89 P. 731 | Mont. | 1907
delivered the opinion of the court.
This action was begun in the district court of Silver Bow county by the plaintiff, as administratrix of the estate of Samuel
The complaint alleges that on or about the first day of January, 1904, the defendants, well knowing, or having reason to believe, that said Samuel Olsen and many other men were working on the six hundred foot level of the Pennsylvania mine, in Silver Bow county, negligently and in intentional disregard of the lives and safety of said Olsen and others working with him, intentionally lowered a certain box or quantity of dynamite and powder, with burning fuse attached thereto, down to, at, and near the said Olsen, and purposely exploded the same, and thereby killed the said Olsen. It is further alleged “that defendants should not only be made to pay the plaintiff, as administratrix, compensatory damages, but should also be made to pay damages by way of punishment for their premeditated disregard of human safety and to deter others from similar acts.” Compensatory damages in the sum of $60,000, and punitive damages in the further sum of $50,000, are demanded.
The defendants filed separate answers; each defendant denying that he did, or caused to be done, any of the acts complained of. At the close of plaintiff’s case, the trial court sustained a motion for a nonsuit as to all of the defendants, except the Montana Ore Purchasing Company, and overruled a similar motion on the part of that defendant. A general verdict against the Montana Ore Purchasing Company in the sum of $25,000 was rendered by the jury, and judgment was entered thereon by the court. From this judgment and an order denying it a new trial, the defendant Montana Ore Purchasing Company has appealed to this court.
It is contended by the appellant that this is an action wherein the plaintiff counts upon the primary negligence of the Montana Ore Purchasing Company itself, and that therefore the doctrine of respondeat superior cannot be invoked by her, in.
It appears from the testimony that for some time prior to the year 1904 certain rival mining companies in Silver Bow county, to-wit, the Butte and Boston Consolidated Mining Company on the one side, and the Montana Ore Purchasing Company on the other, were engaged in litigation in the federal courts of Montana, such litigation involving, among other things, the question of the course and extent of the veins and the underground workings of the Michael Devitt quartz lode mining claim; that on October 14, 1903, on motion of the Butte and Boston Consolidated Mining Company, the United States court made an order appointing certain persons to inspect, examine and survey the underground workings of the Rarus, Johnstown, Pennsylvania and Michael Devitt lode claims. The object of the litigation was to ascertain the ownership of certain mineral-bearing veins under the surface of the Michael Devitt claim. For the purposes of this case it may be said that the Montana Ore Purchasing Company and its associates were in possession of the Rarus claim, and the Pennsylvania claim was in the possession of the Butte and Boston Company. The object of the inspection was to ascertain if any ores had been extracted from the ground in dispute by the Montana Ore Purchasing Company and its associates, through the workings and openings on the Rarus claim, and to find out if the injunctions of the federal court had been
On the twenty-eighth day of December, 1903, the Pennsylvania miners broke through from the “legal raise” into the workings above, and thereupon further work on the raise was interfered with by rocks and timbers being thrown down from the Rarus workings above and the blasting of powder in those workings. On January 1, 1904, the deceased, Olsen, was working on the air-tight door, and was killed by an explosion that occurred somewhere in the raise. He had no powder, and did no blasting himself.
The testimony on the part of the plaintiff tends to establish the following facts, viz.: The defendant F. Augustus Heinze was the president of the Montana Ore Purchasing Company. He knew nothing about the death of 01sen, and, neither as president nor as an individual, did he have anything to do with'lowering any powder or dynamite into the mine, and gave no instructions or directions with reference to exploding the same.
'One James Cassady, who worked in the Rarus mine, and received his pay at the Montana Ore Purchasing Company's office, was engaged in watching behind a door and instructed not to allow anyone to go through unless they were employed by the company. He quit on December 24, 1903, because the blasting
At the time of the visit of the United States court inspectors, it was found that mining operations were being prosecuted from the eight hundred foot level of the Rarus under Michael Devitt ground, such operations being carried on from the Rarus shaft, and ore to the value of about $500,000 had already beén taken out. This ore was hoisted through the Rarus shaft and sent to the defendant’s smelter, and other reduction works designated by defendant. One of the inspectors complained to Thomas Knight, the foreman of the Rarus, that the men making the raise from the six hundred foot level of the Pennsylvania were being interfered with, and Knight promised that it should not occur again.
The foreman of the Pennsylvania mine testified that for a year prior to January 1, 1904, the men in the Rarus had offered resistance to the working of the Pennsylvania mine, by blasting powder, blowing compressed air and smoke into the Pennsylvania, and building “smudges,” produced by burning old rag’s, rubber, overalls, and other materials easily picked up around a mine, so as to produce suffocating smoke that would drive those in the draft of the smoke away from the vicinity. After Olsen’s death, it was found that the air-tight door was lying on the Pennsylvania side and was off its hinges. The workmen in the Pennsylvania mine had theretofore forced water through into the Rarus workings and interfered with the working of
The witness Winchell testified that every possible effort that could be made had been made to prevent inspection—efforts by legal processes, efforts by armed men, efforts by the construction of bulkheads and doors, the explosion of powder, the rolling of rocks and other material upon the inspectors who tried to gain access. Every effort that could possibly be made to prevent this inspection had been made, according to the testimony of Mr. Winchell. The floor in the workings above the “legal raise” had been planked over, and at one place there was a loose plank which had evidently been recently removed, and on lifting it up one could see into the opening just above the top of the ‘[legal raise.” This opening was partially filled with “gob” and hay. Knight’s attention was called to this condition, with the request that the Pennsylvania miners who were working in the “legal raise” be not again interfered with, and he promised that there should be no more interference. There was no interference with the United States court inspectors by blasting, but they were
A witness, Bonnell, testified for the plaintiff that at one time, from two to seven days prior to the death of Olsen, he, being at that time in the employ of the owners of the Pennsylvania, was up in the “legal raise” above the drift where Olsen was killed, and heard a man whom he believed to be Nick Treloar, the foreman of the Rarus mine, ask some one above the “legal raise” if the men below were bothering them. Bonnell testified: “He came in there, and he wanted to know if the men below were bothering them any above; that is, the parties where he was— that was supposed to be in the Rarus workings of the Michael Devitt. They said, ‘No,’ that they were keeping them down by burning this,—I don’t know what it was. They had been burning all kinds of stuff up there to keep us men out of the Rarus, keep us from working. There were two parties there. The foreman of the Rarus mine said: ‘If you cannot keep them down by burning it, blast. ’ We found some white fuse there. There was no white fuse used in the Pennsylvania, or, at least if there was, I never saw any. I had seen similar fuse to that found in the Rarus workings, used by the Montana Ore Purchasing Company. This fuse that we found there had been used—burned. There had been fire connected with it, and it had been burned. It had the appearance of fuse that had been recently used, but it would be hard to tell how many hours before we found it, but I would say a very few days before—within a day or so, I think. At the time Treloar spoke, he was twenty or thirty feet away from me. I could not positively swear it was Treloar’s voice, but I feel satisfied in my own mind that it was his voice. ’ ’
It will be noted that there is in this evidence an entire absence of substantive testimony as to how and why the explosion took place. The record may be searched in vain for proof of the identity of the person or persons who did the act. Even though we assume that Olsen was killed by means of blasting powder that came down through the so-called “legal raise,” still we are left to conjecture as to the circumstances attendant upon the oe
The respondent contends that the evidence shows that the defendant company and its officers were engaged in a general plan or conspiracy to prevent, by any means and at all hazards, a discovery of the fact that they were extracting ore from the disputed ground, and that they killed Olsen in furtherance of their plans. There is no testimony that would warrant a court in arriving at such a conclusion. It is true that the Rarus people had endeavored to prevent the completion of the “legal raise,” by burning rubbish and forcing smoke into the Pennsylvania workings; but there is no proof that they resorted to personal violence or criminal acts in so doing. Indeed, the Pennsylvania miners had broken through the top of the “legal raise” and into the extension of the eight hundred foot level of the Rarus, several days before Olsen was killed, and the United States inspectors had, a week prior to January 1st, discovered the fact that ore to a large amount had been taken from the Michael Devitt veins.
The infirmity in respondent’s position is that there is no testimony to show that the killing of Olsen was any part of the general or special plans of the defendant company in resisting the orders of the federal court or incident to the furtherance of such plans. There is no testimony that Olsen was killed by any servant of the Montana Ore Purchasing Company in prosecuting the work that was being done. He may have been killed by an accident, by gross and criminal carelessness on the part of some employee of the Montana Ore Purchasing Company. He may have been killed by a servant of the Montana Ore Purchasing Company in doing some act entirely without the scope of his employment, or by some stranger who got into these workings without
We give these examples simply to illustrate the inevitable conclusion that there is no evidence to show how Olsen met his death, and consequently there is nothing upon which a verdict and judgment can be predicated. Jurors are not allowed to return verdicts based upon suspicions, conjectures, or probabili ties, however strong and convincing they may be. There must be some substantive, concrete evidence to justify the judgment of a court. The legislature has provided for an appeal to this court from all final judgments, so that, in cases like this, a calm, dispassionate, and unbiased review of the testimony may be had, to the end that, in seeking to compensate one person, no injustice may be done to others. In the death of Olsen, his widow and orphan undoubtedly suffered a great loss, and it is most unfortunate that no legal evidence has thus far been found to fix responsibility for it; but the administration of the law must be uniform in its application, and no exceptions may be permitted because the men charged with its enforcement are actuated by the usual human emotions. While we find no evidence in the record that the jury acted through passion or prejudice, we do feel that they were carried away by their sympathies, and were moved somewhat, perhaps, by the feeling that compensation should be made to the plaintiff in any event.
As the case must be remanded for a new trial, there are two other questions to be disposed of. The first is: Can damages by way of punishment be assessed in an action of this nature?
Section 579 of the Code of Civil Procedure reads as follows: “When the death of one person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal
We see, in principle, and have been able to find in the books, • no reason why this general statute (section 4290) should not apply to actions begun by virtue of the legislative permission granted by section 579, when the defendant is charged primarily as the wrongdoer. Indeed, the legislature in framing these sections of the Codes seems to have acted advisedly upon the question we are discussing, as sections 981 and 982 of the Fifth Division, Compiled Statutes of 1887, expressly limited the damages to be recovered to such as the jury should “deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person,” and this limitation is not found in the Codes. Let it be borne in mind that the complaint is that the appellant was directly responsible for the death of Olsen. We do not decide what the rule may be in reference to awarding punitive damages for an injury caused by the oppression, fraud, or malice of a servant for whose conduct the principal is responsible.
The second question arises upon the instructions of the court with reference to estimating the pecuniary loss sustained through the death of Olsen, and-the appellant also contends that the verdict is excessive. In this connection we only deem it necessary to call attention to the language of this court in Bourke v. Butte El. & Power Co., 33 Mont. 267-289, 83 Pac. 470, and recommended that in all such cases the jury be given some definite
The judgment and order of the court below are reversed, and the cause remanded for a new trial.
Reversed and remanded.
