the twelfth day of March, 1923. On March 5 counsel for plaintiff upon his own affidavit moved for a continuance on account of the absence of witnesses. This was-opposed by the affidavits of two of defendant’s counsel. The court overruled the motion. This action is assigned as error.
2. On April 21, 1920, a strike directed against the defendant 1 by the Industrial Workers of the World was in progress. Several hundred men, including the plaintiff, were congregated on Anaconda road, adjacent to the property of the defendant, for the purpose of making a demonstration in order to influence those who then were working for the defendant to give up the work. The record is somewhat meager as to the character of the demonstration. The witnesses refer to the strikers as “a crowd,” “a mob.” It is conceded that “there was a
The demonstration was of such a character as to cause the sheriff to assemble a force of men there to preserve the peace. He was present in person with a number of deputies and policemen. He also summoned to his aid certain employees of the defendant, whom we shall refer to as the “mine guards.” The record discloses that for some time, probably some years, before this occurrence the defendant had maintained a force of men to protect its properties. On the day in question these men were armed with a weapon known as a trench or riot gun. This is a short-barreled repeating shotgun. The shells used carried buckshot. Guns and ammunition were furnished to the mine guards by the defendant. During the demonstration above referred to shots were fired against the strikers, and plaintiff received a bullet, a buckshot, he contends, fired from a gun in the hands of a mine guard.
Whether it was necessary for the sheriff to assemble his deputies, the policemen, and the employees of the defendant as a posse comitatus we need not inquire. Presumably the sheriff was acting within his authority; and he was the one to judge whether he needed help to preserve the peace. It was his duty to prevent and suppress breaches of the peace, riots and insurrections, and to command the aid of as many male inhabitants of his county as he thought necessary to execute that duty. (Sec. 4774, Eev. Codes 1921.) Upon such an occasion the sheriff is the commander of all he summons to his aid and all under his command are in duty bound to obey his lawful orders.
At the trial Daniel G. Stivers, a witness for the plaintiff, on direct examination testified that on the day in question the mine guards of the defendant were under his supervision “until they went down on Anaconda road under orders of the sheriff.” There were other persons under Stivers who had supervision over the mine guards — W. J. McClain and J. A.
The assignments of error upon which plaintiff mainly relies for a reversal are based upon the court’s rulings during the cross-examination of plaintiff’s witnesses, and to these we now address our attention. Stivers was asked by counsel for defendant: “Q. Did you, or- anyone under your jurisdiction, order or authorize these men, as employees of the Anaconda Company, to go to Anaconda road or about the place where this shooting occurred? Mr. Nolan: To which we object. Calling for a conclusion of the witness. The Court: The objection is overruled. A. I did not.” The question was objectionable in so far as it called upon the witness to testify as to whether anyone under his jurisdiction ordered or authorized the men, as employees of the Anaconda Company, to go to Anaconda road, etc., without first showing that the witness had personal knowledge of the very matter. The use of the word “jurisdiction” was not happy but we cannot see that it had any tendency to
The court’s rulings were correct. Plaintiff’s contention that these questions called for the conclusions of the witness is not tenable. In answering them the witness testified to facts within his own knowledge. He did not testify from his opin-
Tbe same may be said to a considerable extent respecting questions asked tbe witness McClain, to which similar objections were interposed. For instance, after McClain bad stated be turned tbe men over to tbe sheriff’s orders, be was asked, “Were you or any of your men there on that day as employees of tbe Anaconda Company?” Tbe objection was made that tbe question “plainly called for an opinion.” The question was too broad, but the witness answered it, “I was not personally, I know that.” Then be was asked, “Did you direct anybody else to go there as an employee of the Anaconda Company?” to which tbe same objection was made, followed by tbe same ruling, and be answered, “I certainly did not.” Here be stated a fact within his own knowledge. Again, “Did you have charge of any men there on that day as representing tbe Anaconda Company that day?” This was objected to as
We shall not attempt to discuss the fallacies so common respecting opinion evidence. Those of an inquiring turn of mind will find the subject exhaustively treated by Mr. Wigmore in his work on Evidence (2d ed.), sections 1917-1929, inclusive. But this ease is an illustration of the learned author’s assertion that a mere catchword — “opinion” (and so its fellow “conclusion”) — has caused much of error and vice of policy. (Sec. 1919.) The matter directly at hand may be made clear by several homely illustrations:
I, a farmer, loan my hired man to my neighbor to help in threshing. While he is still my hired man, he is subject to my neighbor’s orders while doing that threshing and I am not
The keeper of a garage may loan one of his employees to me for a week in order that I may take a trip to Glacier National Park with my family. He still continues as an employee of the garage-keeper but while on the trip to the Park is subject to my orders and I am responsible for what he does in that service. He may tell under whose orders he was during that time and what his duties were.
I, the commander of an armed force, may be called upon by the sheriff to help pi*esex*ve the peace. I obey orders with my company and turn them over to the sheriff. After they are tuxmed over to the sheriff they are subject to his orders, he being my superior officer as .well as theirs. (Sec. 11663, Rev. Codes 1921.) Each member of the company may testify as te what his duties were while aetixxg under the orders of the sheriff as well as what he did while in that service.
With respect to opinion evidence the rule is that a witness may testify directly to a composite fact though in a sense his testimony may be the result of his conclusion from other facts. (10 Cal. Jur. 955.) “The objection that proposed testimony states a conclusion' only has sometimes obtained to a captious extreme, and the courts have often been obliged to distinguish betweexi statements which are real conclusions and those which state facts of a composite nature.” (11 R. C. L. 571.) A witness may testify whether he had certain authority and was charged with certain duties in his employment. (11 R. C. L. 572, and cases cited.) In Western Stone Co. v. Muscial, 196 Ill. 382, 89 Am. St. Rep. 325, 63 N. E. 664, the court said: “We regard the ruling of the court in this x*espect proper*. The evidence objected to, which was introduced by plaintiff, related to the duties of the foreman. This was clearly competent, and was a material element in the case to establish the relations which existed between appellee and the foreman and to what extent the appellee was subject to the foreman’s orders.
An agent is a competent witness on the question of his authority. (Nyhart v. Pennington, 20 Mont. 158, 50 Pac. 413; Union Bank & Trust Co. v. Long Pole Lumber Co., supra; Mechem on Agency, 2d ed., sec. 291.)
"Where “the question involves a fact clearly within the knowledge of the witness, and not the expression of an opinion upon facts proven, such question is admissible.” (Olson v. O’Connor, 9 N. D. 504, 81 Am. St. Rep. 595, 84 N. W. 359; Sweet v. Tuttle, 14 N. Y. 465; Knapp v. Smith, 27 N. Y. 277.)
Mr. Jones observes: “Very often it is difficult to distinguish where fact ends and conclusion begins, and each case calls for the watchfulness of the presiding judge.” (Commentaries on Evidence, sec. 376.)
“The true solution,” says Ruling Case Law, “seems to be that it is a matter for the practical discretion of the trial court.” (11 R. C. L. 571.) Certain it is that reversal will not be constrained, unless there is a clear showing of an abuse of judicial discretion. (See 10 Cal. Jur. 956.)
The witness Stivers, having testified that the mine guards were employed to protect the property of the company, was recalled for examination and asked to tell the nature of the property the men were employed to protect. Over the objection that the question was improper cross-examination and also called for the opinion of the witness, he testified the fences inclosed extensive mining properties, power plants and compressor plants from which compressed air is distributed to the several mines and pumping stations and hoists, and all kinds of mining equipment. The fences were ten or twelve feet high at least. He was then asked whether the men under
Stivers, being the person in control of the mine guards, and from whom they took their orders, was qualified to say what the nature of their duties was.
Similar questions were met with similar objections and similar rulings, in which we find no error.
Plaintiff’s counsel propounded this question to one of his witnesses: “Did you see him,” referring to plaintiff, “there that day or anybody with him, or in that crowd, giving any provocation to anybody who was armed with shotguns?” This was objected to as calling for the conclusion of the witness, and the objection sustained. Here was a clear instance of a question calling for a conclusion of the witness. The court ruled correctly.
3. Appellant alleges error to his prejudice for the reason that the court refused to allow in evidence Exhibit 3, a leaden bullet. This, plaintiff testified, a surgeon at the Mayo hospital gave him following an operation. The surgeon said it came from plaintiff’s body. This was hearsay; the bullet
4. However, let it be assumed that this bullet was fired from a shotgun in the hands of a mine guard. Still the plaintiff is no better off. This case might be summed up by saying that the plaintiff undertook to prove the allegations of his complaint that the armed employees of the defendant, acting within the scope of their employment and without cause or provocation of any excuse therefor, did willfully, wickedly, maliciously and oppressively shoot the plaintiff, and he signally failed to prove any of them. There was no testimony tending to prove that the mine guards at the time of the shooting were acting for the defendant or within the scope of their employment by the defendant. All the testimony indicates that the shooting was done by members of the sheriff’s posse. The mine guards who were called to testify said they fired at the direction of Deputy Sheriff Wheeler, and by his direction they shot in the air. One of the witnesses for the plaintiff testified that Roy Alley, who was present on the occasion, gave the order to fire. In their brief counsel for plaintiff admit that the evidence does not connect Alley either with the defendant or with the sheriff.
5. There was a total failure of proof. The court did not err to plaintiff’s prejudice in any of its rulings on the admission or rejection of evidence. The defendant did not offer any evidence but, submitting the case on the evidence introduced by plaintiff, moved for a directed verdict. The court sustained the motion. Thereafter the plaintiff’s motion for a new trial was denied, and plaintiff appealed from the judgment. The court did not err in sustaining defendant’s motion for a directed verdict nor in denying plaintiff’s motion for a new trial.
6. The question as to whether the court erred in denying the motion for a change of venue because of the prejudice of the jurors of Silver Bow county need not be considered; the
Tbe judgment is affirmed.
Affirmed.